Failing Gideon
Failing Gideon
Gideon
Failing
Gideon
Utahs
Flawed
County-By-County
Public
Defender
System
A
Report
By:
The
American
Civil
Liberties
Union
of
Utah
Table
of
Contents
Letter
from
the
Executive
Director
Acknowledgements
Executive
Summary
Box
Elder
County
Daggett
County
Duchesne
County
Iron
County
Kane
County
San
Juan
County
Sevier
County
Uintah
County
Weber
County
Appendix
A:
County-by-County
Resource
Comparison
Chart
Appendix
B:
Sample
ACLU
of
Utah
GRAMA
Requests
Appendix
C:
Other
Publications
of
Interest
i
ii
1-11
12-19
20-24
25-34
35-43
44-49
50-56
57-64
65-73
74-84
85-87
88-92
93-95
Acknowledgements
This
report
would
not
have
been
possible
without
the
help
of
many
individuals.
First
and
foremost,
thanks
go
out
to
the
students
enrolled
in
the
University
of
Utah,
S.J.
Quinney
College
of
Law
Civil
Rights
Clinic,
who
under
the
leadership
of
Associate
Professor
Emily
Chiangassisted
at
nearly
every
stage
of
the
information-collection
process
and
drafted
the
first
round
of
the
county-by-county
sections
of
the
report.
Thank
you,
as
well,
to
the
government
officials
who
responded
to
our
GRAMA
requests
(and
especially
to
those
who
waived
our
fees),
and
to
all
past
and
current
public
defenders,
county
attorneys,
and
individuals
accused
of
crimes
who
consented
to
be
interviewed
in
connection
with
this
project.
A
special
thanks
to
the
attorneys
and
othersparticularly
Kent
Hart,
Executive
Director
of
the
Utah
Association
of
Criminal
Defense
Lawyers,
and
members
of
the
ACLU
of
Utahs
Legal
Panelwho
evaluated
successive
drafts
of
the
report
and
helped
guide
it
into
final
form.
Finally,
this
report
might
never
have
been
issued
but
for
the
indefatigable
ACLU
of
Utah
intern
Anikka
Hoidal,
who
spent
days
(and
weeks)
helping
to
prepare
the
report
for
final
publication.
University
of
Utah,
S.J.
Quinney
College
of
Law
Civil
Rights
Clinic
Students
Sarah
Brown
Elizabeth
Butler
Ryan
Cadwallader
Frank
Chiaramonte
Kristy
Finlayson
Spencer
Hall
ACLU
of
Utah
Samuel
Hood
Steven
Joffee
Brooke
Johnson
Russell
Shane
Johnson
Lucy
Juarez
Katherine
Kang
Andrew
Kolter
Jay
Kronmiller
Tyler
Lindsey
Mark
Schwarz
Lisa
Semanoff
Milda
Shibonis
Justin
Yeargin
ii
EXECUTIVE
SUMMARY
[R]eason
and
reflection,
require
us
to
recognize
that,
in
our
adversary
system
of
criminal
justice,
any
person
haled
into
court,
who
is
too
poor
to
hire
a
lawyer,
cannot
be
assured
a
fair
trial
unless
counsel
is
provided
for
him.
This
seems
to
us
to
be
an
obvious
truth.
-
Gideon
v.
Wainright,
372
U.S.
335,
344
(1963).
Like
the
United
States
Constitution,
the
Utah
State
Constitution
provides:
In
criminal
prosecutions
the
accused
shall
have
the
right
to
appear
and
defend
in
person
and
by
counsel
.
.
.
.
Utah
Const.
art.
I,
12.
2
Gideon
dealt
only
with
the
right
to
counsel
in
state
criminal
prosecutions.
Years
earlier,
in
Johnson
v.
Zerbst,
304
U.S.
458
(1938),
the
Supreme
Court
concluded
that
indigent
defendants
accused
of
crimes
in
federal
court
were
entitled
to
court-appointed
counsel.
3
Two
other
cases
decided
by
the
Supreme
Court
in
1972,
Argersinger
v.
Hamlin,
407
U.S.
25,
and
2002,
Alabama
v.
Shelton,
535
U.S.
654,
respectively,
affirmed
that
the
Sixth
Amendment
guarantee
of
counsel
encompasses
the
appointment
of
counsel
for
individuals
accused
of
misdemeanors
in
state
court,
even
if
the
jail
sentence
to
be
imposed
is
later
suspended.
1
Wainwright,
372
U.S.
335,
344
(1963)
(noting
that,
although
[t]he
right
of
one
charged
with
crime
to
counsel
may
not
be
deemed
fundamental
and
essential
to
fair
trials
in
some
countries,
.
.
.
it
is
in
ours).
Where
the
accused
individual
is
too
impoverished
to
retain
and
pay
for
his
own
attorney,
the
Supreme
Court
has
recognized
that
it
is
incumbent
on
the
state
to
provide
counsel.
See
Gideon,
372
U.S.
at
344.
As
the
Gideon
Court
recognized
(id.):
From
the
very
beginning,
our
state
and
national
constitutions
and
laws
have
laid
great
emphasis
on
procedural
and
substantive
safeguards
designed
to
assure
fair
trials
before
impartial
tribunals
in
which
every
defendant
stands
equal
before
the
law.
This
noble
ideal
cannot
be
realized
if
the
poor
man
charged
with
crime
has
to
face
his
accusers
without
a
lawyer
to
assist
him.
Relying
on
language
from
Powell
v.
Alabama,
287
U.S.
45,
68-69
(1932),4
a
case
establishing
the
right
to
appointed
counsel
in
capital
cases,
the
Gideon
Court
explained:
Even
the
intelligent
and
educated
layman
has
small
and
sometimes
no
skill
in
the
science
of
law.
.
.
.
Left
without
the
aid
of
counsel,
he
may
be
put
on
trial
without
a
proper
charge,
and
convicted
upon
incompetent
evidence,
or
evidence
irrelevant
to
the
issue
or
otherwise
inadmissible.
He
lacks
both
the
skill
and
knowledge
adequately
to
prepare
his
defense,
even
though
he
have
a
perfect
one.
He
requires
the
guiding
hand
of
counsel
at
every
step
in
the
proceedings
against
him.
Without
it,
though
he
be
not
guilty,
he
faces
the
4 Powell v. Alabama is also infamously known as the Scottsboro Boys case. The Scottsboro
Boys
were
nine
black
teenage
boys
accused
of
raping
two
white
women
in
Alabama
in
1931.
They
were
tried
together
in
front
of
an
all-white
jury
only
twelve
days
after
their
arrest.
[U]ntil
the
very
morning
of
the
trial,
no
lawyer
had
been
named
or
definitely
designated
to
represent
the
defendants.
Powell,
287
U.S.
at
56.
On
the
morning
of
trial,
all
defendants
were
deemed
to
be
represented
by
two
attorneys
who
were
inexperienced
in
criminal
law
and,
in
any
event,
were
given
no
time
to
investigate
or
otherwise
to
prepare
an
adequate
defense.
Id.
at
57.
Eight
of
the
nine
defendants
were
convicted
and
sentenced
to
death.
Id.
at
50.
Conceding
that
the
Sixth
Amendment
guaranteed
the
right
to
counsel,
id.
at
66,
the
Supreme
Court
reversed
the
convictions
on
the
additional
ground
that
due
process
had
been
violated
by
defense
counsels
lack
of
time
and
opportunity
to
prepare
an
adequate
defense.
Id.
at
71
([U]nder
the
circumstances
just
stated,
the
necessity
of
counsel
was
so
vital
and
imperative
that
the
failure
of
the
trial
court
to
make
an
effective
appointment
of
counsel
was
likewise
a
denial
of
due
process
within
the
meaning
of
the
Fourteenth
Amendment.).
2
Although
seemingly
simple
on
its
face,
enforcing
the
requirements
of
effectiveness
and
adequacy
has
proven
difficult.
Even
in
cases
where
counsel
have
been
caught
sleeping
or
using
drugs
in
court,
or
shown
up
admittedly
unprepared,
courts
have
been
loathe
to
find
that
the
services
provided
by
counsel
were
constitutionally
ineffective.
See
David
Cole,
No
Equal
Justice:
Race
and
Class
in
the
American
Criminal
Justice
System
(NY,
NY:
The
New
Press
1999),
at
78-79,
cited
in
Justice
Policy
Institute,
System
Overload:
The
Costs
of
Under-
Resourcing
Public
Defense
(July
2011)
(2011
JPI
Report),
at
3
&
n.15,
available
at
http://www.justicepolicy.org/research/2756
(last
visited
Aug.
11,
2011).
6
See
2011
JPI
Report,
supra
note
5,
at
2
&
n.3
(citing,
in
turn,
Scott
Wallace
&
David
Carroll,
Implementation
and
Impact
of
Indigent
Defense
Standards
(Wash.,
D.C.;
Natl
Legal
Aid
&
Defender
Assn
2003),
at
i,
available
at
www.ncjrs.gov/pdffiles1/nij/grants/205023.pdf
(last
visited
Aug.
11,
2011)).
3
America
(Jan.
31,
2008)
(draft
report)
(Gideon
Unfulfilled),
at
9
(on
file
with
the
ACLU
of
Utah).
This
is
so
despite
the
fact
that
many
states,
post-Gideon,
have
been
moving
towards
full
or
greater
statewide
funding,
recognizing
that
statewide
funding
structures
offer
a
number
of
advantages.
See
2011
JPI
report,
supra
note
5,
at
4.
9
Natl
Legal
Aid
&
Defender
Association,
A
Race
to
the
Bottom:
Speed
and
Savings
Over
Due
Process:
A
Constitutional
Crisis
(2008)
(2008
NLADA
Report)
at
iii,
available
at
http://www.mynlada.org/michigan/michigan_report.pdf
(last
visited
July
3,
2011).
10
See
id.
at
7.
Admittedly,
relying
on
per
capita
estimates
is
an
imperfect
measure,
as
it
necessarily
overvalues
monies
spent
in
counties
with
high
numbers
of
transient
workers,
visitors,
and
others.
So,
for
example,
using
the
per
capita
measure
in
a
place
like
Uintah
County,
which
has
high
numbers
of
transient
oil
field
and
other
seasonal
workers,
may
create
the
impression
that
the
public
defense
system
is
more
adequately
funded
than
it
really
is.
4
which
access
to
justice
could
depend
on
which
side
of
the
county
line
a
person
is
arrested.11
And
the
problem
of
patchworks
extends
far
beyond
just
money.
Although
the
Utah
Code
of
Criminal
Procedure
sets
forth
minimum
standards
for
public
defenseincluding,
for
example,
that
the
state
afford
timely
representation
by
competent
legal
counsel,
provide
the
investigatory
resources
necessary
for
a
complete
defense,
and
assure
undivided
loyalty
of
defense
counsel
to
the
client,
see
Utah
Code
Ann.
77-
32-301(2)-(4)few,
if
any,
of
the
counties
studied
in
this
report
have
in
place
any
systems
to
monitor
whether
those
minimum
standards
are
being
satisfied,
let
alone
systems
for
corrective
action
if
they
are
not.
The
State
of
Utah,
perhaps
not
surprisingly,
is
wholly
absent
from
that
process.
Part
III:
Methodology
of
This
Report
In
2008,
the
ACLU
of
Utah
sent
public
information
requests
under
the
Utah
Government
Records
Access
and
Management
Act,
63G-2-101,
et
seq.,
to
each
of
Utahs
29
counties. 12
Each
GRAMA
request
sought
information
pertaining
to
the
countys
individualized
system
for
providing
public
defense,
including:
11
See
2011
JPI
Report,
supra
note
5,
at
4
&
n.21
(citing
April
27,
2011,
telephone
interview
with
James
Neuhard,
Former
Director
of
the
State
Appellate
Defender
Office
of
Michigan).
Michigans
constitutionally
deficient
public
defense
system
is
under
legal
challenge
by
the
ACLU
of
Michigan
in
a
case
entitled
Duncan
v.
Michigan.
Information
on
that
case
is
available
at
http://www.aclu.org/racial-justice/duncan-et-al-v-state-michigan-executive-summary
(last
visited
Aug.
5,
2011).
Similar
lawsuits
have
been
brought
by
various
ACLU
affiliates
in,
for
example,
Montana,
see
http://www.aclu.org/racial-justice/aclu-files-class-action-lawsuit-
against-montanas-indigent-defense-program
(last
visited
Aug.
5,
2011),
and
New
York,
see
http://www.nyclu.
org/node/1483
(last
visited
Aug.
5,
2011)
and
http://www.nytimes.com/
2010/03/16/
nyregion/16defenders.html?scp=1&sq=%22public%20defenders%22&st=cse
(last
visited
Aug.
5,
2011).
12
A sample ACLU of Utah GRAMA request from 2008 is attached to this report in Appendix B.
13
Our
desire
to
compare
the
two
is
hardly
surprising.
As
the
Supreme
Court
noted
in
Gideon,
the
significant
monetary
resources
spent
on
prosecutors
and,
where
possible,
criminal
5
defense
attorneys
reflect
vital
truths
about
our
criminal
justice
system.
See
372
U.S.
at
344
(That
government
hires
lawyers
to
prosecute
and
defendants
who
have
the
money
hire
lawyers
to
defend
are
the
strongest
indications
of
the
widespread
belief
that
lawyers
in
criminal
courts
are
necessities,
not
luxuries.).
Our
comparison
of
the
budgets
of
public
defenders
who
defend
against
criminal
accusations
versus
the
county
attorneys
who
prosecute
them
was,
in
a
word,
alarming.
See
discussion
infra
at
pp.
7-10
&
Appendix
A.
14 We felt strongly that demographic diversity was important. We realized, for example, that
to
look
only
at
Davis,
Summit,
and
Weber
Counties
would
necessarily
skew
the
data
toward
problems
inherent
in
urban
areas,
while
to
ignore
them
completely
in
favor
of
more
rural
counties
such
as
Carbon,
San
Juan,
and
Wayne
would
skew
the
data
in
the
opposite
direction.
