A conversation on the latest public defense filings

By Melissa Davlin and Seth Ogilvie

On Friday, US District Attorney Wendy Olson and the Department of Justice submitted a copy of its proposed amicus brief to the Idaho Supreme Court on behalf of the federal government. The ACLU of Idaho and the State of Idaho also filed responses last week. Read them here:

US amicus brief draft

Defendants’ response

Appellants’ brief

Over the weekend, we went through the three documents. Here’s what we found.

MELISSA: Let’s start with the proposed amicus brief.

SETH: The brief is flush with implication. In logical terms: If this, then that. It states “The United States has a strong interest in ensuring that all jurisdictions Federal, state, and local fulfill their constitutional obligations to provide counsel to criminal defendants and juveniles facing incarceration who cannot afford attorney.” If the U.S. has an interest, then this brief implies that the constitutional obligation is not met. It doesn’t outright state it isn’t being met that is for the court to infer, but it does make strong implication that it is not.

MELISSA: Out of the gate, the United States challenges the logic behind Judge Samuel Hoagland’s dismissal of the ACLU’s lawsuit, arguing that the decision hamstrings both indigent defendants and courts for future challenges.

To boil that down: The United States is saying people shouldn’t have to wait until denial of their constitutional rights has resulted in a total loss of freedom before they file a challenge.

Remember, Hoagland didn’t dismiss the lawsuit because he feels Idaho has a robust public defense system. Rather, he agreed with the state that the issue wasn’t properly before the court, essentially telling the ACLU to gather examples of post-conviction issues instead of the pre-conviction complaints in Tucker v. State of Idaho.

The US’s blunt assessment: “That was error.” And there’s precedent for this, too: The Court of Appeals of New York recognized pre-conviction claims in 2010.

Between the language and the multiple examples of the Department of Justice stepping in to reform indigent defense systems in other jurisdictions, it’s clear the federal government isn’t screwing around with the Sixth and Fourteenth Amendments.


SETH: The idea of pre-conviction vs. post-conviction was important to the district court. Hoagland noted there had not been any post-conviction process showing harms from the plaintiffs in Tucker v State of Idaho. But the Fourteenth Amendment is far wider-reaching than simply providing a trial lawyer. It says people shall not be denied “life, liberty or property, without due process of law.” The brief points to this broader definition that would include pre-trial detention.

Someone sitting in jail for three months while waiting for trial would have a significant amount of liberty taken from them and would be entitled to a lawyer. Not “merely a lawyer in name only,” or as they continued, defense “that amounted to little more than a meet and plead system,” but an actual advocate. The brief also said post-conviction complaints are “limited to remedying injury caused by a single lawyer’s performance in a single case,” and would not remedy a system that was unconstitutional before even reaching trial.


MELISSA: The issue of pre-trial detention is critical, especially if your court-appointed attorney doesn’t attend your first court appearance where the judge sets bail,as was allegedly the case for plaintiff Tracy Tucker. The ACLU’s case cites Tucker’s three-month detention, when he claims he met with his attorney just three times for a total of 20 minutes. (Two of those meetings, by the way, were at court appearances.) Tucker also alleges he attempted to contact his attorney more than 50 times before his trial.

And while pre-trial detention isn’t uncommon for those who can’t make bail, the brief cites two other cases that demonstrate how defendants who spend time in jail before trial are more likely to receive prison sentences, and are hindered in their ability to prepare their defenses. 


SETH: But Tucker is not the only example cited. The brief looks at several cases from across the country. It sends the message that Idaho is not an island; This plays out nationwide in a larger context.

The issue is currently in the state’s hands, and through legislative action or judicial action, the strong interest of the federal government can be addressed. But if it is not, the federal court system is waiting. To put it in the starkest terms: Hey Idaho, deal with this, or another court might get involved.

The nearest case comes from Washington. Wilbur v. City of Mount Vernon was filed in 2011 as a class action lawsuit and resolved in 2013. The U.S. District Court entirely revised the public defender system in the community, giving exact guideline and deadlines and taking all control out of local hands.

The Idaho Legislature and the Idaho courts have had this issue in front of them for years. It looks like the federal government is getting impatient.

The other complication is the separation of powers. Who can tell whom what to do? The US places responsibility for indigent defense on the state, but Idaho outsources that to the counties. The state legislature sets the policy, but it is the courts who ultimately deal with it.

So who has the authority to act? Hoagland thought the court had a separation of power issue. The United States does not, claiming “Courts are not powerless to compel action by other branches of government in order to remedy a constitutional violation.”

Or in more basic terms, it is actually the court’s job to make sure those other branches of government are acting within the Constitution.


MELISSA: In its filing, the ACLU points to other court cases and the Legislature’s actions on public defense this year chipping away at another argument by the state that the lawsuit targeted the wrong defendants. “(T)he Governor “has direct supervisory authority over those responsible to establish standards for a constitutionally sound public defense system” and the PDC is “specifically saddled with the responsibility of creating rules” to regulate and improve public defense delivery throughout the state,” the filing says. “To the extent there was any serious question regarding this issue, the Governor and Legislature’s recent enactment of House Bill 504 puts it to rest: effective July 1, 2016, the PDC, under I.C. § 19-850, is mandated to promulgate standards for public defense statewide and empowered to enforce them in each county.”

The ACLU’s filing was 74 pages. In contrast, the state submitted a 7 page response, reiterating that the lower court made the right call in dismissing the case. “There is little to be gained by the United States briefing as amicus only an abstract issue that Defendants-Respondents will not dispute,” the brief says.

One final note: Not all of the defendants are listed as being represented by the attorney general’s office. Cally Younger is representing Gov. Otter.  Three members of the public defense commission — Linda Copple Trout, Sara Thomas and William Wellman — are absent from that AG’s group on the latest filing from the state, and the ACLU’s latest brief shows a separate lawyer for Thomas and Wellman.

No word on who  might represent Trout, who replaced Judge Molly Huskey on the PDC. (For what it’s worth, Huskey is no longer listed as a defendant in the ACLU’s latest filing, though she is still listed as being represented by the AG.)

We’ll continue to keep an eye on this.



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