Too Many Cases, Not Enough Lawyers Missouri Public Defenders & The Quest for Caseload Relief

Transcription

1 Cat Kelly, Director Missouri State Public Defender System Too Many Cases, Not Enough Lawyers Missouri Public Defenders & The Quest for Caseload Relief

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3 Caseload Relief Efforts Missouri Bar Task Force (2005) Outside Assessment x 2 ( Spangenberg Report) Legislative Hearings (2006 Senate Interim Committee on Public Defender) Sought Court Operating Rule Limiting Caseload (2007) PD Commission Enacted Caseload Caps Rule (2008) Caseload Relief Legislation (2009) -- Vetoed by Gov First Round of Litigation Pratte (2009) Second Round of Litigation Waters ( ) Where we are today.

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5 Resolved: These things should be equal HOURS NEEDED TO HANDLE THE CASES COMING IN THE office DOOR ATTORNEY HOURS AVAILABLE within the OFFICE TO HANDLE CASES

6 MO Defender Time-Tracking Study

7 2340 hours (45 hours / week x 52) less Leave Time to which legally entitled & essential, but not case-specific tasks

8 Number of Attorneys in that Office X 1747

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10 1.5 hours of supervisory time per employee per week

11 Resolved: These things should be equal 1747 x Number of attys -- Office Travel hours -- Supervisory hours = ATTORNEY HOURS AVAILABLE within the OFFICE TO HANDLE CASES

12 Audit reported office capacity ranges from 1363 to 1635 hours per attorney depending upon office with a statewide average of 1536 hours NCSC Study of Maryland Public Defender = 1375 available attorney case hours per year University of Nebraska s Public Policy Institute Study of Lancaster Co PD =1575 available attorney case hours per year

13 Getting to Maximum Allowable Caseloads

14 Resolved: These things should be equal HOURS NEEDED TO HANDLE THE CASES COMING IN THE OFFICE DOOR ATTORNEY HOURS AVAILABLE within the OFFICE TO HANDLE CASES

15 All Cases are not created equal

16 Pay for independent study NCSC Spangenberg Universities DIY study

17 Choose What to Measure: Case types Tasks

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19 20. Discovery Receive, acquire, acknowledge, number or organize Review & analyze Activity to compel discovery Disclosure to State Records & recording requests Depositions 45. Disposition or Post Trial Plea negotiation Sentencing research & investigation Collaboration with MSPD Alternative Sentencing Motion for New Trial/Notice of Appeal/Forma Pauperis 15. Case Maintenance Documentation-Memo to File Court Date update Continuance - documentation & notice Continuance - court appearance Administrative Tasks (e.g. E# requests) Filing & organizing Trial/Hearing Court appearance for trial/hearing Witness coordination & transportation Second chair & lawyer assist (in-court only)

20 Have everyone track time by case type, category, & task for a statistically significant period of time.

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22 Determine what is not NOW being done that should be.

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24 In 60-80% of cases resulting in a guilty plea, the defender has not done ANY fact-checking of the state s case before advising the client to plead guilty. In fewer than 20% of their cases are defenders filing pretrial motions with legal authority specifically researched for that case as opposed to boiler plate motions. In more than 80% of the cases resulting in a guilty plea, the defender has neither reviewed the physical evidence nor visited the crime scene before advising the client to plead guilty. In 20-40% of cases involving a medical injury, the defenders never obtained or reviewed the medical records

25 In 40-60% of the cases involving forensic evidence, the defenders are not obtaining or reviewing the laboratory notes concerning that testing. In 60-80% of the cases in which the state is presenting expert testimony, the defenders have not reviewed the expert s CV or done so much as a Google search to investigate the expert s background or credentials. In 20-40% of the cases, defenders report they do not have the time they need to make sure the client understands where things are in the process, what will happen next, what his/her options are, or to answer all of the client s questions. In 60-80% of the cases, defenders are failing to meet the MSPD guideline of monthly contact with or updates to clients.

26 1. Choose case types, categories & tasks to measure 2. Have everyone track their time by case type, category & task for statistically significant period 3. Determine what is not NOW being done that should be. 4. Figure out how much more time it would take to do those things. 5. Add what is needed to what is now being spent

27 Footnote 10 citing Principle 5 of The Ten Principles of a Public Defense Delivery System, includes the following: National caseload standards should in no event be exceeded, but the concept of workload (i.e., caseload adjusted by factors such as case complexity, support services, and an attorney s nonrepresentational duties) is a more accurate measurement.

28 National Advisory Committee to the Department of Justice Felonies 150 cases per year Misdemeanors 400 cases per year Juvenile Cases 200 cases per year Appeals 25 cases per year

29 Felonies 510 per year 14 hours per case Misdemeanors Juvenile Cases Appeals 40 per year 5 hours per case 20 per year 10 hours per case 25 per year 83 hours per case

30 Non-capital Homicides Sex Offenses Other Felony Offenses Misdemeanors Juvenile Cases Appeals Probation Violations PCR: PCR: hours per case (153 hrs in MSPD time study) 31 hours per case (30 hrs in MSPD time study) 14 hours per case (8 hrs in MSPD time study) 5 hours per case (4 hrs in MSPD time study) 10 hours per case (6 hrs in MSPD time study) 83 hours per case 5 hours per case (4 hrs in MSPD time study) 21 hours per case 62 hours per case

31 Determining when an office has exceeded its Maximum Allowable Caseload Each case coming in the door x avg hrs needed to handle that case type correctly Add ALL hrs needed to handle all cases coming in the door Compare to atty hrs available in office to handle cases

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34 Red = Certified before or as of October 1, 2012 Yellow = Pending Certification; Anticipate certification as of November 1, 2012 Green = At Capacity

35 From: Rod Hackathorn/Area031/MSPD To: Date: 07/20/ :27 AM Subject: Capacity reached for July Dear Sirs: This is to advise that the District 31 Public Defender office has reached capacity for the month of July based on our Commission s Caseload Rule Protocol. The office will accept additional cases in August up to capacity. Thank you for your patience. Rod Hackathorn District Defender Missouri State Public Defender

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37 Pull from Waiting List in order of application unless otherwise triaged by the court.