WINCHESTER — Noting that caseloads for public defenders have actually gotten smaller in recent years, state prosecutors in Clark and Madison counties asked a judge Monday to block defense attorneys' bid to withdraw from a case.
The Department of Public Advocacy has been assigned to represent Chester and Elizabeth Ayers, a couple indicted on drug charges. State public defenders are refusing to accept their cases because the lawyers represent a third defendant, which they say creates a conflict of interest.
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In years past, DPA spent up to $1.5 million to hire private attorneys to represent other defendants in 3,000 to 5,000 such cases. But DPA says it can't afford them anymore because of the $2.3 million budget cut recently passed by the General Assembly.
Prosecutors from the commonwealth's attorney's office for Clark and Madison counties were skeptical of those claims at a hearing Monday.
In the last fiscal year, which ended June 30, the eight public defenders in the Richmond office represented 523 cases each. Three years earlier their caseload was at 570, Assistant Commonwealth's Attorney Jennifer Hall said.
”I think that is quite telling,“ Hall said. ”At that point, there was no ethical mandate for refusal of cases.“
Indeed, the average caseload for public defenders has dropped steadily in the last decade as more attorneys have been hired. The average caseload was 436 in fiscal year 2007. Ten years earlier it was 517, according to DPA figures.
Monday's hearing is the latest development since public defenders began withdrawing from certain types of cases on July 1, when their budget was cut to $37.8 million.
Public Advocate Ernie Lewis testified that caseloads probably were unethically high in fiscal 2005, the year Hall had referenced. But what has changed since then was a 2006 American Bar Association ethics opinion that says public defenders — and their supervisors — can be disciplined for carrying excessive caseloads.
The opinion is not binding on the Kentucky Bar Association, Lewis said. But he asked the state bar for an opinion earlier this year, and said that it ”closely tracked“ the ABA opinion.
Lewis testified that the agency is 30 positions over budget. If attrition doesn't lead to a smaller work force, Lewis said he will be forced to lay off lawyers and support staff.
Hiring private lawyers would only lead to more layoffs, Lewis said.
DPA asked Senior Judge Julia Adams to order the state finance cabinet to pay for private lawyers. It is asking to bill the expenses out of a fund designated for ”necessary governmental expenses.“
The finance cabinet has said DPA should spend the rest of its budget before approaching the cabinet for more money.
Seven judges thus far have ordered the state finance cabinet to pay for private lawyers in cases where public defenders have withdrawn, Lewis said.
Lewis noted repeatedly that the state is constitutionally required to provide lawyers for poor criminal defendants.
The state ”simply cannot arrest people and ask public defenders to take on an unlimited number of cases,“ Lewis said.
On June 2 DPA ran out of funds for the fiscal year and stopped paying bills. That put it $745,000 in the red at the start of this fiscal year, which started July 1.
Hall, a former public defender, said public defenders from other offices should handle conflict-of-interest cases. Asking the state finance cabinet to chip in is ”extreme and unnecessary,“ she said.
Lewis said it's not practical for public defenders from other offices to accept conflict cases because of the travel time involved with commuting between rural communities.