Editor's note: This story is part of 'Broken Defense,' an investigative series from Lee Enterprises. More details about this project can be found at the bottom of this article.
Martin Gibson freezes in place at his desk.
It’s Thursday in December 2021. The sky is dark. Gibson is the last person in the Portland Multnomah Defenders office.
More than 200 public defense client files surround Gibson. Stacks flood two filing cabinets, spill onto his desk, dot the floor and perch atop cabinets. At Gibson’s left a pile of seven or eight unopened cases wait.
An urgent stack of cases stare at Gibson. He needs to call those clients immediately. “It’s too late. It’s already 7:30 p.m.,” he thinks.
He can’t move. He can’t breathe.
“I was trying to gasp for air,” Gibson remembers. “I was trying to do everything that was in front of me, which was insurmountable piles of files. I had so much to do, and I got so overwhelmed that my body just didn't know how to breathe. I was trying to get oxygen, and my body just didn’t even know how to do that.”
It’s his first panic attack.
“I was so afraid,” he said, “and I never wanted to have one again.” So Gibson sent his boss a succinct email saying he couldn't take any new cases. About a month-and-a-half later, he quit without another job lined up.
“The job was impossible,” Gibson said. “It wasn’t just difficult. It was impossible and unsustainable.”
Staff shortages and decades of underfunding have created public defense systems crises across the West. Public defenders say they’re unable to serve clients effectively as they grapple with crushing caseloads, few resources, burnout, student debt and low pay.
They say wage increases would go a long way because they attract lawyers who could share the massive workload. Experts say states must retain public defenders and recruit more of them to ensure everyone who needs an attorney gets one.
Gibson said he had twice as many clients as he could represent.
“It watered down my representation to the point of ineffectiveness," he said. "I felt the only ethical thing I could do was to quit because I couldn’t be part of a system that was doing that. It didn’t feel like I was doing my job. It didn’t feel like I could do my job."
When attorneys feel like they're "pushing paper around rather than really advocating for people," it "drives motivated folks out of the profession,” said Jessica Kampfe, Oregon’s Office of Public Defense Services executive director.
Lee Enterprises requested public defense workload data from 17 western states. Public defenders in Arizona, Idaho, Kansas, New Mexico, North Dakota, Oklahoma, Oregon, Texas and Wyoming had more cases than outdated national standards recommend. Public defenders in Colorado, Montana and Nevada worked too many hours. The other states don’t track that data statewide.
A public defender should not represent more than 150 felonies, 400 misdemeanors, 200 juvenile delinquency cases or 25 appeals in a year, according to guidelines from the National Advisory Commission on Criminal Justice Standards and Goals (NAC).
Those half-century-old standards ignore modern case complexity, said the National Legal Aid & Defender Association, which helped develop them.
Jon Mosher, Sixth Amendment Center deputy director, said the standards are "way too high," but useful, and the only national metric to show state agencies and lawmakers the extent to which public defenders are overworked.
Nearly 400 Texas attorneys in 2021 had more public defense cases than the standards recommend, according to Texas Indigent Defense Commission data. Some private lawyers are contracted for public defense cases, as in many states, and work cases on top of the public defense work. Two private attorneys who worked among the most cases each defended more than 700 public defense felonies — the work of nearly five attorneys.
More than 100 Idaho private attorneys and full-time public defenders had more public defense cases than the state’s maximum, which allows attorneys to take on more work than the national standards, according to Idaho Public Defense Commission data. An additional 65 attorneys worked too many cases, based on the national standards.
Some Idaho attorneys said they could manage cases above the maximum. Idaho County contract public defender John Wiltse said working with reasonable prosecutors in his small, rural county helps resolve many cases efficiently. Nez Perce County contract public defender Rick Cuddihy said he can handle heavy caseloads because he has nearly two decades of experience. But in another county, Twin Falls, seven inmates said they barely heard from their overburdened public defenders.
Arizona’s Pima County had at least 23 attorneys with caseloads above the national guidelines, according to Pima County Public Defense Services data. Statewide data was unavailable because Arizona counties, like in many states, each run their own public defense system.
Montana’s state public defender office says it needed on average 63 more public defenders to handle cases assigned since 2019 and still meet its workload management limits.
Oregon and New Mexico have one third the attorneys they need to provide adequate representation, according to American Bar Association studies from last year.
Some Oregon public defender offices temporarily stopped accepting cases last spring because they had too few attorneys. Arizona’s Pima County could soon have to do the same, said Dean Brault, Public Defense Services director.
“At some point, we will have to go attorney to attorney and ask if they can take another case and provide effective representation,” Brault said. “When the answer to that from everyone is ‘no,’ we’re going to be at a crisis where we have to go to the court and say we can’t ethically take any more cases.”
Wyoming had its own public defense crisis in 2019 when the Natrona and Campbell county public defender offices could no longer handle misdemeanors.
State Public Defender Diane Lozano said high turnover caused “constitutionally inappropriate caseloads” in Campbell County’s seven-attorney office.
"We would lose two to three people at a time, and then the people that remained were having to pick up that extra caseload," she said. "Then we were burning those people out. We’d get fully staffed, and then the people that had stuck around ... would quit. It was just this endless cycle."
She remembered Natrona County also lost three or four veteran public defenders around that time.
A circuit court held her in contempt for refusing misdemeanor case appointments, but the Wyoming Supreme Court ultimately ruled she had a right to determine her attorneys’ couldn’t handle more cases.
An unnamed Campbell County public defense supervisor testified that handling too many cases at once made him ineffective, according to court documents.
