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Lawsuit charges Idaho’s public defense system violates state, U.S. constitutions

Despite five years of warnings, Idaho has continued to violate the U.S. and Idaho constitutions by failing to provide poor people charged with crimes with lawyers who can adequately defend them, a class-action lawsuit filed today charges. Instead, the state has responded by creating a series of “virtually powerless committees,” and enacting minimal law changes in 2014 that, the lawsuit says, not only didn’t go far enough to fix the problems, but aren’t even being followed.

Among them: The 2014 legislation banned “fixed-fee” contracts with public defenders, in which they’re paid a set amount regardless of how many clients they represent or how complicated the cases are. That provides them an incentive to spend as little time as possible on each case, particularly if they also have paying clients, the lawsuit says. Yet, 19 Idaho counties still use fixed-fee contracts. You can read the full complaint here.

Idaho established a public defense subcommittee of its Criminal Justice Commission in 2010 to examine the problem after an audit pointed to serious deficiencies. It set up a special legislative committee in 2013. That panel then established “yet another commission to make recommendations to the legislature,” the lawsuit says. “Astoundingly, the state failed yet again in the recently concluded 2015 legislative session to fund or improve its public-defense system. Because the executive and legislative branches refuse to take the necessary actions to fix Idaho’s public-defense system, it falls on this Court.”

The 2014 legislation set up a state Public Defense Commission, which among other things, was to propose rules and standards for public defenders statewide by January of 2015; it hasn’t done so, according to the lawsuit.

“State officials themselves have recognized the current constitutional crisis regarding indigent services in Idaho,” says the lawsuit, filed in state court by the American Civil Liberties Union of Idaho, the national ACLU’s Criminal Law Reform Project and Hogan Lovells, an international law firm. “In August 2013, the Chief Justice of the Idaho Supreme Court noted that ‘our system for the defense of indigents, as required by Idaho’s constitution and laws, is broken.’ And Gov. Otter acknowledged in his 2015 State of the State address that, despite the 2014 amendments to Idaho’s public defense statutes, ‘our current method of providing legal counsel for indigent criminal defendants does not pass constitutional muster.’”

The 2014 legislation also directed Idaho’s 44 counties to either establish an office of public defender, partner with other counties to do so, or establish contracts that don’t rely on fixed fees. Seven now have such offices, while two have partnered in a joint office. Thirty-four still contract the services out, with 19 of those under fixed-fee contracts, the lawsuit says. And one county has no arrangement, just appointing lawyers on an ad-hoc basis.

Repeated surveys and studies have found that caseloads are so high for Idaho public defenders that many poor defendants can’t reach their attorneys, the lawsuit charges, no matter how hard they try, and barely get to speak to them before they appear in court; among the named plaintiffs, one called his public defender more than 50 times from jail without reaching him. Plus, the lawsuit says only five of the 44 counties provide public defenders at defendants’ initial appearances, when pleas are taken and bail set – even though Idaho law specifically requires legal representation at initial appearances. As a result, several of the named plaintiffs spent months in jail after bail was set that was too high for them to afford, and they had no idea how to contest it.

The lawsuit, filed in 4th District Court in Ada County, was filed against Gov. Butch Otter and the seven members of the Idaho State Public Defense Commission, including two state lawmakers, a judge, and the state appellate public defender. Otter’s office had no comment; neither did Attorney General Lawrence Wasden's office.

ACLU taps CATCH founder as its new executive director

Greg Morris, former executive director and founder of CATCH, which stands for Charitable Assistance to Community’s Homeless, has been hired as the new executive director of the ACLU of Idaho, the third person to hold that position in the group's two-decade history. The previous two were Jack Van Valkenburgh and Monica Hopkins; click below for the group's full announcement.

Mom’s Surveillance Fight Gets Boost

The Electronic Frontier Foundation, the American Civil Liberties Union and the American Civil Liberties Union of Idaho have joined Anna Smith’s legal team in her challenge of the government’s bulk collection of the telephone records. Smith, an emergency neonatal nurse and pregnant mother of two, filed her suit against President Barack Obama and several U.S. intelligence agencies shortly after the government confirmed revelations that the National Security Agency was conducting bulk collection of telephone records under a section of the Patriot Act. Smith, a customer of Verizon wireless, one of the companies that was ordered to disclose records to the NSA, argued the program violated her First and Fourth Amendment rights by collecting a wealth of detail about her personal and professional associations. “When I found out that the NSA was collecting records of my phone calls, I was shocked,” said Smith, who is represented by her husband, Coeur d’Alene attorney Peter J. Smith, and Idaho state Rep. Luke Malek, of Coeur d’Alene/David Cole, Coeur d'Alene Press. More here.

