The Public Defender's Power Play

originally published October 23, 2008

Nancy S. Forster, the State Public Defender, dropped a little bombshell at the Baltimore Criminal Coordinating Council meeting earlier this month.

Due to budget cutbacks, she grimly said, she no longer has the money to pay for lawyers to represent all the defendants who are eligible for free services. While she and Governor Martin O’Malley were discussing a solution, for now she would reject some defendants even if they couldn’t afford an attorney. Defense attorney Margaret Mead told me that this has the potential “to bring the entire system to a screeching halt.”

It reminded me of Forster’s predecessor, Stephen E. Harris, who once used the same tactic. If you don’t give me more money, I won’t represent defendants. He and Elizabeth L. Julian, District Public Defender for Baltimore, claimed that their city caseloads were too high and in March, 2002 began turning away new clients. Governor Parris Glendening quickly gave them more lawyers. How could he not? Poor people are constitutionally entitled to lawyers, aren’t they?

Except that at the very time Harris was turning away those clients, he was representing defendants who were not entitled to free lawyers. These were defendants who had just been arrested, hadn’t posted bail, and were going to their first bail review within a day or two of arrest. Instead of making this clear to lawmakers and asking whether he should redeploy his resources, Harris played his trump card.

Forster followed suit, this time with cases in which more than one person is charged with committing a crime. The Public Defender’s Office can’t represent all the co-defendants because they may have conflicting interests (one co-defendant may want to blame the other, for example.) In the past the Public Defender has represented one co-defendant and paid for private lawyers to represent the others, but that is what Forster says she will no longer do.

Yet her office is still representing people at bail reviews. In Maryland defendants are not entitled to attorneys at their first bail review hearing. (A lawsuit has been filed challenging that fact, and is on appeal after losing in the trial court.) Nevertheless, the Public Defender provides bail representation to defendants in Baltimore and has done so for years.

City bail representation evolved out of Mayor Martin O’Malley’s Early Disposition Court, which the Legislature first funded in 2000. The Public Defender asked for and received a whopping 28 attorneys to run the program (compared to the State’s Attorney’s six). When the program failed and was revamped I asked Grace E. Reusing, Deputy District Public Defender for Baltimore, how they justified their funding when they needed no more than five attorneys to staff the revised court. She claimed that they had been told to use the funds both for Early Disposition Court and for bail reviews.

After Forster made her announcement, I asked her about the current state of bail representation. She said that in addition to Baltimore her attorneys represented defendants at bail review in Harford and Montgomery counties, both of which paid her office for the services. The State paid for Baltimore’s bail program through the Department of Public Safety and Correctional Services. I asked specifically about the amount of money and number of attorneys involved and she said she would have to check into it.

I then got an e-mail from her spokesman, Kimberlee Schultz that said, “…we are in the midst of a personnel crisis (due to severe underfunding). Therefore, it is difficult to do the work necessary to maintain our core mission, so we just do not have the resources right now to respond to all your questions. You have the option of filing a Freedom of Information Act request.”

Funny, I tried that option once before when writing a report about the Early Disposition Court, and Harris and Julian blew it off (in violation of the law, I might add.) I then called the legislative analyst who had worked on the project for the House of Delegates for information and got no response, learning later that she had subsequently left to work for the Public Defender.

A competent financial/personnel officer could or should have had the figures close at hand. Forster had not been the State Public Defender when bail review representation began and I was willing to believe that she hadn’t thought about the issue when trying to resolve her budget concerns. But I know a stonewall when I see it, having smacked into one before.

Before the State, city and counties scramble to find more money in tough budget times so that the Public Defender can meet her “core mission,” they ought to first stop funding activities outside of that mission. One report put the Public Defender’s funding for Early Disposition Court (which is now used mostly for bail review representation) at nearly $1.7 million. That’s in 2000 dollars, before the big raises that ex-public defender Kendall Ehrlich got for them as First Lady. Think how many defendants could be represented in today’s dollars.

I don’t oppose free representation at bail review as a theory (though I will have more to say on its effective and efficient use of taxpayer funds later.) But unless and until it is a legal right, Forster has a duty to be forthright about her agency’s funding and use of resources, especially in times of painful deficits. Instead, she is using defendants who have an absolute right to her services as pawns in a power play for more funding. This time, the governor needs to take a hard look at her claims before robbing Peter to pay Nancy.

Another Source of Savings

Maryland could divert another $70,000 to hiring private lawyers for co-defendants by ending the Public Defender’s funding for the War Room, a program that was supposed to focus law enforcement efforts on repeat violent offenders. This was another Ehrlich gift, funding for an agency that had nothing to do with the War Room and demonstrated no need for additional resources. Last year the State took back half the funding because the Public Defender didn’t even spend the money.

Kristen M. Mahoney, Executive Director of the Governor’s Office of Crime Control and Prevention which administers the funding, recognizes that the Public Defender is “missionless” when it comes to the War Room. To her credit she has asked Julian whether she wants to scrap this year’s funding and divert it to paying private attorneys for co-defendants (though I don’t know why it should be up to the Public Defender.) Mahoney is waiting on Julian’s answer.

While $70,000 pales in comparison to that spent on bail review, quite a few poor co-defendants could get lawyers out of it. The State Public Defender ought to be looking at all of her non-essential funding before turning away the clients who represent their “core mission.”