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Without help, Billings public defender’s office teeters toward constitutional crisis

UPDATED: Wed., Jan. 5, 2022

By AJ Etherington BIllings Gazette

Deandre Gulley sat in a Yellowstone County courtroom on Dec. 22 facing a murder charge. Beside him sat his two court-appointed defense attorneys who had traveled nearly 500 miles from Kalispell to argue several motions related to his charges.

One of those motions was to have the charges dismissed, arguing Gulley had not been granted his constitutionally-protected right to a speedy trial. He had been arrested in early 2020 and has been sitting in jail since.

One of the reasons it has taken so long to set a trial date for Gulley is that it has taken so long for the state’s Office of Public Defender to assign him defense counsel.

Gulley’s very unspeedy trial is not unique.

The state’s OPD is understaffed and so overwhelmed with cases that a Billings judge recently found the office’s director in contempt of court for not assigning defense attorneys to suspects fast enough.

Some of those suspects languishing in jail could be innocent, the judge said, something a trial would speedily bear out.

The OPD in Billings faces a perfect storm of compounding problems. A rising crime rate along with courts slowed by the lingering pandemic have increased caseloads. Management upheaval, along with comparatively low salaries and constantly increasing caseloads have added to turnover and shortages. OPD’s main trial division in Billings, for example, is budgeted for 27 attorneys. In late December, it had 22.

Some of its problems could be remedied with more money to hire more attorneys at better pay. But, there doesn’t seem to be the political will for that. Not many politicians want to stand before the Legislature and ask for more tax money to better defend people charged with crimes, even if constitutionally obligated to do so.

Public defenders, and the attorneys the office contracts with, are some of the lowest paid attorneys in Montana. According to a 2019 survey, public defenders in the state started off around $63,000 a year, about $13,662 less than the average of every other attorney working for the State of Montana. By contrast, a deputy county prosecutor in the state can be paid as much as $103,000 a year.

Months without an attorney

Gulley has apparently not been an easy client to work with. A few of his attorneys have withdrawn from his case. Some of his attorneys quit OPD altogether.

Since being arraigned in Yellowstone County District Court in March 2020 for the murder of Shane Nez Perce outside Lee’s Saloon, Gulley has gone through five public defenders. The two from Kalispell are his sixth and seventh, according to Reintsma. Judge Michael Moses has not yet ruled on the speedy trial motion in his case.

During Gulley’s December hearing before Judge Moses, Jim Reintsma, who then managed the OPD conflict office in Billings, testified to why it took 85 days to assign Gulley a new public defender. He said there aren’t enough defenders in his office qualified to handle murder cases, and he could not find an outside contract lawyer willing to take the case.

Two private attorneys in Billings were willing to take the case, but not at OPD’s contract rate of $56 an hour, Reintsma told the judge. Unable to change the rate, Reintsma finally convinced the Kalispell-based public defenders to represent Gulley.

In contempt of court

In September, Yellowstone County District Judge Donald Harris held the director of OPD in contempt of court and ordered that all qualified cases appearing in his court be assigned an attorney within three business days.

(Multiple requests for interviews and comment from OPD’s trial division administrator Brian Smith and director Rhonda Lindquist were referred to Department of Administration spokesperson Belinda Adams. Adams never replied to multiple voicemail messages and emails requesting interviews, comment and clarification since the original hearing in September. A call to Governor Greg Gianforte’s spokesman Travis Hall also went unanswered as of press time.)

Harris expressed concern the county’s jail was overcrowded, cases faced constant delays and OPD’s own clients were being harmed by a lack of effective counsel.

“And some are innocent,” Harris said, referring to potential inmates who may be wrongfully accused, “I don’t want to overlook that.”

Following the hearing, Harris ordered OPD to pay a $500 fine for each case in which an attorney was not assigned in a timely manner, at the time a total of more than $15,000. The fine would also be applied to future appointment delays, he warned in a standing order.

An ‘untenable’ catch-22

OPD responded to the judge’s order by implementing a new system assigning a public defender to every new client appearing before any of Yellowstone County’s eight judges.

It’s a decision that poorly addresses one problem and creates another.

In response to the new system, six public defenders in the Billings office wrote a letter to OPD regional director Eldena Bear Don’t Walk and Brian Smith on Sept. 13, 2021. The lawyers called the situation “untenable” and highlighted concerns they would be unable to provide the “thoroughness and preparation necessary” to represent their clients.

