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Maryland public defenders juggle heavy caseloads; critics say indigent clients suffer

The Baltimore Sun
Public defenders in Maryland are asked to represent far more clients than experts say they can handle.

The Annapolis district courts have not been gaveled into session for the day, but already more than a dozen criminal defendants and their relatives are milling around in the hallway when a public defender arrives, a stack of thick manila folders under his arm.

He calls out a list of names. One by one they emerge from the crowd and he shakes their hands. In many cases, they have never talked before this moment.

"My name is Darren Douglas, I'm your attorney," he says. "Nice to meet you."

Across Maryland, especially in suburban and rural areas, public defenders are asked to represent hundreds more clients than legal experts say they can juggle and still provide effective legal representation.

The state has set non-binding caseload limits for public defenders — the maximum number experts say they can competently handle. But those limits are chronically exceeded.

State lawmakers and public defenders blame inadequate funding, and some say Maryland's criteria governing who qualifies for free legal representation is too lax. According to one analysis, about 380 public defenders in circuit and district courts are doing the job of more than 530 lawyers.

Douglas would prefer to meet and strategize with all of his clients before the day he's set to defend them in court. But with about 1,200 new case files landing on his desk every year, that just isn't possible.

In Maryland's circuit courts, where the most serious criminal cases are heard, caseload limits were exceeded in three-fourths of the state's public defender districts, including Baltimore and surrounding counties. The state Office of the Public Defender compiled the data from 2014, the most recent year available.

On the upper Eastern Shore, from Cecil to Talbot County, public defenders were assigned 473 circuit court cases each, on average, more than twice the state's caseload limit.

The problem extends to district courts, which handle misdemeanors and some felonies, and to juvenile courts, where criminal cases against children under age 18 are heard.

Legal experts say public defender systems across the country are understaffed and underfunded, putting poor defendants at a disadvantage and compromising their basic constitutional right to a lawyer in criminal proceedings.

The issue came to the fore this month in Missouri, where the state's lead public defender tried to draw attention to his overwhelmed office by appointing Gov. Jay Nixon to provide legal aid to a poor client. Nixon is a lawyer and former state attorney general, and an obscure provision of state law allows the public defender to ask any member of the state bar to provide legal representation.

Earlier this year, the chief public defender in New Orleans refused to take on some clients charged with felonies, leaving many of them to wait in jail. Derwyn Bunton said he took such a drastic step — which drew a lawsuit from the American Civil Liberties Union — to shed light on the enormous caseloads and his office's struggle to do right by clients.

To some, the issue reflects a widespread indifference to the legal rights of the poor.

"An indifference and a hostility," said Douglas Colbert, a law professor at the University of Maryland who specializes in public defense. "It's very hard to look at it any differently."

In Maryland district courts, caseload limits were exceeded in every jurisdiction in the state except Baltimore in 2014, according to the Office of the Public Defender. In Anne Arundel County, public defenders in district court were each assigned an average of 1,262 cases. The caseload limit there is 705.

In juvenile courts, caseload limits were exceeded in four jurisdictions that year. Caseloads in Frederick and Washington counties reached 484 new cases, on average, or nearly twice the state's recommended limit of 271.

"The numbers in some jurisdictions are off the charts," said Paul DeWolfe, the state's top public defender. "There's been no movement toward adequately funding the public defender's office."

'Already at the bottom'

Some contend that the heavy workloads mean that public defenders cannot do their jobs well.

Gabrielle Hedrick, 33, has been represented by three public defenders on theft, property destruction and other charges in the upper Eastern Shore district, where circuit court caseloads are the largest in the state.

"If you met with them once before your case, you were lucky," she said.

Hedrick said her public defenders urged her to take plea deals — she thinks simply to get her cases off their dockets.

Mike Pappafotis, the deputy public defender for that district, denied that anyone is forced to take a plea. He said his office manages to provide effective representation to clients as mandated by legal and professional codes.

"That's always the decision of the client, and it's based upon any number of circumstances," he said of plea deals. "It's based upon the record of the defendant, the judge handling the case and obviously the facts of the case."

But Pappafotis said caseloads in his office are unreasonable and that public defenders are overworked. At one point, Pappafotis was the only public defender in his office in Queen Anne's County. Now it has four.

"The number of cases that we have with the resources that we have creates a real significant problem," he said.

Hedrick doesn't blame the public defenders who represented her.

"They were trying to take care of me and 10 other people," she said. "How could they focus?"

Pappafotis once represented David Leager, Hedrick's fiance, who was sent back to prison in 2012 for leaving a drug treatment program early and missing a meeting with his probation officer. Leager had previously served time on a theft charge.

But Leager said he was unable to attend the meeting because an auto accident had left him in a coma. Pappafotis fought the case all the way to the Court of Special Appeals, which reversed the judge's ruling and released Leager in 2014.

Leager said poor people are at a disadvantage in the judicial system.

"Let's be honest, what we say don't matter," he said. "We're using a public defender. We're already at the bottom of the pile."

Strapped budgets

Public defender caseloads have been an issue in the Maryland General Assembly for more than a decade.

To address the problem, the state nearly doubled the agency's budget between 2001 and 2008, but spending slowed during the recession and the Office of the Public Defender shed staff even as the number of cases rose.

The agency's staff has not been so small since fiscal year 2003, when it had 20 percent fewer cases, according to the Department of Legislative Services, which provides research and budget analysis.

The department calculated that the agency needs to hire 150 more public defenders to bring circuit and district court caseloads in line with standards. About 380 public defenders are now assigned to those courts.

