Photo | Shane Rice
The National Criminal Justice Reference Service estimates anywhere between 60 to 90 percent of criminal cases in the United States involve indigent defendants who cannot afford their own legal counsel.
The U.S. Supreme Court ruled definitively in the 1960s the Constitution requires states to provide attorneys for those defendants, and that mandate has proved to be costly in Alabama. In 2019, the state spent more than $80 million on indigent defense and $5.1 million in Mobile County alone.
It’s an expensive burden, but Rosalie Joy, vice president of legal services with the National Legal Aid and Defender Association (NLADA), told Lagniappe it is one states have to meet. She said organizations like NLADA work with defense systems nationwide to ensure “access to justice isn’t reliant on access to money.”
“We’re a country that believes you should be presumed innocent until proven guilty, not the other way around. It is a big cost, but so is the cost of public safety and the cost of prosecution,” Joy said. “We have to insist, in a democratic society, that there be that balance, and nobody understands that more than someone who has a family member, a friend or a loved one suddenly facing a serious accusation.”
For years, Mobile County has handled indigent work through court appointments doled out by the judges presiding over each defendant’s case. If someone in their courtroom can’t afford an attorney at any point during the legal process, a judge can appoint one to serve on their behalf. The attorneys then bill the state.
That system has helped many young attorneys cut their teeth and establish client bases early in their legal careers, but it has also come under scrutiny in previous years for creating a situation that can sometimes incentivize attorneys to put personal profits and courtroom politics over the interests of their clients.
Beginning this year, though, the lion’s share of indigent defense cases will be handled through the newly established Mobile County Public Defender’s Office (MCPD). Under the direction of longtime defense attorney Arthur T. “Art” Powell III, the office has spent the past several months assembling a team of attorneys and support staff members who will help it launch at the beginning of October.
Looking ahead, Powell said his staff’s primary, ultimate goal is to make indigent defense more effective for the clients and more efficient for taxpayers, but he also hopes to create an environment where young lawyers develop their practices under the tutelage of more experienced attorneys.
“We’re really excited about it. We’ve got some very experienced attorneys as well as a lot of young people we’re bringing on who are excited about doing this kind of work,” Powell said. “A lot of these young attorneys focused their law school activities around public defense — working as interns in various public defenders’ offices. Many of them come into this job knowing it’s exactly what they want to do.”
Nine years ago, Alabama made a significant change in the way it pays for indigent defense.
After years of increasing costs, the Legislature overhauled the system in 2011 — creating the Office of Indigent Defense Services (OIDS) and giving counties the option to choose between an appointment system, a public defender system or a third option in which attorneys are contracted by the courts.
While OIDS oversees indigent defense spending and distributes state tax dollars to the attorneys who perform that work, it leaves the decision on which system to use up to local advisory boards. Last year, after 11 years, the Mobile County indigent defense advisory board voted for the first time to move away from an appointment system and establish the area’s first public defender’s office.
A public defender’s office is essentially a state-run criminal defense firm that, in most cases, gets the first dibs at indigent defense cases. Instead of appointing cases to individuals’ attorneys, they’re appointed to the office, which distributes them among its attorneys, who are salaried state employees.
However, Mobile County has historically been one of the busiest judicial circuits in the state, and Powell is confident other attorneys will still be able to pick up appointed cases whenever MCPD attorneys reach state-imposed case limits or the office has to recuse itself.
“One of the arguments against creating this office was that we already have great lawyers here in Mobile, and that’s true, most of them are,” he said. “But the public defender model takes away the economic incentives that are inherent in criminal practice. Money is not an object. I support the appointed system as well as a hybrid with the public defender’s office. I don’t think they have to be mutually exclusive.”
Domingo Soto, a defense attorney in Mobile, said he believed the switch to a public defender model was “long overdue” for Mobile. He has no affiliation with the public defender’s office but said the old system often saw a mix of skilled and unskilled attorneys taking on indigent cases. He said the same was pretty much true when he began working indigent cases years ago.