“I don’t tell my clients this, but most of the time, especially on misdemeanor cases, I’ve never read their police report. I’ve never watched their videos from the police. I’ve had no time to really investigate their case at all," he said.
Public defenders can lose their license if they take on more clients than they can competently represent or recommend a plea before they complete the case investigation, according to the American Bar Association’s conduct rules.
Defense attorney Vaavia Rudd heads to court in the Texas Panhandle in 2016. She looks down at her files, and a name surprises her.
“I have no idea who this person is,” she thinks. "I don’t know anything about this case, but I’m about to go into court and tell the judge whether or not I’m ready to go to trial."
“It just scared me to death,” Rudd said. “I was like, ‘I’m going to lose my license. I cannot effectively represent this many people. I can’t do it.’”
She stopped taking public defense cases to instead focus on her private practice. She now helps improve public defense through a liaison and advocacy program.
Gibson also went into court unprepared before he left Oregon public defense. He often would schedule up to five trials for the same date, prepare one or two, and gamble that the others would resolve with plea deals. Judges encouraged trial-stacking to get through the pandemic-driven backlog, he said.
Sometimes the strategy backfired. One trial date, he gambled on the wrong case. The one he didn’t prepare went to trial. He told the judge what happened, and the case ended with a last-minute plea deal.
“It’s a system that encourages unethical behavior," Gibson said. "You’re not actually prepared for those cases. No one is. You’re just trying to move those cases along and process these people. It’s most certainly not justice. No one feels like it’s justice.”
Montana public defender’s office leaders told the Legislature last April that trial stacking also happens there. One western Montana public defender said she recently tried to prepare for seven trials scheduled on a single day.
Longtime California Defense attorney Bill Abramson worked almost every weekend for five years to build strong defenses for his clients. He ended his Plumas County public defense contract last September to spend less time working another county’s higher-paying cases.
"My hope and my desire is that I’ll no longer have to work seven days a week," he said. "I need a break from it."
Money also played a role in Rudd’s decision to temporarily leave public defense.
She once had a $500 public defense case and a $20,000 divorce case scheduled for the same time. The judge refused to reschedule the criminal case.
“Anybody can do the math on that,” Rudd said. “It wasn’t financially feasible.”
Montana in April boosted state public defenders’ entry-level pay from about $31 an hour to $37.
Most prosecutors earn more. A Madison County deputy prosecutor position pays $40 an hour, and entry-level prosecutors in Missoula and Bozeman earn $41 and $54 per hour, respectively.
Arizona’s Pima County Public Defense Services have many job openings, but not enough qualified people apply because the pay is low, Brault said.
“We’ve been struggling to pay our people in-house what they’re worth,” Brault said.
Carl Macpherson, Oregon’s Metropolitan Public Defender executive director, said his state-funded office’s salaries are "offensive."
“The prosecutor’s pay scale starts where our pay scale ends,” Macpherson said. “You could have a 20-year public defender making less than a brand new attorney that’s working at the prosecuting attorney's office.”
Staff attorneys in his office earn $64,000 to $95,000, while area prosecutors earn $98,000 to $196,000, according to Elisabeth Shepard, Multnomah County District Attorney’s Office spokesperson.
Gibson’s salary was about $70,000 when he left Oregon with about $150,000 in student loan debt that grows by about $1,000 each month.
"I don’t know how I’m supposed to pay off any principle at all when the interest is that high," he said.
He hopes to get hired at California’s Sacramento County public defender’s office, which offers a starting salary of more than $115,000 and is closer to family.
Savina Haas said her California public defender office was so underfunded that for a while she didn’t have an office chair. Staff wandered the Lassen County office looking for any broken chairs. Her pay was about $65,000.
She became busier over her three years there, sometimes going days with no sleep. The quality of her representation diminished.
“There was a time when defendants would ask for me,” she said. “Eventually they probably hated me because I never visited them anymore.”
She left at the end of 2020 to work for a private law firm in Monterey County, where she has family.
Another Lassen County public defender resigned months after the new year and the position remained vacant until the office collapsed at the end of 2021. Lassen County now contracts with a private firm to provide public defense.
Lassen County Chief Administrative Officer Richard Egan said the county tried several times to recruit and “just couldn’t do it.” He conceded the county did not increase the salary range.
The private firm contract works better for the county than paying for department staff and an office space, Egan said.
“We struggle fiscally every year to balance our budget,” Egan said. “It’s a rural county that we’re in. Our resources are just limited.”
Attracting talent to the area is a challenge the firm is working on, Egan said.
Haas said keeping her would have been simple.
“In all honesty, all they needed to do was get us the resources that we need,” she said. “Pay us at least somewhat competitive wages so we can bring people here. Have a full staff. Have the ability to be able to run with a decent budget. We had a good strong public defender’s office at one point. … They managed to destroy it.”
About Broken Defense: Across the West, public defense systems face crushing caseloads, historic underfunding, structural problems and severe staffing shortages, imperiling criminal defendants’ lives and in many cases denying them their constitutional right to counsel. Defendants have lost jobs and homes, been pressured to plead guilty and been denied the benefit of exonerating evidence. People accused in more than 100,000 misdemeanors each year go to jail without ever talking to a lawyer.
Lee Enterprises’ West region Public Service Journalism team and local reporters attended more than a dozen court hearings and interviewed more than 25 defendants, 40 attorneys and 25 experts to reveal public defense in many western states is broken.
Lee Enterprises Public Service Journalism Reporter Emily Hamer may be reached at [email protected]
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