Mounting criticism may sentence Office of State Public Defender to short future

2010-08-01T00:00:00Z Mounting criticism may sentence Office of State Public Defender to short futureBy JENNIFER McKEE IR State Bureau Helena Independent Record
August 01, 2010 12:00 am  • 

Retired Helena Justice of the Peace Wally Jewell is not the only one to raise concerns about Montana’s four-year-old Office of the State Public Defender, but his critiques are among the most biting.

In a series of e-mails sent in 2008, even before outside auditors came to similar, albeit more formal, conclusions, Jewell wrote that the agency was a “DAMN MESS!!!”

Just like that. ALL CAPS. Three exclamation points. Actually, what he wrote was this:

“I would truly appreciate someone, anyone FIXING THIS DAMN MESS!!!” Elsewhere, Jewell wrote that he was “sick and tired of putting up with this chaos,” and explained how a defendant appearing before his court had his case passed from one public defender to another until the day came for a scheduled hearing in the matter and no one from the public defender’s office showed up.

Lee Newspapers obtained the e-mails this summer. They were sent to a long list of recipients.

Jewell, who has since retired, could not be reached for comment.

Since Jewell wrote his messages, criticism aimed at the agency has mounted. Last year, a group of auditors called in from American University of Washington, D.C., released their conclusions.

Here’s what they found: Management is often non-functional; there isn’t enough money or support staff, morale is low and, perhaps not surprisingly, turnover is “relatively high.”

All of that, combined with other problems, has some wondering what the future of the office holds.

State Sen. Dan McGee, R-Laurel, who sponsored the 2005 law that created the agency, said his highest hopes have been dashed; he now supports dismantling the system and limiting the state’s authority to training public defenders. The Montana branch of the American Civil Liberties Union, whose lawsuit prompted the Legislature to create the office, has hinted that the current system doesn’t fix what was wrong and another lawsuit may be in order.

But the year-old report and other criticism do not begin to tell the whole story, Chief Public Defender Randi Hood told Lee Newspapers.

Hood concedes that starting a new state agency with a yearly budget of $10 million from scratch and doing it on the cheap was not easy. The office’s approximately 200 employees, roughly half of whom are lawyers, have difficult jobs, she said; they’re not paid what they’re worth and the work can be overwhelming. Under such circumstances, she said, it’s not surprising that people may quit — or that they’d complain. And if they complain about her, well, Hood said, that’s just part of being the boss.

“I respect everyone in this agency,” she said. “Sometimes, if they say, ‘Oh, she’s mean to us,’ it’s just a way for them to channel the frustration of a very difficult job.”

Hood said she’s fixed almost all the concerns the American University report raised.

Before July 1, 2006, public defenders were the county’s job. Poor people accused of crimes who could not afford their own lawyer got one at the county’s expense. Sometimes those lawyers worked directly for the county; other times they were private attorneys hired by counties to represent indigent defendants.

Whether or not a person qualified for a defender rested with the presiding judge in the case.

The county-run system, used in many other states, had some successes, but many problems, said Scott Crichton, executive director of the ACLU. Larger counties with bigger budgets often had better public defender offices than smaller counties. Many public defenders had had enormous caseloads and did not have the same access to experts as prosecutors.

All of that meant poor defendants were not getting a fair shake in court, Crichton said.

In 2004, the ACLU sued the state, arguing that very thing.

The result was the state Public Defender Act, a law passed by the 2005 Legislature. If everything went as planned, said McGee, Montana’s justice system — particularly for the poor who found themselves ensnared in it — was about to get awesome.

“I was hoping Montana would have a vigorous and positive public defender program,” McGee said in a recent interview, “one that was an asset to anybody in the justice system.”

The new agency was buttressed against political whims by an appointed commission, which oversaw the office and put in long hours the year before the office opened writing policies that promised great things, according to the AU audit.

The agency has certainly improved some things, said Sen. Jim Shockley, R-Victor, a state lawmaker, former public defender and private lawyer whose practice includes some criminal defense.

“In (Ravalli County), it’s better than it was,” he said.

But Shockley is not alone when he said the young agency’s problems start at the top.

“It’s not bad management; it’s no management,” he said.

The American University report put it this way: “The (managerial) deficiencies are major and failure to cure them puts the organization in peril.”

The auditors proceeded to list them: Not enough support staff, supervising attorneys that have no time to supervise because they’re too busy with their own cases. The office doesn’t keep good records, making it difficult for the agency to account for its spending. There is “little communication” between management and staff. Many employees, including the chief public defender herself, do not have written job descriptions, making it difficult to assess how anyone is performing. And, finally, “the chief defender does not appear inclined to delegate responsibility to the lower level supervisors.”

Lee Newspapers spoke with several current and some former employees of the office. None wanted to be identified by name, for fear of jeopardizing their employment. But they described a work environment that has justifiably driven out many of their former co-workers. Here is a sample:

Several employees talked about their “crushing caseloads.” Several said they have or had so many clients, they feel they are constantly on the verge of committing legal malpractice. Many spoke of having no mentoring, no help when they need it, which is a “huge issue,” one lawyer said, because so much of the legal staff are fairly recent law school grads.

