The Tipping Point: Are We There Yet?

MinnPost.com has two articles about the state of affairs for Minnesota's public defenders. The articles paint a bleak picture. Judge Sharon Hall is quoted as saying that Minnesota courts are "fast becoming the courts of McJustice."

According to MinnPost, Minnesota budgetary woes have led to cutting the number of public defenders. The result is that remaining public defenders now carry twice the caseload recommended by the American Bar Association.

The result of this shortage is twofold. One result is fairly obvious, the other strikes me as very weird. I will start with the weird one.


At least one judge has threatened to hold public defenders in contempt because they were not in two courtrooms at the same time.

As the Post Bulletin, the paper of record in Rochester, Minnesota, reports, Rick Smith, a 20-year public defender in Olmstead County, was ordered to show cause why he shouldn't be held in contempt for obeying the laws of physics and not being in two places at once. The order was issued by Judge Robert Benson, chief judge of Minnesota's 3rd Judicial District. Judge Benson also issued a similar order to Mr. 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. I'll let the Post Bulletin describe the event.

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.

The other result is more obvious, a survey taken by Ms. Duncan of the public defenders in the Third District shows them to be handling cases in manner that would shock any civil litigator. Most do not meet with a client in custody until 6-8 working days after they have been assigned a case. Most are not able to arrange for an interpreter to be present during jail visits with clients. More than half have, in the last three years, had a client remain in custody longer than they should have, because the public defender did not have the time to review their case or situation? Most are typically not able to substantively discuss the client's case prior to the first court appearance. More than half have put a witness on the stand with no preparation. Most spend a half-hour or less preparing their clients to testify. The most shocking response was that more than half put their client on the stand with no preparation.

I guess I would like to believe that the more slipshod approach happens with the least serious offenses. However, Gideon v. Wainwright tells us the, as Justice Black puts it, "obvious truth" that a fair trial for a poor defendant could not be guaranteed without the competent assistance of counsel. It specifically rejected the notion that competent assistance of counsel was only required in some cases. The survey results call into question whether Minnesota is still meeting its constitutional obligations to its citizens.

What do Minnesota's candidates for governor think of this problem? Based on their websites, they don't think about it at all.