County mulls public defender contract; criminal caseload draws constitutional concerns

By Rick Sherman
Sun Advocate Reporter

    With Public Defender David Allred leaving for an LDS Mission, Carbon County officials are looking for public defender services for the burgeoning caseloads in the Seventh Judicial District and Juvenile Courts.
    Carbon County Clerk/Auditor Seth Oveson opened two sealed bids for the contract during the regular meeting of the Carbon County Commission on Jan. 17.
    Torgerson Law Offices of Price proposed to service the caseload for a monthly rate of $14,000, in addition to existing public defender agreements. The law office acknowledged the proposal represents an $8,400 per month increase in the public defender budget, but said it will reduce the problems that inherently arise when one public defender handles a caseload as large of Carbon County’s.
    The Torgerson Law Offices proposal would almost triple the per case rate for district court matters from approximately $130 per case to about $345 per case, an amount that is still below national guidelines and below the average for other counties in the Seventh District.
    Under the proposal, Torgerson Law Offices and Oliver & Sitterud will equally divide the district court caseload, resulting in an allocation of cases that is more in line with national recommendations for public defenders, rather than a single attorney handling a “crushing” caseload of at least 350 felonies annually. In 2011 the American Bar Association encouraged that public defenders handle no more than 150 felony cases per year.
    In addressing the commission, Robert Oliver of Oliver & Sitterud noted, “Mr. Allred did a great service to this county, and he probably wasn’t compensated well enough.”
    He said Allred was handling 350 felony cases and servicing about 500 district court cases for the same compensation he received in 2008.
    “That’s why there is such a great cost increase in our proposal today,” Oliver said.
    The second bid was from the law office of Mark H. Tanner of Huntington, which proposed to provide the public defender services for the sum of $11,000 per month. Tanner would also maintain an office in Price to meet clients away from the courthouse.     
    Utah is one of just two states where the responsibility of providing an attorney to indigents falls to the counties. Only Utah and Pennsylvania do not provide state funds for public defenders, leaving the counties to sustain the financial and administrative burden of providing the constitutionally-guaranteed representation by an attorney.
    Don Torgerson approached the county commission two years ago to express concerns that the burden is not being adequately met due to a heavy caseload, which stems primarily from drug offenses. He said heroin use in the community is creating so many cases that the public defender’s office, and the court system itself, is nearly overwhelmed.
    A 2015 Sixth Amendment Center study concluded that Utah trial courts do not uniformly provide counsel at all critical stages as required by the U.S. Supreme Court, with many defendants never speaking to an attorney. The challenge of providing effective representation for each client can be exacerbated by excessive caseloads that reduce the time a lawyer can spend with an individual client.
    The study also said many county and local governments in Utah place right-to-counsel services under the auspices of the local prosecutor, which interferes with effective defense representation.
    The study conceded there is a pressing need for state oversight and ongoing funding. The Sixth Amendment Center website says the organization was established in Boston in 2013 to ensure a fair day in court for the indigent accused as required under the United States Constitution. The Center measures public defense systems against Sixth Amendment case law and established standards of justice.
    The two proposals for public defender services in Carbon County were taken under advisement.
    Commissioner Jae Potter made a motion that, “We have received those two requests and we will need to meet as a commission to make any final decision or awarding of the contract.”
    There was no indication when a decision will be announced.
    County officials have previously acknowledged the heavy caseload and recognized that some adjustment must be made to the public defender office, but the budget has not allowed for an increase in funding.