We
also
wanted
to
analyze
the
public
defender
systems
in
counties
from
throughout
the
state,
rather
than,
for
example,
only
those
on
the
Wasatch
Front.
15
See,
e.g.,
Marina
Lowe,
Indigent
Defense
in
Utah:
Constitutionally
Adequate?,
Utah
Bar
Journal
(Utah
Bar
Assn,
Nov./Dec.
2009).
16
A
sample
ACLU
of
Utah
GRAMA
request
from
2009
is
attached
to
this
report
in
Appendix
B.
17
Although
anecdotal,
we
found
these
reports
to
be
helpful
evidence
when
assessing
the
on-
the-ground
effects
of
each
countys
public
defense
system.
6
18 See, e.g., 2008 NLADA Report, supra note 9; 2011 JPI Report, supra note 5; Gideon
following:
felonies
per
attorney
per
year:
not
more
than
150;
misdemeanors
(excluding
traffic)
per
attorney
per
year:
not
more
than
400;
juvenile
court
cases
per
attorney
per
year:
not
more
than
200;
Mental
Health
Act
cases
per
attorney
per
year:
not
more
than
200;
and
appeals
per
attorney
per
year:
not
more
than
25.
U.S.
Dept.
of
Justice,
Natl
Advisory
Commn
on
Criminal
Justice
Standards
&
Goals,
Task
Force
on
Courts,
Courts
13.12
(1973).
21
Felony
equivalent
case
totals
were
derived
by
dividing
the
attorneys
misdemeanor
caseload
by
2.66
(the
relative
felony
weight
under
standards
promulgated
by
NAC)
and
adding
that
number
to
the
attorneys
felony
caseload.
Other
or
miscellaneous
cases
are
not
included
in
the
NAC
felony
equivalent
for
lack
of
a
standard
weight,
but
they
are
included
in
the
Total
Cases
calculation.
22
As
one
study
notes:
One
of
the
single
most
important
impediments
to
the
furnishing
of
quality
defense
services
for
the
poor
is
the
presence
of
excessive
caseloads.
.
.
.
Unfortunately,
not
even
the
most
able
and
industrious
lawyers
can
provide
quality
representation
when
their
workloads
are
unmanageable.
Excessive
workloads,
moreover,
lead
to
attorney
frustration,
disillusionment
by
clients,
and
weakening
of
the
adversary
system.
American
Bar
Association,
Guidelines
for
the
Appointment
and
Performance
of
Defense
Counsel
in
Death
Penalty
Cases
(revised
ed.
Feb.
2003)
(ABA
Guidelines
For
Death
Penalty
Cases),
at
39
(quoting
American
Bar
Association
Standards
For
Criminal
Justice:
Providing
Defense
Services,
Standard
5-5.3
cmt.
(3d
ed.
1992)),
available
at
http://www.nacdl.org/sl_docs.nsf
/issues/ABADPGuidelines/$FILE/ABA_DPGuidelines2003.pdf
(last
visited
July
4,
2011).
7
23
When
comparing
these
nine
Utah
counties
against
the
ABAs
Ten
Principles,
it
is
not
hard
to
see
why
a
2008
national
report
determined
that
Utah
was
rightfully
placed
in
the
authors
lowest
possible
category,
Gideon
Ignored.24
Indeed,
as
viewed
against
each
and
every
of
the
Ten
Principles,
the
realities
of
Utahs
county-by-county
public
defender
system
indicate
systemic
failure:
ABA
PRINCIPLE
1-
The
public
defense
function,
including
the
selection,
funding,
and
payment
of
defense
counsel,
is
independent.
2-
Where
the
caseload
is
sufficiently
high,
the
public
defense
delivery
system
consists
of
both
a
defender
office
and
the
active
participation
of
the
private
bar.
3-
Clients
are
screened
for
eligibility,
and
defense
counsel
is
assigned
and
notified
of
appointment,
as
soon
as
feasible
after
clients
arrest,
detention,
or
request
for
counsel.
4-
Defense
counsel
is
provided
sufficient
time
and
a
confidential
space
within
which
to
meet
with
the
client.
5-
Defense
counsels
workload
is
controlled
to
permit
the
rendering
of
quality
representation.
6-
Defense
counsels
ability,
training,
and
experience
match
the
complexity
of
the
case.
7-
The
same
attorney
continuously
represents
the
client
until
completion
of
the
case.
8-
There
is
parity
between
defense
counsel
and
the
prosecution
with
respect
to
resources
and
defense
counsel
is
included
as
an
equal
partner
in
the
justice
system.
9-
Defense
counsel
is
provided
with
and
required
to
attend
continuing
legal
education.
10-
Defense
counsel
is
supervised
and
systematically
reviewed
for
quality
and
efficiency
according
to
nationally
and
locally
adopted
standards.
24
UTAH
REALITY
County
attorneys
routinely
help
select
public
defenders,
and
may
also
help
negotiate
the
terms
of
their
contracts.
There
are
no
systems
in
place
to
track
caseloads,
and
thus
little
to
no
ability
to
engage
the
private
bar
when
necessary.
We
were
advised
that
clients
often
wait
weeks
for
even
initial
meetings
with
their
public
defenders,
and
that
those
meetings
often
occur
at
the
courthouse
in
the
5-10
minutes
before
court
appearances.
See
above.
There
are
no
systems
in
place
to
track
caseloads
or
quality
of
representation.
There
are
few,
if
any,
written
criteria
or
minimum
qualifications
for
public
defenders,
and
no
on-going
monitoring
of
ability
or
training.
Unknown.
Resource
disparities
are
significant,
with
county
attorneys
routinely
receiving
3-5
times
the
budget
allocated
to
public
defense.
There
are
no
requirements
for
continuing
education,
and
public
defender
contracts
rarely
include
any
monies
set
aside
for
that
purpose.
There
are
no
procedures
in
place
to
supervise
public
defenders,
or
to
monitor
the
quality
or
efficiency
of
their
services.
25 We note, for example, the on-going efforts of the current Judicial Council task force on trial-
level
public
defense.
Supra
note
7.
Those
individualsmany
of
whom
also
served
on
the
2008
Appellate
Task
Force,
see
id.reflect
a
diverse
array
of
backgrounds
and
political
interests.
We
believe
they
also
share
our
goal
of
effecting
significant,
meaningful,
and
long-
lasting
changes
to
ensure
that
the
State
of
Utah
starts
meeting
its
constitutional
obligations
under
Gideon.
11
26 See 2010 U.S. Census estimates for Box Elder County, available at http://
longname=Utah
(last
visited
May
29,
2011)
(printout
on
file
with
the
ACLU
of
Utah).
29
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
First
District
Court
for
Box
Elder
County
(July
1,
2009-June
30,
2010),
available
at
http://
www.utcourts.gov/stats/files/2010FY/district/1-Box_Elder.pdf
(last
visited
June
27,
2011).
30
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
Box
Elder
33
Box
Elder
County
contracts
yearly
with
a
private
law
firm,
Ogden-
based
Allen,
Richards
&
Pace,
P.C.
(ARP),
for
all
public
defense
services.34
The
yearly
contract
amount
is
$171,500,
of
which
$2,000
is
designated
for
expenses.35
This
contract
amount
is
intended
to
cover
not
only
the
defense
attorneys
time,
but
also
their
overhead
expenses,
continuing
legal
education
costs,
support
staff,
and
other
expenses
necessary
to
put
together
an
accurate
and
thorough
defense.
By
contrast,
the
County
Attorneys
2010
budget
was
$563,954
nearly
three
times
as
muchincluding
a
line
item
reflecting
a
$2,340
allowance
solely
for
cell
phone
service.36
Add
to
that
the
near
unlimited
access
enjoyed
by
the
County
Attorneys
office
to
police
officers
and
victim
advocates
(who
often
are
allowed
to
testify
as
experts)
and
to
state-paid-for
forensic
services,
and
one
can
reasonably
estimate
that
the
resources
allocated
to
the
County
Attorney
are
likely
closer
to
four
times
the
amount
of
the
public
defenders
budget.
$175,000.00
$526,243.00
$171,842.00
County Attorney
$563,954.00
$171,500.00
$551,198.00
$170,929.00
$547,131.67
$171,423.67
FY2009 Budget FY2009 Actual FY2010 Budget FY2011 Budget 3-year average*
34 See Attorney Agreement dated Nov. 18, 2008, produced in response to ACLU of Utah
GRAMA
request
dated
Sept.
15,
2009
(Box
Elder
Attorney
Agreement)
(on
file
with
the
ACLU
of
Utah).
ARP
is
comprised
of
partners
Bernard
Allen,
Randy
Richards,
and
Jonathan
Pace,
and
associate
attorneys
Brittany
Brown
and
Jason
Richards.
See,
e.g.,
http://arplegal.com/
(last
visited
July
4,
2011).
Bernard
Allen,
on
behalf
of
the
firm,
provides
much
of
the
public
defense
services
in
Box
Elder
County.
Randy
Richards
is
a
contract
appellate
attorney
in
Weber
County
and
a
former
Weber
County
Public
Defender.
Jonathan
Pace
is
a
Weber
County
Public
Defender
handling
juvenile
cases.
In
addition
to
their
public
defense
work,
at
least
Messrs.
Allen
and
Richards
maintain
active
private
practices,
including
private-client
criminal
defense
work
and
varied
civil
matters.
35
Box
Elder
2010
Budget,
supra
note
31,
at
2.
36
Id.
at
6-7.
13
When
asked,
Box
Elder
County
could
not
provide
any
documentation
demonstrating
that
it
has
in
place
any
policies
or
procedures
to
guarantee
thator
even
to
monitor
whetherindividual
defendants
in
Box
Elder
County
receive
quality
defense
services.37
For
example,
there
are
apparently
no
systems
in
place
to
screen
for
conflicts
of
interest,
to
track
caseloads,
or
to
ensure
consistent
and
competent
representation.38
To
further
compound
this
lack
of
oversight,
the
Box
Elder
County
Commission
relies
on
the
advice
and
input
of
the
courts
and
the
County
Attorney
himself
in
awarding
and
renewing
the
public
defender
contract.39
Allowing
the
County
Attorney
such
a
direct
and
influential
role
in
choosing
the
public
defenders
is
inconsistent
with
the
first
of
the
ABAs
Ten
Principles
because,
as
the
ABA
explains40:
The
public
defense
function
should
be
independent
from
political
influence
and
subject
to
judicial
supervision
only
in
the
same
manner
and
to
the
same
extent
as
retained
counsel.
To
safeguard
independence
and
to
promote
efficiency
and
quality
of
services,
a
nonpartisan
board
should
oversee
defender,
assigned
counsel,
or
contract
systems.
37 See Jan. 22, 2010, Resp. by Box Elder County to ACLU of Utah GRAMA request dated Sep. 15,
2009
(2010
Box
Elder
Resp.),
at
1-2
(on
file
with
ACLU
of
Utah).
38
See
id.
at
1-3.
39 See Box Elder County Commission Minutes dated Nov. 18, 2008 (Nov. 18, 2008, Box Elder
14
15
In
Box
Elder
County,
public
defenders
are
required
to
pay
for
conflict
counsel
out
of
their
base
contract.46
This
is
inherently
problematic.
It
may
discourage
public
defenders
from
identifying
conflicts
and
hiring
conflict
counsel
and,
if
conflict
counsel
is
retained,
it
may
incentivize
public
defenders
to
retain
the
least
expensive
conflict
counsel
they
can
find.
The
Box
Elder
County
Commission
relies
on
the
advice
and
input
of
the
courts
and
the
County
Attorney
himself
in
awarding
and
renewing
the
public
defender
contract.47
In
2008,
the
Box
Elder
County
Attorney
argued
that
renewing
the
contract
with
ARP
(then
Richards,
Caine,
Allen
&
Pace)
was
preferable
to
accepting
the
bid
of
competitor
firm
Grover
&
Beins
because
the
County
Attorney
was
very
pleased
with
[ARPs]
work.48
At
that
time,
ARPs
bid
was
also
$7,500
lower
than
the
competitors
and
did
not
allow
for
renegotiation
even
if
caseloads
were
to
dramatically
increase.49
FUNDING
&
RESOURCES
Box
Elder
County
spends
$3.43
per
capita
on
public
defense
services,50
or
only
29
percent
of
the
national
average
of
$11.86.51
Box
Elder
Countys
2010
adopted
budget
allocates
$171,500
for
all
public
defense
services,
which
includes
$2,000
for
expenses
incurred
by
public
defense
counsel.52
By
contrast,
the
County
Attorneys
2010
total
budget
was
$563,954.53
enough
about
the
[public
defenders]
and
[that
he
relied]
on
the
expertise
of
the
county
attorneys
office
to
help
decide
who
should
be
awarded
the
public
defender
contract.
See
11/18/08
Box
Elder
Commission
Minutes,
supra
note
39,
at
4-5.
48
See
id.
49
See
id.
50
See
calculations,
supra
note
31.
51
2008
NLADA
Report,
supra
note
9,
at
7.
52
Box
Elder
2010
Budget,
supra
note
31,
at
2.
53
See
id.
at
6-7.
16
CONTRACT54
SALARY/WAGE55
$171,500
$171,500
$100,000
$70,210
$58,149
$31,232
$23,539
$283,130
In
addition
to
salaries,
for
fiscal
year
2011
Box
Elder
County
has
budgeted
for
the
following
expenses
for
the
County
Attorneys
Office:
office
space;
employee
benefits
($126,248);
office
supplies
($5,000);
books,
subscriptions
and
professional
association
dues
($14,020);
travel
reimbursement
($3,000);
professional
and
technical
costs
($10,000);
and
education
and
training
($1,500).56
An
additional
$46,430
has
been
budgeted
to
pay
for
Box
Elder
Countys
victims
witness
advocate
in
fiscal
year
2011.57
Victims
witness
advocates
are
often
allowed
to
testify
as
expert
witnesses
in
criminal
cases,
thereby
alleviating
the
need
for
the
prosecution
to
hire
an
outside
expert.
