A veteran Rochester public defender has been threatened with a contempt citation for not being in courtrooms in different counties at the same time.

Rick Smith, who has been a public defender in Olmsted County for more than 20 years, was slapped with the order Wednesday by Fillmore County Judge Robert Benson, who also is the chief judge of the 3rd Judicial District.

Benson issued similar orders to Smith's supervisor, Karen Duncan, the chief public defender of the 3rd district, and her supervisor, John Stuart, the chief public defender of the state, according to Duncan. Smith and the others can argue why they shouldn't be cited for contempt during a court hearing scheduled for Monday morning. All risk jail time and losing their licenses to practice law.

Duncan has asked for a continuance of Monday's hearing, saying the office needs more time to hire an attorney to represent her, Smith and Stuart. The Minnesota Attorney General's office represents attorneys with state agencies who face contempt citations. But, Duncan said, Stuart called the attorney general's office and was told it couldn't represent them because this was a criminal matter.

The incident highlights the 3rd Judicial District public defender office's claim that case loads have become excessive.

Grievances filed

This spring, several public defenders filed a grievance that heavy caseloads place their law licenses and reputations at risk. It was the first such grievance in Minnesota, possibly in the nation, and still has not been resolved.

Public defenders represent people charged with crimes who can't afford to hire attorneys.

Recently, the Minnesota Board of Public Defense asked the State Judicial Council to take nonviolent crimes out of the courtroom and treat them as offenses than can be handled with fines in yet another step to try to reduce caseloads. The council took no action. A month earlier, Duncan asked a Steele County District Court judge to reduce their case loads, but that request was denied.

What happened

This incident stems from trials set to begin in both Olmsted and Fillmore County district courts on Wednesday. Smith was the defense attorney in both cases.

In a letter to Benson dated Sept. 24, Smith asked for a continuance because the defendant was sent to prison on another matter and Smith had been unable to meet with him, discuss the case and prepare for trial. The defendant expected to be released from prison Oct. 4, and Smith said then they'd have time to prepare. In addition, Smith said, the defendant was appealing a prior criminal conviction and expected to know the status of that around Oct. 6. Smith said if the appeal was reversed, the conviction could not be used against his client in the upcoming trial. The need for the continuance was not discovered until Sept. 22, Smith said.

In a letter to Benson dated Sept. 27, Smith said he had just been ordered to start a jury trial in Olmsted County on Sept. 29, the same day as the Filmore County trial, and that Judge Debra Jacobson said it could not be continued.

Smith said that even without the Olmsted County trial, he would not be able to do the Fillmore County trial because his case load hampered his ability to be prepared.

Duncan joined in with a letter to Benson dated Sept. 28 in which she wrote: "While I respect your authority to deny the motions (for continuance), and assume that you have valid and pressing reasons for doing so, I am writing to reiterate that I do not have a defender to send to those hearings."

She said that as of Sept. 23, each of the full-time public defenders in the district has on average 200 open files. She asked Benson to issue sanctions to her or Stuart if necessary rather than to Smith.

Judge's orders

Benson's order was issued Wednesday. He said the Fillmore County case was scheduled for a three-day jury trial starting Sept. 29 and that Smith knew it since May 27. 

The day before, Benson sent Rochester Mayor Ardelle Brede and Rochester City Council members a letter thanking them for the concern they had expressed regarding the backlog of cases in Olmsted County. In that letter, Benson talks of the lack of adequate resources in the 3rd Judicial District.

He said the district has only 80 percent of the judges it needs and that Olmsted County has only 60 percent of the judges it needs. He talked about allocating time from a retired judge to Olmsted County, but because the public defender system in Rochester has only 42 percent of the attorney time it needs, he said, "even utilizing this retired judge time" would be challenging at best.

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