Published: April 14, 2008 09:30 am      

Public defender services to be cut

Fate of local attorneys still unknown

State budget cuts will hit Madison County courtrooms hard beginning in July, and among those who will feel the effects most will be defendants who cannot afford to hire attorneys and those who represent them.

The Department of Public Advocacy announced this week that a $2.5 million reduction to its annual budget for the upcoming fiscal year will force them to lay off 54 employees and cut a variety of services.

While the full impact of those cuts still are unknown in Madison County, local office Director Scott West said funding to hire attorneys to help in cases with multiple co-defendants, called conflict cases, already is unavailable. One hundred and sixty-one conflict cases were conducted in Richmond during 2007, according to the DPA Annual Case Report.

“That is going to be an immediate thing felt at the Richmond office,” West said.

Some of the other services previously provided by the DPA that no longer will be funded across the state are status offender cases, cases in family court, probation revocation hearings and parole violation proceedings.

Neither counsel nor funding will be provided for involuntary commitment cases and certain misdemeanor cases, a DPA press release states.

The Richmond office employs 10 attorneys, who also serve Clark, Jackson and Rockcastle counties. The office also employs three support staff and one investigator, West said. The fate of those employees has not yet been established.

“I think what we can say is that it is unknown and that 54 positions are going to have to come from someplace,” said Dawn Jenkins, DPA public information officer. “We have 32 trial offices in the state. I think it’s going to affect the entire system. We only have 350 attorneys, 500 (employees) with staff. We’re talking -- yeah, it’s significant.”

In 2007, the average number of cases each attorney worked was 451.7, according to the report. The national standard for the number of cases an attorney should ethically be assigned to during a year is 310, the press release states.

“We might be on pace to increase that this year given the numbers that seem to be rising,” West said.

The fear is that with the current state funding plan and necessary cuts, attorneys’ caseloads would soar to more than 500 cases per year, the press release states.

“You can’t ask an attorney to handle more than 500 cases a year,” said Bob Ewald, chairman of the DPA Commission. “The American Bar Association says 310. We have always thought somewhere between 300 and 350 was appropriate. We certainly want to keep it below 400. If it gets above that, you have a problem.”

Roughly 74 percent of the defendants represented in Madison District Court in 2007 were represented by public defenders, the report states. Madison District Judge Brandy Oliver Brown said she anticipates that she and fellow District Judges Earl Ray Neal and Willam G. Clouse will have to discuss how they will contend with the cuts.

“The budget crisis across the state is hitting every corner of state government and this will be one among many issues that we will have to determine how to proceed in the face of the changes,” Brown said. “I acknowledge and regret that the Department of Public Advocacy feels forced to make these changes. Hopefully, it will be a temporary situation.”

In conflict cases, Brown said the judges and judicial staff will have to contact the local Bar Association and find private counsel who will be prepared to step in for defendants who cannot afford to pay them.

“The Madison and Clark County Bar Association as a rule tend to be very socially conscious and responsible professionals, so I feel certain that we will have a number of attorneys who will be willing to step up to the plate to assist,” Brown said.

While 161 Richmond conflict cases could seem like a relatively small number given the average number of cases the attorneys work per year, Ewald said it is important to note that across the state, 3,000 conflict cases were worked last year.

“That means in 3,000 cases, judges are going to have to find somebody else to represent these other defendants,” Ewald said. “That’s a lot. It is really going to be an interesting question. If judges can’t find an attorney to represent these people, they can’t let somebody sit in jail for an indefinite length of time. They will either have to find an attorney or release people from jail, whether they are guilty or not.”

While the release of defendants before adjudication is a worst-case scenario, Brown said it is true that if the commonwealth cannot provide an indigent defendant their constitutional right to an attorney, then the state cannot proceed with charges against that defendant.

“Unfortunately, I fear that it will put us in a position of having to be far more strict in our application of the statutory guidelines for who qualifies for state-appointed representation,” she said. “However, the legal community and the public should rest assured that under no circumstances will someone who needs and qualifies for the appointment of an attorney be forced to proceed without representation.”

Ewald said the DPA commission already has been having meetings to discuss how it is going to handle the cuts of staff and services, but many of those decisions will have to be made before the budget goes into effect July 1.

“Turning away cases is a serious step and, unfortunately an extreme measure, but it is necessary if we (the commission members) are to properly perform our statutory fiduciary duty,” Ewald said. “Moreover, under the prevailing circumstances, it is ethically required by the Rules of Professional Conduct to take these steps to protect the interests of our needy clients, as well as the integrity of the justice system. The commonwealth has a constitutional mandate to fund indigent defense at an adequate level; it has failed to do so in the past, and it has failed to do so in this budget -- such failures can no longer be countenanced or tolerated.”

West said until he is instructed differently, the Richmond office will continue to work for their clients as they always have.

“We will do the best we can within the confines of the directives given to us through the advocacy commission,” West said. “I expect that we will continue to do our jobs as best as possible.”

Kelly Foreman can be reached at kforeman@richmondregister.com or 624-6694.