Term Limits Threaten Crime War, Say Experts Legal Advisers Say Strong Prosecution Is Endangered By Approved 8-Year Cap

Criminal justice experts warned lawmakers on Friday that term limits threaten rural Idaho’s continued crackdown on crime while inadequate resources and generally inexperienced public defenders set the stage for reversal of convictions that are secured.

“We need to encourage more competency, professionalism and longevity in these specialists, prosecutors as well as public defenders,” veteran Cassia County Prosecutor Stephen Bywater told the special Committee on the Criminal Justice Process.

In the case of prosecutors, that will be completely undermined by the voter-approved eight-year term limit for county prosecutors, who are already hard to retain because of low pay and inadequate resources.

“It gets down to one thing, and that’s money,” Ada County Prosecutor Greg Bower said. “You get what you pay for in the counties.”

The panel launched its search for a way to ease the substantial financial burden major criminal cases - particularly death penalty cases - impose on small counties. It will consider financing pools and state-financed defenders and prosecutors among other options. But prospects seemed limited since all cost money, and that is something neither the state nor the counties has a surplus of.

While the problem of criminal costs has been simmering for years, it exploded last year in a major dispute between the state attorney general and the then-Minidoka County prosecutor over three murder prosecutions that ultimately left taxpayers in the county of 20,000 a bill for $500,000 and outcomes that stressed public confidence in the system.

Bywater called the situation an aberration. But he also told the panel that changes must be made in a criminal justice system that as long as a decade ago prompted prosecutors for Jerome County and its 15,000 residents to abandon the death penalty in favor of life in prison for stalking murderer Jaime Charboneau because the county could not afford another $400,000 to finance further appeals.

“If we don’t make some decision now, things are going to get worse,” Bywater said. “We’re going to have more aberrations. Things are going to implode in the system.”

Although the state has a constitutional responsibility to assure an adequate defense for anyway facing incarceration - especially those facing possible execution - Ada County Public Defender Alan Trimming said public defenders are always at a disadvantage.

“In the ordinary course of business, prosecutors out-gun us, out-man us, out-resource us at every step of the game,” Trimming said. “That’s not right.”

David Nevin, one of Idaho’s top criminal defense lawyers, said taxpayers are paying more because of that. He has repeatedly turned the mistakes of inexperienced public defenders denied adequate resources to make their cases into victories for criminal defendants on appeal in federal court. It may take 10 or 12 years, he said, but it buys his clients time and often the advantage when prosecutors have to start over.

“The expense is gigantic as a result of this for not doing it right the first time,” Nevin said. “You can save the state money by spending more up front to do it right the first time.”

The exceptions are death penalty cases. Attorneys and judges agreed that a small cadre of defense experts has developed in response to judges voluntarily following American Bar Association guidelines for highly experienced defense attorneys to avoid reversals on appeal.

At the same time, however, the tenure of prosecutors, especially in small counties, is limited at best because of money and stress, 5th District Judge Roger Burdick said.

“You wind up with new prosecutors against the best defense that money can buy,” Burdick said.

And, Bower said, “If term limits are retained, destroying the corps of our prosecutors, the problem will only get worse.”