Question: Glad to see Rep. Luke Malek involved in this. Thoughts?

Drone bill vetoed

OLYMPIA — A proposal to regulate the use of drones by law enforcement and other agencies was vetoed Friday. Gov. Jay Inslee said the bill did not do enough to protect the public's right to privacy and raised questions about public records.

In its place, Inslee said he was issuing an executive order for a moratorium for the next 15 months on purchase or use of unmanned aircraft by state agencies for anything other than emergencies, such as forest fires. He said he hoped local police chiefs and sheriffs would issue similar orders, and the Legislature would take another run at the issue next year.

The proposal had broad, bipartisan support in the Legislature, with backing of both the ACLU and the law enforcement community. Senate Law and Justice Committee Chairman Mike Padden, who helped shepherd the bill through the final days of the session, said he was surprised by the veto.

"We had worked with so many different groups, getting their input," Padden, R-Spokane Valley, said.

The bill set up standards for state and local government's use of unmanned aircraft or drones, with requirements for obtaining warrants for surveillance uses by law enforcement.

In striking down the House Bill 2789, Inslee called it "one of the most complex bills we've had to analyze"  and said the emerging technology of drones create difficult issues for government. The bill had some conflicting provisions on disclosure of personal information, he added 

"I'm very concerned about the effect of this new technology on our citizens' right to to privacy," he said."People have a desire not to see drones parked outside their kitchen window by any public agency."

Sections of the bill dealing with exemptions to public record laws for some information gathered by drones could create a "major carve-out" to the state's public records laws, Inslee added. 

Kathleen Taylor, executive director of the ACLU of Washington, called Inslee's veto disappointing and described the bill as "well-balanced and carefully considered." His call for a  15-month moratorium will have little impact, she said in a prepared statement, because it still allows agencies to acquire drones and "includes no rules for their use after acquisition."

Padden said legislators worked at balancing the rights of privacy with law enforcement's needs to gather information on criminal activity.

"We thought there were some safeguards in there with the warrants," he said. The bill required police to obtain a warrant from a judge for using drones the same why they would need a warrant for other types of surveillance.

 

Lawsuit targets Boise’s new anti-panhandling ordinance

Boise's new ordinance against aggressive panhandling doesn't take effect until January, but today it was challenged in federal court on grounds it violates the First Amendment rights to free speech and expression and that it places an unfair burden on people struggling to make ends meet, AP reporter Todd Dvorak reports. The lawsuit was filed today in U.S. District Court by the Idaho ACLU and two Boise homeless men, a 58-year-old street musician who suffers from psoriatic arthritis, and a 38-year-old who said he lives in a truck and seeks handouts to buy gasoline so he can commute from one temporary job to another; click below for Dvorak's full report. The City Council approved the ordinance in September with support of downtown merchants.

Public Defender Stunned By Firing

Kootenai County commissioners voted to end a contract with longtime public defender John Adams three weeks after he made a harassment claim against a commissioner and two weeks after telling the board he’ll need a day off each week for cancer treatment. Adams has run the public defender office for 17 years and earned broad respect from the region’s legal community. During his tenure, he was the lead attorney on 26 murder cases and seven death-penalty cases, including the state trial of child killer Joseph Duncan. Adams, 59, said he was stunned by the decision, but the reaction of the American Civil Liberties Union of Idaho was even more forceful. The organization complained his firing comes at a time when Idaho’s overall system of public defense has been deemed deficient, lacking resources and in some counties falls short of its constitutional obligations/Scott Maben, SR. More here.

Question: Do you think the Kootenai County Board of Commissioners botched the firing of long-time Public Defender John Adams?

Update: Abortion Flap Stuns Mendive

Freshman Rep. Ron Mendive, R-Coeur d’Alene, was surprised to learn that there’s a news story out about a question he asked this morning regarding abortion and prostitution – and that it’s going viral. He attended an ACLU breakfast presentation in the Capitol this morning, and when  it was opened up for questions and answers at the end, Mendive said his question was prompted by the group placing women’s reproductive rights among its high priorities. So he asked whether the ACLU supports prostitution along with abortion, because it’s also “a woman’s choice.” The Associated Press reported that there were “audible gasps” in the room at his question/Betsy Russell, Eye on Boise. More here.

Question: Betsy reports that Mendive was surprised to see his comments to the ACLU reps go viral today. Should he be?