Lawmakers: State needs public defense commission

 Legal experts warned that the state’s public defense system was unconstitutional

By Rebecca Boone
Associated Press

BOISE, Idaho (AP) — Members of a legislative committee charged with fixing Idaho’s public defense system say they are leaning toward creating a state commission to figure out some of the nuts and bolts of public defender contracts, training needs and oversight.

But co-chairman Sen. Dean Mortimer, R-Idaho Falls, said in the meantime he’d like to see most counties put an end to using part-time contractors to represent poor defendants.

The Legislature appointed the Interim Committee on Public Defense earlier this year after hearing dire warnings from outside legal experts and in-state criminal justice professionals who cautioned that Idaho’s current system is unconstitutional and puts the state at risk of costly, drawn-out federal lawsuits.

Currently, counties choose their own approach to public defense. The result is a patchwork: Some contract with the lowest-bidding private defense attorneys, while others have an established public defender office with staff attorneys, investigators and paralegals.

Nearly four years ago, a report from the National Legal Aid and Defender Association found that Idaho isn’t adequately satisfying its Sixth Amendment obligations for defendants. That prompted the Idaho Criminal Justice Commission — a group appointed by Gov. C.L. “Butch” Otter — to create a subcommittee to study the matter, which they did for the next three years.

In January, the subcommittee came up with several recommendations to improve parts of the system. Lawmakers then passed bills detailing when children should be appointed attorneys in custody cases and when juveniles should be given public defenders; and clarifying when a poor defendant should be appointed an attorney on the county’s dime.

But many problems in the system remain, including an apparent conflict of interest that can arise when a contracted public defender must choose between dedicating more time to lower-paying public defense cases and adding more lucrative private defense clients to their caseload.

During Wednesday’s meeting, committee members considered changing Idaho’s public defense laws to give counties a few options. Rep. Lynn Luker, R-Boise, said one would be for counties to establish their own office of public defense, or for two or more counties to establish a joint office. That choice could allow counties that have smaller criminal caseloads within the same judicial district to share the costs and benefits of a dedicated office.

Another option would be for counties to individually or jointly contract with a private public defender, under the caveat that the attorney would work full-time on public defense and take no private cases on the side.

But Dan Chadwick, executive director of the Idaho Association of Counties, noted all the options likely would be challenging for Idaho’s most rural and remote counties. In those sparsely populated areas with mountainous terrain, it would be difficult for a shared public defender — contracted or otherwise — to have enough work for a full-time job or enough time for a three- or four-hour trip between courthouses.

The committee also is considering creating a state public defense commission to research training needs, oversight and data collection. Mortimer said such a commission could make a recommendation to lawmakers on the amount of funding needed for Idaho’s public defense system once that research is complete.

“What we’re saying is because they’re the experts, we’re going to ask them to make those recommendations to the Legislature,” Mortimer said.

The committee is expected to meet again in January to finalize its recommendations to lawmakers.