- Associated Press - Wednesday, February 13, 2019

BOISE, Idaho (AP) - The state’s public defense system still doesn’t guarantee defendants the right to a fair trial and should be found unconstitutional, an attorney for the American Civil Liberties Union of Idaho said.

Attorney Liz Lockwood made the argument before 4th District Judge Samuel Hoagland on Tuesday, asking him to rule in favor of the class-action lawsuit that includes criminal defendants who can’t afford their own attorneys across the state. Lockwood said recent improvements to the system, including increased funding and statewide standards, lack teeth and don’t go far enough to fix excessive caseloads and other issues.

But Idaho Deputy Attorney General Leslie Hayes said the state has made such vast progress toward fixing its troubled indigent criminal defense system in recent years that it now meets the Sixth Amendment requirements, making the ACLU lawsuit moot.

Idaho’s patchwork public defense system has been a well-known problem for years. The state delegated the responsibility for finding, hiring, overseeing and paying public defenders to counties, and different counties handled the task in different ways. In many regions the contracts went to the lowest bidders, and caseloads for individual public defense attorneys often skyrocketed. Many indigent criminal defendants found themselves meeting their court-appointed attorneys for the first time at their own court proceedings, meaning the attorneys had little to no ability to prepare for the case.

The National Legal Aid and Defender Association released a report in 2010 that found Idaho isn’t adequately satisfying its Sixth Amendment obligations for defendants who can’t afford to hire their own attorneys. That prompted the Idaho Criminal Justice Commission to create a subcommittee to study the matter, which it did for the next three years. Then the Idaho Legislature - amid warnings that a lawsuit was likely if action wasn’t taken soon - created an interim committee to consider the matter further.

In 2014, the Idaho Legislature created the Idaho Public Defense Commission to do more study and come up with solutions. In the years since, the Public Defense Commission has created statewide guidelines for public defenders, worked with the Legislature to increase funding for counties and worked to train public defenders on various aspects of criminal defense.

But Lockwood said that despite the state’s “efforts to incrementally address the problem,” statistical evidence shows the state is still a long way from meeting the due process requirements under the U.S. and Idaho constitutions.

“There is no guarantee that the state will get there or that it will stay on the right path along the way,” she said.

Lockwood said the state’s new public defense rules lack teeth, and the state has no way to enforce them. Huge caseloads continue to force attorneys to triage their cases, she said, a clear violation of defendant’s rights to a fair trial. She pointed to an expert report that showed public defenders were spending only about 3.8 hours per felony case, and the fact that more than half of Idaho counties require only that public defenders be in good standing with the state bar association - not that they have any expertise or experience in criminal defense.

The fact that fewer than 2 percent of publicly defended cases ever go to trial in Idaho shows that “attorneys don’t have enough time to take cases to trial,” she said.

Ultimately, incremental improvements aren’t enough to meet the due-process requirements under the U.S. and state constitutions, Lockwood said.

But Hayes, representing the state, said the ACLU’s charts and statistics were misleading and said the state has fixed the major issues identified in the 2010 report by increasing funding and creating statewide standards for public defenders. She said the ACLU should be required to prove that people are actually suffering harm from the state’s current system. Hayes noted that some Idaho counties are so sparsely populated that they need some options - like private contracts for public defense - that the ACLU frowns on.

“The Owyhee County seat, Murphy, isn’t even a city. It’s an unincorporated town, with five attorneys in the entire county,” Hayes said. “… What they (the plaintiffs) really want is Big Brother looking over every public defender’s shoulder and second-guessing every judgment.”

Hayes asked the judge to find the lawsuit moot and toss it out. “There’s nothing to declare in this case because they’ve proven nothing,” she said.

Hoagland said he would take the matter under advisement and issue a ruling at a later date.

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