Pubdate: Sun, 24 Nov 2002
Source: Lexington Herald-Leader (KY)
Copyright: 2002 Lexington Herald-Leader
Contact:  http://www.kentucky.com/mld/heraldleader/
Details: http://www.mapinc.org/media/240
Author: John Cheves

BIG CASELOADS SWAMP PUBLIC DEFENDERS

Budget Shortfall Means Even Fewer Lawyers

PARIS - Public defender Rodney Barnes whisks clients into a windowless jury 
room to explain their options. He speaks quickly and uses short words. He 
doesn't have time to repeat himself.

In 2000, Barnes handled about 484 criminal cases, a workload at least 20 
percent heavier than legal experts recommend. This year, Barnes expects to 
carry about 550 cases in six counties, from drunken driving to murder. 
Sometimes two or three trials are scheduled for the same day.

Private attorneys might spend weeks studying the evidence against their 
clients, hiring experts, researching similar cases and grilling police 
officers on the witness stand. Barnes was fortunate Wednesday to have five 
minutes with his clients outside the courtroom before they pleaded guilty, 
as many did.

Barnes hopes none of his clients are railroaded into a wrongful conviction 
and possibly prison. He worries.

"You gotta cut corners at some point, especially when you handle as many 
felony cases as I do," Barnes said Wednesday, a typical 11-hour workday 
that took him from Frankfort to Georgetown to Paris. "I do my best. But if 
my clients can afford to hire a private attorney, I strongly encourage them 
to do that."

This is a particularly bad year to be poor in Kentucky and need a lawyer.

Like Barnes, most public defenders at the Kentucky Department of Public 
Advocacy are trapped under growing caseloads. State budget cuts make it 
impossible to hire more lawyers.

A ban on overtime for state employees forces the more conscientious among 
them to work many hours for free.

And unless Kentucky's financial picture improves, they will be stretched 
even thinner in 2003.

At the same time, Legal Services programs that provide civil legal aid to 
the poor -- helping them fight evictions, escape violent spouses or win 
government-benefits checks -- are closing offices in Kentucky and laying 
off lawyers as their own funding evaporates.

In Eastern Kentucky alone, the Appalachian Research and Defense Fund, known 
in the mountains as "Appalred," has pulled out of Manchester and plans to 
shut offices in Pikeville and possibly Harlan and Jackson.

"We're already turning away all but the most urgent cases," said Appalred 
executive director Larry York.

Pressure from caseloads and state and federal budget cuts is the worst in 
memory for lawyers dedicated to the poor. Few of the state's private 
attorneys appear willing to help. The Kentucky Bar Association exhorts its 
members to donate at least 50 hours a year to helping the indigent, but 
only 7 percent did so in 2001.

 From the U.S. Supreme Court to Bourbon District Court in Paris, judges 
fret over meat-grinder justice for those who can't afford to hire private 
counsel. New DNA tests regularly exonerate Death Row inmates, nearly all of 
whom had public defenders when they were falsely accused and wrongfully 
convicted.

No Time To Chat

On Wednesday, 34-year-old Ronda Whisman of Wolfe County sat in the bored 
and unhappy crowd at the Bourbon County Judicial Center. Barnes, a public 
defender based in Frankfort, hooked an index finger toward Whisman in a 
"come here" gesture. He escorted his client to a table in the empty jury room.

Here's what happens, Barnes told her: You'll tell the judge you're guilty 
of first-offense drunken driving. You'll pay about $550 in fines and court 
costs. You'll attend alcohol-abuse classes. You'll lose your driver's 
license for up to 120 days.

Her face pinched, her head cocked to the right, Whisman watched Barnes' pen 
glide down the guilty plea form as he ticked off each point.

"You know," she finally interrupted, "the night they pulled me over is the 
same night my husband filed for divorce and my momma went into the hospital."

"Bad night, huh?" Barnes replied. Then he led her back into the courtroom.

His reaction might seem brusque, but Barnes simply doesn't have time to 
chat. He and four other lawyers in his Frankfort office travel a six-county 
circuit from sunrise to well past sundown. They do what they can to keep 
clients out of jail, or at least to keep their incarcerations relatively 
brief through plea deals and reduced charges.

Barnes gave up better pay and hours at a Louisville law firm nearly five 
years ago because he wanted to represent the poor at the Department of 
Public Advocacy. A large photograph of John F. Kennedy, who urged idealists 
into public service, hangs behind his desk. He gives clients the number of 
his personal cellular phone.

On Wednesday, after a late night interviewing a dozen clients at the 
Bourbon County jail, Barnes was at his desk in Frankfort by 8 a.m. to write 
a motion for a burglar who wanted substance-abuse counseling. Then he raced 
east on U.S. 460, dropping off court orders in Georgetown on his way to the 
10 a.m. criminal docket in Paris.

As private attorneys came and went with their clients, Barnes haunted a 
spot next to District Judge Lindsey Stewart for the next eight hours. He 
represented more than two dozen clients he had expected to see, plus a few 
clients the judge assigned to him on the fly.

It doesn't take long for these numbers to add up.

The National Advisory Commission on Criminal Justice Standards and Goals, 
established by the U.S. Justice Department, recommended that 
criminal-defense lawyers accept no more than 150 felony, 200 juvenile or 
400 misdemeanor cases in one year.

