resolve the case within a week, as opposed to four or five months. He observed that the program’s efficiency provides the defendant with more of a connection between the punish- ment and the behavior. However, because of the emphasis on speed and the failure to allocate sufficient resources to the project, defense lawyers have defaulted to a meet and plead system. One assistant pub- lic defender reported that, in the first year of the Early Dis- position Project (EDP), he represented defendants in 1,800 guilty pleas. He reported spending far less than one hour on each client’s case. He stated that he spent 10 to 15 minutes with the client, reviewing the allegations, the client’s version of events, the prosecutor’s offer, and the likely sentence. The EDP attorney estimated that about 100 of the 1,800 received jail time, often concurrent with some other case. The EDP attorney noted that it is impossible to meet clients the day before the hearing. He also stated that he does not receive the offers from the district attorney until the night before the hearing. The office recently assigned him a legal assistant, but not the additional attorney he felt was needed “to make sure bases are covered and get a bit of a break once in a while.” The spectrum of cases resolved on the EDP calendar in- cluded possession of drugs, drunk driving, retail theft, and prostitution. The defender reported typically doing no re- search or fact investigation, stating, “[t]hese are not situa- tions that necessitate that.” But, one observer told a site team member that the prosecutor sends some drug posses- sion cases to EDP because they involve questionable ar- rests, which raises the possibility that if the facts and law were investigated properly the court might conclude that the cases should be dismissed. And, another defender re- ported that, contrary to the EDP attorney’s assertion, a DUI case requires a lot of preparation. 171 A different early disposition project in Washoe County (Reno), Nevada, suffered from similar problems. The Early Case Resolution (ECR) project was originally intended to eliminate many non-serious cases from the court docket. The program was examined by the Supreme Court Task Force on the Elimination of Racial, Gender, and Economic Bias in 2000, which raised serious questions about whether the de- fendants in the program were receiving appropriate advice. The Task Force Report suggested that defendants in the pro- gram felt coerced to accept pleas, whether or not they were guilty of the crime charged. The report noted that public de- fenders routinely advised clients to plead, despite “not al- ways hav[ing] the state’s discovery in the client’s file before discussing the plea with him or her.” The report further ob- served that “one of the most notable effects of the ECR pro- gram is that the Washoe County Public Defender office takes only approximately 30 cases to trial each year” out of ap- proximately 6,300: a trial rate of less than half a percent. 172 In January 2008, the Nevada Supreme Court issued an order establishing performance standards for public defenders, intended to ensure appropriate representation for all per-
“Clients feel like they are a cog in a large wheel and attorneys
are unable to provide the quality time they need.”
— An Oregon public defender.
sons charged with criminal offenses. 173 Although the stan- dards did not include formal caseload limits, they require the defense lawyer to “make available sufficient time, re- sources, knowledge, and experience to afford competent representation.” 174 The standards go on to require counsel to prepare for and conduct an initial client interview, which must be held before any court proceeding. 175 After the adoption of the performance standards, Washoe County immediately suspended the ECR project, noting that practices in the program may not comply with the per- formance standards. 176
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Effect of Excessive Caseloads On the Clients
When caseloads are unmanageable and defenders are un- fairly forced to skip steps, they render less than adequate services. One-third of the respondents to the survey fully acknowledged that the caseload of the public defense lawyers in their jurisdiction does not allow them to provide effective assistance of counsel. As one former Miami pub- lic defender recently noted, “[W]e don’t know our cases through and through. The potential to make a mistake is enormous.” 177 The rush caused by excessive caseloads has a substantial negative effect on the clients. One Miami defender, testify- ing tearfully at a hearing on a motion to obtain caseload re- lief, gave a compelling example of the harm caused to a client. She stated that, stressed with 13 cases set for trial in one week, “she failed to convey a prosecutor’s plea offer to her client. As a result, the state revoked the offer of 364 days in county jail, and the defendant was stuck accepting the state’s subsequent offer of five years in state prison.” 178
One Oregon attorney summed up the client experience in this scheme of excessive caseloads:
Clients feel like they are a cog in a large wheel and attorneys are unable to provide the quality time they need. Many of the clients are first time offenders — they need an attorney who will guide them through the process in a respectful man-
Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
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