Signatories to the letter were attorneys David Garfield, Sarah Snow Kottke, Elitza Z. Miltcheva, Natasha Hammack, Blaine McGivern and Greg Tomicich. The Billings Gazette obtained and confirmed the letter from sources within the county courthouse.

“To ensure our ability to exercise these professional standards in each case, our workload ‘must be controlled so that each matter can be handled competently,’ ” wrote the attorneys, quoting from the Montana Rules of Professional Conduct which governs attorney in the state. “Despite your best efforts, no solution recently proposed or implemented can adequately remedy the catastrophic legal, ethical and moral consequences that are threatened by our unmanageable and unrelenting caseloads.”

Despite the implementation of the policy of assigning one lawyer to a specific judge, OPD still failed to assign attorneys within the three-business-day period. In response, Judge Harris issued a second order to show cause in November and held further contempt proceedings on Dec. 20 to decide on 17 new cases. Two of those cases had gone more than 45 and 85 days without an assigned attorney, the judge alleged.

The judge did not immediately rule after the Dec. 20 hearing.

All judges issue standing order

But Harris’ contempt order isn’t the only looming cloud for OPD in Billings. On Dec. 13, all eight Yellowstone County District judges signed a standing order requiring the regional Office of the Public Defender to appoint an attorney to each case within three business days.

“Montana’s Constitution guarantees a defendant the right to counsel and to a speedy trial,” the judges wrote. “To preserve those fundamental rights, [ Montana law] requires the immediate assignment of public defenders in criminal cases when the assignment is ordered by a court.”

It is unclear whether the standing order will lead to more contempt proceedings or fines in other courtrooms, but it does bind OPD to the three-business-day timeframe in all local felony proceedings.

Triggering the eight-judge standing order was an increasing use of judicial substitutions against Harris, according to those familiar with the order.

In District Court, a defendant is entitled to a judicial substitution within 10 days of arraignment. Prior to September, substitutions were rare. But since Harris held OPD in contempt, it has substituted a judge 13 times in Yellowstone County, according to the Clerk of Court.

Twelve of those substitutions swapped Harris for a different judge. The single remainder substituted Judge Mary Jane Knisely.

In the seven months prior to August 2021, no judicial substitutions were made in the county, according to the Clerk of Court.

The recent uptick in substitutions is not necessarily a retaliatory measure against Harris as much as it is an economic measure taken by OPD to minimize the number of $500 fines. Each judicial substitution costs OPD a comparatively smaller $100 non-refundable filing fee paid to the Clerk of Court—a net savings of $400 per client for every case the office is unable to assign within three days.

The root of the problem

To measure the amount of work a public defender is carrying, OPD uses a formula that assigns an hourly number to each type of case. For example, a murder case carries a case weight of 100 hours, while a misdemeanor might carry a case weight of less than five hours. A lawyer’s ballpark case weight in a given month is supposed to be about 120 hours depending on experience.

When the entire office monthly average for the primary public defender’s office reaches 150 case-weight hours, the office goes into “overflow” until the case weights are reduced, according to Reintsma.

During overflow, every new case that month is automatically assigned to the conflict office. For Billings and the surrounding area, the conflict office employed 2.5 full-time attorneys during 2021. When those attorneys reached their case-weight limit, the clients were sent to contract attorneys. If there are no willing contractors, the cases were usually left unassigned until an attorney could be found.

That system was triggered in April when the main office in Billings became overwhelmed. About that same time, both managing attorneys for the main regional office and the regional conflict office resigned from OPD. Jim Reintsma was promoted to the conflict office manager and was left holding the bag for hundreds of cases sent to his office through the overflow system.

As he struggled to find contract attorneys to take on the office’s excess clients, Reintsma began sending regular emails to the county’s judges informing them of the backlog. It was Reintsma’s July 31 email cited by Harris that triggered the original order to show cause.

Reintsma wrote to the judge informing him he had 663 unassigned cases on his plate.

The judge responded in his finding of contempt, “I want to make it clear that in this county [assigning a public defender] is not an option. There simply has to be a solution to this, it’s a money solution and I know the money is there.”

