Representation Of Indigent Criminal Defendants In Trial Courts Report

end, and providing programmatic and structural assistance to assist local governmentsto more effectively and efficiently provide representation services.The Committee also recommends two other changes in approach that can beundertaken now, without any need for legislation or broader policy changes. First,attorney contracts for indigent defense services should eliminate provisions that createsignificant disincentives to effective representation, for example, a fixed fee for alldefense services and expenses. This can be done without waiting for the creation of acommission. Second, significant steps should be taken, especially in justice courts, toimprove the ability of judges to ensure compliance with right-to-counsel obligations. Itis unlikely that the creation of an indigent defense commission will play a part injudicial capabilities in this regard. The AOC has already increased its focus on judicialtraining on right-to-counsel concerns over the past year, and we recommend that theseefforts continue and that other steps be taken, such as improvement andstandardization of forms and procedures and the creation of a monitoring and feedbackprogram in the justice courts.A final note on the working of the Committee: The Committee is composed ofprosecutors, defense counsel, and judges, among others—people who often operate inconflicting capacities in the criminal justice system. Yet over the years the membershave come to develop mutual respect and trust, and have been able to work togetherwith a common purpose—to assure that constitutionally adequate defense services aremade available to those charged with crimes that may result in incarceration in jail orprison. All agree that this is a constitutional guarantee that the State must meet toassure that the public has confidence in the criminal justice system and that that systemoperates as fairly as possible before it deprives anyone of their liberty. This sense ofcommon purpose, and mutual respect, has made it possible to bridge legitimatelydiffering perspectives on the operation of the system and reach substantial agreementon what should be done to improve Utah’s indigent defense system. It is in that samespirit that we offer this Report.A note on the study performed for the Committee by our consultant, the 6AC,under grants from the Department of Justice: That study has provided the Committeewith much valuable information about how the right to counsel is administered in bothdistrict courts and justice courts in Utah. In addition, the 6AC Report sets out in a veryclear way the operation of the Sixth Amendment right to counsel, which should assistthose who address this issue to more easily grasp the Amendment’s scope andrequirements. Committee members differ on the validity of certain observations andconclusions in the report, particularly as to whether many problematic examples can be5

interpreted to be more broadly representative of how the right-to-counsel isadministered in Utah. Some thought the value was limited, while others saw thereport’s specific observations to be useful as examples of how the broader systemicproblems the report identifies can negatively impact the constitutional rights of realdefendants. Nevertheless, the Committee considers the 6AC Report’s centralconclusions and recommendations to be sound, focusing, first, on the need for astatewide commission to oversee and coordinate compliance with the constitutionalobligation and, second, on the inhibiting effects of fixed-fee contracting on the ability ofcounsel to provide meaningful representation to persons accused of criminal conduct.In addition, the Report identifies concerns with how effectively justice courtshandle right-to-counsel issues. Because the Committee has a number of representativesof the courts and local governments—those who are actually administering key aspectsof the right to counsel, the Committee has been a forum for mutual education andevaluation of the unique challenges faced by Utah’s diverse governmental units inproviding the right to counsel. And in this respect, any honest differences of opinionbetween committee members and the 6AC Report in no way diminish the Committee’sappreciation and respect for the work of the 6AC. Their willingness to candidly engagethe Committee about their findings and conclusions as the process has moved along hasbeen a model of professionalism, and helps explain why whatever differencesCommittee members may have with certain details of the 6AC Report, those differencesare not grounded on any doubt as to the integrity and depth of knowledge of 6ACpersonnel. And 6AC’s extensive efforts have produced an independent and thoroughreport that provides a solid basis for moving forward with important improvements toUtah’s system of providing effective representation to indigent defendants in ourcriminal courts.BACKGROUNDA.The Genesis of the Committee.The genesis of the trial court study committee is linked to the formation of twoprevious Utah Judicial Council committees that studied the representation of indigentdefendants on appeal. In 2008, the Judicial Council formed the Appellate and PostConviction Representation Study Committee (the Appellate Committee) to considerissues related to appellate and post-conviction representation for indigent defendants.Then Utah Supreme Court Chief Justice Christine Durham outlined the committee’scharge to follow up on a 1994 study. Chief Justice Durham explained that although theprevious committee had identified various issues involved in providing indigent6