“The second case that I got as an appointed lawyer was a double murder … I learned how to try a case with a double murder,” Soto said. “When you’re new in a market, it’s experience. Unfortunately, sometimes it’s experience one gains at the expense of the defendant.”
Powell said the public defender’s office is trying to avoid that kind of situation.
The office hopes to have a little over 20 lawyers on staff by the time it launches next month, including a handful of experienced, capital-qualified attorneys who will work with new attorneys to show them the ropes.
“What we’re trying to do now is to formulate a structure from the top that encourages a collaborative effort between lawyers and staff members for the good of the client community,” Powell said. “I came up practicing law in the appointed system when I was a young lawyer, but back in the day, it was just you. You had no support system. We hope this can provide that support system. We’re not going to have new lawyers out there on their own. They’ll have experienced lawyers with them at every critical stage.”
Unlike some individual lawyers or small private firms, the public defender’s office will also have ancillary staff members like certified social workers, investigators, client advocates and others who will help support the work the attorneys are doing on behalf of the defendant.
The cost of doing business
From juveniles to capital murder suspects, Alabama spent more than $5 million on indigent defendants in 2019. According to OIDS, 13 attorneys made more than $100,000 off indigent defense work in 2019; but there are several factors that determine what an attorney takes home, including the nature of the cases they’re handling and the number of defendants they served.
Some attorneys, like Jason Darley and Christine Hernandez, were among the top earners, but reported much lower case counts. That’s likely because the cases they worked were serious felonies or capital offenses that take considerably more time to prepare for.
Others appear to have crossed the $100,000 threshold based on the volume of cases they handled, with some reporting more than 200 cases to OIDS and at least one attorney receiving close to $120,000 to handle more than 400 cases.
It should be noted OIDS data doesn’t reflect how many cases an attorney works in a year, only how many they submitted bills for. Under the law, appointed attorneys are paid $70 an hour and aren’t supposed to take on more than 200 felony cases in any calendar year. A full list of all the attorneys who receive payments from OIDS in 2019 is available below.
In 2011, Lagniappe reported some judges had handed out hundreds of indigent cases to attorneys they had personal connections with, and in some cases, who had contributed to their re-election campaigns. A former judge said for years the threat of losing indigent appointments kept some local attorneys from challenging judges for their seats on the bench in Mobile County.
Dennis Knizley, a defense attorney with a successful local practice, was part of a group of defense lawyers who started raising concerns about the local indigent defense system around that same time. Though he has previously practiced law with Powell, Knizley doesn’t have a personal interest in the new public defender’s office.
Still, he believes the time was right to move away from the appointment system he says was “never meant to be a primary means of livelihood for criminal defense lawyers.”
“Certainly in days gone by, it was beneficial for young attorneys to use indigent defense appointments to supplement a developing practice, but I think problems developed over the years as some lawyers, and problematically even some older lawyers, began to utilize the system as a primary source of income,” Knizley said. “The purpose of the appointment system is not to make money but to learn how to practice law, not be down there taking criminal appointments and pleading people out that shouldn’t be pleaded out.”
However, just because individual attorneys might make less money under a public defender model, that doesn’t mean the overall costs to the taxpayers will go down. In fact, some members of the advisory board and Powell have indicated costs could go up initially.
According to OIDS Director Chris Roberts, MCPD’s initial budget is about $3.9 million, but that doesn’t include any costs that might be incurred if attorneys outside the office have to be appointed to handle cases MCPD cannot. It also doesn’t include one of the most expensive aspects of indigent defense, juvenile cases, which cost close to $1.3 million in 2019.
Though her prosecutors will soon be on the opposite side of the courtroom from MCPD’s staff attorneys, Mobile County District Attorney (DA) Ashley Rich expressed some optimism that having most indigent cases organized under one office might help streamline the process some.
Under the existing system, defendants can change appointed attorneys frequently — something Rich said has previously led to delays.
“I’m hopeful that having an office of indigent defense will stop some of that, but that depends on whether they’ll be held accountable by the judges like we’re held accountable to be ready for trials,” Rich said. “Anything to speed up the time it takes to get a case tried would be helpful.”
