Faced with a growing indigent defense bill where costs were once much lower, Hall County State Court officials want to improve how they provide lawyers for the poor in 2009.
But while “improvement of delivery of indigent defense services” is a stated goal for state court this year, it’s likely to be more of a fine tuning than a wholesale revision of the system.
Hall County’s Public Defender Office was created in 2005 to represent poor defendants in felony cases prosecuted in superior court, but state court judges still appoint lawyers from a panel of about 30 area criminal defense attorneys who are paid by the hour. In recent years, their workload and billing both have gone up dramatically.
Six years ago, 848 cases in state court had court-appointed attorneys paid by taxpayer money. In the wake of a U.S. Supreme Court decision and a loosening of indigent guidelines, that number increased at a greater rate than the rise in criminal case loads, peaking in fiscal year 2006-07 with nearly 3,000 cases with attorneys appointed for indigent defendants charged with misdemeanors.
In fiscal year 2007-08, Hall County spent $742,000 paying attorneys to represent people in 2,377 misdemeanor criminal cases.
The right of poor criminal defendants to have an attorney provided at taxpayer expense was once largely reserved for felony cases or serious misdemeanor crimes that carried a real threat of jail time.
But in 2002, the Supreme Court’s decision in Alabama v. Shelton reaffirmed the constitutional right to counsel for all criminal defendants facing even a remote possibility of jail time. Now, officials say, defendants facing such minor charges as speeding or failure to yield in a traffic accident are applying for, and getting, court-appointed attorneys who are paid $60 an hour in court and $50 an hour outside of court, with a $1,000 cap.
The average cost for representing an indigent defendant in state court in fiscal year 2007-08 was $312.
Critics say people charged with minor offenses shouldn’t get county-funded lawyers.
“I think they’re right,” local attorney and Hall County Commissioner Ashley Bell said. “But the courts are telling us otherwise. If the law’s requiring us to do it, we don’t have a choice.”
Veteran criminal defense attorney Dan Summer notes that to some it may seem minor crimes don’t merit court-appointed counsel, but it can be a different matter for defendants.
“In economic times like this, people who are hiring are scrutinizing criminal histories on a regular basis, and even a misdemeanor conviction can mean the difference in getting a job,” Summer said.
Chief State Court Judge Charles Wynne notes that cases where a jail sentence may not typically be given still need that option, particularly when a defendant violates his probation.
“You have to have certain teeth in your sentences, including the ability to incarcerate someone, or you have taken the teeth out of enforcement,” Wynne said.
Court officials who are bound by the law to provide attorneys free of charge say they want to do everything they can to manage costs and move cases along efficiently.
That may include appointing a panel of local attorneys to review lawyer invoices before they are paid and adding more “duty day” defense attorneys to be present in court on certain days to help dispose of cases faster.
The peer review panel would scrutinize bills without knowing who submitted them with an eye out for excessive billing. In the past, lawyers who spent an hour in court representing four different defendants might bill for four hours. Some attorneys also have added such specious charges as “database searches” in their invoices, officials said.
“We have had some pretty aggressive billing,” Hall County Trial Court Administrator Reggie Forrester said.
“Once in a while we have had issues where there has been multiple billing,” Wynne said. “When we see it, we enforce it strictly.”
“I know there’s been a few attorneys that the state court has not been entirely happy with their billing,” Summer said, adding that they were dropped from the indigent defense panel as a result.
Bell said likes the idea of a peer review panel.
“It puts it on members of the bar to police each other to make sure bills stay within reason,” Bell said.
Forrester notes that defendants who are convicted are required to pay back some portion of the costs of their court-appointed attorneys. In the first seven months of fiscal year 2008-09, defendants paid $19,000 in legal reimbursements.
Bell suggests one way to curtail indigent defense costs is to make certain defendants really can’t afford a lawyer before they are appointed one.
Forrester says defendants must swear an oath that they meet the guidelines, which is currently an income less than 150 percent of the federal poverty line. The poverty line is $10,400 a year for a single person and $14,000 for a two-person household.
Court officials carefully examine all applications, but lack the resources and manpower to conduct full financial investigations for the thousands of applicants they deal with, Forrester said.
“Those that appear out of kilter, we do investigate,” he said.
One change that has been seriously considered is shifting the duties of state court indigent defense to the public defender office, which might get the job done cheaper and more efficiently. But that would require hiring more lawyers and providing more office space.
In the current economic climate, Forrester said, “I don’t think we could recommend to anyone creating another level of bureaucracy to support government.”
Proponents of the current appointed attorney system note that state court provides a good training ground for young members of the criminal defense bar that would not exist if the public defender’s office moved in.
Said Wynne, “While we certainly try to improve upon the system we have, there are a lot of good things about it. We have a lot of good attorneys interested in doing defense work who do a good job. Yes, there are costs associated. They are subject to going up with the case numbers and with the revenue going up.”
As of January, the current fiscal year state court revenues from fines and fees were $1.7 million, compared with $286,000 in indigent defense costs.
“It seems to be working fairly well,” Summer said. “If they can cut out some fat, no problem. They’ve got to do what they’ve got to do. But you shouldn’t sacrifice quality of representation for a recession. At the end of the day, you get what you pay for.”