OPINION: Alaska’s overworked public defenders shouldn’t be denigrated

It is unfortunate and insulting that a “career prosecutor” does not understand the role of public defenders in the criminal justice system. In his recent letter to the editor, John Novak disparaged the Alaska Public Defender for notifying the courts that the agency currently cannot accept new serious felony cases in Bethel or Nome and still provide the clients with the effective assistance of counsel to which they are entitled. Novak implied that this is due to a poor work ethic or some moral inferiority of public defenders as compared to prosecutors, who would be fired for such action.

In truth, prosecutors decline cases every day. And for a public defender to accept every new case without sufficient experienced attorneys and resources would violate the U.S. and Alaska constitutions, the “Rules of Professional Responsibility,” and the American Bar Association “Model Rules for the Defense Function.” To take on more cases in this circumstance would be a fraudulent cover-up of the denial of fundamental rights to poor people.

In the case of Gideon v. Wainwright, the U.S. Supreme Court observed: “(I)n our adversary system of criminal justice, any person haled into its courts who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to be an obvious truth.” This does not just mean a warm body in court, but competent legal representation.

The American Bar Association says that competent representation includes counsel having the ability, training and experience to match the complexity of the case, as well as sufficient time and confidential space to meet with the client. The ABA instructs public defenders not to take on more cases than they can handle competently, and to decline additional cases when excessive caseloads interfere with their ability to provide competent representation. Several states have also issued formal ethics opinions with these requirements.

The ABA also says that a supervisor of public defenders has a responsibility to ensure caseloads are manageable and representation is competent. In 2009, the ABA specifically urged public defenders to file motions asking courts to stop assigning new cases when necessary. Recognizing this is a subjective determination, the ABA noted that it is the public defender who is in the best position to assess the workloads of their lawyers. Other states have had the same issues of keeping experienced public defenders and compromising representation when caseloads are too high. Courts have approved of public defender withdrawal or refusal to take cases in Louisiana, Massachusetts, Missouri, Florida and New York.

For the public defender to continue to take on more cases without experienced counsel or adequate resources would be a fraudulent cover-up of a denial of fundamental rights to poor Alaskans. Surely the Alaska Public Defender is most qualified to make this call than a person who has never been a public defender, read the “Rules of Professional Responsibility: The Defense Function,” and has no idea of current staffing, experience, training and workloads of the Alaska Public Defender Agency.

When a person accused of a crime has a lawyer who is inexperienced or has too many clients, the result is horrific. There is a lack of communication with the client, missed filing deadlines, inadequate investigation and incompetence in court. Innocent people are convicted and jailed, and public safety is harmed while the true criminals remain free. Jobs are lost, families are torn apart and unable to support themselves. Without the work of the public defender, clients are unable to access treatment, housing and training programs to help them escape the criminal world. Parents don’t get their children back, generations are traumatized and no one has confidence in the criminal “justice” system. Costly appeals and post-conviction relief cases are filed in court for those clients, leading to reversals of convictions and retrials years later when evidence and witnesses are lost. This is heartbreaking for all involved, including victims. A better and less costly approach is to provide justice in the first place.

This temporary need for the public defenders to halt taking new cases is caused by unique circumstances which can best be solved by the collaborative efforts of all participants in the criminal justice system. Even prosecutors could help by screening cases more carefully and sending those accused of low-level non-violent offenses to diversion, treatment, or rehabilitation programs without filing criminal charges that require public defenders. Prosecutors could also be supportive of providing adequate funding to public defenders in the legislative budget process.

The Alaska Public Defender Agency has always had hard-working staff committed to the zealous representation of their clients. We should be grateful. The people of Alaska, including our clients, their families and the community at large deserve a criminal justice system in which they can have confidence and that is fair to rich and poor alike.

Barb Brink is a former director of the Alaska Public Defender Agency.

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