Because
the
attorneys
at
ARP
are
contract
workers,
as
opposed
to
employees
of
the
county,
the
contract
provides
no
monies
for
overhead,
support
staff,
administrative
expenses,
or
employment
benefits
such
as
health
insurance,
workers
compensation,
sick
leave,
vacation,
or
pension.58
54
Id.
at
2.
55 Salaries for many public employees, including those listed in this chart, can be searched and
56 See 2011 Adopted Budget for Box Elder County (Box Elder 2011 Budget), at 3, available
17
59
Id.
at
8.
dated
Oct.
22,
2010
(2010
Utah
AO
Resp.)
(on
file
with
the
ACLU
of
Utah).
Note
that
these
figures
may
actually
understate
the
total
number
of
cases
handled
in
any
given
year
by
any
public
defender,
because
each
public
defender
will
be
responsible
not
only
for
newly
assigned
cases
but
also
for
cases
pending
from
previous
years.
See
U.S.
Dept.
of
Justice,
Bureau
of
Justice
Statistics,
County-Based
and
Local
Public
Defenders
Offices
2007
(Sept.
2010,
NJC
231175)
(2007
DOJ
Public
Defenders
Report),
at
8,
available
at
http://bjs.ojp.usdoj.gov/
content/pub/pdf/clpdo07.pdf
(last
visited
July
4,
2011).
63
Supra
note
21.
64
Supra
note
20.
65
See
ABA
Guidelines
For
Death
Penalty
Cases,
supra
note
22,
at
40.
18
In
Mr.
Allens
case,
that
would
leave
only
1,370
hours
to
handle,
in
addition
to
his
miscellaneous
and
civil
matters,
the
equivalent
of
140
felonies.
That
leaves
less
than
10
hours
per
felony.
(1,370
hours/140
felonies
=
9.79
hours/felony.)
66 See id. at 39. We have not received complaints indicating that indigent defendants in Box
Elder
County
have
found
Mr.
Allen
or
any
of
his
colleagues
at
ARP
to
be
excessively
busy
or
otherwise
deficient
in
their
provision
of
public
defender
services.
19
DAGGETT
COUNTY
SUMMARY
Daggett
County
has
a
population
of
only
1,059
people.67
Daggett
County
has
a
significantly
lower
poverty
rate
(6.6%)
than
the
Utah
State
average
(11.7%).68
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
only
three
felonies
and
two
misdemeanors
were
filed
in
the
District
Court
for
Daggett
County.69
Another
138
misdemeanors
were
filed
in
the
Daggett
County
justice
courts.70
Daggett
County
spends
approximately
$3.96
per
capita
on
public
defense
services,71
which
is
33
percent
of
the
national
average
($11.8672)
and
76
percent
of
the
Utah
state
average
($5.2273).
Daggett
County
does
not
have
a
public
defender
contract.
Instead,
it
utilizes
assigned
counsel
on
a
case-by-case
basis
at
approximately
$50/hour.
This
hourly
rate
is
intended
to
cover
the
attorneys
time
and
all
other
attorney
expenses
relating
to
the
case.
Although
Daggett
Countys
budget
used
to
include
a
line
item
of
$200
allocated
for
indigent
professional
fees
67 See 2010 U.S. Census estimates for Daggett County, available at http://
longname=Utah (last visited May 29, 2011) (printout on file with the ACLU of Utah).
69 Utah Administrative Office of the Courts, Fiscal Year 2010 Utah Courts Caseload, First
District
Court
for
Daggett
County
(July
1,
2009-June
30,
2010),
available
at
http://
www.utcourts.gov/stats/files/2010FY/district/8-Daggett.pdf
(last
visited
May
29,
2011).
70
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
Daggett
Utah
GRAMA
request
dated
Sept.
16,
2009
(Daggett
Attorney
Invoices)(on
file
with
the
ACLU
of
Utah),
at
6-87,
93-107;
see
also
U.S.
Census
Bureau,
State
&
County
QuickFacts
Daggett
County,
Utah
(Nov.
4,
2010),
available
at
http://quickfacts.census.gov/qfd/states/
49/49009.html
(last
visited
June
27,
2011).
Daggett
County,
unlike
most
other
counties
studied
for
this
report,
does
not
list
its
public
defender
budget
as
a
separate
line
item
in
its
annual
budgets
or
financial
reports.
As
a
result,
when
calculating
Daggett
Countys
public
defense
expenditures,
we
relied
on
attorney
invoices
produced
by
Daggett
County
in
response
to
an
ACLU
of
Utah
GRAMA
request.
The
last
full
year
for
which
invoices
were
produced
was
2009.
In
2010,
Daggett
Countys
estimated
population
was
1,059,
which
divided
into
the
2009
total
public
defense
budget
of
$4,197
equals
$3.96
per
capita.
72
2008
NLADA
Report,
supra
note
9,
at
7.
73
Id.
at
iii.
20
for
public
defenders,74
it
is
unclear
what
that
was
intended
to
cover
and,
in
any
event,
we
did
not
find
any
record
of
any
public
defender
actually
billing
separately
for
such
services
in
the
years
2006-2010.75
By
contrast,
the
budget
for
the
County
Attorneys
Office
has
averaged
$95,032
over
the
last
three
years.76
Daggett
County
Public
Defender
County Attorney
$107,500.00
$90,300.00
$10,300.00
$81,306.00
$4,185.00
$7,500.00
$96,290.00
$-
$95,032.00
$5,842.50
FY2009 Budget FY2009 Actual FY2010 Budget FY2011 Budget 3-year average*
When
asked,
Daggett
County
could
not
provide
any
documentation
demonstrating
that
it
has
in
place
any
policies
or
procedures
to
guarantee
thator
even
to
monitor
whetherindividual
defendants
in
Daggett
County
receive
quality
defense
services.77
Despite
the
low
case
load
in
Daggett
County,
there
are
apparently
no
systems
in
place
to
screen
for
conflicts
of
interest,
to
track
caseloads,
or
to
ensure
consistent
and
competent
representation.78
74 See Daggett County budget materials, produced in response to ACLU of Utah GRAMA
request
dated
Sept.
16,
2009
(Daggett
Budget
Materials),
at
2-5
(on
file
with
the
ACLU
of
Utah).
75
See
Daggett
Attorney
Invoices,
supra
note
71,
at
6-87,
93-107.
76
See
2009
Adopted
Budget
for
Daggett
County
at
4,
and
2010
Adopted
Budget
for
Daggett
77 See July 15, 2008, Notes of Telephone Interview with Daggett County Clerks Office in
connection
with
ACLU
of
Utah
GRAMA
request
dated
May
13,
2008
(2008
Daggett
Resp.),
at
1
(on
file
with
the
ACLU
of
Utah).
78
See
id.
21
Uintah
County
in
Fall
2010.
We
were
unable
to
determine
whether
he
is
still
practicing.
See
discussion
infra
at
note
325.
81
See
Daggett
Attorney
Invoices,
supra
note
64,
at
6-87,
93-107.
82
See
2008
Daggett
Resp.,
supra
note
77,
at
1.
83
See
id.
at
1.
22
CONFLICTS
OF
INTEREST
Daggett
County
was
unable
to
produce
any
written
requirements,
policies,
or
standards
for
evaluating
potential
structural
conflicts
of
interest
for
attorneys
contracting
for
public
defense
work
in
Daggett
County,
and
the
County
apparently
keeps
no
record
of
public
defender
case
assignments
or
decisions
to
substitute
counsel.
FUNDING
&
RESOURCES
Daggett
County
spends
approximately
$3.96
per
capita
on
public
defense
services,85
which
is
33
percent
of
the
national
average
of
$11.86.86
Daggett
County
receives
no
state
appropriations
for
public
defense
services.
COMPARISON
OF
DAGGETT
COUNTY
FUNDING
AND
SUPPORT
TOTAL
PUBLIC
DEFENSE
BUDGET87:
2008
-
$15,800
2009
-
$10,300
2010
-
$7,500
Reimbursements
to
Attorneys89:
2008
-
$3,563
2009
-
$4,185
2010
-
$75290
84 See March 25, 2010, Resp. by Daggett County to ACLU of Utah GRAMA request dated Oct.
21,
2009
(2010
Daggett
Resp.),
at
1
(on
file
with
the
ACLU
of
Utah).
County
personnel
indicated
that
they
were
working
to
create
these
records
as
of
March
25,
2010,
and
expected
to
complete
them
by
April
1,
2010.
Those
records
were
never
received.
85
See
calculations
supra
note
71.
86
2008
NLADA
Report,
supra
note
9,
at
7.
87
See
Daggett
Attorney
Invoices,
supra
note
71,
at
6-87,
93-107.
88
See
2009
Adopted
Budget
for
Daggett
County
at
4,
and
2010
Adopted
Budget
for
Daggett
89
See
Daggett
Attorney
Invoices,
supra
note
71,
at
6-87,
93-107.
The
public
defender
invoices
received
for
the
period
January
1-March
31,
2010.
That
is
the
most
recent
data
we
have
available.
91
See
Daggett
County
Attorney
Contracts
dated
Jan.
2,
2009,
produced
in
response
to
ACLU
of
Utah
GRAMA
request
dated
Sept.
16,
2009,
at
4-5
(on
file
with
the
ACLU
of
Utah).
Per
those
documents,
County
Attorney
services
are
provided
by
three
mutually
covenant
attorneys.
92
See
id.
93
See
Daggett
Attorney
Invoices,
supra
note
71,
at
6-87,
93-107.
24
DUCHESNE
COUNTY
SUMMARY
Duchesne
County
has
a
population
of
18,60794;
the
largest
city
is
Roosevelt.95
Duchesne
County
has
a
slightly
lower
poverty
rate
(10.6%)
than
the
Utah
State
average
(11.7%),96
and
also
has
a
significantly
higher-
than-average
Native
American
population
(4.5%
compared
to
1.2%
statewide97).
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
405
felonies
and
417
misdemeanors
were
filed
in
the
district
courts
for
Duchesne
County.98
Another
439
misdemeanors
were
filed
in
the
Duchesne
County
justice
courts.99
Duchesne
County,
like
all
other
Utah
counties,
receives
no
money
for
public
defense
services.
Duchesne
County
spends
approximately
$9.41
per
capita
on
public
defense
services,100
which
is
79
percent
of
the
national
94 See 2010 U.S. Census estimates for Duchesne County, available at http://
Percent&longname=Utah
(last
visited
May
29,
2011)
(printout
on
file
with
the
ACLU
of
Utah).
97
See
2010
U.S.
Census
estimates
for
Duchesne
County,
available
at
http://
102
103 In or around January 2011, Duchesne County hired a Salt Lake City-based law firm,
Morrison
&
Morrison,
to
handle
Mr.
Uresks
approximately
50
percent
of
the
Duchesne
public
defender
docket;
Ms
Doherty
continues
to
handle
the
other
approximately
50
percent.
See
Duchesne
County
Commission
Minutes
dated
Jan.
31,
2011,
at
1,
available
at
http://
duchesne.utah.gov/images/1-31-11_reg.pdf
(last
visited
June
15,
2011).
A
third
public
defender,
Herb
Gillespie,
handles
only
juvenile
cases.
See
Duchesne
County
Commission
Minutes
dated
Dec.
6,
2010
(Dec.
6,
2010,
Commission
Minutes),
at
2,
available
at
http://duchesne.utah.gov/images/commission/2010/12-06-10_reg.pdf
(last
visited
June
15,
2011).
104
See
Duchesne
County
Commission
Minutes
dated
Jan.
7,
2008,
at
1,
available
at
http://duchesne.utah.gov/images/departments/commission/2008/2008-01-07.pdf
(last
visited
June
15,
2011),
105
Ms.
Doherty
took
over
the
contract
from
Stephanie
Miya
on
or
about
January
12,
2009.
See
Duchesne
County
Commission
Minutes
dated
Jan.
12,
2009,
at
3,
available
at
http://
duchesnegov.net/clerkauditor/2009minutes/01-12-09%20reg.pdf
(last
visited
June
15,
2011).
106
See
Agreement
for
Legal
Services,
Roland
Uresk,
Justice
Courts
(Jan.
7,
2008-Dec.
31,
2010)
26
Duchesne
County
Public
Defender
$491,250
$187,000
$455,128
$166,809
County Attorney
$488,723
$175,000
$488,532
$175,000
$477,461
$172,270
FY2009 Budget FY2009 Actual FY2010 Budget FY2011 Budget 3-year average*
When
asked,
Duchesne
County
was
unable
to
produce
any
documentation
demonstrating
that
it
has
in
place
any
policies
or
procedures
to
guarantee
thator
even
to
monitor
whetherindividual
defendants
in
Duchesne
County
receive
quality
defense
services.112
There
are
apparently
no
systems
in
place
to
screen
for
conflicts
of
interest,
to
track
caseloads,
or
to
ensure
consistent
and
competent
representation.113
Instead,
all
that
is
required
by
contract
is
that
the
attorney
provide
competent
legal
representationwith
no
explanation
of
what
that
might
mean,
let
alone
16,
2010
(2010
Duchesne
Resp.),
at
2-3
(on
file
with
ACLU
of
Utah);
see
also
http://utahsright.com/salaries.php?city=duchesne_county
(last
visited
July
4,
2011),
a
website
on
which
many
public
sector
employees
salaries,
including
these
attorneys,
can
be
searched
and
reviewed.
111
See
2010
Duchesne
Resp.,
supra
note
110,
at
2.
112
See
May
29,
2008,
Resp.
by
Duchesne
County
to
ACLU
of
Utah
GRAMA
Request
dated
May
13,
2008
(2008
Duchesne
Resp.),
at
1-2
(on
file
with
ACLU
of
Utah).
113
See
id.
