An Unjust Workload Public Defenders Plead Case For Budget Increase

Second of two parts

It’s 8:30 a.m. and the mild-mannered attorney with glasses is bracing for the day’s onslaught.

From 9 a.m. to noon, Lynn Nelson is scheduled to defend a dozen criminal cases. This former mayor will meet most of his clients for the first time when he walks into the courtroom.

By afternoon, judges will expect him in two different courtrooms at the same time, handling another five cases. When Nelson can’t perform the miracle, a co-worker will fill in, taking on cases he’s not prepared for.

“We’re still not sure how we’re going to cover everything,” Nelson sighs as the office phones ring nonstop. Clients may wait months to reach a lawyer.

Welcome to public defense, Kootenai County-style. It is one part triage, one part juggling act - an office so immensely overworked and underfunded that the entire staff of attorneys has turned over in the last 17 months.

Each public defender averages more than 400 cases a year - a workload so heavy it threatens to violate ethical standards established by the American Bar Association.

More than 40 criminals - including one of the county’s most brutal murderers - are appealing their convictions, claiming they were defended inadequately.

But in a budget season when rising taxes anger voters as much as rising crime, these lawyers - whose duty it is to stand up for the poorest accused criminals - are pleading one of their most unpopular cases.

They are asking county commissioners for two more attorneys, their own investigator, two legal interns and a secretary. While commissioners try to clamp down on spending, this office’s original budget request sought a 69 percent increase over last year - the second-largest of any department.

The problem is that paying more to defend criminals never is popular with taxpayers.

And the accused poor are “the least likely constituency to cause any politician grief,” says Tim Gresback, a private attorney with Idaho Attorneys for Criminal Justice.

But John Adams - the newest chief public defender and the third the department has had in a year - sees it this way: Taxpayers can pay now for a proper defense. Or they can pay big later when criminals sue the county.

“I think it’s easy for people to say ‘why should we pay for a public defender’s office’ - until it’s someone they love who is accused of a crime,” he says.

On this day - like most in the public defender’s office - Nelson’s favorite saying seems appropriate.

“Those who love sausage and the law should never watch either one being made.”

Each day, the public defenders spend an average of six hours in courtrooms. That leaves two hours to prepare for cases that range from theft to murder - little time to visit clients, much less check alibis or find supporting witnesses.

And while the prosecutors have all the cops in the county and an in-house investigator to help convict criminals, these lawyers don’t have an investigator to help defend them.

“Right now, all the cards are stacked on one side of the table,” says Mark Durant, who recently began donating his time as private investigator to research cases for the public defender’s office. “That’s not fair.”

Clients have noticed.

Frustrated, some deride their public defenders as “public pretenders.”

“They’re waiting until the last minute to come see us,” said Andy Houghtaling, a Coeur d’Alene man charged with several drug offenses. “We’re not getting the help we ask for. They don’t even do the job.”

Charles Lempesis, a private attorney and former chief public defender, has been asked to file a lawsuit against Kootenai County on behalf of several public defenders’ clients.

He’s heard from people who say they haven’t been able to reach their attorneys for months. When they do, the lawyers have so little time, it’s almost useless.

“I don’t think there is a person in the Kootenai County criminal justice system … that to grade the public defender’s office wouldn’t give it either a D or an F,” he says.

“That does not mean the people working at the public defender’s office are bad people. That does not mean they are bad attorneys. What it means is that over a lengthy period of time, the services of the office have degenerated to the extent that there is a complete lack of confidence by many, if not the majority, of clients assigned to the public defender’s office.”

Right now, Deputy Public Defender Brad Chapman represents 40 clients appealing their convictions because of potentially poor representation by his own office.

“When you have 200 or 300 active cases, you just can’t give everyone the attention that’s needed. You can’t do it,” he says.

Danny Ray Aeschliman, convicted of torturing his wife to death, is one of those demanding a new trial.

Although he once faced the death penalty, Aeschliman claims in court documents that his public defender spent only two hours with him during pretrial proceedings.

According to bar standards, Aeschliman was supposed to have two attorneys represent him, since he faced the death penalty. He had only one. He also should have had his own pathologist, psychiatrist and investigator, Chapman says. He didn’t.

“I know darn well this office didn’t have the resources to take on a case like that,” Chapman says. “By funding the office that way they probably saved a little money at that time …, but it’s my belief they’re going to end up retrying this case.”

Back at the courthouse, Nelson has just been yelled at by an irate client who could not get his public defender on the phone.

“It’s frustrating. I take pride in my workmanship; I am a good attorney,” Nelson says. “Yet I understand his frustration. If he had a private attorney with $1,000 down, the attorney would get the call returned. He wouldn’t have 300 cases waiting.”

Chief defender Adams stands up for his staff. “They’re here up to six or seven days a week, they are overwhelmed. They do the best job they can under the circumstances.”

Nelson worked from 8 a.m. to 11 p.m. the previous day.

Despite criticism of the office, Lempesis and others say the public defenders are diligent and some of the best criminal defense lawyers around.

And many see hope for the office - especially with Adams’ appointment.

He’s experienced, aggressive and determined not only to save a faltering ship but to build it anew.

If commissioners give him more attorneys, he says, his staff will spend more time on each case. And if they give his office an investigator, the cases will be more thoroughly defended.

“I believe the staff we have now is dedicated to this office,” Adams says. “This is not just a job for these attorneys. This is a life endeavor.”

But, Lempesis says, Adams is bound to fail “if he is not given adequate resources …, and those include both financial resources and human resources. If things do not improve …, the county can look forward to a lawsuit.”

, DataTimes ILLUSTRATION: 2 Color photos

MEMO: This sidebar appeared with the story: THE COST OF CRIME Sunday: Kootenai County is asked to shell out more money to fight rising crime. A prosecutor strikes a plea bargain with a sex offender to save money. Today: A cash-starved public defenders’ office faces lawsuits from criminals who claim they were poorly defended.