Lawsuit alleges Washington County, state violates 6th Amendment right to counsel

Stock Image | St. George News / Cedar City News

ST. GEORGE – Under the Sixth Amendment of the United States Constitution, all criminal defendants are guaranteed a lawyer, whether they can afford one or not. But according to a lawsuit filed Friday against Washington County and the State of Utah, that promise has been broken.

The action, brought on by Ogden-based attorney Michael Studebaker, accuses the state and the county of perpetuating a system that violates the rights of people who cannot afford to hire lawyers, and alleges that Utah’s problematic public defense system asks attorneys to do too much for too little, and leaves the poorest without proper legal representation.

“(Washington County) enter(s) into fixed-price contracts with local attorneys to provide indigent defense services to those charged with criminal wrongdoing in the district court,” the lawsuit claims. “The contacts are structured and administered in a manner that impedes the ability of the attorneys to provide constitutionally adequate legal representation to their clients.”

Named as plaintiffs in the case are Washington County residents William Cox and Edward Paulus. Cox faces a third-degree felony charge for allegedly working as an unlicensed securities agent. Paulus faces a first-degree charge for aggravated sexual abuse of a child.

A jury trial has been set for Paulus’ case in February, but, according to the lawsuit, the county did not renew the public defender contract with the attorney representing Paulus up to this point. The lawsuit alleges county officials are “forcing/coercing” another attorney to take on new contracts, one of which includes Paulus’ case.

In fiscal year 2016, Washington County budgeted $760,688 for indigent defense in Washington County, according to the lawsuit, while budgeting $2,816,540 for prosecution.

“(The attorney) is not prepared to go to trial for Mr. Paulus’ case,” the lawsuit states, adding it isn’t reasonable for the attorney to be prepared to go to trial as he is already responsible for 350 cases and possibly double that with the new contracts.

Utah is one of only two states in the country that provides no state funding for indigent defense. Moreover, Utah ranks 48th out of 50 states in its per capita funding of indigent defense, according to the lawsuit.

Pursuant to state law, the counties in Utah design and administer their own indigent defense programs. However, the class action lawsuit alleges that Washington County and State of Utah officials have failed to set standards to ensure that county indigent defense programs provide constitutionally adequate legal representation.

Cox’s case is being handled by the Utah Attorney’s General’s Office, but has no funding for public defense, the lawsuit states.

Without proper legal assistance, defendants in minor cases are jailed for long periods of time, children have been taken from their parents and people are imprisoned for crimes for which they might have otherwise been acquitted.

Washington County Commissioners Alan Gardner, Victor Iverson and Zachary Renstrom are named in the lawsuit in their official capacity as elected officials. Gov. Gary Herbert, Greg Hughes, speaker of the House, and Wayne Niederhauser, president of the Senate are also named defendants, among others.

Washington County Commissioner Alan Gardner said Saturday that he was aware of the lawsuit but had not yet been able to review it.

A bill concerning the state’s Sixth Amendment issues is slated to be introduced in the Legislature in February by Sen. Todd Weiler, R-Davis/Salt Lake counties. Gardner said the County Commission will likely see how that plays out at the state level before addressing the county’s public defense issues.

“We’re waiting to see what the Legislature will do,” Gardner said.

Overworked and underpaid in Utah

Most counties hire private attorneys who are awarded a contract that typically offers a flat fee in exchange for an unlimited number of public defense cases per year – often leading to public defenders who are overworked and underpaid.

On Oct. 26, 2015, the Sixth Amendment Center released a comprehensive report highlighting widespread deficiencies in Utah’s public defense system. The report was commissioned by the Utah Judicial Council Study Committee and U.S. Department of Justice.

The report found that Washington County contracts with private lawyers who are each expected to handle one-sixth of the district court caseload, regardless of the number of cases, and are paid a flat $4,363 per month – $52,356 per year.

However, after calculating all of the attorney’s overhead costs, the study found that the contracted lawyer is left with around $526 per month.

A report released by the American Civil Liberties Union in 2010 found that public defenders in Utah receive an average of $400 per felony case and less than 10 hours to spend on each case, while private defense attorneys were likely to receive more than $400 an hour.

The report states:

With all flat fee contracts, where the defendant has a winnable case, the incentive nevertheless is to resolve it by plea. The attorney is not rewarded with additional pay for the additional work involved in zealous advocacy. Rather, the attorney is hurt financially the more he does for his clients. Put another way, the government’s compensation structure creates a conflict between the lawyer’s financial interests and the case-related interests of each of his court-appointed clients.

Such financial conflicts have led a number of state supreme courts to require that governments pay lawyers a “reasonable fee” in addition to “overhead expenses.”

Denial of counsel in Utah

Alarmingly, the study found that more people accused of misdemeanors in Utah are processed through the justice courts without a lawyer than are represented by counsel – upwards of 62 percent of defendants statewide, according to Administrative Office of Courts’ data.

“In fact, the data suggests that, in most justice courts, the number of misdemeanor defendants proceeding without representation is closer to 75 percent.”

The report states that a majority of misdemeanor defendants in Utah justice courts plead without a lawyer for two main reasons:

  1. A misapplication of Sixth Amendment case law related to: i) the early appointment of counsel; ii) the right to counsel in misdemeanor cases, especially those with suspended sentences; and, iii) waivers of counsel.
  2. Prosecutors directly entering into plea agreements with uncounseled defendants, or, in the absence of prosecutors at arraignment, judges advising defendants and negotiating pleas.

Similar suits

In September 2014, the U.S. Justice Department announced it would join a similar class action lawsuit that said New York state officials failed to provide adequate legal representation to poor and indigent criminal defendants.

Molly Moran, acting head of the department’s civil rights division, described the New York case as “emblematic of a national crisis in indigent criminal defense.”

The right to counsel is one of the core guarantees of the Bill of Rights, and yet, as countless cases and studies show, indigent defense systems across the country are facing significant challenges in meeting their Sixth Amendment obligations,” Moran said in a September 2014 statement.

In that class-action lawsuit brought by the New York Civil Liberties Union and the law firm Schulte Roth & Zabel, New York State entered into a settlement in October 2014 to provide lawyers for the indigent.

In Idaho, a lawsuit brought by the American Civil Liberties Union of Idaho against Idaho was ordered dismissed Wednesday, according to a report by the Washington Times Friday. The ACLU of Idaho claimed the state’s public defense system is broken, the report states, and prevents defendants from receiving adequate legal representation guaranteed by the U.S. Constitution.

In 4th District Judge Samuel Hoagland’s dismissal ruling, as reported by the Washington Times, he wrote, “The court is sympathetic with plaintiff’s plight. However, the case invites the court to make speculative assumptions regarding the outcomes of individual cases.”

Hoagland said the lawsuit asks him to presume “that all indigent criminal defendants in all counties are receiving the same ineffective assistance of counsel, and then issue blanket orders halting all criminal prosecutions until the issues are resolved.”

However, the judge also wrote:

“The governor has a duty to ensure the Constitution and laws are enforced in Idaho. The governor also has direct supervisory authority over those responsible to establish standards for a constitutionally sound public defense system.”

According to the Washington Times, ACLU-Idaho Executive Director Leo Morales said the organization would appeal the ruling.

St. George News Senior Reporter Mori Kessler contributed to this report.


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Copyright St. George News, LLC, 2016, all rights reserved.


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  • IDIOT COMMENTERS January 23, 2016 at 9:10 pm

    mormon leadership choosing to violate people’s constitutional rights to a fair justice system? is anyone surprised?

  • .... January 24, 2016 at 10:07 am

    I’m not surprised considering the LDS own and dictate to all the politicians

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