Fourteen public defenders in southeastern Minnesota, including Mower County, have filed a grievance over claims of excessive workloads, and some have even started refusing new case assignments.
The grievance, the first of its kind in Minnesota and possibly in the nation, was filed last month with Karen Duncan, chief public defender, and signed by 14 of the assistant public defenders representing indigent people charged with crimes in 11 southeastern Minnesota counties.
The public defenders, in their grievance, say clients have been harmed by the excessive workloads. They say that in some cases, clients have been in jail longer than they would have been if defenders had fewer cases and could devote more time to individual cases.
"In addition, we believe we have lost cases that we might have won if we had the time to adequately prepare each file," the grievance states.
Duncan confirmed she has received the grievance and said she is in the process of responding.
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Union complaint
The defenders are represented by Local 320 of the Minnesota Teamsters Public & Law Enforcement Employees' Union. Kari Seime, business agent, said if the public defenders aren't satisfied with Duncan's response, the public defenders would meet with the chief administrator for the state board of public defense. If there is no resolution there, the matter could go to arbitration.
State budget cuts, staff reductions and increased caseloads have collided in recent years.
Currently there are 16 full-time public defenders in the 11-county district and 18 part-time.
A year ago, there were 35 1/2 full and part-time public defenders in the district.
Duncan said that statewide, the public defense budget has to be cut $600,000 by the end of June just to stay in the black, so additional adjustments are expected. Also, she said, estimates are she will have to cut 3 1/2 more public defender positions in this district next fiscal year, based on budget cuts made by the Minnesota Legislature last week.
"The crux of the problem is that on one hand, lawyers have an ethical obligation not to accept more work than they can handle,'' Duncan said. "On the other hand, we don't have control over cases we take in."
Grievance details
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Public defenders in southeastern Minnesota say in a union grievance over excessive workloads that they know the state is experiencing economic hardship of historic proportions and that nearly every employee has had to do more work in less time and with fewer resources. They are doing the same, they say.
Yet, they question if other departments also are required to do all they do.
"Not only are we not excused from performing adequately, we are required to do all that we can to get our workloads to the point where every client gets competent representation and proper legal services,'' the grievance says. "It is unconscionable that our workloads are excessive such that we are not able to do what a minimally competent defense attorney should do in each case."
Karen Duncan, chief public defender, said she can't speak to the grievance.
Still, she said, "I know my lawyers are doing the best they can. It really is tough for everyone in the criminal justice system right now, all across the state."
Legislative audit
A legislative audit report issued in February said public defender workloads in Minnesota are too high and exceed state and national standards.
The study took into account how much time cases took to defend, with one case unit in the average misdemeanor, and more case units for more serious offenses.
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The report said that state and national standards call for public defenders to carry no more than 400 case units per year.
In 2007 in this district, there were 31 full time equivalent public defenders. Each had a weighted caseload of 689. In 2009, there were 27 full-time-equivalent public defenders in this district carrying 745 case units each.
The evaluators for the legislative report said that during their site visits, they saw public defenders under such time pressures that they often had about 10 minutes to meet each client for the first time, evaluate the case, explain the client's options and the consequences of a conviction or plea, discuss a possible deal with the prosecuting attorney and allow the client to decide how to proceed.
Some of the public defenders in this district have refused to accept new case assignments.
Meetings are under way in the district to try and deal with that issue, Duncan said, adding that she's made a real effort to reach out and get volunteers. Currently there are two volunteer attorneys working out of the Owatonna office. There also are volunteer paralegals and clerical staff helping out.
Public defenders claim the excessive workloads of defenders place their attorney licenses and reputations at risk.
"Because we are unable to honor each client's right to a prepared attorney, we breach the ethical duty to provide zealous representation to every client. Such ethical breaches could result in discipline by the Minnesota Lawyers Professional Responsibility Board," they say.
Support staff needed
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The attorneys say the public defender's office also needs to hire significantly more support staff.
Currently, they say, attorneys do nearly all of their own secretarial and clerical work, their own typing, filing, photocopying and faxing. Some serve their own subpoenas. Districtwide, the public defender's office has five office specialists, who are like secretaries, two paralegals, two dispositional advisers and 2 1/2 investigators, for a total of 11.5 support people.
By contrast, Rochester and Olmsted County prosecuting attorneys have more support staff than the entire district.
Public defenders are asking the Board of Public Defense to impose a service reduction plan if they are unable to secure adequate funding to assure minimally competent representations.
The legislative audit report said that the number of felony cases in Minnesota's criminal justice system likely to involve a public defender grew by 37 percent between 1999 and 2008.
In July 2008, public defenders statewide stopped representing parents in child protection and termination of parental rights cases. In 2007, public defenders were appointed to represent parents in 5,600 child protection cases. Public defenders also stopped representing clients in post-adjudication specialty courts, such as drug courts, in July 2008.