27
114 See, e.g., Duchesne County Commission Minutes dated Jan. 22, 2007 (Jan. 22, 2007,
County
Commissioners
contacted
the
County
Attorneys
office
to
see
if
he
knows
anything
about
the
public
defender
contracts
before
moving
forward
with
finding
a
replacement.
See
Duchesne
County
Council
Minutes
dated
Dec.
13,
2010,
available
at
http://
duchesne.utah.gov/images/departments/commission/2010/12-13-10_reg.pdf
(last
visited
June
11,
2011).
The
County
Attorneys
Office
was
involved
not
just
in
selecting
the
replacement
public
defender,
but
also
in
deciding
the
material
terms
of
the
public
defender
contract.
See
Dec.
27,
2010,
Duchesne
County
Commission
Minutes
dated
Dec.
27,
2010
(Dec.
27,
2010,
Commission
Minutes),
available
at
http://duchesne.utah.gov/images/
departments/commission/2010/12-27-10_reg.pdf
(last
visited
June
11,
2011).
This
violates
the
first
of
the
ABAs
Ten
Principles,
supra
note
19.
28
117 See, e.g., Dec. 14, 2006, Letters from Duchesne County Personnel Office and May 27, 2008,
29
In
the
past,
the
public
defender
contracts
have
also
required
that
the
public
defender
must
establish
local
communications
(phone)
and
an
ability
to
meet
locally
with
defendants
to
effectively
serve
their
needs
on
a
local
basis. 126
We
have
been
unable
to
determine
whether
that
contractual
provision
still
exists.
We
note,
however,
that
such
a
provision
would
be
nearly
impossible
to
enforce
if,
as
Duchesne
County
has
acknowledged,
the
county
does
not
supervise
the
ongoing
provision
of
public
defense
services.127
124 Id. We were unable to find additional information in the public record concerning the
terms
of
Morrison
&
Morrisons
contract.
The
County
Commission
Minutes
concerning
the
appointment
state
only,
Commissioner
Winterton
stated
that
after
the
interview
process,
the
interview
committee
came
to
the
conclusion
that
Morrison
&
Morrison
is
who
they
would
like
to
extend
the
contract
to.
See
Duchesne
County
Commission
Minutes
dated
Jan.
31,
2011,
at
1
(Jan.
31,
2011,
Commission
Minutes),
available
at
http://duchesne.utah.gov/images/1-
31-11_reg.pdf
(last
visited
July
4,
2011).
125
See,
e.g.,
Jan.
22,
2007,
Commission
Minutes,
supra
note
114,
at
3;
see
also
Uresk
DC
30
Unlike
most
other
counties,
Duchesne
County
does
not
list
its
public
defender
budget
as
a
separate
line
item
in
its
annual
budgets
or
financial
reports.
We
estimate
that
Duchesne
Countys
budget
allocation
for
public
defender
services
is
approximately
$175,000
for
fiscal
year
2011.133
By
contrast,
Duchesne
Countys
2011
budget
allocates
$488,532
to
the
County
Attorneys
Office134roughly
2.5
times
more
than
the
budget
for
public
defense
services.
Although
we
do
not
have
detailed
information
for
fiscal
year
2011,
the
2009
County
Attorneys
budget
($491,250)
included,
for
example,
a
$3,400
line
item
for
telephone
service.135
129
Id.
31
CONTRACT136
SALARY/WAGE137
$67,200
$44,800
$78,790
$65,499
$55,073
$167,073
$65,562
$31,232
$42,162
$36,525
$319,770
136 See Mar. 28, 2011, Commission Minutes, supra note 121, at 2; Jan. 31, 2011 Commission
Minutes,
supra
note
124,
at
1;
Dec.
6,
2010,
Commission
Minutes,
supra
note
103,
at
2.
137
See
2010
Duchesne
Resp.,
supra
note
110,
at
2.
138
Id.
139
See,
e.g.,
Jan.
22,
2007,
Commission
Minutes,
supra
note
114,
at
3,
4.
140
See
id.
32
CASELOADS
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
405
felonies
and
417
misdemeanors
were
filed
in
the
district
courts
for
Duchesne
County.141
Another
439
misdemeanors
were
filed
in
the
Duchesne
County
justice
courts.142
Mr.
Uresk
entered
an
appearance
as
counsel
in
at
least
130
felonies,
59
misdemeanors,
and
at
least
8
miscellaneous
cases
over
the
year
between
October
2009
and
September
2010.143
Setting
aside
any
civil
matters
in
which
he
was
counsel,
Mr.
Uresks
total
annual
criminal
caseloadthe
equivalent
of
152
felonies
when
misdemeanors
are
weighted
and
added144exceeds
the
maximum
of
150
felonies
recommended
under
the
longstanding
professional
guidelines
promulgated
by
NAC
in
1973.145
Assuming
that
an
attorney
will
work
for
40
hours
a
week,
50
weeks
a
year
(with
two
weeks
set
aside
for
vacation),
he
or
she
will
have
a
total
of
2,000
hours
to
allocate
to
casework.
(40
hours/week
x
50
weeks
=
2,000
hours.)
In
Mr.
Uresks
case,
even
excluding
his
civil
caseload,
that
schedule
would
result
in
only
about
13
hours
per
felony.
(2,000
hours/152
felonies
=
13.16
hours/felony.)
Again,
that
takes
into
account
only
his
criminal
work,
and
does
not
factor
in
any
miscellaneous
or
civil
matters.
When
determining
which
attorney
or
firm
should
replace
Mr.
Uresk
in
December
2010
and
January
2011,
the
County
Commission
explicitly
declined
to
accept
caseload
limits
as
part
of
the
new
contract.146
Another
factor
worth
noting
when
assessing
the
ability
of
public
defenders
in
rural
areas,
such
as
Duchesne
County,
to
provide
constitutionally
adequate
public
defender
services
is
the
substantial
travel
that
can
be
involved.
Both
Mr.
Uresk
and
Ms.
Doherty
practice
in
both
Duchesne
and
Uintah
Counties,
for
example,
and
it
is
an
approximately
two
hour
roundtrip
drive
from
Duchesne
to
Vernal.
141
Supra
note
98.
142
Supra
note
99.
143
See
2010
Utah
AO
Resp.,
supra
note
62.
144
Supra
note
21.
145
Supra
note
20.
146
See
Dec.
27,
2010,
Commission
Minutes,
supra
note
116,
at
2.
33
147 See ABA Guidelines for Death Penalty Cases, supra note 22, at 39-40 n.112 (noting that,
although
many
organizations
have
considered
the
issue
of
maximum
acceptable
public
defender
caseloads,
only
NAC
has
set
forth
numerical
standards,
and
NAC
has
urged
that
its
numbers
are
provided
with
the
caveat
that
particular
local
conditionssuch
as
travel
timemay
mean
that
lower
limits
are
essential.).
34
IRON
COUNTY
SUMMARY
Iron
County
has
a
population
of
46,163148;
the
largest
city
is
Cedar
City.149
Iron
County
has
a
significantly
higher
poverty
rate
(18.3%)
than
the
Utah
State
average
(11.7%).150
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
499
felonies
and
233
misdemeanors
were
filed
in
the
district
courts
for
Iron
County. 151
Another
1,511
misdemeanors
were
filed
in
the
Iron
County
justice
courts.152
Iron
County
spends
approximately
$4.42
per
capita
on
non-capital
public
defense, 153
which
is
37
percent
of
the
national
average
of
$11.86
per
capita.154
Iron
County
contracts
with
two
private
attorneys,
Jack
Burns
and
Jeffery
Slack,
each
at
$70,000
annually,
to
handle
all
public
defense
cases
in
the
district
and
justice
courts.155
Both
Mr.
Burns
and
Mr.
Slack
also
maintain
active
private
practices.
For
the
period
October
2009
to
September
2010,
the
caseloads
of
both
Mr.
Burns
and
Mr.
Slack
far
exceeded
the
guidelines
for
public
defender
caseloads.
Assuming
a
standard
work
schedule,
and
without
148 See 2010 U.S. Census estimates for Iron County, available at http://
Percent&longname=Utah
(last
visited
May
29,
2011)
(printout
on
file
with
the
ACLU
of
Utah).
151
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
First
District
Court
for
Iron
County
(July
1,
2009-June
30,
2010),
available
at
http://
www.utcourts.gov/stats/files/2010FY/district/5-Iron.pdf
(last
visited
May
29,
2011).
152
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
Iron
ACLU
of
Utah
GRAMA
Request
dated
May
13,
2008
(Iron
Attorney
Agreements),
at
2-3
(both)
(on
file
with
ACLU
of
Utah).
Appeals
are
contracted
separately
at
a
flat
fee
of
$750
per
appeal,
regardless
of
each
appeals
complexity.
See
id.
at
6
(both).
35
156
GRAMA
Request
dated
May
13,
2008
(Leigh
Agreement),
at
2-3
(on
file
with
ACLU
of
Utah).
159
See
Iron
2010
Budget,
supra
note
153,
at
5.
160 Id. at 12. The County Attorneys budget for fiscal year 2010 included, among other things,
$530,000
for
employee
salaries,
$275,000
for
employee
benefits,
and
$8,000
for
travel
and
training.
36
Iron
County
Public
Defender
$876,721
$221,023
$840,653
$206,347
County Attorney
$884,600
$204,000
$836,000
$203,235
$853,751
$204,527
FY2009 Budget FY2009 Actual FY2010 Budget FY2011 Budget 3-year average*
When
asked,
Iron
County
could
not
provide
any
documentation
demonstrating
that
it
has
in
place
any
policies
or
procedures
to
guarantee
thator
even
to
monitor
whetherindividual
defendants
in
Iron
County
receive
quality
defense
services.161
There
are
apparently
no
systems
in
place
to
screen
for
conflicts
of
interest,
to
track
caseloads,
or
to
ensure
consistent
and
competent
representation.162
To
further
compound
this
lack
of
oversight,
the
Iron
County
Commission
primarily
relies
on
the
advice
and
input
of
the
County
Attorney
when
awarding
and
renewing
the
public
defender
contracts.
This
violates
the
first
of
the
ABAs
Ten
Principles,
i.e.,
full
independence
of
public
defenders
from
prosecutorial
or
political
influence
or
control.163
161 See June 4, 2008, Resp. from Iron County to ACLU of Utah GRAMA request dated May 13,
2008
(2008
Iron
Resp.),
at
1
(on
file
with
the
ACLU
of
Utah).
162
Id.
163
See
ABA
Ten
Principles,
supra
note
19,
at
1.
37
Iron
County
stated
that
it
does
not
have
written
policies
for166:
o Supervising
the
ongoing
provision
of
public
defense
services;
o Requiring
public
defenders
to
participate
in
continuing
legal
education;
or
o Monitoring
the
caseloads
of
public
defenders.
Iron
County
stated
that
it
does
not
have
any
written
criteria
or
guidelines
for167:
o Selecting
counsel
to
represent
indigent
defendants;
o Ensuring
that
public
defenders
meet
minimum
qualifications
or
performance
standards;
or
o Analyzing
the
adequacy
of
compensation
for
public
defenders.
164 See Iron Attorney Agreements, supra note 155, at 2-3 (both); Leigh Agreement, supra
158,
at
6.
We
are
advised
that
appeals
are
frequently
handled
by
Randall
C.
Allen,
whoin
addition
to
handling
appeals
in
Iron
Countyhas
public
defender
contracts
in
Beaver
County,
Garfield
County,
Kane
County,
Parowan
City,
and
Cedar
City.
See
July
16,
2008,
Resp.
by
Kane
County
to
ACLU
of
Utah
GRAMA
Request
dated
May
13,
2008,
at
28
(on
file
with
ACLU
of
Utah).
Mr.
Allen
also
maintains
a
private
practice
and
teaches
as
an
assistant
professor
of
political
science
at
Southern
Utah
University.
See,
e.g.,
Resume
of
Randall
C.
Allen,
available
at
http://www.suu.edu/faculty/AllenR/Vita.pdf
(last
visited
July
2,
2011).
166
See
2008
Iron
Resp.,
supra
note
161,
at
1.
167
See
id.
38
CONFLICTS
OF
INTEREST
Until
recently,
in
Iron
County,
public
defenders
were
required
to
pay
for
conflict
counsel
out
of
their
base
contract.
That
contractual
provision
has
now
been
eliminated.
Iron
County
does
not
have
any
written
policy
or
procedure
for
screening
for
or
identifying
conflicts
of
interest.168
FUNDING
AND
RESOURCES
168
See
id.
39
CONTRACT176
SALARY/
WAGE177
$70,000
$70,000
$45,000
$99,992
$83,893
$50,191
$55,417
$45,515
PD
Total
$185,000
$45,118
$27,231
$37,813
$35,247
$26,326
$27,313
$3,578
$537,634
175 See 2011 Adopted Budget for Iron County (Iron 2011 Budget) at 14, 7, available for
158, at 2.
177 Salaries for many public employees, including those listed in this chart, can be searched
158,
at
12.
40
CASELOADS
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
499
felonies
and
233
misdemeanors
were
filed
in
the
district
courts
for
Iron
County. 181
Another
1,511
misdemeanors
were
filed
in
the
Iron
County
justice
courts.182
For
the
period
October
2009
to
September
2010,
the
caseloads
of
both
Mr.
Burns
and
Mr.
Slack
far
exceeded
NAC
guidelines
for
public
defender
caseloads.
As
noted
previously:
[N]ot
even
the
most
able
and
industrious
lawyers
can
provide
quality
representation
when
their
workloads
are
unmanageable.
Excessive
workloads,
moreover,
lead
to
attorney
frustration,
disillusionment
by
clients,
and
weakening
of
the
adversary
system.183
180 See Iron Attorney Agreements, supra note 155, at 9 (both); Leigh Agreement, supra note
158,
at
8.
There
is
apparently
no
procedure
whereby
public
defenders
may
appeal
court-
rejected
reimbursement
requests.
We
note,
however,
that
at
least
one
Iron
County
public
defender
indicated
that
County
Attorney
Scott
Garrett
is
reasonable
with
requests
for
additional
funding
for
defense
investigations.