Hannah Marr, a spokeswoman for Gov. Larry Hogan, said that under the Republican administration the public defender's office has received a nearly 5 percent increase in funding and it will remain a priority going forward. She added that Hogan appropriated an additional $5 million to cover budget overruns left over from the previous administration.

"The Office of the Public Defender plays a critical role in our state," she said. "The governor is committed to making sure they are effectively serving the people of Maryland."

Public defenders and some lawmakers say the agency remains financially strapped and understaffed.

Its $104 million budget this year calls for more than a dozen positions to be abolished. Del. Kathleen Dumais, vice chair of the House Judiciary Committee, said the public defender's office has been underfunded under governors of both parties.

"It has been a problem for many years," the Montgomery County Democrat said. "It's not a sexy thing to fund. ... If you give money to the public defender, do you take it from the Department of Disabilities?"

Senate President Thomas V. Mike Miller said the system also needs to tighten standards for eligibility for public representation. He said the law allows "about anybody" to get a free lawyer.

"Right now, the public defenders are representing dentists. They're representing professional basketball players. They're representing people who make more money than they do," the Prince George's County Democrat said.

Defendants are eligible for representation by public defenders in Maryland if their annual income and assets fall below the federal poverty line, DeWolfe said. Those above the poverty line might still be eligible depending on the crime, how long and complex their trials might be, and other factors.

Del. Tony McConkey, a Republican from Anne Arundel County on the House Appropriations Committee, said fiscal shortfalls statewide are to blame for the agency's limited resources. While he thinks the system deserves more support, he suggested that the agency could better meet demand by reassigning public defenders to especially overburdened districts.

"It'd be nice if we could fund everything fully," McConkey said. "But we've gone through several years of budget deficits."

Setting caseload limits

The right to counsel is guaranteed by the Sixth and 14th amendments to the Constitution, Colbert said. But it was only after a series of landmark Supreme Court rulings, the first in 1963, that states were required to provide effective counsel to those who cannot afford it.

The American Bar Association's Rules of Professional Conduct hold that lawyers must provide "competent representation" to their clients. Maryland's code for lawyers says: "An attorney's workload must be controlled so that each matter can be handled competently."

Jo-Ann Wallace, president and CEO of the National Legal Aid & Defender Association, an advocacy group, said that public defender caseloads around the country are out of control and compromise their clients' constitutional rights.

As a result, the ACLU and others have filed lawsuits, she said, citing litigation in California, Pennsylvania and Utah.

"The reality is, the Sixth Amendment right to counsel has never fully been implemented," she said.

In Maryland, the caseload limits were set more than a decade ago. They were weighted to reflect the differences in the work of public defenders in urban, suburban and rural settings. They take into account, for example, that felony cases are more complex in Baltimore because of the city's high violent crime rate.

Most of the state limits are higher than those put forth in the American Bar Association's widely applied caseload standards.

Data shows that public defender caseloads vary within Maryland. Baltimore is the only district to come close to consistently meeting the standards.

DeWolfe attributed the disparity in part to shifting demographics. The city's population has been declining for decades as the population has risen in other parts of Maryland.

DeWolfe hopes caseloads will lighten in the coming years as minor offenses are decriminalized. The Justice Reinvestment Act, signed by Hogan in May, eliminates or reduces minimum sentencing requirements for low-level crimes, especially nonviolent drug offenses.

Data provided by DeWolfe's office shows that it handled about 21,000 fewer cases in circuit, district and juvenile courts in 2015 than the year before. But the agency also is taking on bail review cases since the Maryland Court of Appeals, the state's highest court, held in 2012 that defendants have a right to representation at bond hearings as well as trials.

And the agency faces a shortage of paralegals, secretaries and other support workers. Half of its positions for intake workers, who process new clients, were eliminated between 2009 and 2012, DeWolfe said.

As a result, typing up motions, conducting research and filing documents now often falls to the attorneys themselves.

Miller expressed concern that defendants are being pushed into pleading guilty, and about the toll caseloads have on the morale of the lawyers.

"It should be a matter of pride to be a public defender," the Senate president said.

25 cases on a good day

Some public defenders said they wish they could do more.

"We're constantly triaging," said Mary Riley, the top public defender in Frederick and Washington counties, where juvenile court caseloads were largest in 2014. "It's just the reality."

In 2014, public defenders in the district's juvenile courts each worked more than 200 cases above the state limit.

Brian Hutchison is one of three public defenders who handles juvenile court cases in Washington County.

With more time, Hutchison said, he would check in with past clients more often to make sure they have access to the services they need so that they do not get into trouble again.

On a good day in Anne Arundel County, Darren Douglas said he only has 25 cases to work, whether that is defending clients in hearings, returning their phone calls or offering them a few minutes of counsel in the courthouse hallway.

"I try to give everyone as much time as they need," said Douglas, 54, who has worked there since 1986. But "there are times when that just becomes almost impossible."

Douglas' clients on a recent day included a nurse, a receptionist and other professionals, most facing drug charges. Many of them praised the public defender's office.

"He's done a pretty good job backing me up," said Brittaney Carey, 20. "Even when I mess up."

"I don't think it's fair," said Austin Potocki, 26, of the caseloads that public defenders juggle. "But in my book it worked out great."

At the end the day, Douglas returned to his office to prepare for the rest of the week. He checked his voice mail: 11 messages from clients.

"That's not too bad," he said. He's used to more.

Baltimore Sun reporter Michael Dresser contributed to this article.

jcoburn@baltsun.com

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