Pleading the Sixth: In September 2013, the Montana Office of the State Public Defender filed a motion seeking to decline new cases in two courts of limited jurisdiction. A hearing date set for early October was postponed when a city and a county prosecutor filed briefs challenging the motion. As advocates await a new court date, the 6AC reviews the Montana Public Defender Commission’s legislative authority to set manageable workload protocols and efforts to date to secure appropriate funding through the prism of the American Bar Association’s Eight Guidelines of Public Defense Related to Excessive Caseloads.
“Due to excessive caseloads,” certain attorneys in Montana “must prioritize some cases over others” and are “unable to meet with clients in a timely and sufficient manner, conduct legal research, adequately investigate, conduct an adequate motions practice, engage in adequate plea negotiations, prepare for trial and/or sentencing, or perform a host of other responsibilities on behalf of their clients.” So states a motion filed on September 5, 2013 in the Helena Municipal Court by the state’s Chief Public Defender, William Hooks, asking the court to rescind an order appointing a case to the local public defender office and to halt all future appointments until such time as the office can once again operate under appropriate workloads. (A similar motion was filed in another of the eight courts of limited jurisdiction served by the same public defender office.)
An accompanying brief detailing the authority of the court to grant prospective relief states that the staff attorneys in question “simply have too many cases.” As noted in the original motion, the office in question is authorized to operate with a supervisor, ten attorneys and one investigator. So far this calendar year, the office has been appointed to more than 2,900 cases while starting the year with a backlog of 1,900 cases, leading each attorney to handle in excess of 400 cases (these are mixed caseloads including felony, misdemeanor, delinquency, dependency, and mental commitments). Exacerbating the situation, the motion states that since “May 2012, the previous regional deputy, six staff attorneys, three office managers, a receptionist, and one previous investigator left the [office] for new positions outside the public defender system.” This means that the majority of the attorneys in the office are recent hires.
As one of the attorneys who previously worked for the Massachusetts Committee for Public Counsel Services stated in his affidavit (included in the exhibits), “Only four months in, my active caseload has already reached 137 clients.” By contrast, his average open caseload in Massachusetts was 35. And, even though his caseload is not nearly as high as others in the office, he admits that he provides nowhere near the level of services that he did in Massachusetts. As opposed to his Massachusetts practice where he regularly conducted legal research whether or not he ended up submitting a motion on point, he states that because of his excessive caseload in Montana, “I simply don’t have time to do research. Consequently, I won’t file a pre-trial motion unless it requires little to no research.”
As Chief Public Defender Hooks noted in his June 13, 2013 letter to Attorney General Holder in support of a White House Commission on the Fair Administration of Justice for the Indigent Accused, “[t]he current system requires that we do too much with too little. We cannot effectively handle the ever-increasing caseloads without increasing the number of attorneys, investigators and staff.” For the current budget cycle, Mr. Hooks requested $6 million to hire an additional 77 public defenders statewide. The Governor knocked that down to $4 million for 37 new attorneys. Although the legislature, to their credit, increased funding for attorney compensation, they only funded eight of the requested new attorney positions.
The Montana Public Defender Commission & the ABA Eight Guidelines
The Montana Public Defender Commission (MPDC) is an independent commission authorized to promulgate standards that are consistent with the American Bar Association’s Ten Principles of a Public Defense Delivery System. MPDC oversees the Office of the State Public Defender (OSPD) that manages a public defense system in which a combination of staff public defenders and contract attorneys provide services in 11 distinct regions. (Click here for a fuller description of the current structure of indigent defense in Montana, including background information on the ACLU lawsuit that led to the Montana Public Defender Act of 2005 creating today’s statewide system.)
In many ways, this current caseload confrontation was projected back when the MPDC was first created in 2005. Anytime that a jurisdiction goes from a county-based “non-system” to a state-administered, coordinated system there will come a time when the system will be challenged to do something about excessive caseloads. Because of this, advocates who worked on that 2005 reform (including the author of this post) made sure that the system would have the independence to deal with excessive caseloads whenever that time came.
It is informative to review all of the steps that MPDC has taken to date in its caseload struggle to help other jurisdictions in similar circumstances. And, since many of MPDC’s actions mirror the guidelines set out in the ABA’s Eight Guidelines of Public Defense Related to Excessive Caseloads, the 6AC will use the ABA policy as a frame of reference. In the words of the ABA, the Eight Guidelines are “intended for the use of public defense programs and for lawyers who provide the representation, when they are confronted with too many persons to represent and are thus prevented from discharging their responsibilities under professional conduct rules.”