181
Supra
note
151.
182
Supra
note
152.
183
See
ABA
Guidelines
For
Death
Penalty
Cases,
supra
note
22,
at
39
(quoting
American
Bar
Association
Standards
For
Criminal
Justice:
Providing
Defense
Services,
Standard
5-5.3
cmt.
(3d
ed.
1992)).
184
Supra
note
21.
185
See
2010
Utah
AO
Resp.,
supra
note
62.
41
Mr.
Leigh
handles
all
juvenile
court
public
defense
cases
in
Iron
County.
Not
counting
Mr.
Leighs
juvenile
docket,
for
which
case
statistics
were
not
available
from
the
Utah
Administrative
Office
of
the
Courts,
Mr.
Leigh
appeared
as
counsel
in
94
felonies
and
58
misdemeanors
(for
a
NAC
felony
equivalent
of
116
felonies188)
and
another
51
miscellaneous
cases
(for
a
total
of
203
cases)
between
October
2009
and
September
2010.189
Assuming
the
same
work
schedule,
and
without
factoring
in
any
time
spent
on
civil
or
miscellaneous
matters,
that
would
leave
Mr.
Leigh
with
only
about
17.2
hours
to
handle
each
felony
or
felony
equivalent
case
on
his
docket.
(2,000
hours/116
felonies
=
17.2
hours/felony.)
Once
the
miscellaneous
cases
are
factored
in
and
total
tracked
caseloads
are
considered,
that
number
goes
down
to
9.9
hours
per
case.
(2,000
hours/203
cases
=
9.9
hours/case.)
186
Supra
note
21.
42
190 See ABA Guidelines for Death Penalty Cases, supra note 22, at 39-40 n.112 (noting that,
although
many
organizations
have
considered
the
issue
of
maximum
acceptable
public
defender
caseloads,
only
NAC
has
set
forth
numerical
standards,
and
NAC
has
urged
that
its
numbers
are
provided
with
the
caveat
that
particular
local
conditionssuch
as
travel
timemay
mean
that
lower
limits
are
essential.).
43
KANE
COUNTY
SUMMARY
Kane
County
has
a
population
of
7,125
people191;
the
largest
city
is
Kanab.192
Kane
County
has
the
same
poverty
rate
(11.7%)
as
the
Utah
State
average.193
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
161
felonies
and
45
misdemeanors
were
filed
in
the
District
Court
for
Kane
County.194
Another
589
misdemeanors
were
filed
in
the
Kane
County
justice
courts.195
Kane
County,
like
all
other
counties
in
Utah,
receives
no
money
from
the
state
for
public
defense.
In
2010,
Kane
County
budgeted
approximately
$8.63
per
capita
for
non-capital
public
defense
services,196
which
is
73
percent
of
the
national
average
amount
spent
($11.86197).
Kane
County
contracts
with
private
attorney
William
Leigh,
paying
$50,000
annually
for
all
public
defense
services.198
Mr.
Leigh
also
holds
the
public
defense
contract
for
juvenile
cases
in
neighboring
Iron
County,
with
191 See 2010 U.S. Census estimates for Kane County, available at http://
Percent&longname=Utah
(last
visited
May
29,
2011)
(printout
on
file
with
the
ACLU
of
Utah).
194
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
First
District
Court
for
Kane
County
(July
1,
2009-June
30,
2010),
available
at
http://www.utcourts.gov/stats/files/2010FY/district/6-Kane.pdf
(last
visited
June
4,
2011).
195
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
Kane
See
2011
Utah
Appellate
Task
Force
Report,
supra
note
7,
at
Appendix
A
at
3
(listing
the
material
terms
of
Mr.
Leighs
public
defender
contract
in
Kane
County)
(on
file
with
the
ACLU
of
Utah).
We
have
been
unable
to
locate
a
publicly
available
copy
of
Mr.
Leighs
contract,
and
none
was
submitted
in
response
to
the
ACLU
of
Utahs
GRAMA
requests
to
Kane
County.
44
victims
witness
advocate,
even
though
victims
witness
advocates
primarily
assist
the
prosecution.
203
See
Oct.
26,
2010,
Resp.
by
Kane
County
to
ACLU
of
Utah
GRAMA
Request
dated
Sept.
15,
2009
(2010
Kane
Resp.),
at
12
(on
file
with
ACLU
of
Utah).
One
of
the
attorneys,
William
Bernard,
ceased
working
in
the
County
Attorneys
Office
sometime
in
2010.
204
Id.
205
Id.
at
8.
45
Kane
County
Public
Defender
$266,089
$55,630
$301,587
$49,895
County Attorney
$376,976
$61,500
$388,520
$61,500
$355,668
$57,632
FY2009 Budget FY2009 Actual FY2010 Budget FY2011 Budget 3-year average*
Unlike
many
other
counties
studied
for
this
report,
Kane
County
does
set
aside
some
additional
resources
for
public
defense,
but
does
so
at
levels
far
below
what
is
provided
to
the
County
Attorneys
Office.
For
example,
Kane
Countys
2008
budget
shows
that
$5,700
was
set
aside
for
investigations
by
the
public
defender206;
notably,
however,
Mr.
Leigh
was
still
required
to
submit
a
request
to
the
County
Attorney
in
order
to
access
those
funds207
and,
in
any
event,
the
set
aside
amount
is
roughly
one-third
of
the
$19,800
amount
set
aside
and
included
in
the
budget
for
investigations
by
the
County
Attorneys
Office.208
Leigh
regularly
to
seek
court
intervention
and
approvaland
to
expend
additional
time
and
resourcesin
order
to
access
the
funds
supposedly
set
aside
for
investigations.
208
See
2010
Kane
Resp.,
supra
note
203,
at
6.
The
investigations
allocation
for
the
County
209
See 2011 Utah Appellate Task Force Report, supra note 7, Appendix A at 3.
210 See, e.g., Public Notice of Public Defender Position, available at http://www.utah.gov/
GRAMA Request dated May 13, 2008 (on file with ACLU of Utah).
212 See July 22, 2008, Resp. by Kane County to ACLU of Utah GRAMA Request dated May 13,
2008
(2008
Kane
Resp.);
see
also
Agreement
with
Randall
C.
Allen,
produced
by
Kane
County
in
response
to
ACLU
of
Utah
GRAMA
request
dated
May
13,
2008,
at
20-27
(on
file
with
the
ACLU
of
Utah).
213
See
2008
Kane
Resp.,
supra
note
212.
47
CONFLICTS
OF
INTEREST
In
Kane
County,
the
public
defender
must
pay
for
conflict
counsel
out
of
his
base
contract. 214
This
is
inherently
problematic.
It
may
discourage
the
public
defender
from
acknowledging
conflicts
and
hiring
conflict
counsel
and,
if
conflict
counsel
is
retained,
may
incentivize
the
public
defender
to
retain
the
least
expensive
conflict
counsel
he
can
find.
FUNDING
&
RESOURCES
In
2010,
Kane
County
budgeted
approximately
$8.63
per
capita
for
non-capital
public
defense
services,215
which
is
76
percent
of
the
national
average
amount
spent
($11.86216).
Kane
Countys
2010
budget
for
non-capital
public
defense
services
was
approximately
$61,500.217
The
2010
budget
for
the
County
Attorneys
office,
by
contrast,
was
$353,029over
five
times
the
public
defense
budget.218
Compensation
for
Public
Defenders
v.
County
Attorneys
Office
PUBLIC
DEFENDER
William
Leigh
CONTRACT
SALARY/WAGE219
$50,000
$78,643.13
$56,784.00
PD
Total
$50,000
$53,518.40
$34,756.80
$27,851.20
$21,216.00
$272,769.53
214
See
2011
Utah
Appellate
Task
Force
Report,
supra
note
7,
Appendix
A
at
3.
215
See
calculations
supra
note
196.
216
2008
NLADA
Report,
supra
note
9,
at
7.
217
See
Kane
2010
Budget,
supra
note
196,
at
3,
and
related
calculations.
218
Id.
48
CASELOADS
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
161
felonies
and
45
misdemeanors
were
filed
in
the
Kane
County
District
Court,220
and
589
misdemeanors
were
filed
in
the
Kane
County
justice
courts.221
Mr.
Leigh
handles
all
public
defense
cases
in
Kane
County,
as
well
as
all
juvenile
public
defense
cases
in
Iron
County.
Not
counting
Mr.
Leighs
juvenile
docket,
for
which
case
statistics
were
not
available
from
the
Utah
Administrative
Office
of
the
Courts,
Mr.
Leigh
appeared
as
counsel
in
94
felonies
and
58
misdemeanors
(for
a
NAC
felony
equivalent
of
116
felonies222)
and
another
51
miscellaneous
cases
(for
a
total
of
203
cases)
between
October
2009
and
September
2010.
223
Assuming
a
standard
work
schedule
and
without
factoring
in
any
time
spent
on
civil
or
miscellaneous
cases,
that
would
leave
Mr.
Leigh
with
only
about
17.2
hours
to
handle
each
felony
or
felony
equivalent
case
on
his
docket.
(40
hours/week
x
50
weeks
=
2,000
hours;
2,000
hours/116
felonies
=
17.2
hours/felony.)
Once
the
miscellaneous
cases
are
factored
in
and
total
tracked
caseloads
are
considered,
that
number
goes
down
to
9.9
hours
per
case.
(2,000
hours/203
cases
=
9.9
hours/case.)
Moreover,
assuming
that
Mr.
Leigh
travels
between
Iron
County
and
Kane
County
four
times
a
month
(at
four
hours
and
180
miles
for
each
roundtrip
drive),
that
would
add
up
to
16
hours
per
month
(192
hours
per
year)
spent
driving
between
his
two
public
defender
jobs.
Once
those
hours
are
deducted
from
Mr.
Leighs
available
work
time,
his
available
time
per
felony
or
felony
equivalent
goes
from
17.2
hours
to
15.6
hours.
(1,808
hours/116
felonies
=
15.6
hours/felony.)
Once
the
miscellaneous
cases
are
factored
in
and
total
tracked
caseloads
are
considered,
that
number
goes
down
to
8.9
hours
per
case.
(1,808
hours/203
cases
=
8.9
hours/case.)
219
Salaries
for
many
public
employees,
including
those
listed
in
this
chart,
can
be
searched
and
reviewed
at
http://utahsright.com/
(last
visited
June
3,
2011).
220
Supra
note
194.
221
Supra
note
195.
222
Supra
note
21.
223
See
2010
Utah
AO
Resp.,
supra
note
62.
49
224 See 2010 U.S. Census estimates for San Juan County, available at http://
Court
for
San
Juan
County
(July
1,
2009-June
30,
2010),
available
at
http://
www.utcourts.gov/stats/files/2010FY/district/7-San_Juan.pdf
(last
visited
July
1,
2011).
229
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
San
Juan
50
232 See San Juan County Commission Minutes dated May 28, 1996 (May 28, 1996, San Juan
defenders
raises
obvious
concerns,
and
violates
the
first
of
the
ten
ABA
Principles
of
a
Public
Defense
Delivery
System.
See
ABA
Ten
Principles,
supra
note
19.
236
See
San
Juan
County
Commission
Minutes
dated
Dec.
14,
2009
(Dec.
14,
2009,
San
Juan
237 See San Juan County Commission Minutes dated Jan. 4, 2010 (Jan. 4, 2010, San Juan
load
for
the
year
2010
and
the
county
could
rebid
in
the
fall.
Following
a
discussion
on
the
advantages
of
retaining
the
current
public
defender,
a
motion
to
approve
Bill
Schultz
as
the
SJC
public
defender
for
the
2010
calendar
year
was
made
by
Commissioner
Kenneth
Maryboy.
.
.
.
Vote
unanimous.).
239
See
San
Juan
County
Commission
Minutes
dated
Mar.
22,
2010
(March
22,
2010,
San
Juan
access
enjoyed
by
the
County
Attorneys
office
to
police
officers
and
victim
advocates
(who
often
are
allowed
to
testify
as
experts)
and
to
state-funded
forensic
services,
and
the
disparity
is
starker
still.
$85,000
$261,144
$87,855
County Attorney
$258,410
$76,480
$259,165
$88,124
$259,573
$84,153
FY2009 Budget FY2009 Actual FY2010 Budget FY2011 Budget 3-year average*
When
asked,
San
Juan
County
could
not
provide
any
documentation
demonstrating
that
it
has
in
place
any
policies
or
procedures
to
guarantee
thator
even
to
monitor
whetherindividual
defendants
in
San
Juan
County
receive
quality
defense
services.245
=https%3A%2F%2F1.800.gay%3A443%2Fhttp%2Fwww.sanjuancounty.org%2Fdocuments%2FBudget%2520-%25202011
%2520Approved%2520Summary.pdf&rct=j&q=site%3Asanjuancounty.org%20slavens%20p
ublic%20defender&ei=qRwTTrK0DY3TiAKkq-jwDQ&usg=AFQjCNEWdFCkBZd
9kqMdIlOv8JLTuGV1Og&cad=rja
(last
visited
July
4,
2011)
(on
file
with
the
ACLU
of
Utah).
245
See
Aug.
15,
2008,
Resp.
of
San
Juan
County
to
ACLU
of
Utah
GRAMA
request
dated
May
13,
2008
(2008
San
Juan
Resp.),
at
1
(on
file
with
the
ACLU
of
Utah).
53
San
Juan
County
contracted
for
all
public
defense
services
with
private
attorney
William
Schultz
from
at
least
1996
to
the
end
of
2010.
By
2009,
Mr.
Schultzs
contract
amount
was
$70,000
per
year.246
In
December
2009,
San
Juan
County
awarded
the
contract
for
all
public
defense
services
to
Mitch
Maughan,
a
private
attorney
out
of
Spanish
Fork,
Utah.247
Due
to
health
problems,
Mr.
Maughan
was
released
from
the
contract
almost
immediately
after
it
was
awarded248
and
the
contract
was
again
assigned
to
Mr.
