RALEIGH — Spend a few minutes talking to Pete Clary and it’s easy to picture this criminal defense attorney who calls the constitution “a pretty neat thing” using his legal knowledge, charm, and wit to persuade a jury to see a case from his client’s point of view.
Clary is also a staunch advocate of his role in the justice system and of the 13 lawyers he supervises as head of the 2-year-old Forsyth County Public Defender Office. He’s convinced that legal representation by a public defender’s office, which he likens to a specialized law firm, results in high-quality service to indigent clients.
To begin with, he said recently, he hired some of the best lawyers around. Then, because of the volume of cases they defend, they get even better at their job, becoming criminal defense experts. There’s no doubt his office has gotten plenty of practice. Between July 1, 2003 and June 30, 2004, the Forsyth office disposed of 5,460 cases involving indigent clients.
The creation of Clary’s Winston-Salem office, one of 13 around the state, is among the main accomplishments touted by the state’s Office of Indigent Defense Services, the agency created by the General Assembly in 2001 to improve North Carolina’s administration of lawyer services for those who qualify for state-appointed defense counsel. A 14th office, serving Wake County, is scheduled to open in July. Some offices handle cases in just one county while others are responsible for multiple counties. If a public defender isn’t available or there’s a conflict of interest, the case is farmed out to a private lawyer.
The heart of IDS’s mandate is to improve the quality of defense services, control spending, and collect and analyze data. Yet, nearly four years into the office’s work, the fundamental determining factor for indigent services remains unclear. IDS administrators haven’t set a definite standard for judges to use in deciding exactly who is and who isn’t entitled to a state-supplied defense. Currently, a criminal defendant completes an “affidavit of indigency” that asks for monthly income and expenses, and assets and liabilities. The form notes the information “may be verified,” that false answers “could lead to prosecution for perjury,” and that if one is convicted or pleads guilty, the sentence may include repaying the cost.
From the information supplied, judges decide who is too poor to pay. IDS Assistant Director Danielle Carman isn’t convinced a hard-and-fast rule is needed, but said IDS plans to look at developing a flexible formula that still allows judicial discretion. “Our commission is not convinced it’s going to really save money. We think that probably the practice is probably working approximately as it should out there. But we do need to look at it and we plan to look at it,” Carman said.
IDS should have taken that step long ago, according to Peg Dorer, director of the North Carolina Conference of District Attorneys. She used to hear stories about defendants who would game the system for a lawyer and then drive away in a luxury car. “As IDS, I think they would have defined what indigent actually is,” she said. Although she hasn’t heard talk lately, Dorer doesn’t think the problem has been solved. “People got tired of talking about it,” she said.
An IDS rule could affect the state’s financial obligation for indigent services. For several years, demand has been growing, as have total costs, Carman said. More people are being found indigent even though non-traffic criminal filings in district and superior court declined slightly over the past four years. In fiscal 2003-2004, 767,483 cases were filed — down from 774,795 in fiscal 2001-2002. Yet despite the drop, the percentage of defendants deemed indigent jumped from 34.9 percent to 38.3 percent. “There’s really no way for us to avoid increases (in costs) when it (demand) is increasing,” Carman said. “What we hope is that our spending can increase less than that, because we do think it’s very important that we’re fiscally responsible with the funds.”
Carman said that in the seven years before IDS was created, the average growth in state spending on indigent defense services was more than 11 percent per year. Under IDS management, the rate of growth slowed initially but is on the rise again. During fiscal 2001-2002, spending grew by just 1.36 percent over the previous year. Spending for fiscal 2002-2003 was 4.63 percent above 2001-2002, but fiscal 2003-2004 saw a 7.7 percent jump over the previous year.
While Clary’s stellar assessment of his staff may be accurate, around the state prosecutors haven’t seen much difference during IDS’s tenure, Dorer said. She thinks IDS has focused too much on issues related to appellate cases and capital cases in which a defendant could face the death penalty. The result, she said, is new positions and standards in those areas, but limited impact overall. “They have an obligation to better handle the bulk of the cases,” Dorer said.
IDS services cost the state $80,404,993 in fiscal 2003-2004. That figure includes: nearly $16 million for cases in the public defender offices; nearly $52 million for cases assigned to private counsel; just over $1 million for the Office of the Appellate Defender; $1.1 million for the Office of the Capital Defender; $845,000 for involuntary commitment cases at mental health hospitals; $5.6 million for expert witnesses, investigators, transcripts and other services; $580,000 for IDS; and $3.6 million for the Sentencing Services Program.
Carman said IDS is trying to assess why costs are rising again, but the office is stymied by lack of data and inconsistent reporting. She thinks it will be several years before IDS has enough reliable information to accurately predict demand and costs.
Dorer thinks part of the problem involves how private lawyers are paid for cases they handle when a public defender isn’t available. The rate is set — $65 per hour for noncapital cases and $85 per hour for capital cases — but Dorer said IDS isn’t adequately overseeing how many hours the lawyers are billing. “There are some private attorneys that end up making more on a case than a D.A. makes in a year,” she said. Billing practices are inconsistent. Lawyers can break down their bills by the number of experts used, or submit a bill for one lump sum. “You need to know how the money is being spent — to standardize the reporting,” Dorer said.
In fiscal 2003-2004, assigned private counsel handled 68 percent of indigent defense cases. Dorer’s point is illustrated by an IDS report about case and cost data for that year. The number of indigent cases assigned to private counsel is defined as “the number of payments (checks) made by the Administrative Office of the Courts for appointed attorneys.” In contrast, the number of cases listed for public defender offices is “the number of indigent cases disposed of” during the year. Carman acknowledged the difference creates an apples-to-oranges comparison but downplayed the significance because, she said, most cases generate one bill. Some, however, such as capital cases and those involving termination of parental rights, can produce multiple bills over the case’s lifetime.
While Carman believes much has been accomplished on IDS’s watch, she agreed many issues still need attention. “There’s such a competing list of them,” she said.
Donna Martinez is a contributing editor of Carolina Journal.