The way lawyers are paid doesn’t impact how her office handles cases, but Rich did say she expects to see the cost of indigent defense go up because of the creation of a public defender’s office. She also expressed concerns the state is putting millions into an indigent defense as her office has had to file lawsuits to secure adequate funding for local prosecutors.
While the $6.5 million budget her office received last year was more than the $5.1 million allocated to indigent defense locally, Rich said only about 40 percent of cases in Mobile County involve indigent defendants. By her estimates, the DA’s Office only receives around $476,000 to prosecute the same defendants the state spends millions to defend.
Powell said the office has done what it can to keep costs down during the early work of setting up the office. Part of his job over the past few months has been filling out his staff and securing office space and furnishing for the office, which will be located in Riverview Plaza downtown.
That space, which Powell said was “move-in ready,” came available after a local law firm relocated. Fortunately, the U.S. Probation Office and U.S. Bankruptcy Court — both of which are in the process of moving into the new federal courthouse downtown — have donated furniture for the new office. Powell said the donation saved a lot of time and money for MCPD.
From the ground up
Like everything else, the hiring process for MCPD was disrupted by the COVID-19 pandemic, but Powell said he’s been able to put together roughly a 30-person staff heading into October. So far, 17 attorneys have been hired and will be coming on board in staggered waves so they can be trained by the more senior attorneys.
According to Powell, the senior attorneys hired by the office so far include himself as well as Glen Davidson, Ashley Cameron, Greg Dawkins and Richard W. Foreman. With the exception of Dawkins, who has ties to Mobile but has been practicing in New Mexico, all of the senior attorneys at MCPD have been practicing in the area for several years.
At least two of those hires have already raised some questions among local lawyers, especially those who have opposed the creation of a public defender’s office. That’s because Cameron and Davidson were serving on the indigent defense advisory board when it voted to switch to a public defender system and when Powell was hired to be the first director of MCPD.
However, Roberts said is not uncommon across the state and noted there’s “nothing in the statute creating these advisory boards that bars a member from being involved in criminal defense work.”
Powell also noted Cameron and Davidson have been members since 2011 and have taken indigent appointments after previously voting to keep the appointed system in place.
“The bottom line is this: They were on that committee because they’re very well-respected criminal defense lawyers, some of the best in the city,” Powell said. “It would be negligent of me to not seek out those kinds of people to be part of my senior staff, and they both took a reduction in income to come to take these positions because they believe in what we’re doing.”
As for the rest of the staff, Powell said there will be a mix of experienced and inexperienced attorneys including some fresh out of law school. Some of the other members of the support staff have been hired so far and also have unique personal and professional connections to the local judicial system as well.
Chief Assistant Public Defender Ann Taylor has practiced law for 41 years in various capacities and has previously worked for the nonprofit Legal Services Corporation of Alabama. Tracy Chastain spent 22 years working in pretrial services through the Mobile County Community Corrections Center, and Administrative Assistant Kimberly Diamond has previously worked with Alabama’s Administrative Office of Courts as well as the district court and small claims court in Mobile County.
One of the more interesting backstories belongs to Champ Napier, who will serve as a client advocate and an intake coordinator for the office once it’s up and running in October. As Lagniappe has reported, Napier was sentenced to life in prison at age 18 after killing a man during a drug deal that went awry.
Napier was granted parole after 14 years and eight months in state prison and has spent the years since his release working in the local community advocating for felons’ rights and other aspects of criminal justice reform. Sixteen years ago he was a state prisoner; today he’s a state employee.
In his role as a client advocate, Napier will work directly with indigent defendants and their families and help guide them through the judicial process. Powell said Champ would also be working with new attorneys to help bridge a gap between them and some of the underserved communities they’ll be working in day in and day out.
“I believe the people closest to the pain are closest to the solution,” Napier said. “I have been brutalized, traumatized and victimized by the criminal justice system, so I feel like my story would resonate as a community advocate and help build trust.”
Correction: The original version of this article misspelled attorney Glenn Davidson’s name.
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