Schultz.249
Currently,
the
public
defender
for
San
Juan
County
is
Happy
Morgan.250
San
Juan
County
does
not
have
written
policies
for251:
o Supervising
the
ongoing
provision
of
public
defense
services;
o Requiring
the
public
defender
to
participate
in
continuing
legal
education;
or
o Monitor
the
caseloads
of
the
public
defender.
San
Juan
County
does
not
have
any
written
criteria
or
guidelines
for252:
o Selecting
counsel
to
represent
indigent
defendants;
o Ensuring
that
the
public
defender
meet
minimum
qualifications
or
performance
standards;
or
o Analyzing
the
adequacy
of
compensation
for
the
public
defender.
246
See
May
28,
1996,
San
Juan
Minutes,
supra
note
232,
at
1;
April
7,
2008,
San
Juan
Minutes,
supra
note
233,
at
3.
247
See
Dec.
14,
2009,
San
Juan
Commission
Minutes,
supra
note
236,
at
1.
248
See
Jan.
4,
2010,
San
Juan
Commission
Minutes,
supra
note
237,
at
1.
249
Id.
250
See
Dec.
20,
2010,
San
Juan
County
Minutes,
supra
note
241,
at
1.
251
See
2008
San
Juan
Resp.,
supra
note
245,
at
1-2.
252
Id.
54
CONTRACT
(est.)
SALARY/WAGE259
$70,000
$94,716
$70,000
$75,072
$26,520
$196,308
253
Supra
note
226.
$70,000
contract
amount
is
an
estimate
based
on
the
value
of
Mr.
Schultzs
final
contract.
258
See
San
Juan
2011
Budget,
supra
note
242,
at
3.
259
Salaries
for
many
public
sector
employees,
including
those
listed
in
this
table,
are
available
CASELOADS
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
64
felonies
and
24
misdemeanors
were
filed
in
the
District
Court
for
San
Juan
County.261
Another
611
misdemeanors
were
filed
in
the
San
Juan
County
justice
courts.262
Given
the
high
rate
of
poverty
in
San
Juan
County,
it
is
fair
to
assume
that
a
good
portion
of
those
cases
will
be
assigned
to
Ms.
Morgan.263
Even
if,
for
example,
only
40
percent
of
those
cases
required
the
appointment
of
a
public
defender,
that
would
result
in
a
caseload
of
26
felonies
and
254
misdemeanorsi.e.,
the
equivalent
of
121
felonies
when
the
misdemeanors
are
weighted
and
added.264
That
number
would
not
include
any
of
Ms.
Morgans
privately
retained
clients,
nor
would
it
include
any
miscellaneous
or
civil
matters
where
she
is
counsel.
261
Supra
note
228.
262
Supra
note
229.
263
The
only
document
we
received
that
provides
any
idea
of
the
prior
public
defenders
caseload
indicates
that
Mr.
Schultz
handled
approximately
110
cases
during
one
calendar
year.
See
Cases
with
public
defenders
Monticello
FY2006-2007,
produced
by
San
Juan
County
in
response
to
ACLU
of
Utah
GRAMA
request
dated
May
13,
2008
(on
file
with
the
ACLU
of
Utah).
264
Supra
note
21.
56
SEVIER
COUNTY
SUMMARY
Sevier
County
has
a
population
of
20,802 265 ;
the
largest
city
is
Richfield.266
Sevier
County
has
a
slightly
higher
poverty
rate
(12.5%)
than
the
Utah
State
average
(11.7%).267
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
210
felonies
and
55
misdemeanors
were
filed
in
the
District
Court
for
Sevier
County.268
Another
572
misdemeanors
were
filed
in
the
Sevier
County
justice
courts.269
Sevier
County,
like
all
other
counties
in
Utah,
receives
no
money
from
the
state
for
public
defense.
Despite
its
higher-than-average
poverty
rate,
Sevier
County
spends
only
$4.90
per
capita
on
public
defense
services,270
which
is
41
percent
of
the
national
average
($11.86271).
Sevier
County
contracts
with
two
private
attorneys,
Douglas
Neeley
(full-time,
currently
$60,000
annually)
and
Mandy
Larsen
(part-time,
265 See 2010 U.S. Census estimates for Sevier County, available at http://
Percent&longname=Utah
(last
visited
May
29,
2011)
(printout
on
file
with
the
ACLU
of
Utah).
268
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
District
Court
for
Sevier
County
(July
1,
2009-June
30,
2010),
available
at
http://
www.utcourts.gov/stats/files/2010FY/district/6-Sevier.pdf
(last
visited
June
4,
2011).
269 Utah Administrative Office of the Courts, Fiscal Year 2010 Utah Courts Caseload, Sevier
57
272 See Attorney Agreements dated March 1, 2009 (Larsen), and May 1, 2009 (Neeley)
Sevier
2011
Budget,
supra
note
270,
at
4
(showing
2009
actual
monies
spent)
58
Sevier
County
Public
Defender
$325,320
$102,000
$384,397
$356,707
$83,984
County Attorney
$102,000
$421,159
$102,000
$387,421
$95,995
FY2009 Budget FY2009 Actual FY2010 Budget FY2011 Budget 3-year average*
Add
to
this
notable
discrepancy
in
funding
the
substantial
caseload
carried
by
Mr.
Neeley
and
the
problems
in
Sevier
County
become
even
more
apparent.
Public
records
indicate
that
Mr.
Neeley
entered
an
appearance
as
counsel
in
157
felony
and
46
misdemeanor
cases,
as
well
as
70
miscellaneous
cases,
between
October
2009
and
September
2010.280
Even
setting
aside
Mr.
Neeleys
civil
caseload
and
other
miscellaneous
cases,
his
criminal
caseloadthe
equivalent
of
174
felonies
when
the
misdemeanors
are
weighted
and
added 281 exceeds
the
maximum
of
150
felonies
recommended
under
the
longstanding
professional
guidelines
promulgated
by
NAC.282
Further
compounding
the
problems
inherent
in
a
public
defender
carrying
that
heavy
a
caseload,
Sevier
County
was
unable
to
provide
any
documentation
demonstrating
that
it
has
in
place
any
policies
or
procedures
to
guarantee
thator
even
to
monitor
whetherindividual
defendants
in
Sevier
County
receive
quality
defense
services.283
2008
(2008
Sevier
Resp.),
at
1
(on
file
with
the
ACLU
of
Utah).
59
60
argue
against
his
own
effectiveness
at
trial,
most
studies
agree
that
the
best
course
is
for
separate
counsel
to
handle
the
appeal.289
FUNDING
&
RESOURCES
Sevier
County
spends
only
$4.90
per
capita
on
public
defense
services,290
which
is
41
percent
of
the
national
average
($11.86291).
Sevier
Countys
2009
budget
allocated
$102,000
for
all
public
defense
services.292
This
amount
reflected
a
$5,000
decrease
in
Mr.
Neeleys
annual
contract
amount
(from
$65,000
in
2007
and
2008
to
$60,000
in
2009).293
Of
the
$102,000
budgeted
in
2009,
only
$83,984
was
actually
spent. 294
Sevier
County
budgeted
$102,000
for
public
defender
services
in
2010
and
2011,
as
well.
Contrast
this
with
the
actual
monies
spent
to
operate
the
County
Attorneys
office
in
2009:
$356,707. 295
Sevier
County
budgeted
$323,850
and
$333,000
in
fiscal
years
2010
and
2011,
respectively,
for
the
County
Attorneys
Office.296
In
2010,
at
the
same
time
Mr.
Neeleys
contract
price
was
being
reduced
by
$5,000
annually,
Sevier
County
added
another
employee
to
the
County
Attorneys
Office,
a
Victims
Advocate,
at
an
estimated
cost
of
$59,347
annually.297
Like
law
enforcement
officers,
victims
witness
advocates
are
sometimes
allowed
to
testify
as
experts
in
criminal
trials,
thereby
alleviating
the
countys
otherwise-
additional
costs
for
expert
witnesses.
289
See, e.g., generally 2011 Utah Appellate Task Force Report, supra note 7.
This
does
not
include
monies
allocated
to
the
victims
witness
advocate,
even
though
victims
witness
advocates
primarily
assist
the
prosecution.
297
See
Sevier
2010
Budget,
supra
note
272,
at
3.
The
2011
Budget
shows
an
increased
cost
for
this
position
($63,159).
See
Sevier
2011
Budget,
supra
note
270,
at
3.
61
CONTRACT298
SALARY/WAGE299
$60,000
$18,000
$100,006
$64,230
$78,000
$37,128
$201,364
298
299 Salaries for many public sector employees, including those listed in this table, are available
301
See
Sevier
Attorney
Agreements,
supra
note
272,
at
1.4
(Neeley)
and
1.3
(Larsen).
302
See
Sevier
Attorney
Agreements,
supra
note
272,
at
1.4
(Neeley)
and
1.3
(Larsen).
303
See
Sevier
Attorney
Agreements,
supra
note
272,
at
1.4
(Neeley)
and
1.3
(Larsen).
304
See
Sevier
Attorney
Agreements,
supra
note
272,
at
3,
6
(both).
62
CASELOADS
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
210
felonies
and
55
misdemeanors
were
filed
in
the
District
Court
for
Sevier
County.306
Another
572
misdemeanors
were
filed
in
the
Sevier
County
justice
courts.307
Mr.
Neeley
entered
an
appearance
as
counsel
in
157
felony
and
46
misdemeanor
cases,
as
well
as
70
miscellaneous
cases,
between
October
2009
and
September
2010. 308
Even
setting
aside
Mr.
Neeleys
civil
matters
and
other
miscellaneous
cases,
his
criminal
caseloadthe
equivalent
of
174
felonies
when
the
misdemeanors
are
weighted
and
added309exceeds
the
maximum
of
150
felonies
recommended
under
the
longstanding
professional
guidelines
promulgated
by
NAC.310
Assuming
a
standard
work
schedule,
and
excluding
all
civil
or
miscellaneous
cases,
that
would
leave
Mr.
Neeley
only
11.5
hours
per
felony
or
felony
equivalent.
(2,000
hours/174
felonies
=
11.5
hours/felony.)
If
the
miscellaneous
cases
are
factored
in
and
total
tracked
caseloads
are
considered,
that
number
drops
to
7.3
hours
per
case.
(2,000
hours/273
total
cases
=
7.3
hours/case.)
Moreover,
it
appears
that
Mr.
Neeleys
caseload
over
this
period
included
ten
district
court
cases
outside
Sevier
County,
in
jurisdictions
ranging
from
Cedar
City
(118
miles
and
approximately
2
hours
from
Richfield)
to
Salt
Lake
City
(165
miles
and
approximately
2.75
hours
from
Richfield).311
Assuming
even
just
one
roundtrip
(at
four
hours
each)
every
two
months
to
Cedar
City,
63
and
one
roundtrip
(at
5.5
hours
each)
every
two
months
to
Salt
Lake
City,
that
adds
approximately
57
hours
of
travel
time
to
Mr.
Neeleys
work
schedule.
That
would
reduce
even
further
his
available
time
to
work
on
his
public
defender
(and
other)
cases.
312 See ABA Guidelines For Death Penalty Cases, supra note 22, at 39 (quoting American Bar
Association
Standards
For
Criminal
Justice:
Providing
Defense
Services,
Standard
5-5.3
cmt.
(3d
ed.
1992)).
64
UINTAH
COUNTY
SUMMARY
Uintah
County
has
a
population
of
32,588 313 ;
the
largest
city
is
Vernal.314
Uintah
County
has
a
slightly
lower
poverty
rate
(10.1%)
than
the
Utah
State
average
(11.7%).315
It
has
a
significantly
higher-than-average
Native
American
population
(7.7%
compared
to
1.2%
statewide).316
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
522
felonies
and
186
misdemeanors
were
filed
in
the
District
Court
for
Uintah
County.317
Another
796
misdemeanors
were
filed
in
the
Uintah
County
justice
courts.318
Uintah
County,
like
all
other
counties
in
Utah,
receives
no
money
from
the
state
for
public
defense.
In
2010,
Uintah
County
budgeted
approximately
$8.52
per
capita
on
public
defense
services,319
which
is
72
percent
of
the
national
average
of
$11.86.320
As
noted
previously,
using
the
per
capita
measure
in
a
place
like
Uintah
County,
which
has
high
numbers
of
transient
oil
field
and
other
seasonal
workers,
may
create
the
impression
that
the
public
defense
system
is
more
adequately
funded
than
it
really
is.321
We
believe
that
is
the
case
in
Uintah
County,
where
all
evidence
indicates
thatno
matter
its
per
capita
spendingUintah
Countys
public
defense
system
is
constitutionally
inadequate,
suffering
from
both
a
disabling
313 See 2010 U.S. Census estimates for Uintah County, available at http://
Percent&longname=Utah
(last
visited
May
29,
2011)
(printout
on
file
with
the
ACLU
of
Utah).
316
Supra
note
313.
317
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
Uintah
321
Uintah
County
Public
Defender
$1,069,000
$257,500
$1,071,688
$229,932
County Attorney
$1,052,400
$277,600
$1,210,700
$319,200
$1,111,596
$275,577
FY2009 Budget FY2009 Actual FY2010 Budget FY2011 Budget 3-year average*
In
addition
to
the
significant
disparity
in
resources,
Uintah
County
has
recently
experienced
upheaval
in
its
public
defense
system.
Both
of
the
two
public
defenders,
John
Beaslin
and
Lance
Dean,
were
recently
replaced,
apparently
before
either
of
their
contract
terms
had
expired.325
We
were
unable
to
determine
the
reason.
During
their
time
as
public
defenders,
Mr.
Beaslin
had
a
contract
to
handle
one
half
of
the
public
defense
district
court
cases
(at
$63,000
322 See 2009 Financial Report for Uintah County (Uintah County 2009 Financials), at 68,
to
practice
law
56
years
ago,
in
1955.