defense services on appeal, no concrete action had resulted from that committee’s 1994report. Moreover, the Chief Justice stated that since the 1994 report’s release, issuesinvolving the adequacy of indigent appellate defense had become even more complex.Accordingly, the Judicial Council concluded that a follow up committee was needed todetermine what changes, if any, were warranted.The Appellate Committee defined its goal more broadly than that of the earliercommittee with a view to identify specific recommendations that had a realistic chanceof implementation. The earlier committee, the author of the 1994 report, had narrowlydefined its task as studying “the feasibility of creating a statewide appellate publicdefender’s office” as a means of addressing the inconsistent quality of representationfor indigent criminal appellants. The 2008 committee, rather than operating from theassumption that any actual problems existed or that any particular solution wasappropriate, sought to determine the current state of appellate representation in Utahand to identify whether any deficiencies actually existed and then identify feasibleresponses and recommend improvements.To fulfill its charge, the Appellate Committee developed data to identifyconstitutional requirements, best practices, and practical concerns in Utah’s provision ofappellate representation to indigent criminal defendants. With criminal appeals being arelatively narrow part of criminal practice, the Appellate Committee was able toassemble information from available sources. The committee obtained indigent defensecontracts from counties, evaluated a broad sample of briefs from recent appeals, andmined data to determine appeal rates from various jurisdictions. Based on theinformation gathered, the Appellate Committee compiled the information, identifiedissues, and made recommendations to address the issues in a report released in January2011.The Appellate Committee included a number of county governmentrepresentatives and prosecutors, as well as defense counsel and judges, which enabledit to more fully consider local input and focus on solutions that better took into accountlocal concerns. Countervailing opinions were discussed openly and seeking commonground became the norm. The resulting Appellate Committee report produced aconsensus on steps to improve indigent defense representation on appeal.Near the end of the Appellate Committee’s work, the Judicial Council decided toexpand the committee to consider indigent representation at the trial level once theappellate report was completed. As detailed above, the Appellate Committee hadalready gathered some information relevant to the question of trial level representation.7

Further, a number of the issues bearing on the quality of appellate representation werelinked to the quality of representation at trial. Trial attorneys who lacked theindependence, time, and resources to fully represent their clients inevitably led toproblems with representation on appeal.Accordingly, in 2011 the Judicial Council renamed the Appellate Committee asthe Study Committee on the Representation of Indigent Criminal Defendants (theIndigent Defense Committee or the Committee) and reconfigured it to add trial-levelexperience suitable to the new task. Specifically, the Judicial Council officiallyappointed to the Committee county leaders who had served as advisors to theAppellate Committee. And, consistent with the Appellate Committee’s collaborativeefforts, the Indigent Defense Committee actively sought out additional stake holders towork with the Committee, including prosecutors and others from cities with justicecourts. The Indigent Defense Committee enlisted this input to identify all pertinentissues and to maximize the chances of success of any proposed changes.B.Consulting with the Sixth Amendment Center.Committee members concluded that the same process that the AppellateCommittee successfully employed should be used for trial issues: collect data, identifyactual concerns, and develop common recommendations to address issues raised.Although some of the information that the Appellate Committee had gathered wasuseful to assess trial court issues, it became apparent that the complexity and scope ofindigent defense at the trial level required information-gathering resources andanalytical skills far beyond what the members of the Committee could provide. Whilehundreds of appeals are filed each year in Utah, tens of thousands of criminal cases aregenerated annually. And while the adequacy of appellate representation can beevaluated to an extent based on information from the appeals actually filed—the qualityof appellate briefing, for example—the adequacy of trial level representation could noteasily be determined by looking simply at statistics and case files.The Indigent Defense Committee had several discussions about whatinformation would be needed to evaluate trial defense services and how to obtain suchinformation. Although Utah’s Administrative Office of the Courts (the AOC) compilesrelevant court data, it did not appear that court-centered data alone would provide acomplete picture of attorney workloads where an attorney has public defense contractsand a private practice as well. No statewide tracking of such multi-tasking by defensecounsel was readily available because individual counties and municipal governmentsare the contracting entities for indigent defense contracts, and local officials do not8

