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Lewiston Morning Tribune - 6/5/2022
Jun. 5—Prosecutors and public defenders for Nez Perce County are feeling the pinch of handling more than 300 felony cases — and so are their budgets.
Nez Perce County has 330 felonies from 2021 to now, but is expecting 495 by the end of September for its estimated year-end total. Those cases will go through 2nd District Court, which includes Clearwater, Latah, Lewis, Idaho and Nez Perce counties.
Felony cases also don't usually get through the court system in a year, especially murder trials, which adds to the caseload.
"On average, a felony case will take 6-12 months to resolve through the court process," Nez Perce County Prosecutor Justin Coleman said in a statement. "Before a murder trial, two prosecutors are assigned to virtually nothing but trial prep for at least two weeks prior. When you have 450 other felony cases to juggle among the rest of the office (you) can get overworked quickly."
Public defenders also are feeling the crunch from the high volume of felony cases. There are four law firms that have contracts as public defenders for Nez Perce County; two handle felonies and two take on misdemeanor cases.
The number of cases each attorney can take on is determined by the Public Defender Commission and the attorneys have to stay within those guidelines, which is based on the number of cases, the type of case and how many attorneys are working on the case.
Most felony cases require the use of a public defender because the defendant can't afford an attorney. People qualify for a public defender based on federal poverty guidelines and the size of their family, and a judge will appoint someone to represent them. The right to a public defender is granted by the Sixth Amendment to the U.S.Constitution.
If a judge can't appoint a case to one of the four law offices, the judge has to use another qualified attorney at a rate of $85 an hour, which is lower than the rate for a private attorney but can add up in a 40-hour work week. Normal billing for private firms often is more than $200 an hour compared to the $85 hourly rate for public defense.
Attorney Rick Cuddihy, of Knowlton & Miles, said it's hard to ask other law offices to take on extra public defense work because they have their own cases to work on and it means losing money for the firm.
Attorney Paige Nolta, of Nolta Law Office, noted the shortage of public defenders is being seen elsewhere in the country, but the Constitution doesn't allow for any wiggle room.
"When a public defender's working ... under the constraints of caseload limits, you have to find somebody else," Nolta said. "You have to find another competent attorney that can take on the complexity of what the case is."
If a judge is unable to appoint a public defender, the case can be dismissed. A judge in Multnomah County in Oregon dismissed three felony cases in March because the state couldn't provide a public defender, according to Oregon Public Broadcasting.
Attorney Joanna McFarland, of McFarland Law Offices, wants to avoid a similar situation in Nez Perce County because it makes the community unsafe. She said the goal of the criminal system is to make sure people are following the rules and are safe, which both the prosecution and defense strives for.
"The prosecution and defense are in adversarial roles, but it doesn't mean we have to be adversaries," she said. "The prosecution is looking at the best interest of the community, we're looking at the best interest of the client. Sometimes those align, sometimes they do not."
Misdemeanor attorneys pressed into felony cases
Attorney Greg Rauch, of Magyar, Rauch, and Associates, who serves as a public defender in felony cases for Nez Perce County, along with Cuddihy, said the increase in felonies also affects the misdemeanor public defenders, Nolta and McFarland, who also are seeing an increase in their caseloads.
When Rauch and Cuddihy can't handle the number of felonies, "it trickles down to the two that do misdemeanors, then it skews their numbers," Rauch said.
Nolta said she has 27 felonies so far this year compared to eight at this time last year, and that's in addition to her other misdemeanor cases.
One of the ways Nolta and the three other attorneys are handling the surge is by taking on cases by person. For example, if someone is charged with a felony and then later is charged with a misdemeanor, that person would be represented by the same attorney for both cases, regardless of the degree of the charge.
When working on misdemeanor cases, Nolta said she tries to fix the underlying problem or trauma a person has — such as mental health issues or drug and alcohol abuse — to hopefully prevent felonies in the first place. Addressing those issues also helps prevent recidivism, the tendency of a convicted criminal to reoffend.
"Sometimes we're successful, sometimes we're not, but every case we try to approach it that way," she said. "We really try to look at the whole person and fix the underlying issue."
Some attorneys are more reluctant to take on felony cases as well because they're more complicated and have more at stake for the client. There are more reports and evidence to go through, which can also require talking with an expert. Plus, such cases also are harder to negotiate. It's easier to negotiate a DUI to 30 days in jail, McFarland said, whereas a felony negotiation can be between five years and 30 years in jail or prison.
"You have more on the line," she said. "If someone is incarcerated either unfairly or unjustly, that's someone's life we're talking about." That can take an emotional toll on attorneys.
