The recent jury verdict of $3 million for an innocent man who was left in jail without help from his public defender is a damning indictment of the practice of fixed-fee contracts, which grew out of the state’s historic underpayment for the basic right to counsel established by the U.S. Supreme Court in 1963. That big-bucks award should serve notice to counties to end the practice, and it should remind state lawmakers that their work isn’t done in shoring up the state’s embarrassing national standing when it comes to financing the basics of the justice system.
It was back in 2004 that the state’s Board for Judicial Administration issued a scathing report, which kicked off the “Justice in Jeopardy” initiative. The report noted that the state was last in the nation in financing trials courts, indigent defense and prosecutions. The reason was that the state never altered the 19th century format of leaving the burden of funding to cities and counties. That worked when the state’s population was tiny and the system much less complicated, but we’re not in the Old West anymore.
Counties have been forced to find cheap ways to finance court systems. From that, the fixed-fee contracts were born, which rewarded attorneys for the quantity of their work, rather than the quality. Plus, since the attorneys already knew they’d collect, they had an incentive to spend less money on building defenses for their clients. The practice reached appalling extremes in Grant County, where caseloads reached ridiculously high levels.
Thomas J. Earl was the attorney in the case that resulted in the $3 million jury award. He has subsequently been disbarred for soliciting money from clients. In 2003, he handled 400 to 500 cases. The bar recommendation was 150. No wonder he did next to nothing to free Felipe Vargas, who sat in jail for seven months after the alleged victim recanted. Though ultimately freed, Vargas lost friends and his job, and his reputation was damaged from the child molestation charge.
Fortunately, the state has taken steps to rectify public defense for the indigent. In his State of the Judiciary speech on Jan. 16, Gerry Alexander, the chief justice of the state Supreme Court, noted that the Legislature has increased state funding and made other changes, but it still brings up the rear, financing only 20 percent of costs. The goal of the state’s task force was a 50-50 split, which would mirror the formula of other states. Owing to the state’s budget challenges, Alexander said no funds have been sought since 2007, but the challenges remain.
The $3 million jury award to Vargas matches what the state appropriated to bolster public defense systems in 2005. It only takes one case like that to undermine progress. It will be difficult to find the money this year, but it makes no sense from a budgetary or moral standpoint to accept the status quo.
State lawmakers must continue to bolster the justice system when the economy turns around.