By David Carroll, Director of Research, National Legal Aid & Defender Association
Utah statutes require some measure of quality in the provision of right to counsel services mandating that counties provide "timely representation by competent legal counsel" who must provide "undivided loyalty" to clients and have the "investigatory resources necessary for a complete defense." But there is no statewide commission or regulatory department to ensure that these minimum standards are met, let alone standards related to caseload controls, attorney qualifications or training.
On top of that, Utah is one of only two states in the country that does not contribute any state funding for the right to counsel (Pennsylvania is the other). Collectively, Utah counties spend only $5.22 per capita for the right to counsel, or, 57% below the national average ($12.09). Only Missouri ($5.20) and Mississippi ($4.15) spend less.
Counties are allowed to create and administer any delivery system they desire and most have either contract or assigned counsel systems. For years, national advocates - including NLADA - have reported that only two of Utah's 29 counties have established staffed public defender offices (Salt Lake and Weber Counties). But in an effort to save money, Weber County (Ogden) defunded the public defender office in 2009 and moved to individual flat fee contracts in which private attorneys take an unspecified number of cases (the county saved over $100,000).
Today, the Salt Lake Tribune reports on what those changes mean to clients. In a move similar to the Weis v. The State case out of Georgia, prosecutors in Utah have made a motion to remove the attorneys of a client facing the death penalty because they are no longer under contract with the county to handle trials. Appointed 21 months ago when they were employed staffed public defenders, the two attorneys are arguing that removing them now would be prejudicial to their client. The would-be replacements for the client have never handled a death penalty case.
The ACLU of Utah is intervening in the case with a hearing set for May 7. The ACLU reports that other systemic deficiencies in Utah include attorneys carrying twice as many felonies as recommended under national standards -- in addition to their own private caseloads. Excessive caseloads force attorneys to regularly waive preliminary hearings and fail to file motions because of a lack of time.