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A strong defense

Roger and Pam Mortenson appear in Provo's 4th District Court Monday in the slaying of Roger Mortenson's father.
Roger and Pam Mortenson appear in Provo's 4th District Court Monday in the slaying of Roger Mortenson's father.
Al Hartmann

In July 2010, Roger and Pamela Mortenson were arrested and booked into jail for the alleged murder of Roger Mortenson's father, Kay Mortenson of Payson, Utah. A court-appointed defense attorney was assigned to Roger Mortenson, as he had been unemployed for years and could not afford legal representation.

Four months later, just before they were to stand trial, the Mortensons were released and all charges dropped. Police had followed a tip and arrested two other men, one of whom later pled guilty and the other of whom awaits trial.

The Mortenson's case underlines the importance of presuming innocence until guilt is proven beyond a reasonable doubt. But it is also an example of the need for public defenders and of their role in the trials — and the lives — of the accused.

This week, the ACLU released an in-depth study of criminal defense for the poor in Utah, and found the state system woefully inadequate. Utah is one of only two states that doesn't fund public defenders, requiring counties to foot the bill and resulting in a funding rate of $5.22 per capita, less than half the national average of $11.86.

The report looked mainly at rural counties, where governments contract with private attorneys to represent criminal defendants. Attorneys are "chronically underfunded and overworked," according to the report, receiving an average of just $400 per case.

Even worse, most counties spend considerably more — three to four times as much — on prosecutors as they do on public defenders. It is difficult to imagine this imbalance not tilting the scales of justice in favor of the prosecution. And as if that weren't enough, most counties have no criteria or guidelines for awarding contracts, typically giving them to the lowest bidder and taking the recommendation of a county attorney — a clear conflict of interest.

As Karen McCreary, executive director of the ACLU of Utah, said, "Consider what you would do if your daughter or son were charged with a felony — rightfully or wrongfully — and the case were assigned to a public defender who had only 10 hours to devote to the case, or whose compensation for the matter would come out to only $400 no matter the outcome. And then ask yourself: Would that be enough for you?"

When the state fails to provide for adequate legal representation of indigents, it risks turning our legal system into a farce. Guilty or innocent, defendants have a right to adequate representation appointed by the state if they cannot afford their own — a right established in the Sixth Amendment and spelled out in detail in a 1963 Supreme Court decision.

There are several things the state can do to remedy the situation, and not all of them require money. For starters, public defenders should be granted greater access to the state's crime labs, on par with that of prosecutors. It should also institute statewide standards for selecting public attorneys, eliminating conflicts of interest, and provide more oversight of county justice systems.

But ultimately, funding for public attorneys must increase. Not only is this necessary to ensure fair trials, but putting more money into the system up front can also save taxpayers even more later on appeals and challenges, not to mention the cost of imprisoning innocent parties for years on end. The state should also create an appellate public defenders' office, as recommended nearly 20 years ago by the Utah Supreme Court.

In this way, Utah can take this report as an opportunity to even the playing field and fulfill its constitutional obligation to this neediest and most desperate of populations.