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Utah legal defender system inconsistent, lacks oversight, report says

SALT LAKE CITY — An evaluation of legal support provided to Utahns who can't afford their own attorneys has found that the process is inconsistent and unsupported across the state.

The report, compiled over four years by the Utah Judicial Council and the Sixth Amendment Center, found inconsistencies across the 10 counties surveyed of how defense counsel is provided to indigent defendants, or those who are unable to pay for their legal costs. The hodgepodge system makes it nearly impossible to gauge how each county is performing.

The responsibility of ensuring that defendants who can't afford their own legal representation are provided with the support promised to them in the Constitution has been wholly delegated — both procedurally and financially — to counties and municipalities with no state oversight or support, the report notes.

Each government unit is "an island," the report says, left to do its best without any direction from the state.

"The result is a mix of systems operating without consistent standards and often without sufficient information to determine whether constitutional requirements are being met," according to the report that was released Monday. It goes on to note that "even the most well-meaning stakeholders … at times fail to meet the dictates of right-to-counsel case law without appropriate guidance and supervision."

In response, the committee made up of lawyers, judges, legislators and others is calling on the Utah Legislature to form a statewide indigent defense commission that would not only oversee policy, education and implementation of a uniform system, but would also marshal needed funding to back it.

Additionally, the report highlights concerns about the way public defense attorneys are contracted, potentially deterring them from effectively representing their clients, as well as an overwhelming caseload in justice courts.

Noting that as many as 85 percent of criminal defendants in Utah can't afford their own attorney, Utah Court of Appeals Judge Stephen L. Roth, who chaired the study committee, said Monday that having a strong indigent defense system available is "essential" to upholding constitutional rights.

"These are systemic issues," Roth told the council Monday. "The criminal justice process cannot function adequately or efficiently without (good indigent representation)."

With unanimous acceptance and endorsement of the report by the Utah Judicial Council, the question of how to respond to Utah's patchwork system now falls to the Legislature, assistant court administrator Rick Schwermer said.

"When the committee is done with this today, it becomes a political issue," Schwermer said, noting that Sen. Todd Weiler, R-Woods Cross, has opened a bill file on the issue.

In response to other concerns raised in the report about potential disincentives created by the way defense counsel is contracted in some areas and the crushing calendars in Utah's justice courts, the committee noted that some reforms have begun throughout the four years the study was being compiled, but there is still more to do.

The Sixth Amendment Center, an independent agency that was brought in for the review and supported through a federal grant, recommended the elimination of "fixed rate" contracts. Such contracts leave defense attorneys to weigh between time and effort required to mount an adequate defense while constrained by a locked-in price. The center also recommends breaking out separate funds for defense resources like expert witnesses and travel fees.

"It's not to say that defense attorneys aren't doing a good job throughout the state, but this is a major problem," Roth said.

Additionally, concerns were voiced about defense attorneys having to overbook themselves to make ends meet and the struggles attracting counsel to rural areas where there isn't enough work to support themselves.

As for the packed dockets in Utah's justice courts, which handle class B and class C misdemeanor cases, the committee noted that up to 65 percent of defendants are navigating the system by waiving their right to an attorney and pleading guilty — even when failing to complete probation could lead to jail time. The heavy caseload incentivizes getting through cases as quickly as possible while possibly leaving defendants unaware of what their rights are.

The report recommends providing Sixth Amendment training to justice court judges statewide. That training has already begun, Schwermer said.

The Sixth Amendment guarantees defendants the right to a fair and speedy trial with the assistance of an attorney.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. - See more at: http://constitution.findlaw.com/amendment6.html#sthash.1eEEkdNL.dpuf.

Schwermer noted that a recommendation has been made to the Utah Sentencing Commission to drop the possibility of a jail sentence from class C traffic violations, reducing them to infractions and removing the need for Sixth Amendment protections, in order to substantially decrease the burden on justice courts.

"Should jail be a potential sanction for speeding? We don't think so," Schwermer said. "That will affect hundreds of thousands of cases."

Email: mromero@deseretnews.com

Twitter: McKenzieRomero