Assuming
he
was
23
or
24
when
he
finished
law
school,
he
is
likely
about
80
years
old,
and
may
have
retired.
Mr.
Dean
is
now
a
guardian
ad
litem
in
Cedar
City,
Utah.
See
http://www.myutahbar.org/PublicDirectory/PublicDirectory.aspx?s=
dean&m=
06206
(last
visited
June
4,
2011).
66
annually)
and
Mr.
Dean
had
a
contract
to
handle
the
other
one
half
of
the
public
defense
district
court
cases
and
all
public
defense
juvenile
court
cases
(at
$99,000
annually).326
Both
also
maintained
active
private
practices.
Over
the
year
between
October
2009
and
September
2010,
Mr.
Beaslin
entered
an
appearance
as
counsel
in
146
felony
and
55
misdemeanor
cases
(as
well
as
15
miscellaneous
cases),
for
a
total
caseload
of
216
cases,
not
including
any
juvenile
cases
or
other
civil
matters.327
Mr.
Dean
entered
an
appearance
as
counsel
in
71
felony
and
22
misdemeanor
cases
(as
well
as
6
miscellaneous
cases)
for
a
total
non-juvenile
caseload,
excluding
other
civil
matters,
of
99.328
Given
that
Mr.
Dean
also
had
the
public
defender
contract
for
juvenile
cases,
and
given
that
944
juvenile
matters
were
filed
in
Uintah
County
in
fiscal
year
2010,329
one
can
safely
assume
that
his
total
caseload
was
actually
much
higher.
Michael
Humiston
took
over
Mr.
Beaslins
contract
in
or
around
October
2010,
and
is
now
a
contracted
public
defender
for
Uintah
County
at
$66,000
annually.330
His
bid
was
the
lowest
of
five
submitted
for
that
contract.331
All
other
bids
were
significantly
higher:
one
at
$6,250/month
($75,000/year);
two
at
$6,500/month
($78,000/year);
and
one
at
$7,250/month
($87,000/year).332
326
See
Attorney
Agreements
produced
on
Nov.
24,
2010,
by
Uintah
County
in
response
to
ACLU
of
Utah
GRAMA
request
dated
Sept.
19,
2009
(Uintah
Attorney
Agreements),
at
2
(both).
We
have
been
advised
that
Mr.
Dean
subcontracted
some
portion
of
his
public
defender
trial
work
to
two
other
attorneys,
Bryan
Sidwell
and
Michael
Humiston,
at
a
rate
of
$20/hour.
This
was
apparently
not
prohibited
either
by
his
contract
or
by
the
Unitah
County
Commission.
327
See
2010
Utah
AO
Resp.,
supra
note
62.
328
Id.
329
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
Uintah
April
14,
2011,
we
watched
Mr.
Humiston
argue
a
felony
case
before
the
Utah
Supreme
Court
in
which
he
had
neglected
to
file
a
merits
brief
on
behalf
of
his
client.
The
first
several
minutes
of
the
argument
thus
addressed
whether
he
should
be
permitted
to
address
the
Court
at
all.
Also,
in
a
Utah
Court
of
Appeals
decision
dated
June
16,
2011,
Mr.
Humiston
was
repeatedly
chastised
for
inadequately
briefing
key
issues,
providing
no
meaningful
legal
analysis
for
an
argument,
and
for
relying
on
a
legal
standard
that
was
superseded
in
1998
(one
year
after
it
was
adopted).
See
State
v.
Chrisman,
No.
20090295-CA,
2011
Utah
App.
189,
at
4
&
n.2,
and
5-7
&
n.3
(Utah.
Ct.
App.
June
16,
2011).
332
See
Oct.
4,
2010,
Uintah
County
Minutes,
supra
note
329,
at
1.
67
The
second
public
defender
contract,
formerly
held
by
Mr.
Dean,
was
awarded
only
after
the
County
Attorneys
Office
was
given
one
week
to
review
all
eight
of
the
bids
submitted.333
The
winning
two-person
firm,
Hendricks
&
Larsen,
is
based
in
Provo
and
specializes
in
bankruptcy
and
family
law.334
The
contract
is
for
$96,000
annually.335
Neither
attorney
at
Hendricks
&
Larsen
has
been
in
practice
for
even
three
years.336
The
firm
specializes
in
bankruptcy
and
family
law,
and
the
attorneys
appear
to
have
limited
(if
any)
criminal
defense
experience.337
The
firms
website
shows
only
one
office
for
the
firm,
in
Provo,
which
is
approximately
155
miles
(and
about
three
hours)
away
from
the
courthouse
in
Vernal.338
Unlike
Mr.
Humiston,
Hendricks
&
Larsen
was
not
the
lowest
bidder;
two
of
the
eight
bids
(including
one
from
Mr.
Humiston,
who
had
just
been
awarded
the
first
public
defender
contract)
came
in
lower.339
Eight
bids
were
submitted
for
this
second
contract,
in
amounts
ranging
from
$82,800
annually
(from
former
Duchesne
County
public
defender
Stephanie
Miya)
to
333 See Minutes of the Uintah County Commission dated Nov. 8, 2010 (Nov. 8, 2010, Uintah
335
utah.htm
(last
visited
June
3,
2011).
Although
County
Commission
minutes
indicate
that
the
firm
was
expected
to
open
an
office
in
Vernal,
see
Minutes
of
the
Uintah
County
Commission
dated
Nov.
15,
2010
(Nov.
15,
2010,
Uintah
County
Minutes),
at
2,
available
at
http://www.co.uintah.ut.us/comm/minutes/2010/Nov/11-15-2010.pdf
(last
visited
June
3,
2011),
we
could
find
no
evidence
that
the
firm
has
done
so.
339
See
Nov.
8,
2010,
Uintah
County
Minutes,
supra
note
333,
at
3.
The
other
bidders
included
Roland
Uresk,
a
former
contracted
public
defender
in
Duchesne
County
(see
discussion
supra
at
pp.
25-26),
and
James
Slavens,
a
former
contracted
public
defender
in
Millard
County
who
was
terminated
in
2010,
see
Minutes
of
the
Millard
County
Commission
dated
July
6,
2010,
at
10,
available
at
http://www.millardcounty.org/commission/bocc-minutes/2010-
minutes/10-0706.pdf
(last
visited
Aug.
11,
2011).
68
$108,000
annually
(from
the
law
firm
Stowell
&
Crayk,
which
already
has
multiple
other
public
defender
contracts
in
four
municipalities
along
the
Wasatch
front).340
340 See Nov. 8, 2010, Uintah County Minutes, supra note 333, at 3; website of Stowell & Crayk,
CONFLICTS
OF
INTEREST
Uintah
County
has
no
procedures
in
place
to
screen
for
conflicts
of
interest. 345
The
lack
of
procedure
and
oversight
of
actual
or
potential
conflicts
of
interest
recently
led
to
the
following
particularly
egregious
situation:
o A
juvenile,
JMS,
got
pregnant
by
Brandon
Gale.
In
or
around
May
2009,
the
state
charged
JMS
with
Criminal
Solicitation
to
Commit
Murder,
naming
the
fetus
as
the
intended
victim.346
The
state
alleged
that
JMS
sought
to
terminate
her
pregnancy
341
See
Oct.
4,
2010,
Uintah
County
Minutes,
supra
note
329,
at
2.
342
See
Nov.
15,
2010,
Uintah
County
Minutes,
supra
note
338,
at
2.
343
See
Nov.
8,
2010,
Uintah
County
Minutes,
supra
note
333,
at
3
(Commissioner
Raymond
moved
to
accept
the
bids
and
allow
time
for
the
attorney's
office
to
review
and
award
at
a
later
date.
Commissioner
Burns
seconded.
Motion
passed.).
344
ABA
Ten
Principles,
supra
note
19,
at
1-2.
345
See
May
22,
2008,
Response
by
Uintah
County
to
ACLU
of
Utah
GRAMA
request
dated
May
13,
2008
(2008
Uintah
Resp.),
at
1-3
(on
file
with
the
ACLU
of
Utah).
346
See
Michelle
Goldberg,
Policing
Pregnancy,
The
Nation
(May
9,
2011),
available
at
347
Id.;
see
also
Ben
Winslow,
Did
teenage
girl
solicit
murder
or
get
an
abortion
performed?
(April
13,
2011),
available
at
http://www.fox13now.com/news/local/
kstu-did-teenage-girl-
solicit-murder-or-get-an-abortion-performed-20110413,0,5955984.
story
(last
visited
Aug.
11,
2011).
348
See
docket
reports
in
case
numbers
091800271,
State
v.
Brandon
Gale,
and
091800270,
State
v.
Brandon
Gale,
both
filed
in
Uintah
County,
available
for
search
and
download
at
http://www.utcourts.gov/xchange/
(last
visited
Aug.
11,
2011).
349
See
id.
In
both
cases,
the
prosecuting
attorney
acknowledged
that
he,
too,
had
been
aware
of
Mr.
Deans
simultaneous
representation
of
both
Mr.
Gale
and
JMS.
See,
e.g.,
docket
report
in
case
number
091800271,
State
v.
Brandon
Gale
(entry
dated
July
29,
2009)
(Mr.
Foote
speaks
to
the
Court
stating
he
has
no
problem
with
the
withdrawal
because
Mr.
Deal
also
has
represented
a
victim
of
Mr.
Gale's
in
Juvenile
Court
and
can
see
that
it
would
be
a
problem
for
his[sic]
to
represent
the
defendant.)
Yet
neither
Mr.
Dean
nor
the
prosecutor
had
previously
advised
the
Court
of
the
conflict.
350
See
id.
(Mr.
Dean
is
the
appointed
counsel
in
this
case
and
has
filed
a
Motion
to
Withdraw
with
the
Court.
The
Court
has
not
signed
the
Order
as
yet.
Mr.
Dean
states
he
has
a
conflict
with
representing
Defendant
as
he
has
been
retained
to
represent
a
co-defendant
of
Mr.
Gale's.).
351
See
calculations
supra
note
319.
352
2008
NLADA
Report,
supra
note
9,
at
7.
353
See
Uintah
County
2009
Financials,
supra
note
322,
at
68.
71
CASELOADS
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
522
felonies
and
186
misdemeanors
were
filed
in
the
District
Court
for
Uintah
County. 357
Another
796
misdemeanors
were
filed
in
the
Uintah
County
justice
courts.358
Over
the
year
between
October
2009
and
September
2010,
Mr.
Beaslin
entered
an
appearance
as
counsel
in
146
felony
and
55
misdemeanor
cases
(as
well
as
15
miscellaneous
cases),
for
a
total
caseload
of
216
cases,
not
including
any
juvenile
cases
or
other
civil
matters. 359
Mr.
Beaslins
total
annual
criminal
caseloadthe
equivalent
of
167
felonies
when
the
misdemeanors
are
weighted
and
added360exceeds
the
maximum
of
150
felonies
recommended
by
NAC.361
354
Id.
72
73
WEBER
COUNTY
SUMMARY
Weber
County,
the
largest
county
we
studied,
has
a
population
of
231,236364;
the
largest
city
is
Ogden.365
Weber
County
has
a
slightly
higher
poverty
rate
(12.5%)
than
the
Utah
State
average
(11.7%).366
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
1,969
felonies
and
669
misdemeanors
were
filed
in
the
District
Court
for
Weber
County.367
Another
6,459
misdemeanors
were
filed
in
the
Weber
County
justice
courts.368
Weber
County,
like
all
other
counties
in
Utah,
receives
no
money
from
the
state
for
public
defense.
In
2010,
Weber
County
budgeted
$1,113,000,
or
$4.81
per
capita,
on
public
defense
services369;
that
is
41
percent
of
the
national
average
of
$11.86.370
Compare
that
to
a
total
of
$2,606,608
budgeted
for
the
Weber
County
Attorneys
Office
in
2010.371
364 See 2010 U.S. Census estimates for Weber County, available at http://
Percent&longname=Utah
(last
visited
July
3,
2011)
(printout
on
file
with
the
ACLU
of
Utah).
367
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
District
Court
for
Weber
County
(July
1,
2009-June
30,
2010),
available
at
http://
www.utcourts.gov/stats/files/2010FY/district/2-Weber.pdf
(last
visited
June
27,
2011).
368
Utah
Administrative
Office
of
the
Courts,
Fiscal
Year
2010
Utah
Courts
Caseload,
Justice
Court
for
Weber
County
(July
1,
2009-June
30,
2010),
available
at
http://
www.utcourts.gov/stats/files/2010FY/justice/2-Weber.pdf
(last
visited
June
27,
2011).
369
See
2010
Adopted
Budget
for
Weber
County
(Weber
2010
Budget),
at
15,
available
for
371
See
Weber
2010
Budget,
supra
note
369,
at
15.
Unlike
most
counties
studied
for
this
report,
Weber
County
appears
to
break
the
County
Attorney
Offices
budget
into
two
line
items
in
its
annual
budgets:
Attorney-Criminal
(line
item
4145)
and
Attorney-Civil
(line
item
4150).
We
are
advised
(and
have
observed)
that
attorneys
classified
as
civil
also
work
on
criminal
matters.
We
assume
the
same
is
true
of
at
least
some
support
staff
and
other
resources
classified
as
civil.
Moreover,
in
order
to
more
accurately
contrast
Weber
Countys
budget
appropriations
against
the
budgets
of
other
county
attorneys
offices
included
in
this
reportnone
of
which
use
the
two-line
item-approachwe
use
total,
rather
than
partial,
budgets.
We
have
thus
included
the
entire
Weber
County
Attorneys
Office
budget
as
the
74
Notably,
that
number
does
not
include
the
attorneys
who
handle
Weber
Countys
substantial
docket
of
child
welfare
cases,
which
are
filed
and
prosecuted
by
the
Utah
Attorney
Generals
Office.372
Thus,
in
2010,
even
excluding
the
attorneys
who
handle
its
child
welfare
cases,
Weber
County
budgeted
approximately
2.3
times
more
to
its
County
Attorneys
Office
than
for
its
public
defender
services.