Several said they thought Hood had her “favorites” and would unfairly demote good lawyers only because they failed to make Hood happy.

Of course, there was never any money. Many lawyers complained their yearly salaries, which start in the low $40,000s, were lower than those of other lawyers who work for the state. Some complained about having to “fight for things like staples and business cards.”

Hood’s son, Christopher Connor, has also worked off and on for the agency, sometimes taking unadvertised jobs. Over a two-year period beginning in February 2008, Connor held three separate temporary jobs at the agency, never staying off the payroll for more than two months. He was a computer tech, a legal secretary and topped out as a management analyst this spring. When Connor left the agency at the end of April he was earning $36,000 a year, a wage that approaches the salary paid to the agency’s starting lawyers.

Barb Kain, the human resources officer for the agency, said Connor’s jobs were always intended to be temporary and, in at least one case, he was hired through a competitive process. Initially, Connor was hired to work under the agency’s No. 2, Harry Freebourn, the administrative director.

Freebourn said Connor did good work. Kain said Connor’s employment at his mother’s agency was always handled properly and Hood said she never supervised him, although he did work closely with her at a six-week murder trial this spring in Billings.

Everyone interviewed for this story agreed Hood is a great lawyer, one of the best in the state, Shockley said. But both the American University auditors and Hood’s own staff said the agency needs a manager, not a lawyer with her own cases to manage, particularly the kind of high-profile murder cases Hood has taken on.

The report also faulted the agency for failing to account for where its money goes, failing to have contingency plans for emergencies and failing to monitor how many clients lawyers have.

Shockley said the lack of solid financial accounting makes it hard for lawmakers to approve more money for the agency, even if the office truly needs it.

He said the agency also doesn’t try to collect any money from clients. Under the old system, he said, his county would routinely bring in tens of thousands of dollars a year from clients to support the public defenders’ office.

“This last year, they didn’t collect $100,” he said.

Hood said the law that created her agency did not strip judges of their ability to collect money from the indigent, if judges believe the person can pay something. But she also said her office exists to represent people, not to squeeze money out of them.

“I think being a collection agency is not an appropriate role for the office,” she said.

What can be done?

McGee said the system is inherently broken. He recommends dismantling it and giving the public defenders back to counties, with the state responsible only for providing cohesive training for the ranks.

Shockley said the office needs to have better records and changes must begin with management. Many of the defenders said the agency needs a manager with managerial experience who can devote herself or himself to running the office.

Hood said she’s already addressed many concerns; regional supervising attorneys now have much fewer clients than they did before. She, herself, has only one case — a misdemeanor.

She also admitted that it was difficult for her, in the beginning, to delegate authority to the regional offices, but she said that’s changed, too. Having built the agency literally from nothing, Hood said she intentionally wanted the regional offices to focus on representing people, not on day-to-day administrative problems.

“I have hoped that as (regional managers) get more adept at what they’re doing and we have a process in place that makes sure clients have more access to attorneys, I began delegating more responsibility,” she said. “It’s an ongoing process.”

As for the notion that she surrounded herself with her favorites, Hood said that her management team has included people she has worked with for a long time “because I trust them and I seek their counsel.”

“I’ve also hired people I don’t even know,” she said.

One thing Hood and some of her detractors agree upon is that the system should not be dismantled. Despite its problems, said one public defender, the system is working; the poor are getting good representation and it makes little sense to take apart a system that hasn’t really had time to prove itself.

“We’ve got wonderful people working in this agency,” Hood said. “And wonderful lawyers.”

Copyright 2016 Helena Independent Record. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(4) Comments

  1. Shepherd323
    Report Abuse
    Shepherd323 - August 02, 2010 2:26 pm
    I could be wrong though. Perhaps he meant FY10. In that case I'd bet that the "charges for services" category represents an even higher amount. Again next time you decide to lie remember that there are accountants out there who know how to read a set of financial statements even if you don't. I guess we'll all have to see when the FY09 and FY10 audited numbers come out:

    http://leg.mt.gov/css/publications/audit/audit_reports_agencyalpha.asp

    Once that happens I'll have to eat my words if charges for services is $0 as I'm making a prediction. However, I guess Shockley will have to defend his outright lie made about OPD.
  2. Shepherd323
    Report Abuse
    Shepherd323 - August 02, 2010 11:18 am
    Hmm, I guess we'll see if they collected anything in FY09. This would be the last year that Senator Shockley referred to. I'm guessing that with the passage of SB263 they've probably collected more than $100 in terms of "charges for services." Seeing as Shockley is a senator I'm thinking that he of all people would have access to this information if he wanted to.

    I'm going to go ahead and bet that the financials will show otherwise. A word to wise elected officials, if you are going to lie outright lie about something that's a little bit harder for a citizen to call BS on.
  3. enu_22
    Report Abuse
    enu_22 - August 02, 2010 8:03 am
    It seems to me that our legislature programmed this failure 4 years ago. Poor management just hasened the outcome.
  4. dogslife
    Report Abuse
    dogslife - August 01, 2010 9:53 am
    A good Lawyer does not mean a good manager

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