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Fri., May 31, 2013, 11:23 a.m.

Idaho’s flawed public defender system could put state at risk for lawsuits

Idaho is at risk of lawsuits over its flawed public defender system, according to a 2010 report, but after several years of study, the state still hasn't agreed on how to fix the system, the AP reports. Now, an interim committee of lawmakers is being tasked with finding a solution. At the heart of the dispute is whether counties should be free to give public defender contracts to private attorneys, with standards, or whether counties should be required to hire a full-time public defender, a big and costly change for the state, but one that would address a fundamental difficulty in the system when lawyers juggle low-paid public defense contracts with other, higher-paying cases.

"Both of those proposals were brought up before the commission," said State Appellate Public Defender Sara Thomas, who is a commission member. "Ultimately the decision was made that they would go to the governor on equal footing, and now the interim committee will get a chance to review them." Click below for a full report from AP reporter Rebecca Boone.

Idaho's public defense system flawed
By REBECCA BOONE, Associated Press

BOISE, Idaho (AP) — Idaho's public defender system is flawed and lawmakers should be prepared for lawsuits if steps aren't taken to ensure all defendants get a chance at a fair trial, according to members of the Idaho Criminal Justice Commission.

But after years of study the commission doesn't entirely agree on how to fix it, and now an interim committee of lawmakers is being tasked with finding a solution. At the heart of the dispute is whether counties should be free to give public defender contracts to private attorneys — provided those lawyers have ample training and oversight — or whether counties should be required to hire a full-time public defender.

"Both of those proposals were brought up before the commission," said State Appellate Public Defender Sara Thomas, who is a commission member. "Ultimately the decision was made that they would go to the governor on equal footing, and now the interim committee will get a chance to review them."

It's an issue that Idaho's legal community has been thinking about for years: In 2010, a report from the National Legal Aid and Defender Association found that Idaho isn't adequately satisfying its Sixth Amendment obligations for defendants. That prompted the Idaho Criminal Justice Commission — a group appointed by Gov. C.L. "Butch" Otter — to create a subcommittee to study the matter, which they did for the next three years. In January, the subcommittee came up with several recommendations to improve parts of the system, and as a result lawmakers passed bills detailing when children should be appointed attorneys in custody cases, when juveniles should be given public defenders and clarifying when a poor defendant should be appointed an attorney on the county's dime.

The commission also developed a plan to improve the structure and organization of Idaho's public defense system, to come up with statewide standards and training requirements and to create an organization that would make sure public defenders lived up to the new standards and rules. But Twin Falls County Prosecutor Grant Loebs, who is also a commission member, didn't think those recommendations would be entirely effective. He came up with his own plan, backed by the Idaho Prosecuting Attorneys' Association.

"If you look at the recommendations that the subcommittee (of the commission) came up with, it's a very comprehensive thing, but without any teeth," said Loebs. "It gives the statewide commission the authority to mandate certain things, but it doesn't give anybody anywhere any responsibility for paying for anything. You need to eliminate these contracted public defenders."

Loebs' plan would require counties to make the public defender's office a full-time, salaried position instead of using private attorneys working under contracts. He says the contracts don't pay very well compared to private work, and so contracted public defenders will often supplement their income by taking on high-dollar private defense cases as well. That creates an incentive for the attorneys to spend less time on the public defender cases so they have more time for the better-paying private cases, Loebs said, and that can mean indigent defendants don't get adequate representation.

"If I say here's a contract to do a mountain of stuff for $50 an hour, and at the same time here's people knocking on your door who want to pay you $250 an hour, how are you going to spend your time?" Loebs said.

Both factions say lawmakers need to consider setting limits on the number of public defense cases one attorney can handle at a time, and require that defense attorneys get some minimum amount of continuing education on criminal defense law every year. Any changes to the current system could likely have an impact on state or county budgets, however, and the commission didn't study where the funding for changes would come from. That's something that the members of the interim legislative committee are better equipped to address, said Thomas.

"The state is going to have to examine funding for any system they put into place that would provide adequate oversight of a solution, whether it be a contract system similar to Oregon's, or a statewide system," said Monica Hopkins, executive director of the ACLU of Idaho, which has also been investigating the constitutionality of the public defense system in Idaho. "The commission has been studying this issue for over four years and while they are studying, real Idahoans are having their lives damaged by an unconstitutional system."


Copyright 2013 The Associated Press.




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Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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