The first Guideline requires that the indigent defense system assess whether excessive caseloads are preventing lawyers from fulfilling their performance obligations (i.e., interviewing clients, conducting investigations, performing legal research, etc.). This Guideline assumes that an indigent defense system has the independence and authority to promulgate binding standards.
In Montana’s case, MPDC does have the independence and authority to do precisely that. MPDC is an 11-member commission appointed by diverse authorities such that no single branch of government can exert undue political influence (as required by the ABA Ten Principles). The MPDC’s appointing authorities are: the Supreme Court (2 appointees); the President of the State Bar (3); the President of the Senate (1); the Speaker of the House (1); and the Governor (4 appointments but they must be from organizations representing: (a) indigent persons, (b) Native American interests, (c) people with mental illness, and (d) people with addictions). No commission member may be a sitting judge, public defense provider, prosecutor, or law enforcement official. And, the MPDC began its work in 2005 by promulgating performance standards. These detail what attorneys are expected to do on the average case, by case type (criminal, juvenile delinquent, mental commitment, dependency, etc.), from initial appointment through trial, sentencing and direct appeal.
ABA Guidelines 2 & 3 then require that an indigent defense system “trains its lawyers in the professional and ethical responsibilities of representing clients” and to create a supervision structure that “continuously monitors the workloads of its lawyers to assure that all essential tasks on behalf of clients” are performed. Guideline 4 then requires the system to use these structures to determine when caseloads become excessive.
The Montana Public Defender Act specifically requires the OPD to have a statewide training program, and the trainers to use the MPDC performance standards as the baseline of adequate representation. Importantly, the 2005 Public Defender Act also requires the MPDC to set standards related to manageable caseloads and workloads, to establish protocols for dealing with excessive caseloads, and to collect, record and report caseload data to support strategic planning, including proper staffing levels.
Recognizing that every case is unique, and that regional differences can impact the amount of work needed on each case, the MPDC elected not to set hard, fast numeric caseload standards. Instead, MPDC devised a sophisticated case-weighting system that sets “average” times for various types of cases. For example, an “average” driving under the influence misdemeanor should take approximately seven hours, while a misdemeanor traffic case should only take about three hours. Similarly, a homicide case should take an attorney approximately 100 hours, while a property crime charged as a felony should take approximately 10 hours. Adjustments are then made to that weighted baseline if, for example, a case is in a different county from where the attorney practices (add five hours), or if there is a jury trial (add five hours on to the average misdemeanor case or seven hours to the average felony case).
Critically, all attorneys providing indigent defense services in Montana are required to keep daily time records. Without such records, the level of sophistication inherent in Montana’s workload mechanisms would be impossible to execute. The regional directors monitor time by case-weights daily to determine if an individual attorney or office is nearing an excessive workload. MPDC standards require regional chiefs to meet with attorneys whenever an individual lawyer’s case-related time reaches 125 hours in a given month. The attorneys in the Helena office were averaging double the amount of case-hours per month allowable under MPDC standards before caseload relief was sought.
Once it has been determined that caseloads are excessive, ABA Guideline 5 details prompt actions a public defense system should take to alleviate the existing case overload. These include, but are not limited to: “arranging for some cases to be assigned to private lawyers;” and, “notifying courts” and other authorities of the excessive caseload situation.
Importantly, contract attorneys can and do help alleviate the stress from excessive caseloads of the primary public defender system in most regions. But State Public Defender Hooks noted in an interview with 6AC that, “in other regions, such as Region 4, in which we filed our motions, we do not have a sufficient pool of private attorneys.” Therefore, armed with ample data of a caseload crisis, the MPDC passed a resolution authorizing the State Chief Defender to take “all necessary and appropriate actions, in conjunction with judges and prosecutors, to limit acceptance of new case assignments,” until caseloads become reasonable. Most importantly, the MPDC notified the Governor, Legislature (which was then in session) and State Supreme Court of their resolution in a letter dated February 15, 2013. It was only after this fair warning that MPDC acted upon Guideline 6 and took the next step of filing a motion to decline new cases.
What all of this demonstrates is that a public defense provider cannot possibly follow the Eight Guidelines if the system does not already meet the ABA Ten Principles. To challenge excessive caseloads in any meaningful sense first requires that the system is independent enough to set and implement standards (Principle 1), has private bar involvement to handle the excess cases the primary system cannot keep (Principle 2), gives attorneys the mechanism to measure whether they have sufficient time (Principle 4) and reasonable caseloads (Principle 5), provides training against performance standards (Principles 6 & 9), and has a supervisory structure that actually measures caseloads and performance, and acts to do something about it when limits are breached (Principle 10). Montana’s public defense system has done everything by the book. It is only because it also meets the ABA Ten Principles that it able to continue the struggle to relieve the excess workload in the face of political opposition.