Reintsma says he was barred by OPD leadership from sending further emails apprising the judges of OPD’s internal situation. He has since resigned as the conflict office manager and has sent OPD notice of his resignation. Reintsma said he was fed up with leadership, which he felt created a “toxic” work environment that drove off countless years of institutional knowledge.

A fair wage

It is widely accepted among attorneys in Yellowstone County that OPD lacks competitive salaries for their full-time lawyers and contractors.

In the Billings area, a private defense attorney could reasonably bill $200 an hour for their services. Full-time public defenders on the other hand start off making $63,024 a year or just over $30 an hour. The highest paid public defenders make $82,401 per year before adding longevity and other factors, per the state’s OPD collective bargaining agreement. Those higher paid attorneys make $39.61 an hour.

OPD pays contract attorneys just $56 an hour, a rate well below the state’s market rate for private attorneys. That number was reduced from $62 an hour in 2017 when the state faced massive budget cuts. Contractors working for the state at the time sued to reverse the decision, but were unsuccessful.

The federal government’s contract rate for public defense attorneys is more than $150 an hour.

A need for cash

During the 2021 Legislative biennium, OPD’s Lindquist and Smith asked the legislature for $750,000 to help clear a backlog of 100 cases by paying contract attorneys $75 an hour just for those cases. The legislature did not act on the request.

Since September, the legislature has continued to figuratively hold up their hands and tell OPD’s leadership they were unaware when the session ended that OPD was at risk of a “constitutional crisis.” OPD’s leadership contends the situation was a surprise to them as well.

In November, Gov. Greg Gianforte announced he was sending $1.5 million in COVID relief funds to the Billings public defender office, but did not directly address how the money would be used. OPD did hire a contract manager for the Billings area to alleviate the burden of finding contractors.

Requests for information to DoA about how OPD was spending the infusion of cash were not returned.

A constitutional crisis

The right to have an attorney represent a suspect, if they can’t afford one, is protected under the due process clause of the Sixth Amendment. But the Billings situation is not the first time the state has faced a constitutional crisis due to a lacking public defense.

Prior to 2003, public defense fell to the counties to hire and pay, but a lack of funding and quality of representation in some counties led the American Civil Liberties Union to sue, forcing Montana’s legislature to take responsibility and consolidate public defense under the Office of the State Public Defender, overseen at the time by a commission.

In 2019, the legislature eliminated the commission and replaced it with a single director. Rhonda Lindquist became OPD’s first and only director so far.

But OPD’s failure to appoint lawyers quickly is also an ethical conundrum. Adequate legal assistance of counsel is an abstract left open to wide interpretations.

According to the US Supreme Court’s decision in Strickland v. Washington, ineffective assistance of counsel is grounds for overturning a conviction only if a trial lawyer’s performance fell below an “objective standard of reasonableness” and that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

But few cases in Montana have been overruled for such a reason. The Montana Innocence Project, which works to overturn wrongful convictions, lists just one case on its website where a defendant was given a new trial in part due to ineffective assistance of counsel.

One reason for a lack of appeals based on counsel may be due to plea deals. Plea agreements are often negotiated between public defenders and prosecutors for a number of reasons. OPD’s clients take those deals for an equally vast number of reasons. And most cases prosecuted in Yellowstone County end in plea agreements regardless of whether the defendant has a private attorney or public defender.

But once a deal is struck and a plea entered in court, the defendant has waived their right to both trial and appeal. That means even if an overburdened public defender failed to provide effective counsel, the client is unable to seek any post-conviction relief from the courts.

No publicly available evidence proves, or even suggests, an OPD client has been harmed by ineffective assistance in Billings. And aside from Gulley, no other cases face the threat of dismissal on speedy trial grounds.

But as backlogs in cases and overburdened attorneys continue to be a problem in the county the risks of wrongful conviction, unjustified plea agreements, or even just unnecessarily long pretrial incarcerations, increase with time.

Asked if every OPD client was getting their constitutional due, Reintsma replied with a flat, “No, they’re not.”

Pressed to estimate how many clients he felt were getting their constitutional right to effective counsel, he responded, “That’s a mean question.” Pressed further he added, “I would say under the current caseloads in Billings less than 50% are getting [adequate counsel]… and that’s not due to the attorneys not trying. That is simply a lack of time due to a lack of resources.”

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