Although
the
budgeted
amounts
for
2011
seem
slightly
betteri.e.,
$1,592,800
for
public
defense
services
versus
a
total
of
$2,832,248
for
the
County
Attorneys
Office
(or
1.78
times
as
much) 373 it
appears
those
numbers
may
be
misleading.
Again,
the
County
Attorneys
Office
budget
does
not
include
monies
to
pay
for
the
five
lawyers
who
handle
the
extremely
time
intensive
child
welfare
cases374;
those
attorneys
are
paid
for
by
the
state.
More
important,
we
are
advised
that
the
additional
budgeted
monies
are
not
to
contract
with
additional
public
defenders
or
to
increase
the
value
of
the
contracts.
Instead,
it
appears
that
Weber
County
simply
added
into
its
public
defender
budget
(line
item
4126)
monies
allocated
to
fund
Weber
Countys
pending
capital
cases.375
point
of
comparison
but
note
that
some
of
the
resources
included
in
the
Attorney-Civil
budget
line
item
($569,087)
may
be
used
primarily
(or
maybe
even
wholly)
for
civil
matters.
372
See,
e.g.,
Aug.
15,
2007,
Weber
County
Indigent
Legal
Services
Evaluation
and
Report,
produced
by
Weber
County
in
response
to
ACLU
of
Utah
GRAMA
request
dated
Oct.
18,
2010
(2007
Weber
Report),
at
8,
2
(on
file
with
the
ACLU
of
Utah)
(discussing
how
Weber
Countys
child
welfare
cases
are
handled).
The
2007
report
described
these
cases
as
extremely
time
intensive,
although
fewer
in
number
than
juvenile
delinquency
cases.
Id.
In
2007,
the
Weber
County
Public
Defenders
Associations
coordinator
for
juvenile
cases
estimated
that
child
welfare
cases
comprised
80
percent
of
the
time
spent
by
the
five
lawyers
who
were,
at
the
time,
assigned
to
handle
the
indigent
juvenile
court
docket
for
Weber
County.
That,
of
course,
was
before
the
Association
was
disbanded
in
January
2010.
See
discussion
infra
at
pp.
75-77.
373
See
2011
Adopted
Budget
for
Weber
County
(Weber
2011
Adopted
Budget),
at
3,
tell
us
that
no
additional
public
defenders
have
been
retained
and
no
trial-level
public
defender
contracts
have
been
increased
in
value.
(One
appellate
contract
may
have
increased
in
value
slightly,
however,
when
the
appellate
public
defender
was
asked
to
add
a
capital
case
to
his
appellate
docket.)
Moreover,
Weber
County
does
not
participate
in
the
Indigent
Capital
Defense
Fund,
and
has
three
on-going
capital
cases
that
have
significantly
stretched
its
budget.
See,
e.g.,
Tim
Gurrister,
Weber
to
pull
nearly
$250,000
from
county
budget
in
'10
to
cover
death
penalty
cases,
Standard
Examiner
(Utah)
(June
6,
2010),
available
at
http://www.standard.net/topics/courts/2010/06/06/weber-pull-nearly-250000-county-
budget-10-cover-death-penalty-cases
(last
visited
July
14,
2011).
Although
Weber
County
75
Weber
County
Public
Defender
$2,680,254
$1,199,836
$2,590,625
$1,232,840
$2,832,248
$1,592,800
$1,113,000
$2,676,494
$1,312,880
FY2009 Budget FY2009 Actual FY2010 Budget FY2011 Budget 3-year average*
In
previous
years,
Weber
Countys
public
defense
costs
were
slightly
higher.376
In
late
2009,
however,
Weber
County
let
lapse
a
nearly
forty-year
contract
with
the
Weber
County
Public
Defenders
Association
(the
Association),
opting
instead
for
individual
contracts
with
no
additional
monies
for
support
or
other
services,
in
an
effort
to
save
the
county
$100,000
annually.377
Although
the
Association
was
not
a
traditional
public
defenders
office
staffed
by
full-time
attorneys
and
support
professionals
handling
no
work
other
than
public
defense
cases,
it
did
provide
important
organizational
structure
and
support,
mandated
some
level
of
attorney
supervision,
and
had
in
place
systems
both
to
track
caseloads
and
to
screen
for
conflicts.
None
of
that
exists
under
Weber
Countys
current
system
for
public
defense
services.
Weber
County
determined
to
eliminate
the
Association
after
commissioning
a
report
in
2007
to
analyze
what
would
be
necessary
in
Weber
County
for
the
County
and
the
State
of
Utah
to
meet
its
constitutional
obligation
to
provide
legal
defender
services
and
resources
to
public
used
to
include
a
death
penalty
appropriation
in
the
amounts
budgeted
each
year
to
the
Weber
County
Public
Defenders
Association,
the
county
terminated
its
contract
with
the
Association
in
January
2010
and,
when
so
doing,
allocated
no
monies
to
pay
for
capital
defense
services.
Id.
By
mid-2010,
Weber
County
owed
in
excess
of
$250,000
to
three
separate
capital
defense
teams,
but
had
yet
to
pay
them
anything
for
their
services.
Id.
376
Compare
Weber
2011
Adopted
Budget,
supra
note
373,
at
3
(showing
2009
actual
costs
of
$1,232,840),
with
Weber
2010
Budget,
supra
note
369,
at
15
(showing
2008
actual
costs
of
$1,243,955),
and
with
2009
Adopted
Budget
for
Weber
County
(Weber
2009
Budget),
at
6,
available
for
search
and
download
at
http://www.sao.state.ut.us/lgReports.html#
(last
visited
Aug.
16,
2011).
377
See
Tim
Gurrister,
No
More
Weber
Attorney
Group
for
Indigent,
Standard
Examiner
378 See Jan. 19, 2007, Legal Defender Services Study Proposal submitted by Mel Wilson to
Weber
County
Commissioner
Craig
Dearden,
produced
by
Weber
County
in
response
to
ACLU
of
Utah
GRAMA
request
dated
Oct.
18,
2010
(Wilson
Proposal),
at
1-2
(on
file
with
the
ACLU
of
Utah).
Mel
Wilson
is
a
career
prosecutor,
with
30
years
of
service
with
the
Davis
County
Attorneys
Office
(including
20
as
the
Davis
County
Attorney)
and
two
years
as
a
contract
public
defender.
Id.
at
3.
379
See
id.
at
1-2.
380
See
2007
Weber
Report,
supra
note
372,
at
6-8.
381
See
id.
at
19.
382
See
id.
at
7.
383
See
id.
at
8.
384
See
http://www.co.weber.ut.us/attorney/about.php
(last
visited
July
14,
2011).
385
See
2007
Weber
Report,
supra
note
372,
at
17.
This
figure
did
not
include
another
528
probation
violation
cases.
Id.
Contrast
this
with
average
calculated
felony
or
felony
equivalent
caseloads
that
year
in
Davis
County
(191).
Caseloads,
excluding
misdemeanors,
in
Utah
and
Salt
Lake
Counties
during
the
same
period
were
calculated
as
143
and
154
respectively.
Id.
The
report
noted
that
no
interviewed
public
defender
in
Weber
County
reported
feeling
overwhelmed
by
his
or
her
caseload.
Id.
at
16.
The
report
concluded,
however:
The
fact
that
the
current
public
defenders
do
not
feel
they
are
overwhelmed
by
their
caseloads
does
not
relieve
the
county
of
its
responsibility
to
ensure
legal
defenders
are
providing
legal
representation
equal
to
the
standard
required
under
Utah
law.
.
.
.
The
caseload
statistics
in
Weber
County
are
alarming
in
numbers,
especially
considering
they
do
not
include
approximately
522
probation
violations
handled
by
the
legal
defenders
in
the
District
Court.
Id.
Of
significance,
the
report
also
acknowledged
that
the
county
must
rely
to
a
great
extent
that
the
Association
will
monitor
the
contract
attorneys
to
ensure
they
are
meeting
the
statutory
requirements.
Id.
Under
the
current
system
in
Weber
County,
that
reliance
is,
of
course,
not
possible.
77
386 See 2007 Weber Report, supra note 372, at 5-15, 20; see also id. at A1-1 to A1-9
78
388 See generally Attorney Agreements produced by Weber County in response to ACLU of
Utah
GRAMA
Request
dated
Feb.
26,
2010
(Weber
Attorney
Agreements)
(agreements
with
Gary
Barr
($86,500
(juvenile
court
only)),
Jeff
Bissegar
($66,300),
Ryan
Bushell
($35,000),
Jennifer
Clark
($86,500
(juvenile
court
only)),
Stephen
Laker
($79,500),
Randy
Marshall
($71,500),
Carol
Mortensen
($66,000
(juvenile
court
only)),
Samuel
Newton
($38,500
(appeals
only)),
Jonathan
Pace
($79,000
(juvenile
court
only)),
James
Retallick
($76,000),
Sharon
Sipes
($78,000
(juvenile
court
only)),
and
Sean
Young
($73,000))
(all
on
file
with
ACLU
of
Utah).
389
See
Minutes
of
the
Weber
County
Commission
dated
Oct.
13,
2009,
at
1,
available
at
Weber
County
does
not
have
any
written
criteria
or
guidelines
for394:
o Selecting
counsel
to
represent
indigent
defendants;
o Ensuring
that
public
defense
counsel
meet
minimum
qualifications
or
performance
standards;
or
o Analyzing
the
adequacy
of
compensation
for
public
defense
services.
CONFLICTS
OF
INTEREST
In
Weber
County,
contracted
public
defenders
are
instructed
to
use
his
[or
her]
best
efforts
to
avoid
any
conflicts
of
interest
which
would
divide
loyalty
of
defense
counsel
to
the
client.395
There
does
not
seem
to
be
any
centralized
system
for
identifying
or
analyzing
actual
or
potential
conflicts
of
interest. 396
Instead,
conflicts
will
be
acknowledged
and
addressed
only
after
a
determination
of
the
appointing
Court.
We
are
advised
that
at
least
three
public
defenders
in
Weber
County
share
office
space
and
also
share
one
secretary,
facsimile
machine,
and
other
supportive
resources.
We
are
aware
of
no
systems
in
place
to
screen
for
and
protect
against
conflicts
of
interest
that
may
arise
as
between
their
clients,
if,
for
example,
any
of
those
three
public
defenders
were
assigned
to
represent
co-defendants.
FUNDING
&
RESOURCES
In
2010,
Weber
County
budgeted
$1,113,000, 397
or
$4.81
per
capita, 398
on
public
defense
services;
that
is
41
percent
of
the
national
average
of
$11.86.399
393 See Oct. 9, 2009, Letter from Weber County responding to ACLU of Utah GRAMA request
dated
Sept.
17,
2009
(Weber
2009
Resp.),
at
2-3
(on
file
with
ACLU
of
Utah).
394
Id.
395 See, e.g., Weber Attorney Agreement (Retallick), supra note 388, at 21; Weber Attorney
80
398
See
calculations
supra
note
369.
400
See Weber 2010 Budget, supra note 369, at 15; see also calculations supra note 369.
budget
adds
together
the
numbers
set
forth
on
line
item
4145
(Attorney-Criminal,
$2,251,924)
and
line
item
4150
(Attorney-Civil,
$580,324).
403
See
discussion
supra
note
371.
81
CONTRACT404
SALARY/WAGE405
$90,000
$79,500
$71,500
$76,000
$73,000
$64,300
$35,000
$66,300
$86,500
William
Daines
Gary
Heward
Sandra
Lee
Corp
Christopher
Shaw
Lawrence
Saunders
Branden
Miles
Nathan
Lyon
Maile
Verbica
(part-time)
$126,635
$116,874
$98,723
$97,539
$86,379
$58,680
$55,918
$21,818
$86,500
$78,111
$79,000
$68,198
$78,000
$40,790
$66,000
$37,500
$38,500
$22,320
Unknown
$19,492
Mike
Stewart
(Investigator)
PD
Total
$39,000
$24,814
$25,368
$13,539
$23,222
$12,978
$1,146,476
$1,029,100
$65,652
$27,062
$24,864
CASELOADS
In
fiscal
year
2010
(July
1,
2009-June
30,
2010),
1,969
felonies
and
669
misdemeanors
were
filed
in
the
District
Court
for
Weber
406
See
2009
Budget
Summary
of
Revenues
and
Expenditures,
produced
by
Weber
County
in
response
to
ACLU
of
Utah
GRAMA
request
dated
Sept.
17,
2009
(on
file
with
the
ACLU
of
Utah).
407
See
2011
Tentative
Budget
for
Weber
County
(Weber
2011
Tentative
Budget),
at
17,
PUBLIC
DEFENDER
R.
Bushell
S.
Young
S.
Laker
R.
Marshall
J.
Retallick
H.
Mills
M.
Gravis
M.Bouwhuis
FELONY
MISDEMEANOR
248
206
198
176
165
150
145
96
127
85
88
71
88
47
64
154
TOTAL
CASES
416
304
293
267
284
206
211
271
410
Supra
note
367.
411
Supra
note
368.
412
Supra
note
21.
413
Supra
note
20.
414
See
Oct.
2010
Resp.
by
Utah
Admin.
Office
of
the
Courts
to
ACLU
of
Utah
GRAMA
request
dated
Sept.
27,
2010
(on
file
with
the
ACLU
of
Utah).
415
Tim
Gurrister,
Weber
public
defender
fired
after
funding
complaint:
Attorney
will
continue
to
pursue
motion
over
funding,
staffing
levels,
Standard
Examiner
(Utah)
(Oct.
4,
2001).
416
See
Tim
Gurrister,
Ogden
public
defender
fired
after
filing
lawsuit
on
low
pay,
Standard
Examiner
(Utah),
Feb.
27,
2011,
available
at
http://www.standard.net/topics/courts/
2011/02/27/ogden-public-defender-fired-after-filing-lawsuit-low-pay
(last
visited
July
14,
2011).
84