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Changes may be coming to the system that provides attorneys to Utah criminal defendants who can't afford to hire one.
For four years, a state task force has been delving into issues surrounding Utah's indigent-defense system. As part of that, the task force hired the Sixth Amendment Center to review the way the accused are represented in Utah.
The Sixth Amendment Center's report was presented to Utah's Judicial Council on Monday. The report highlighted flaws in the current system, which mostly centered around whether Utahns were given access to attorneys.
The organization found that in Utah's justice courts — where people often connect with the courts system for the first time — over half of defendants are never provided legal representation.
For felony-level offenses, lawyers are generally afforded to the indigent — but the Sixth Amendment Center report said "systemic deficiencies" can prevent defense attorneys from effectively advocating for their clients.
'Serious problems' • The U.S. Supreme Court ruled in 1963 that any defendant facing possible jail time is entitled to counsel, even if they can't afford it.
But Utah is just one of two states that leaves indigent funding up individual counties, according to the report.
Previously, there has been no state organization to oversee these indigent programs and the way they operate from county to county. For instance, in Utah and Salt Lake counties, a nonprofit public defender association provides services, while other counties rely on contracted public defenders. Other counties have contracts with private defense attorneys as well.
In Utah's justice courts, over 65 percent of criminal defendants go through the process without an attorney, the Sixth Amendment Center report found.
The report states that in some justice courtrooms, the judge won't appoint a lawyer if he or she doesn't plan on ordering a jail sentence. But the report said there is still a problem if jail time is part of a suspended sentence that would be imposed if a defendant violates probation requirements.
The report also states that prosecutors in some justice courts are meeting with defendants before they see a judge to offer them a plea deal. This is a violation of the right to counsel, the report says.
Kent Hart, associate director of the Utah Association of Criminal Defense Lawyers, told the judicial council Monday that his organization's biggest concern is with how the justice courts are run.
"We do have some serious problems," Hart said. "I think there is a very well-intentioned effort [for defendants] to take responsibility for their actions. The problem is they have the right to an attorney, and invoking that right does not mean they aren't taking responsibility. I think they are confused. … They need that aid and they need an attorney."
While the district courts are better at giving defendants time with an attorney, the report noted that those public defenders are often juggling too many clients and some take multiple contracts in different counties. There are a total of 217 attorneys statewide who take on indigent cases, the report says, but 46 of those attorneys handled over 13,000 of the 24,373 felony and misdemeanor cases from 2011 to 2013 that required a public defender.
Another problem in some rural district courts is that prosecutors are often picking their own adversaries, and are awarding public defender contracts or advising county commissioners on who should be hired, according to the report.
Solutions • In response to the Sixth Amendment Center report, the 31-member task force — comprised of judges, county attorneys, defense attorneys and others — made three recommendations to the judicial council Monday:
• That the Legislature create an Indigent Defense Commission, which will provide statewide oversight of the services being offered to indigent Utahns, as well as provide training, economic assistance and other resources to local jurisdictions.
• That local governments reform their indigent services contracts so that attorneys won't face disincentives to doing effective work. The Sixth Amendment Center specifically noted in their report that fixed fees were troublesome, because there was no incentive for an attorney to work harder on a case. At times, the defense attorney lost money because he or she was responsible to pay for the client's defense investigation, the report said.
• That the judicial branch "enhance the ability of judges to ensure compliance with right-to-counsel obligations." This is especially important in justice courts, the committee noted. A monitoring and feedback program will also be implemented to improve the ability of justice court judges to understand and abide by Sixth Amendment requirements.
The committee noted in its report that a statewide commission was needed, but said there should be "sensitivity to the fact that there are a variety of ways that local governments may choose to fulfill their charge to provide counsel."
"This is not going to be a statewide cookie cutter," said Utah Court of Appeals Judge Stephen Roth, who chairs the task force. "But it will have the expertise and authority to look at what's happening in different areas of the state and see what the local needs are."
Because it is likely that the proposed Indigent Defense Commission will provide state money to the local governments, the state legislature must approve the commission's formation, according to the committee report. How much extra state money will go to the individual county governments is yet to be seen.
But report's other two recommendations can be implemented without approval from state legislators, the committee said.
The committee asked counties to cease flat-rate defense attorney contracts "as soon as reasonably possible." It also advised counties to create a model contract that will "eliminate disincentives to effective representation," which will include the establishment of a separate fund for defense resources, such as witnesses, investigators and travel expenses.
The committee also encouraged further training for justice court judges, so they better understand the Sixth Amendment and how to apply it in their courtroom. Assistant state court administrator Rick Schwermer said Monday that they have already started that training.
"We didn't wait until the ink was dry on the report," Schwermer said. "The city, county and judiciaries began working on the other recommendations [that don't require legislation.]"
Schwermer also said they will also be asking legislators to reduce class C misdemeanor traffic violations to infractions, which will eliminate the possibility of jail time. With that, the state won't be obligated to provide a defense attorney — which Schwermer said many defendants don't want anyway.
"With a defendant who is charged with speeding," he said, "You try to have a conversation about a right to counsel, and they want to explain why they were going so fast, pay a fine and move on."
The American Civil Liberties Union of Utah has threatened to sue over the state's problematic indigent defense system. In a statement Monday, ACLU officials applauded the thoroughness of the Sixth Amendment Center report, but said the recommendations fall short of "immediate, detailed, and concrete solutions" to the problems.
"There is no doubt that a truly independent state-level commission must be part of the solution, and we certainly support an end to flat-fee contracting. But these actions alone will not provide local relief and ensure immediate, ongoing protection of all Utahns' Sixth Amendment rights," Marina Lowe, ACLU of Utah Legislative & Policy Counsel, said in a statement.
"We hoped to see in-depth and prescriptive measures that counties could undertake right now to better deliver justice for their community members. These recommendations do not get us there, especially without substantial state funding."