The increase in felony cases also is straining the budget for the Nez Perce County Prosecutor's Office. The operations budget is set on a yearly basis, with the fiscal year beginning Oct. 1. The budget for this year is $263,850 compared to $255,650 last year. Last year, the prosecutor's office spent $162,250.52 of the budget, but this year's three murder trials could affect the budget by the end of year.
"Unexpected trial expenses can have a major impact on a yearly budget. Budgets are set a year in advance and I strive to underspend my budget," Coleman said in a statement. "When we have three homicide cases in one year, I have some room to absorb those costs without going back to the taxpayer for an increase."
Public defenders recently asked the Nez Perce County Commission for additional money to hire more attorneys to help with caseloads, and each firm was given $80,000. Rauch praised the commissioners for trying to find solutions for public defenders as well as managing the cost for taxpayers in Nez Perce County.
"(The commissioners) are really good at walking the line between serving the public and keeping the cost down for constituents," he said.
There is a potential light at the end of the tunnel for public defenders in Idaho. New legislation passed this year would provide state funding for public defense. In the past, public defenders were paid for by cities and counties. Nez Perce County currently doesn't have an office of public defense, which is another option to give more resources to public defenders. The new legislation hasn't been implemented yet, but Cuddihy anticipates it will benefit defendants and taxpayers in the county.
Murder trials add to strain
The murder trials have affected costs for the prosecutor's office and caseload limits for public defenders. There were trials for Demetri Ewing in April and Clyde Ewing in May, and James Brashear's trial is planned for July.
Nick Woods, investigator for the prosecutor's office, said the last murder trial was in 2018, and there was one in 2017. "So to have three in the same fiscal year is unheard of in this area," Woods said.
It's also challenging for public defenders because the Public Defense Commission limits capital cases, like murder, to two cases a year for an attorney. That has affected Rauch and Cuddihy, who worked on two of three murder cases in Nez Perce County. Cuddihy also worked on another murder case in another county, so he has reached his limit for the rest of the fiscal year.
"The amount of murder cases skewed the numbers considerably," Rauch said.
The increase of felonies also comes during a shortage of attorneys, which is affecting both the prosecutor's office and public defenders. "Our area is ripe for new attorneys to come in every part of the legal realm," McFarland said.
Aside from Coleman, the Nez Perce County Prosecutor's Office has two other full-time felony prosecutors and three for misdemeanors. But some of the attorneys who work in misdemeanors have been pressed into handling some of the excess felony cases.
"With an 18% increase in felony crimes, we are struggling to keep all the cases moving forward," Coleman said in a statement. "With three murder trials in one year, we are definitely stretched thin."
Woods said the prosecutor's office has asked the Nez Perce County commissioners, who approve the budgets for the office, for money to hire an additional attorney. If it is approved, the money for that position wouldn't be available until the start of the new fiscal year.
"At this point, we are where we are at least until October," Woods said.
McFarland and Rauch saw the shortage coming and planned ahead to hire new people. Initially, the person hired by the two firms was intended to fill another role, but then was used to help with public defense.
Cuddihy said he's posted jobs on the state bar website for three positions and has had four applicants.
"That's the problem we're all facing," he said. "It's hard to find people to help with the cases."
It's also affecting the availability of interns. McFarland coordinates with law schools to get interns, like the one she eventually hired full time, but this year she doesn't have an intern. Cuddihy said law firms used to have a "feeding program" that provided interns for area offices. Then the University of Idaho law school split and moved to Boise, so recent years have left a gap in intern applications.
"We have a lot less available interns to bring on to nurture and start working in firms after (they) graduate," he said. "We just don't have those any more, which is unfortunate."
Public defenders also are competing with private attorneys and the prosecutor's office, which offer more money and more benefits, like student loan forgiveness, medical insurance and retirement. McFarland increased wages to stay competitive. Nolta had to adjust her current staffing to handle the caseloads, which meant giving up her assistant. Now she does her own document processing in addition to her cases.
"I already have a full-time job," she said.
McFarland also is seeing attorneys go from one office, whether a private firm or the county, to another for better money.
"Who can blame them?" he said.
Is it a trend?
For Woods, it's too early to tell if the influx of crime is because of the pandemic. However, Cuddihy says there are multiple reasons for the growing caseloads, including rulings on laws of arrest, the COVID-19 pandemic, mental health and the economy.
"All that together, the constellation of factors, have created this," he said.
Cuddihy said the COVID-19 pandemic created a two-year hiatus of jury trials, which is contributing to the backlog of felony cases, which the prosecution and defense are working through. Once those cases go through the court system, it will be easier, although he expects caseloads to remain high.
Rauch also is anticipating a growing trend of crime rates because of the economy; historically, crime increases in times of recession and inflation.
"I don't know why this would be any different," he said.
Brewster may be contacted at firstname.lastname@example.org or at (208) 848-2297.
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