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If You're A Poor Defendant In Utah, Good Luck: You'll Need It.

The Huffington Post The Huffington Post 9/11/2015 Kim Bellware
ATHENA IMAGE © Curtis Gregory Perry/Flickr ATHENA IMAGE

The day Harry Miller learned he was going home, he cried so uncontrollably that his cell mates had to pack his belongings for him. It was 2007, and Miller was relieved to be free after spending more than four years wrongfully locked away in a Utah prison, Salt Lake City Weekly reported.

Miller was convicted in 2003 of robbing a woman at knifepoint in Salt Lake City three years earlier. Dated eyewitness IDs sealed his fate, despite the fact that the victim told police after the initial robbery that the perp was a young man in his late teens or 20s. Miller was a gray-bearded 47-year-old.

The unreliability of eyewitness testimony aside, proving Miller's innocence should have been a snap. At at the time of the robbery on Dec. 8, 2000, Miller was nearly 1,900 miles away in Louisiana at his sister's home, recovering from a stroke.

The only thing Miller was guilty of was relying on Utah's indigent defense system.

A report released last week by the Sixth Amendment Center, a nonprofit civil rights group that promotes a defendant’s right to legal counsel, details what many of Utah's poor defendants already know: The state's indigent defense system is pocked with problems so glaring that citizens are regularly deprived of their constitutional right to an effective defense -- and thus, their liberty.

Utahans at all levels of the justice system admit their indigent defense system is broken, but say they're also determined to fix it as soon as possible.  

"I don’t think anyone ever woke up one day and asked, 'How do we mess over poor people?’” said Republican state Sen. Todd Weiler, one of the lawmakers tasked with fixing the broken system.

Yet many poor defendants don't even get lawyers, and those who do are often assigned contract defense attorneys burdened with heavy caseloads, insufficient resources and other pressures. It's a systemic problem with no easy solution. 

In the video above, Miller speaks to Salt Lake City Weekly about what it was like to be wrongfully imprisoned.

"They're Entitled To Counsel And Don't Get It"

One of the most straightforward ways poor defendants are deprived of their rights is when a court decides that a defendant doesn't need a lawyer.

More than 62 percent of Utah defendants are processed through the misdemeanor courts without a lawyer, according to the Sixth Amendment Center, which examined statewide data from the state's courts.

A court may assume a defendant doesn't need a lawyer during an informal, pretrial hearing where there's no jury or prosecutor present, or if the crime they're accused of doesn't carry an immediate threat of jail time, said Kent Hart, the executive director of the Utah Association of Criminal Defense Lawyers who also worked on Miller's exoneration case.

"The theory is that these cases are minor and we need not include all the protections that we do for felony cases," Hart said. 

Yet while defense lawyers are always appointed for felony charges, defendants facing misdemeanor charges may not receive a lawyer -- even though these charges also carry the potential of jail time in Utah. "DUI and domestic violence cases are heard in misdemeanor courts. Even a third shoplifting offense can be charged as a felony," Hart said. 

In other instances, a client may not meet with his or her overburdened public defender until after the attorney has already struck a deal with the prosecutor.

When a judge in one rural courtroom asked a woman accused of writing bad checks if she would be able to pay anything toward her fines and restitution, she asked to go to jail because she'd never be able to afford the more than $1,400 she owed, Sixth Amendment Center researchers reported.

The judge, who had no formal training as a lawyer, expressed concern about the defendant's "sense of helplessness" and speculated that she "seemed depressed." He sent her to jail and ordered a mental health evaluation.

The woman had no lawyer at her initial arraignment because she was only facing fines and restitution and no immediate prospect of jail time -- and later, she accepted jail time at her status hearing without a lawyer to advise her. When Sixth Amendment researchers later asked the judge who assessed the woman as “depressed” whether he had the authority to put her in jail, the judge replied, "That's a tough question."

"They’re entitled to counsel and don’t get it," said Utah Fourth District Court Judge Derek Pullan, who has drafted a list of remedies to address the problems highlighted in the Sixth Amendment report.  

A $30 Criminal Defense

Poor defendants can miss out on a proper defense when courts don't appoint them a lawyer, but they are more often denied their rights in another way -- when an attorney fails to put up a reasonably adversarial fight.

Utah and Pennsylvania are the only two states that delegate the burden of providing indigent counsel to local counties rather than funding it at the state level. But many counties in Utah are too small and rural to adequately fund criminal defense for the poor.