Statewide, the Department of Public Advocacy estimates its lawyers each 
will handle 459 cases this year. But that's just an average. Urban areas 
such as Lexington and Covington are in better shape. The caseload for 
lawyers in the DPA's Frankfort office, which Barnes directs, is projected 
at 550. The DPA's Bell County office might win the prize: 631 cases per lawyer.

No matter how well intentioned, lawyers cannot remember that many clients, 
much less spend the time necessary to prepare a good defense for them, 
Barnes said.

"With a caseload like this, you make mistakes," said Barnes, 39, a tall, 
stocky man whose wavy hair is fading from brown to gray.

"My experience is there are people in the penitentiary who shouldn't be 
there," he said, "because their lawyers didn't or couldn't properly defend 
them. We're the ones who are supposed to test the evidence and make 
prosecutors really prove their case."

Caseloads Keep Rising

The burden on Kentucky public defenders has lifted in some ways.

In 1999, a panel of state leaders called "The Blue-Ribbon Group" 
recommended that Kentucky invest more in the DPA, where lawyers not only 
were overworked but among the worst paid in the nation. The panel called 
for $11.7 million in additional funding so the DPA could hire 35 more 
lawyers, open new offices and raise salaries.

Salaries jumped. New public defenders now earn $34,000, up from $23,000, 
for example. Several new offices allowed the DPA to cover all but nine of 
the state's 120 counties. (In the remaining counties, the DPA pays private 
lawyers to provide indigent defense.)

But reforms sputtered as Kentucky confronted a state budget deficit. The 
DPA had to cut about $750,000 from its $28 million budget this year. The 35 
new lawyers recommended by the Blue-Ribbon Group shrank to 10, then to five.

Meanwhile, caseloads rise about 7 percent a year, due in part to more drug 
prosecutions, so public defenders must spend less time and effort on each case.

"We can't turn people away. We can't pick or choose our clients," said 
Public Advocate Ernie Lewis, who runs the DPA.

Lewis plans to lobby the 2003 General Assembly for more money. In response, 
legislators said they can offer only sympathy. State budget officials have 
predicted a revenue shortfall of $144 million next year. Another round of 
budget cuts is inevitable unless more revenue is raised, Gov. Paul Patton 
said last week.

"(The DPA) should be a high priority. They need additional staff across the 
entire state. But I think, realistically, it's unlikely anyone will get any 
new funding," said Rep. Harry Moberly, D-Richmond, chairman of the House 
budget committee and a former member of the Blue-Ribbon Group.

Turning Clients Away

Kentucky's four Legal Services programs represent the poor in non-criminal 
matters, such as evictions and divorces. Their clients want to do business 
at the courthouse, but few can afford a lawyer and many are intimidated by 
the legal system.

Unlike public defenders, Legal Services attorneys can turn people away. 
They do that a lot these days. The programs report rejecting 120,000 of 
160,000 potential clients last year.

Kentucky's Legal Services programs are losing income from nearly all 
sources. After the 2000 Census, the federal Legal Services Corp. took 
$830,000 of Kentucky's annual funding -- leaving $6 million -- and gave it 
to other states with faster growing populations.

On top of that, the U.S. Justice Department did not renew $450,000 in 
grants; plummeting interest rates have slashed another form of revenue, 
interest on the money that lawyers hold in escrow for their clients.

"It's death by a thousand cuts. This is the worst situation we've seen in 
at least 20 years, maybe the worst ever," said Dick Cullison, executive 
director of Legal Aid of the Bluegrass.

Cullison said he lost 10 percent of his budget last year alone and soon 
must cut 15 percent of his staff -- 21 lawyers in 32 counties in an area 
from Lexington to Covington to Morehead. Cullison said he hasn't replaced 
the last three lawyers who left.

"Up until now, we've just tried to move around and absorb the additional 
work in a haphazard fashion," he said. "That's not going to work anymore, 
obviously. We're going to have to stop accepting entire types of cases. 
Will it be family cases? Housing cases? We're really cutting into our core 
mission here."

In Eastern Kentucky, Appalred has closed its Manchester office and may 
close as many as three others.

"There will be a lot of people who won't get a lawyer, no question," said 
York, Appalred executive director.

Like the public defenders, Legal Services attorneys will lobby the General 
Assembly for more money this winter.

Legal Services gets $5 from fees for each civil case filed in district 
court and $10 for each civil case filed in circuit court. If the 
legislature doubled that to $10 and $20, respectively, the fees would yield 
another $1.5 million a year, said Jamie Hamon, executive director of the 
Access to Justice Foundation, which helps Legal Services raise funds.

Also, like the public defenders, many Legal Services attorneys are 
skeptical that relief is on its way. The Appalred office in Pikeville is 
scheduled to close this winter when its lease ends. Deborah Spring, the 
last lawyer in an office that once had four, wonders if she can practice 
law out of her basement after that.

Spring said she has 131 cases on her desk at the moment -- women who say 
they need protective orders against abusive men, debtors who want 
bankruptcy protection from creditors, people trying to apply for disability 
checks. Few of her clients would approach the courts alone, she said.

"Once we've closed this office, it will be harder for people to call us, 
harder for people to find us," Spring said. "Some people will just give up."
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