Public Defenders not Always Appreciated by Public, or Those They Defend

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School of Law


Being a court-appointed, taxpayer-funded lawyer for criminal defendants can be a tough gig, said Ted Sandberg. But it's better than it used to be in North Dakota and it actually serves justice, despite the dismal odds of winning a case or the love of the public which pays for such defenders, he said.

He's a partner in a private law firm in downtown Grand Forks — and president of the local bar association — who contracts with the state as a part-time public defender of people with little money charged with crimes. "You will lose more than" 90 percent of cases, Sandberg said. "Let's be honest. Most of them are here for a reason. Your job is to keep the system from squashing them like a bug, and the other part is to help shepherd them through the process." It's often more about damage control than winning or losing a case in court, he said. "Instead of going to the penitentiary, maybe your client can stay local and get some treatment for mental health problems. Especially with indigent clients, nobody has ever listened to these people. If you can take a few moments and talk to these people, you can make a very slight difference."

Justice vs. winning

Sandberg points to a former client he was appointed to defend a couple of years ago. "He was a very angry man, had been in prison before, had a family but he couldn't stop stealing. He was in trouble, facing huge prison time." Court records back up Sandberg's account, although the man himself didn't respond to a request from the Herald for an interview. His client had a chip on his shoulder and no faith in the system or his own "free" public defender, Sandberg said. But the man's wife provided the key in Sandberg's search for why all the crime: "He doesn't sleep." Sandberg hooked him up with social services for a mental health check. "It turned out he had horrible sleep apnea. He only slept an hour a day. Had been sleep-deprived for years." Prosecutors and a judge listened to Sandberg's case. The man went to prison anyway, but for not much more than a year, plus several years of probation. "He came back into my office, was just thrilled," Sandberg said. "His whole life was turned around. It didn't keep him from being convicted, but it helped him." "It wasn't just me. It was the court and prosecutors, too. There's a little too much emphasis on winning and losing sometimes and not enough emphasis on making sure justice is done."

Anniversary of case

The role of public defenders is worth noting in the 50th year since the U.S. Supreme Court's "Gideon" decision requiring states to provide anyone charged with a felony a lawyer if they can't afford one, said Robin Huseby. She's executive director of the North Dakota Commission on Legal Counsel for Indigents, based in Valley City and put out a news release on it this week. A state agency authorized by the Legislature in 2005, the commission is a system of full-time, salaried public defenders, a new thing in the state.

Although North Dakota since statehood has required that "the indigent" be provided legal counsel, only in the past eight years has that meant salaried, state-employed lawyers not managed by the judges they argue before, Huseby said. Before, public defenders bid on local contracts parceled out by local judges, who also made the assignments in each case. That gave more of an appearance of the courts not being neutral, said Huseby, a former prosecutor in Valley City.

Boom strains defenders

While state coffers are full from oil-related revenue, courts statewide also are seeing "spikes" in case loads, Huseby said. The number of criminal cases filed in the northeast central judicial district — Grand Forks and Nelson counties — last year increased 18 percent, to 3,416. That was more than any other of the seven districts, except the northwest one, which saw an 18.4 percent increase. In actual numbers, the several-county northwest district in the heart of the Oil Patch had many more cases than courts in Grand Forks and Lakota saw: 8,753 last year, compared with 3,416 in the northeast central district. Despite a 22 percent budget increase for her commission for the biennium beginning next month, the demands are outstripping supplies of attorneys who would maybe take the state rate but can't find or afford a home in the Oil Patch, Huseby said.

She's coping by sending attorneys from the eastern part of the state on commutes to Oil Patch courtrooms. Sandberg is one of several from Grand Forks appointed to travel regularly to defend indigent clients in the Oil Patch on a part-time basis. Huseby doesn't have the option of simply turning down the work, she says. Any indigent defendant has a right to an attorney.

Magistrate support

John Thelen, a state judicial referee and magistrate in Grand Forks, worked as a public defender for 25 years under the previous system in which three or four law firms bid for a share of the public defender "business," getting a lump sum to do so many cases each month. "I hate to say it, but there was an incentive for quick and easy disposal of cases," Thelen said. "The job changed for the better when they started having the full-time public defender program." The incentive of the new system leans more to providing good counsel for defendants who need it but can't afford it, he said. "You are not trying to make a profit at your business."

Thelen and Sandberg know from experience that the public usually doesn't express appreciation when a public defender wins a high-profile crime case on their dime. Meanwhile, public defenders don't always get good vibes from their own clients who often figure they are worth what the defendant is paying — zilch — and treat them accordingly, Thelen said. "Being a public defender is a tough job," Thelen said. "The people you are appointed to defend often have been in the system before."

American right

W. Jeremy Davis, dean emeritus of UND's law school, said of public defenders: "In general, these people are to be esteemed. It's not a high-paying area. It's not infrequently not really satisfying. ... It's challenging work." Next month, Davis ends more than a decade of service on the state's Commission on Legal Counsel for Indigents.

The Gideon case handed down in 1963 by the Supreme Court in the case of a poor Florida man forced to represent himself in a burglary case when he was denied a state-provided attorney, applies a basic constitutional right to the local level, according to Davis. "We're obligated to provide for people who are accused by the full power of the state. Don't forget, the only defense this person has is a lawyer and the other side has all the money and the power of the state. We have to be ever-vigilant of the power of the state."