Photo | Shane Rice
“Reason and reflection requires us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.”
Those words were written by United States Supreme Court Justice and Alabama native Hugo L. Black in 1963 as part of the high court’s landmark decision in Gideon v. Wainwright. The case held that the U.S. Constitution requires all states to appoint attorneys for criminal defendants who cannot afford their own.
It’s a promise to citizens that is often expensive to keep. That is especially true in states like Alabama, which is the sixth poorest in the nation based on the number of citizens living below the federal poverty line. In 2018, the Yellowhammer State spent more than $71 million on indigent criminal defense alone.
In most counties, those funds went toward reimbursing private attorneys who are appointed to handle indigent cases by the judges presiding over them. In some larger counties, though, officials have adopted a public defender system and established a designated, state-funded office that handles indigent defense.
Mobile and Madison counties are really the last holdouts among the major metropolitan judicial circuits that have not moved to a public defender system. However, a recent push from activists, local judges and state officials has given the idea of a public defender’s office in Mobile more momentum than ever.
“I do believe it’s time that we move to a public defender system,” Presiding Circuit Judge John Lockett told Lagniappe last week. “And I may be speaking out of school to say this, but the consensus among the bench down here seems to be that we need some kind of a change in the system we have now.”
In Alabama, the Office of Indigent Defense Services (OIDS) — a division of the state department of finance — and a local advisory committee determine how each judicial circuit will provide legal representation for accused criminals who are too poor to hire their own counsel.
Each year, those committees around the state recommend either an appointment system, a public defender’s office or a third option where attorneys are contracted by the courts. The final decision rests with OIDS, but since it was established in 2011, the office has yet to override any local recommendation.
Currently, 60 of Alabama’s 67 counties operate some combination of the appointment and contract systems. There are only seven that have public defenders: Jefferson (Birmingham), Montgomery, Tuscaloosa, Shelby, Walker, Escambia and a joint office in Conecuh and Monroe counties.
Even with public defenders, all judicial circuits use some attorney appointments because there are certain cases public defenders and contracted attorneys can’t or shouldn’t handle. Some may present a conflict of interest — like having a single attorney or office representing two co-defendants. Others, like capital murder cases, are so complex the state requires a more experienced attorney be sought.
Under the current system, OIDS also sets hard limits on the number of cases a public defender’s office can take on. This is both a way to control the budgets of the office and to ensure large caseloads aren’t causing a drop in the quality of the legal services provided.
Despite that, some experts believe a well-run public defender’s office can be more effective in the long run. John Carroll, a retired federal judge and a professor at Samford University’s Cumberland School of Law, told Lagniappe he’s been a proponent of the public defender system for years.
“I think the consensus across the country is that they’re more efficient and do give defendants better representation than appointed counsel can in a lot of cases,” Carroll said. “It’s usually better when you have a group of lawyers dedicated solely to the representation of indigent defendants.”
Appetite for change
This week, Mobile County’s indigent defense advisory committee is voting on what system it wants to use going forward. Lockett and Mobile Bar Association President Mark Newell serve on that committee, which also includes local attorneys James Brandyburg, Ashley Cameron White and Glenn Davidson.
At this point it’s unclear which way the vote might swing, but OIDS Division Director Chris Roberts has been pushing the local committee to make the move toward opening a public defender’s office. In a statement, Roberts told Lagniappe he has met with a local advisory board about this recently.
“We are always open to a public defender system, as I believe it can provide excellent, consistent representation for indigent clients,” he wrote.
As president of Mobile’s bar association, Newell represents a number of defense attorneys who could lose business if a public defender’s office was established in Mobile County. Despite that, he told Lagniappe last week he hadn’t made up his mind on how he’ll vote. However, he did express some concerns.
Specifically, Newell questions whether the resources of a centralized office could compare to those of attorneys in private practice — especially in a state that has struggled to fund other aspects of its judicial and criminal justice systems.
He said members of the Mobile Bar are all hard-working, professional attorneys, who do a good job, adding he’s “not sure a public defender’s office could do a better job.” He also pointed to a case out of Florida in which a person convicted of a double murder sat on death row for 14 years before having his case overturned. In that case, Newell said, a public defender never hired an expert to analyze evidence.
“I just don’t think that system is better than the one we have now,” he said.
Lockett, on the other hand, said he’s been looking into the matter in recent months and is likely to vote for a public defender system when the committee meets on Thursday, Aug. 29. Though he has opposed the idea in the past, Lockett said the system set up through OIDS prevents offices from taking on more cases than they can handle. He said it would still allow for a lot of appointed work, too.
“I’ve discussed it with judges in Jefferson and Montgomery counties; they seem to all say they didn’t see a substantial change in the quality of representation,” Lockett said. “Plus, a public defender is not going to be the sum total of the indigent defense community. It’s going to be a part of it.”
It does appear, according to OIDS data, there is still money to be made throughout appointments in counties that have public defenders. Montgomery County’s office received $2.8 million in 2018, but courts there still handed out another $2.1 million in appointments and contracts. Jefferson County actually spent more on appointments and contracts last year than its public defender’s office.
Though he said he hasn’t fully made up his mind, Davidson seemed to be leaning toward a move to a public defender’s office, which he said would eventually have “better resources” at its disposal than many private defense attorneys would. White and Brandyburg did not immediately return calls from reporters.
Mobile County officials have historically been opposed to moving from an appointment system. When the most recent reforms were being hashed out in 2011, the 13th Judicial Circuit lobbied against them and helped remove provisions that would have disallowed appointment-based systems altogether.
