Restructuring Summit County’s public defender system with new state aid provides progress, hurdles
The U.S. Constitution guarantees every person accused of a crime the right to counsel, and the courts have since ruled that right cannot be abridged just because someone can’t pay for an attorney.
It’s up to the states to decide how to provide indigent defense, as it’s called, and in Utah, that responsibility has been further delegated to the counties.
The quality of representation varies greatly from jurisdiction to jurisdiction, County Attorney Margaret Olson said, and after taking office in 2017, she decided to bolster the public defender program in Summit County by applying for funding from a newly formed state commission.
That’s resulted in significant restructuring of the program, doubling the number of attorneys to four, raising their pay, and splitting off juvenile and misdemeanor cases from felonies to allow attorneys to concentrate on one area.
But the system is far from perfect, one Summit County public defender says, with pay still lacking, no benefits like health insurance and a borderline unmanageable caseload. That’s on top of what the public defender describes as systemic issues that incentivize reaching a plea deal with a prosecutor rather than going to trial due to both time and financial constraints.
“The system is not set up to reward attorneys for zealously representing clients,” Summit County public defender Jessica Peterson said. “You sort of have to be in it for the cause. Even if you are, at some point, there are ebbs and flows, if you’re really doing it correctly you’re going to get burned out.”
Peterson came on board after the restructuring in April to handle misdemeanor cases and some felonies. She said she’s on pace to take 250 cases in her first year, for which she will be paid $40,000. She maintains a private practice to supplement her income and to secure benefits.
Peterson previously worked in Salt Lake County, where she said public defenders just starting in the field are paid $61,000 with benefits to handle a similar workload. Salt Lake County public defenders also benefit from a robust support team, with secretaries, investigators, interpreters, office space and colleagues working in the same system.
Peterson said the risk of burnout in Summit County is intensified because attorneys are often isolated, with no direct colleagues and no staff or full-time support personnel like investigators or interpreters. There’s a persistent feeling, she said, that the machine of the court system is pressuring them from all sides.
The problems are systemic, and persist despite efforts to improve the situation.
“As far as (county attorney) goes, we are very lucky,” Peterson said. “Margaret (Olson) is very aware of the need for improved indigent defense and is on top of it.”
But Peterson paints a picture of a system that runs on plea deals, which are agreements between a defense attorney and prosecutor that generally feature shorter sentences or lighter punishments in exchange for a guilty plea.
“One of the cases I have set for trial, I’ve heard from another defense attorney and the prosecutor that, ‘This is such a great deal, we never offer this plea bargain, can’t believe your client’s not taking it,’” Peterson said. “My response is it’s a good plea deal if you’re guilty — it’s not a good plea bargain if you’re not guilty. … The system is not set up to ensure these indigent defendants are treated as if they were paying an attorney.”
Pleading out takes less time and fewer resources than bringing a case to trial, and in a workplace where the attorneys and judge are the constants and the clients keep changing, it is easy to imagine the pressure to move things along.
Despite the pressure Peterson feels in court to reach a deal, Olson said relying too heavily on plea bargains is not the way the system is designed to function.
“I feel that we should be trying more cases,” Olson said. “Our system is supposed to work with contested cases being resolved by a jury of one’s peers. If we’re trying more cases in Summit County, I think that’s a good thing.”
Deputy County Manager Janna Young, who oversees the program, said it was too early for data about how many cases are going to trial versus being resolved in plea deals.
The conflict between the interests of prosecutors and defense attorneys is compounded by the fact that both are paid by the county, Peterson said.
“There is an inherent problem in public defense when it is contracted by the county, because if the attorney upsets either the judge or (prosecutor) – by fighting too hard, not pleading clients or anything else — they put their own job in jeopardy,” Peterson wrote in a text message. “This creates a constant tension where the attorney has to be vigilant they are making decisions in the best interest of their client and not being influenced by how their ‘employer’ will react. It’s just awful.”
Olson, the Summit County attorney, is well aware of the potential conflict in the county’s top prosecutor overhauling the public defender system, but fought to improve the program anyway.
“It’s a tightrope for me,” Olson said. “I don’t want to be involved with choosing the people I’m opposing … (but it) is my statutory duty to provide top-notch indigent defense services for people in the county.”
Olson applied for the initial grant funding to restructure the program from the Indigent Defense Commission on behalf of the county, then worked with Young to set up an independent commission to review public defender applicants. Olson did not sit on that panel.
Olson said a few applicants asked for letters of recommendation from her or members of the prosecution office, but those requests were declined, citing the importance of the process remaining independent.
Olson said robust criminal defense is necessary to keep the prosecution strong and to achieve justice.
“Having strong and effective advocacy makes us better prosecutors and gives us better outcomes,” Olson said. “Just outcomes in the system are the ultimate duty of the prosecution to secure. We’re supposed to be ministers of justice, we’re not supposed to win every time.”
The new structure of the public defender program is less than six months old, and though it’s a work in progress, there are signs it’s improving. In July, the county received an additional $50,000 from the state, bringing the grant total to $115,000. And Peterson said that, after working for months without an office to discuss cases with clients, she was given a confidential meeting space at the 3rd District Courthouse in Silver Summit this week.
Summit County now uses four public defenders: Two to handle felony cases in district court and drug court, one to handle juvenile cases and one to handle misdemeanors. It also will pay $5,000 to join an “appeals pool” with other counties to help pay for long and costly appeals, and retains a pool of attorneys who can take cases that present a potential conflict of interest.
Young, the county manager who oversees the program, said the change has been going well. She envisions applying for funds to create an independent administrator to oversee the program.
Olson said an ideal setup in the second phase of the restructure would put an experienced defense attorney in charge of the program, paid for with grant money from the state, independent of the county.
Peterson said she’ll continue to work her cases according to best practices, reviewing video, contracting with investigators and avoiding the temptation for an easy plea deal.
“I’m lucky enough to have a personality that I don’t — I’m not going to be swayed by pushback from prosecutors, judges, (or the) system,” she said. “I fervently believe in protecting my clients’ constitutional rights.”
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