• Roath Law

Why Is It So Hard To Get In Touch With My Public Defender?

The number one complaint indigent defendants have about their court-appointed attorney is that they are impossible to talk to. This damages that attorney-client relationship in many ways. The client doesn't trust that the public defender is doing everything he can to help the case, isn't working on the case, isn't investigating, and the list goes on. The client fears that he will miss important updates because his case has fallen off of the public defender's radar.

So why is it so hard to get in touch with a public defender? The short answer: They're busy. Public defender programs are notoriously underfunded, forcing the attorneys to take on more cases than they can handle. Montana requires its public defenders to have the ability to request a lower caseload, but attorneys are hesitant to do so because they know that their lower caseload will lead to higher caseloads for their coworkers.

Montana's Office of the State Public Defender (OPD) is divided into three divisions: the Public Defender Division, with eleven regional offices; the Appellate Defender Division, located in Helena; and the Conflict Defender Division, with three regional offices, and private contract attorneys across the state. During the 2019-2020 fiscal year (July 1, 2019-June 30, 2020), OPD opened 67,000 new cases in 179 courts. Those cases include misdemeanors, felonies, appeals, involuntary commitments, and dependency and neglect proceedings. Montana's largest OPD office is in Billings, with 26 full time attorneys, one part time attorney, 17 full time staff members, and one part time staff member. Miles City is the smallest office, with two full time attorneys and two full time staff members. Each office covers several counties. Helena's office covers Lewis and Clark County, Jefferson County, and Broadwater County. These county's cases are handled by 14 full time attorneys and 8 staff members. During the 2019-2020 fiscal year, the Helena office handled 797 cases in district court (felonies are handled by district court, and misdemeanors that are charged with a felony case are handled in district court); 1,553 lower court cases (these are generally misdemeanor cases that do not contain felony charges and are handled in justice court and city court); 127 dependency and neglect cases; and 65 involuntary commitment cases. All of these cases are divided among 14 attorneys.

It is not unheard of for a public defender in a busy office such as Helena, Billings, or Missoula to be handling over 100 felony cases at any given time. I worked in the Helena office for two years. I spent my first six months handling all of the misdemeanor charges in Jefferson and Broadwater Counties, before switching to a full felony caseload in Helena. While handling those felony cases, it was rare for my caseload to drop below 100 cases. Because Helena's district court has 4 separate courts, each holding criminal hearings on either Tuesday, Wednesday, or Thursday, I was in court almost every day, unable to communicate with my clients. I ultimately left the office because I did not feel as though my caseload allowed me to provide adequate representation for my clients. This was a common theme for public defenders who left the office. The unrealistic work load combined with the low pay, (public defenders are the lowest paid attorneys employed by the State of Montana), made it unable for me to justify staying in the office. I wanted to communicate with my clients more than I did, but I was only able to communicate with them when absolutely necessary: to discuss the initial case and bail; to relay plea offers; and to discuss trial if the case proceeded to trial.

This is a long way to say that your public defender only has time to talk to you when it is necessary. They expect and understand your frustration - they share it. But the only way to fix it is to give the OPD more money. So talk to your legislators. Make noise. Demand justice. It takes an initial investment, but when public defenders are able to do the work that they want to do, and to help people the way those people need to be helped, the investment pays off in fewer reoffenders and fewer people in jail, prison, and DOC custody, which means less money spent in the long run.

You can look at OPD's annual reports here to see how the case loads have increased while the budgets have been reduced:

OPD Annual Reports

Also, check out this breakdown video from Last Week Tonight with John Oliver. He's funnier than I am and he gets it right.