"The cities and counties that can least afford to pay for this often need public defenders the most," said David Carroll, executive director of the Sixth Amendment Center. "They just can’t keep up."

To make ends meet, counties rely on a practice known as flat-fee or fixed-fee contracting, paying lawyers a single fee to work on an unspecified number of cases.

"I don’t think anyone ever woke up one day and asked, 'How do we mess over poor people?’” Utah state Sen. Todd Weiler

One contract defense lawyer -- appointed to 246 cases in just one Utah court in 2013 -- received a flat $600 monthly fee to represent all of the court's indigent defendants, according to the Sixth Amendment Center report. His pay averaged about $30 per case, regardless of whether he took the case to trial or dealt with it quickly.

"If there’s a need to hire an investigator or expert, that comes out of the public defender's pocket," Carroll said. "There's a real direct conflict of interest problem there. They try to get cases disposed [of] quickly so they can move on to the next thing."

Carroll and other experts say that most public defenders are professional, hard-working and dedicated to their clients, but they face a daunting system with too few resources to support them.

“If you’re an attorney working on a flat-fee contract and juggling too many cases, you’re not giving each client the due process required under the Constitution," Carroll said. "You might do triage: You might say you’ll only do cases that survive arraignment. And if you’re doing 800 cases, there’s no way you’re investigating crime scenes and reviewing case law."

He notes that several states, including Michigan, Washington and Nevada, have banned flat-fee contracts.

Miller's case is a prime example of how a lack of resources can hamper a good public defense, Hart said.

"I think the defense could have investigated Miller's case more thoroughly, but that investigator was assigned to 20 attorneys," said Hart. "The investigator needed to hop on a plane, fly to Louisiana, interview witnesses and nail down this guy’s alibi. Instead, he tried to do it all by phone from Salt Lake City."

Hart said Miller's public defender did do one thing -- he found Miller's sister to testify and provide an alibi. But when she backed out at the last minute due to a family emergency, prosecutors assumed her sudden withdrawal indicated she was lying.

"The defense attorney had put all his eggs in that one basket," Hart said. "It was a time issue and a resource issue.“

Rock The Boat, Get Tossed Overboard 

Experts say Utah's court system puts contract defense attorneys in a vulnerable position because their adversaries, such as prosecutors and district attorneys, can control their employment.

A defense lawyer who has a contract with a small town or county often appears before the same judge or judges and argues against the same prosecutors, Hart said. If the contract attorney is perceived as "difficult" -- filing a lot of motions or being picky during jury selection, for example -- prosecutors can convince local authorities to end his or her contract. He said the county commission in rural Beaver County removed certain lawyers from its list of public defenders.

“That was a clear message that if you rock the boat too much, you’ll lose your contract,” Hart said.

As a result, lawyers may temper their defense when they know their job is at risk.

State Sen. Weiler said he was surprised to learn that one county commissioner had asked prosecutors to recommend which defense lawyers should be offered the county's indigent defense contract. It's "obviously a conflict of interest when you let the prosecutor decide who should go against them,” Weiler said.

"There Are Certain Principles We Can’t Compromise On"

In response to the Sixth Amendment Center report, the Utah Judicial Council's special indigent defense task force made a series of recommendations for the state legislature, most of which align with the report's own recommendations.

Both bodies recommend funding the indigent defense system at the state level, eliminating fixed-fee contracts, limiting defense lawyers' caseloads, and establishing a statewide oversight committee and uniform practices for judges and public defenders.

Pullan, who drafted the judicial task force standards, said the fix will require a legislative solution. Weiler said he's already working on one, and both men noted that the state had already implemented several of the Sixth Amendment report's recommendations before the report came out.

Weiler said that the American Civil Liberties Union of Utah will be ready with a lawsuit if policymakers drag their feet. And despite the threat of litigation, he said he already anticipates some pushback to his forthcoming proposals.

“A lot of legislators will see this as another chance to expand government bureaucracy and throw a bunch of taxpayer dollars at a problem,” Weiler said.

"I can anticipate an elected official saying, ‘You’re asking for a Cadillac, but we can give you a Chevy,'" Hart said. "But there are certain principles we can’t compromise on and some things you just can't do cheaply.”

Pullan said the judicial and legislative branches are united by their pledge to uphold the Constitution, and is certain lawmakers will be able to appreciate the importance of righting the wrongs that plague Utah's indigent defense system.

"We stand on the cusp of making meaningful change for indigent defendants of Utah," Pullan said. "We are not powerless to deal with it."

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