Prosecutors’ Position: “There is No Emergency”
The final two Guidelines detail what an indigent defense organization should do after such motions are filed. If the court tries to insert itself into the operations of the public defense system, such undue judicial interference should be resisted (Guideline 7). If the court does not allow for the system to decline new cases, the decision should be immediately appealed (Guideline 8).
For Montana, the potential for judicial interference, or for a decision that does not grant caseload relief, became more realistic on October 1, 2013, when the Helena City Prosecutor and the Lewis & Clark County prosecutor filed separate briefs rebutting the public defender’s motion. The two prosecutors take the position that the court is not authorized to deal with prospective ineffective assistance of counsel (IAC) claims; only actual claims of deficient performance. That is, the prosecutors assert that a court may not address a systemic denial of effective assistance of counsel in any way, but can only proceed on a case-by-case basis after conviction, under Strickland v. Washington’s two-prong requirement of showing attorney error and then proving that the attorney’s error had an impact on the outcome of the case.
But Strickland is the wrong remedial standard for systemic deficiencies in the delivery of right to counsel services. Our system of justice requires effective representation and not “ineffective but non-outcome determinative representation,” as noted in a Michigan Appellate Court decision allowing a class action lawsuit alleging systemic deficiencies in the delivery of right to counsel services in that state to proceed early this year.
Moreover, the reaction of the Florida Supreme Court to similar claims made by the State in a Miami-Dade County excessive caseload lawsuit should put this Strickland argument to rest. Any attempt to deal with the thousands of potential ineffective assistance of counsel claims resulting from excessive workload on a case-by-case basis, the Florida Supreme Court declared, is “tantamount to applying a band aid to an open head wound.” The Florida Court granted the 11th Circuit Public Defender (Miami-Dade County) the authority to refuse new case assignments when caseloads become unmanageable.
Importantly for Montana prosecutors who may wish to posit otherwise, the Florida Supreme Court rejected the position that one can never really know whether or not a particular deficiency is harmless until the case is disposed, noting that in “extreme circumstances where a problem is system-wide, the courts should not address the problem on a piecemeal case-by-case basis. This approach wastes judicial resources on redundant inquiries.”
Therefore in Montana, as anywhere, Strickland v. Washington is the wrong remedial standard for systemic deficiencies in the delivery of right to counsel services associated with excessive caseloads (or, for that matter, judicial interference, delayed entry of counsel, etc.). Rather, advocates and courts should turn to United States v. Cronic. The U.S. Supreme Court decided Cronic on the same day as Strickland, and determined that the right of the accused to have the aid of counsel for his defense – including the right to have sufficient time to advise with counsel and to prepare a defense – is one of the fundamental rights guaranteed by the due process clause of the Fourteenth Amendment.
Cronic details the systemic deficiencies that make the criminal justice system lose “its character as a confrontation between adversaries” thus rendering the system itself constitutionally inadequate, noting that there are some instances where systemic deficiencies are so great that effective representation is impossible, even if the defendant is given an attorney. The Cronic court gives us an example of such ineffective assistance in the story of the so-called “Scottsboro Boys” in Powell v. Alabama. Discussing the lack of time to prepare, the Powell court states: “during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.”
Therefore in Montana, as anywhere, if attorneys lack sufficient time to fulfill their duties as zealous advocates to the clients they have been appointed to represent, the entire outcome of the adversarial process is presumptively unreliable. The only remedy available to the court is to allow the appointed lawyers to withdraw from the excess cases.
The creation of the Montana Public Defender Commission is a direct result of a class action lawsuit filed by the American Civil Liberties Union in 2002 (White v. Martz). Scott Crichton, director of the Montana ACLU, noted in an interview with the 6AC that the ACLU is monitoring the excessive caseload of the public defenders and leaving options open as to what to do should the court deny the public defender motion to decline cases. “It is high time that everyone involved in indigent defense in Montana – including judges, prosecutors and those controlling the purse strings – acknowledge that the Sixth Amendment requirement for effective assistance of counsel also means manageable caseloads, sufficient investigative and support staff, and adequate funding in place and in practice,” said Crichton.
As the U.S. Supreme Court so famously stated, “The prompt disposition of criminal cases is to be commended and encouraged. But, in reaching that result, a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of the mob.” We agree.