generally require specific tracking of workloads or performance measures whenentering into indigent defense contracts. In sum, because of the complications involvedin collecting meaningful data on the provision of indigent representation, the IndigentDefense Committee determined that obtaining reliable information on its own wasbeyond its capability.In the course of looking into the work of other states that had already undertakensimilar efforts to study their trial-level indigent defense systems, the Committeecontacted Jon Mosher, then with the National Legal Aid & Defender Association(NLADA), who had worked with a number of those states in their efforts to improveindigent defense services. At a Committee meeting in early 2012, Mr. Mosher providedthe Indigent Defense Committee with an overview of the approach a number of otherstates had taken and explained the role of his organization in helping to evaluate thosestates’ indigent defense systems. Over the course of the next few months, individualcommittee members contacted their counterparts in a number of other states who hadworked with Mr. Mosher and his colleague, David Carroll, to get input on the quality oftheir work and their ability to deal with the distinct issues presented by different statesystems and cultures. The feedback was uniformly positive about the quality of theirwork and the nature of the working relationships.The committee determined that there were grants available from the BJA to coverthe costs of such a study in Utah. The availability of outside funding assured that thestudy could be done by an entity independent from the Indigent Defense Committee.The study’s independence was further assured by the departure of both Mr. Mosherand Mr. Carroll from NLADA to form their own non-profit organization devotedentirely to right-to-counsel issues, the Sixth Amendment Center. In late 2012 theCommittee requested that 6AC perform a study of indigent defense services in Utahsimilar to what it had done in other states. That study began in late 2013. 1Intervening events delayed the beginning of the 6AC’s work on the ground. First, during thetime the Indigent Defense Committee was vetting 6AC’s qualifications, 6AC’s, Mr. Carroll, itsexecutive director, and Mr. Mosher, its deputy director, were in the process of severing ties withthe NLADA, a process that took some time. More significantly, in addition to the time requiredfor the grant application process itself, once the grant was approved, the federal budgetsequester of 2013 and Congress’s subsequent failure to authorize a federal budget before theend of the fiscal year complicated the funding process. Once funding finally became availableDOJ decided to split the grant money between two annual budget cycles for internal budgetaryreasons. As a result, the 6AC was unable to begin its work until late 2013.19

C.Selecting a Representative Sample of Utah Counties for the Study.The BJA grant for the Utah study provided funding for 6AC to assess arepresentative sampling of Utah’s twenty-nine counties. Accordingly, the IndigentDefense Committee formed a subcommittee to determine which counties to include inorder to get the most benefit from the study. The subcommittee determined that thesample ought to represent a significant percentage of Utah’s population, in order toinclude as many local providers of indigent defense services as possible, and shouldalso take into account the State’s geographic and demographic diversity. In the end, thesubcommittee proposed the following ten counties for study: Cache, Weber, Davis, SaltLake, Utah, Tooele, Uintah, Sanpete, San Juan, and Washington.The selection was based on several considerations. The first seven counties arethe most populous in the state, including nearly 90% of Utah’s population. In addition,the seven exhibit a wide range of population density (from Salt Lake County, with overa million residents, to Tooele County, with about 50,000) and considerable geographicdiversity (from Cache County in the far north of the state to Washington County in thefar southwest). The seven are also demographically and economically diverse,including the four counties in the central Wasatch Front (Utah, Salt Lake, Davis andWeber); Cache County, a county with a growing urban population that still maintains asignificant agricultural base; Washington County, one of the fastest-growing counties inthe country; and Tooele County, in some respects economically tied to the larger urbanpopulations of Salt Lake and Utah Counties but with its own unique character andconcerns. The remaining three counties provided additional geographic anddemographic diversity: Uintah County, in the east, has been experiencing thechallenges of burgeoning energy development and a growing, diverse population;Sanpete County, in the state’s center, is more rural and agricultural, with a smallerpopulation and tax base; and San Juan County, a more rural county at the southeastcorner of the state, has a diverse population and a unique history.In the end, choosing the sample counties was a challenging task because ofUtah’s considerable diversity of population, geography, demographics, and economies.With this in mind, the ten counties proposed for review were chosen to include as broada cross section of Utah as possible. As noted, the selected counties accounted for over90% of the state’s total population; they also took in all 29 state senate districts and 71 ofUtah’s 75 house districts, as well as all eight of Utah’s judicial districts. The IndigentDefense Committee adopted the subcommittee’s county selection recommendation, andthe 6AC began its work gathering information in late 2013.10

The Committee believes that the selection of counties finally chosen for reviewprovides a reasonable basis for broader conclusions about how well the State of Utah isfulfilling its constitutional obligations to provide effective representation to indigentcriminal defendants. But we emphasize that the 6AC report was never intended to be areport card on the efforts of the individual counties involved in the study; rather, itprovides a basis for broader consideration about how well the State of Utah is carryingout its responsibility to provide constitutionally adequate legal representation toindigent defendants charged with crimes.D.The Scope of the 6AC Study Expands to Include Justice Courts.The Judicial Council’s original charge to the Indigent Defense Committeefocused on the right to counsel in the district courts, which have jurisdiction over felonyprosecutions and class A misdemeanors. After beginning its work, however, 6ACrecommended that justice courts, which handle class B and C misdemeanors, as well asinfractions (which do not involve the potential for jail time), also be included in itssurvey. This recommendation was based on the recognition that justice courts handle asignificant segment of criminal cases requirin

the current state of the right to counsel in Utah's trial courts with any appropriate recommendations. The resulting Committee was a broad based group, composed of judges, prosecutors, criminal defense counsel, and representatives of county and local government, as well as members of the Utah Legislature. This Report is the result of the