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Cuts impact justice: Local court officials trying to fill the gaps in public defender office

Justice delayed is justice denied.

That prognostication has become both a cliché and a rallying call for legal reformers. But it's about to become a burden on indigent Minnesotans and cash-strapped counties.

On June 5 massive cuts were enacted to the state public defenders budget to address deficits and budget shortfalls. The equivalent of 72 of 441 positions was cut from public defenders' offices and appellate lawyers statewide, a 15 percent reduction in staff.

Minnesota public defenders, according to state compiled statistics, represent 85 percent of all persons charged with felonies and half of the persons accused of misdemeanors.

"I would think that we're higher up here in PD representation than those numbers simply because the metro areas have a larger pool of private attorneys from the criminal defense bar," said Kris Kolar, Chief Public Defender for the 9th Judicial District. She added that Hubbard County may be more economically distressed, so that would be a factor, too.

The State Board of Public Defense also voted to stop representing indigent parents in custody fights and in terminations of parental rights (TPR) cases. The former are typically referred to as CHIPS cases, for Children in Need of Help or Protection.

The Board said it faced a $3.8 million deficit after legislators cut $1.5 million from its budget this past session.

It means that overworked public defenders will shoulder even heavier caseloads, poor defendants will wait longer to go to trial and to appeal their cases, court administrators will wait longer to collect fines and fees and the judicial system will feel the strain.

"Every county will need to provide lawyers for parents in child protection cases," said State Public Defender John Stuart.

Kolar said statewide, there were 7,100 CHIPS cases handled by public defenders in 2007 in which attorneys represented parents or adults in child protection proceedings.

"The 87 counties will have to pick up 5,600 of those cases," she said.

And public defenders will no longer participate in specialty courts such as DUI courts, wellness courts and drug courts, which are scattered throughout the 17-county 9th District.

Priority cases, of incarcerated defendants, will be handled the most expeditiously due to jail overcrowding. But it is causing public defenders to question whether "justice for all" will soon mean "justice for all who have money."

"I'm concerned about it, yes," said Hubbard County Attorney Don Dearstyne, who used to be a public defender. "I'm concerned that it may take longer to get through the system."

Hubbard County's full-time public defender left almost two months ago and won't be replaced. Among the 19 vacancies statewide that won't be filled, this is one, said Jay Sommer, who heads up a two-county public defender office in Walker that includes Cass and Hubbard counties.

"We have a hiring freeze in place so yeah, we are feeling a bit of a pinch with that," Sommer said. "I had to assign one of my part-time attorneys in Hubbard to a full-time load."

Stuart said Minnesota public defenders already shoulder a caseload twice what the American Bar Association standards allow, assuming 800 cases annually, compared to ABA recommendations of 400. That concerns Stuart. The burnout factor could result in a high turnover rate.

"It has caused some delays because those attorneys (who assume additional cases) have to manage what they already have," Dearstyne said.

"We're in the process right now of coming up with a plan that would redistribute things to hopefully make things reasonably sane for everybody," Sommer said.

But the predictable issue of cost shifting is what blew up at Wednesday's county board meeting when Hubbard County Social Services Director Daryl Bessler broke the bad news - some private attorneys will have to step into the breach, funded by unbudgeted taxpayer dollars.

"What's the point of cutting public defenders" when other lawyers will have to be used, questioned commissioner Dick Devine.

"It's called shifting," responded county coordinator Jack Paul. "They're shoving more stuff on to us."

Dearstyne came to the board meeting to give commissioners a "heads up as to what our responsibility is and where the funds will come from."

Bessler beat him to the punch.

"It means somebody else is ultimately going to pick up the cost," Bessler told commissioners. His department is just beginning its budgeting process for 2009 and Bessler added, "I'm not anxious to have to pick up more costs."

The Minnesota Bar Association has worried publicly that private attorneys aren't trained to handle many of the types of cases public defenders take and might be tempted to quickly plea bargain cases just to get rid of them.

Dearstyne isn't so sure.

"I would hope not and I think (with respect to child custody cases) that we have some young, very competent attorneys in town," he said. "The child protection cases are similar to family law so if you get someone well-versed in family law, it's similar to some of the facts presented in a family custody fight."

But Dearstyne does worry about availability. "Locally we are stretched as far as the attorneys wanting to do that because the county pays at a base rate," he said. "It's considerably lower than what they're billing out hourly."

The child protection cases seem to be the thorniest for counties to assume because the cuts took them by surprise.

"Actually public defenders are not legally required to serve those parties," Sommer said. "It's been a handshake situation for a long time and now with 70-some layoffs coming right down the pike, the board thought it was time to focus on what we're legally obligated to do since the resources will be spread awfully thin.

"We're still representing the people we're obligated to represent - all crimes that carry the possibility of any jail time and so we're not looking at any county-based appointments for those people," Sommer said.

"We're going to have to monitor and prioritize cases now with preference being given to (incarcerated) people," Kolar said.

"We will continue to handle cases of people in jail, misdemeanor and assault cases but for some of the less serious property offenses, the $25 check at the local gas station, some of those cases might have to wait until they get a public defender."

The layoffs are effective the end of this month, so counties will begin feeling the pinch soon.

"I would guess the counties at the bare minimum will have to plan for some contingency funding for parents in CHIPS cases and termination of parental rights cases in the very immediate future," Sommer predicted.

He doubts the criminal justice system will grind to a halt, but it will slow down.

The Minnesota State Bar worries that the bigger effect will be in recruiting idealistic young attorneys to the system, because they become public defenders to help people, not to log billable hours.