Utah's Criminal Defense System Under Scrutiny After Report

Utah has recently come under the nation's legal spotlight, and believe it or not, it has nothing to do with same-sex marriage. Utah's criminal defense system has come under fire for being unable to represent poor defendants.

A recently released report by the Sixth Amendment Center, a nonprofit civil rights group that promotes a defendant's right to legal counsel, found that many of Utah's poor defendants are regularly deprived of their constitutional rights to an effective defense, which as the SAC points out, is a deprivation of their liberty.

Utahns at all levels of the justice system admit their indigent defense system is broken, and say that they are determined to fix it as soon as possible.

So what exactly is wrong with Utah's defense system? The report found that many of Utah's poor defendants don't get lawyers, and that those who do are often assigned contract defense attorneys burdened with heavy caseloads, insufficient resources and other pressures.

More than 62 percent of Utah defendants are processed through the misdemeanor courts without a lawyer, according to the report.

The court may assume a defendant doesn't need a lawyer during an informal, pretrial hearing where a jury and prosecutor is not present. "The theory is that these cases are minor and we need not include all the protections that we do for felony cases," said Ken Hart, the executive director of the Utah Association of Criminal Defense Lawyers.

Defense lawyers are always appointed for felony charges, yet defendants facing misdemeanor charges may not receive a lawyer, even though these charges also carry potential jail time in Utah. For example, DUI and domestic violence cases are heard in misdemeanor courts. "Even a third shoplifting offense can be charges as a felony," said Hart.

What does this all mean? It means that a poor defendant can miss out on a proper defense when courts don't appoint them a lawyer, but they are more often denied their rights in another way - when an attorney fails to put up a reasonable adversarial fight.

In one case, a contracted defense attorney was getting paid an average of $30 per case.

Utah is one of two states that delegate the burden of providing indigent counsel to local counties rather than funding it at the state level. Not surprisingly, many counties in Utah are too small or rural to adequately fund adequate criminal defense for the poor.

In many cases, these counties offer a flat fee to for a criminal defense attorney to handle numerous cases. For one contract defense lawyer in 2013, that meant handling 246 cases for a flat monthly fee of $600 - or an average of $30 per case.

Many experts believe this points contract defense attorneys in a vulnerable position because their adversaries, such as prosecutors and district attorneys, can control their employment.

As of now, the American Civil Liberties Union of Utah is ready to file a lawsuit with Utah if the state's policymakers drag their feet with regards to instituting policy changes. Even with the threat of litigation, the ACLU expects pushback with suggested proposals.

"The state's judicial and legislative branches are united by their pledge to uphold the Constitution, and is certain lawmakers will be able to appreciate the importance of righting the wrongs that plague Utah's indigent defense system," says Utah Fourth District Court Judge Derek Pullan who has drafted a list of remedies to address the problems highlighted in the report.