State hiring lawyers for indigent defense
Posted on Sunday, January 6, 2008
URL: http://www.nwanews.com/adg/News/212867/
For the past five years, nearly 900 cases involving indigent defendants in Arkansas criminal courts have been handled by private attorneys at a cost of almost $ 2. 4 million, according to records of the state Public Defender Commission.
Supporters of the practice say private lawyers are sometimes necessary to avoid potential conflicts when co-defendants can’t all be represented by the public defender. As a result, almost 150 private lawyers have been assigned since January 2003 to defend indigent clients in Arkansas.
Today’s method of assigning private lawyers is a break from how the state used to do it.
For years when indigent defendants needed attorneys, a judge would appoint a lawyer who simply happened to be in the courtroom at the time of defendant’s first court appearance, said Didi Sallings, director of the commission.
“The judges just kind of grabbed whoever was available,” Sallings said. “It could be a bankruptcy attorney or an inexperienced lawyer who just happened to be in the hallway.”
But, a 1997 law created the Public Defender Commission’s Capital Conflicts and Appellate Office. Through that law, the Legislature made provision for the creation of a pool of private attorneys who could be appointed to represent poor clients.
In the past five years, 880 cases have involved 147 private lawyers who were paid $ 2, 386, 546. 91, ac- cording to a database maintained by the commission.
The charges ranged from capital murder involving the death penalty to juvenile and district court matters.
The prosecuting attorney in the state’s most populous county said public defenders shouldn’t be too quick to appoint private attorneys to handle the cases of indigent clients.
“I think it would be a lot cheaper where there is a conflict to bring someone in from outside the area, just like the prosecutors do,” said Prosecuting Attorney Larry Jegley, who represents Pulaski County.
Sallings said private attorneys are sought when the public defender’s office has a conflict that should not be handled by the commission’s conflict division. The conflict that arises most often involves multiple defendants in the same case.
“For a while, in Northwest Arkansas every drug case had 16 defendants,” Sallings said. “Right now, we’re seeing a lot of multiple defendants in murder cases.”
There are 217 public defenders in the state, with a little more than a third of them full-time employees, Sallings said. The commission has nine attorneys who are specifically set aside to handle conflicts.
Public defenders make up to $ 77, 356 per year, with supervisors making close to $ 90, 000 annually, according to Act 1223 of 2007, the appropriation for the commission.
In the fiscal year that ended June 30, 2007, the commission’s appropriation was $ 17, 133, 079. Almost half of that came from court fees and bail-bond fees, with the remaining balance coming from the state Central Services Fund, which gets 3 percent off the top of the state’s receipts from taxes and fees.
Sen. Jim Luker, D-Wynne, a member of the Senate’s Judiciary Committee and an attorney, said he understands the legal reason to avoid conflicts.
“Obviously you want to be sure you don’t create an issue for appeal by not taking that into account,” he said.
There was at least one private attorney appointed in each of the state’s 28 judicial districts. The 6 th Judicial District, which is made up of Pulaski and Perry counties, accounted for 161 of the cases. In the 11 th Judicial District-West, which is made up of Jefferson and Lincoln counties, there were 84 cases, the second-highest total.
Pine Bluff attorney Robert Cortinez Sr. has been appointed by the court in 26 cases over the past five years, mostly in Arkansas and Jefferson counties.
After the judge determines a public defender is to be appointed, Sallings contacts qualified private attorneys and asks if the lawyer wants to be appointed.
“I haven’t ever turned them down,” Cortinez said.
Cortinez has received almost $ 50, 000 in fees from the commission for his work. His cases ranged from credit-card fraud and breaking and entering to capital murder.
In 2003, there were 114 cases in which private attorneys were appointed, followed by 213 in 2004, 220 in 2005, 166 in 2006 and 167 through Dec. 7, 2007.
In 2003, the records reveal, $ 366, 647. 66, was paid to private attorneys, with $ 625, 229. 53 paid out in 2004, $ 539, 739. 56 in 2005, $ 497, 177. 85 in 2006, and $ 357, 752. 31 in 2007.
The increase in the amount paid to private attorneys in 2004 and 2005 corresponds to an increase in the number of capitalmurder cases assigned in those years, from 14 in 2003 to 32 in 2004 and 26 in 2005. In 2007 there were 42 capital-murder cases assigned to private attorneys, but many of those cases had not gone to trial, so several had not been billed to the commission.
Sallings attributes the recent drop in the number of private attorneys to the 2006 opening of a new conflicts office in northwest Arkansas, with four public defenders assigned to handle nothing but conflicts cases.
Little Rock attorney Jonathan Lane was appointed to more public defender cases than anyone over the past five years, handling 78 cases, followed by Don Warren of Pine Bluff with 68 cases.
Bill James of Little Rock was third with 37 cases, 17 of them murder cases, and was paid almost $ 300, 000 in fees over the past five years, more than any other private attorney.
The payments include hourly fees as well as approved expenses and mileage.
“I think my practice has in some respects grown because of having those cases,” James said. “And I like going out in the state.”
James said in some high-profile murder cases, attorneys in some small Arkansas towns could hurt their practices by taking on those types of cases. But that’s not the case in more populous areas, such as Little Rock.
“You’re not going to lose your business because you represented someone in Little Rock,” James said. “We don’t have to worry about making everyone happy. These clients need someone who can come in and represent them aggressively.”
Murder cases make up the bulk of the money paid out, with $ 1, 466, 287. 41 disbursed to private attorneys handling those cases over the past five years.
Of the 880 cases, capital murder is listed as the charge in 155, with 12 other cases listing a firstor second-degree murder charge. There are 89 drug cases, 30 burglary cases and 23 rape cases.
In 156 cases, there is no charge listed but the commission records include case numbers and names of defendants. A commission employee said a judge’s order didn’t list the charge in those cases.
Attorneys are paid on a sliding scale depending on the level of crime with which the defendant is charged.
The fees range from $ 90 to $ 110 per hour for a capital / death penalty case, $ 70 to $ 90 / hour for an A or Y felony homicide case, etc., down to $ 50 to $ 70 / hour for district court, juvenile or probate cases. Attorneys are also reimbursed for approved expenses and mileage.
The Counsel Certification Application sets out guidelines for what types of cases a private attorney can be appointed to defend.
For example, to be certified to handle a felony case carrying a maximum penalty of 30 years, an attorney has to have within the past three years served either as a prosecutor for a year, a public defender for a year, a trial counsel in five misdemeanors that went to trial, an attorney in two felonies that went to trial, or an attorney who alone or with another attorney handled trials in two civil, criminal or juvenile matters that were tried before a jury.
Public Defender Commission staff members review applications to determine which kinds of cases a private attorney can be appointed to defend.
Of the 303 attorneys certified to be appointed as public defenders, 38 are qualified to be lead attorneys in a capital case and 32 others are qualified to be co-counsel on a capital case.
Of the other attorneys, 74 are certified to handle cases with possible penalties up to 30 years, 88 others are qualified to handle Class C and D felonies and 65 are qualified to handle Class Y felonies, according to commission records.
At the end of the case, the appointed attorney submits an itemized invoice to the commission, along with an order from the judge stating that the attorney did in fact represent the client.
The commission calculates the fee, which is approved by a judge, and writes a check to the attorney.