Since then, things seem to have changed a bit in the Port City. One of the more vocal pushes for a public defender system has come from the national community organizing network, Faith In Action. The group held a meeting in February in hopes of sparking community interest in changing the current system.
Leaders from the organization didn’t return calls seeking comments on their efforts, but in social media posts, Faith in Action has suggested many court-appointed attorneys are more likely to “not be all that concerned about” the outcome of their clients’ cases.
“The creation of a public defender’s office would help ensure that low-income defendants in Mobile County receive high-quality legal representation,” organizers wrote in the direction of one of Faith in Action’s local events. “Justice should not be means tested.”
While there are probably many attorneys who would disagree with those characterizations of appointed lawyers, there are some in the local legal community who believe a public defender’s office could make more sense logistically in Mobile and could have long-term benefits for the quality of legal services here.
“Right now, we’ve got 12 judges appointing from a pool of 60 to 80 lawyers, and there is very little coordination,” Lockett said. “There’s also no continuation from district court to circuit court, so you end up with multiple attorneys involved with a single defendant, and with the crowded dockets we have, some people sit in jail 12 to 18 months before they ever even get indicted [in circuit court].”
In addition, Lockett said there are services public defenders’ offices provide around the state that appointed attorneys and their firms aren’t equipped to and certainly aren’t required to handle. From drug rehabilitation, to mental healthcare, there are several challenges that have nothing to do with the law.
“We’re paying lawyers to be social workers, when we could all be better served by them representing the legal interests of their clients,” Lockett said. “The public defenders’ offices in Jefferson, Montgomery and Tuscaloosa counties have social workers on staff, and it’s their job to pick up on these things early.”
Dollars and cents
Indigent defense in Alabama is funded through the Alabama Department of Finance and is entirely separate from the money that funds the state’s unified judicial system. Regardless of whether a county uses an appointed, contract or public defender system, it all costs money, and it all comes through OIDS.
For those asking why it’s important for the state to spend time and money defending criminals who can’t afford an attorney, Carroll pointed to appellate decisions and overturned cases that have had to be retried due to the ineffectiveness of appointed lawyers and the time they spent on their particular cases.
“Some appointed lawyers do a phenomenal job, but there are others who do not,” Carroll said. “[A public defender] sort of eliminates that by having an organization that creates oversight of these lawyers.”
Ineffective representation has played a role in local cases before.
William Ziegler, who spent 15 years on death row for a capital murder conviction, was awarded a new trial in 2014 based partially on ineffective counsel. Ziegler was initially represented by Habib Yazdi, who at one time was among the most highly compensated and frequently used appointed attorneys in Mobile County.
According to OIDS, the state spent around $4.5 million reimbursing attorneys for more than 10,000 indigent defense cases in Mobile County last year.
Despite being one of the busiest judicial circuits in the state, Mobile County spent less on indigent defense than most other districts its size. That said, it can be difficult to compare true costs from county to county because the number and complexity of each indigent case can vary widely.
Montgomery County and Jefferson County spent $5 million and $11.8 million, respectively. Both of those numbers include millions of additional dollars spent on appointed attorneys outside of what OIDS allocated to their public defenders.
Presiding Judge Joseph Boohaker said the Birmingham division of Jefferson County’s Circuit Court shifted from appointments to a public defender system in 2013 in an effort to curb costs. While it still has one of the highest indigent defense bills in the state, Jefferson County costs ultimately went down.
Boohaker said there had been a handful of attorneys who were “abusing the system” and “making six-digit salaries on appointed work.”
“We ultimately determined that what we had was an open-ended obligation, but with a public defender, you kind of draw a circle around that,” Boohaker said. “You get a budget and the state says: ‘We’re going to spend x amount of dollars per fiscal year.’ It’s really a cost-saving measure.”
That wasn’t always the case, though. With a high number of capital cases, Jefferson County initially had to maintain a high number of appointments even after opening its public defender’s office. Boohaker said things have since adjusted and the public defender is handling about 80 percent of all indigent cases.
In Montgomery County, the move to a public defender’s office has not been a cost saving endeavor so far. Its office is a few years younger than the one in Jefferson County, and OIDS data indicates its indigent defense costs have gone up since moving away from a contract system in 2015.
Still, Presiding Judge Johnny Hardwick said opening up a public defender’s office has definitely improved the overall performance of the court system there. Sure, the startup costs are more, Hardwick said, but it levels off, or even improves, over time.
“I think we’re doing pretty good,” he added. “I think folks are getting quality legal representation and the judges are pleased because folks are showing up to court.”
Outside of any potential cost savings, Lockett has said a competent public defender’s office — as part of broader indigent defense system — could have positive effects in the legal community and court system.
Public defenders, he said, often have a stronger connection to the community than some private attorneys, which can help alleviate the lack of confidence groups like Faith in Action have expressed. More tangibly, Lockett said a public defender’s office gives young lawyers a place to come in and learn from more experienced attorneys – something he said has become less common in private firms.
Finally, he noted the court system touches several aspects of state and local government, and just because a line item for indigent defense goes up, that doesn’t mean cost savings aren’t occurring elsewhere. He said if the county were to give a public defender’s office “a fair shot,” it could lead to some efficiencies.
“On a dollars and cents basis, it may cost more, but I think there are savings that we could never quantify,” he said. “If a public defender could take a significant component of our cases and move them through the system more quickly, that is people spending less time in the county’s jail. Is this going to solve all of our problems? No, it’s not. But I think there is a general sense that we can do better.”
Dale Leisch contributed to this report.
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