Technology inundates public defenders

Proliferating video, DNA and computer forensics evidence swamp defense attorneys

By Kevin Featherly
BridgeTower Media Newswires
MINNEAPOLIS, MN — In what a key legislator calls a potential crisis, the House Judiciary and Civil Law Committee on Tuesday heard that Minnesota’s public defenders are awash in — and close to overwhelmed by — the technologies used by crime investigators and prosecutors.

Kevin Kajer, the Board of Public Defense’s chief administrator, told lawmakers last week that proliferating DNA and computer forensics evidence, plus body-cam and squad-car footage, even drones, threaten to further overwhelm Minnesota’s 536 already-stressed assistant public defenders.

“The key is that our caseloads and workload commitments are controlled by outside factors,” Kajer told committee members.

Public defenders — 35 percent of whom are part-timers — are the most frequent users of Minnesota’s court system. They take on 150,000 trial cases a year. They also handle 4,700 appellate files and represent clients in 4,700 parole revocation hearings annually, Kajer said.

Unlike private attorneys, public defenders can’t turn away clients. In its 1993 Dzubiak v Mott ruling, the Minnesota Supreme Court declared that a public defender “is obligated to represent whomever is assigned to her or him, regardless of her or his current caseload or the degree of difficulty the case presents.”

“When our defenders have 15 or 20 clients waiting in the courtroom hallway to meet them and to handle their case, they can’t say, ‘I’m going to take the first 15 of you and the rest of you have to come back tomorrow,’” Kajer said. “We don’t have that luxury.”

The Dzubiak ruling is 26 years old, suggesting that’s nothing new. What is new is a mass adoption of sophisticated technologies by police departments, forensics labs and even private retailers — all of which contain massive amounts of data that must be transferred to, reviewed by and stored at the public defenders’ office, at the expense of both time and budget.

Public defenders are state employees whose starting salary is $55,115 a year, Kajer said. They are each expected to take on the equivalent of 150 felony cases or 400 misdemeanor cases per year. After vacations, holidays and training time, Kajer said, that’s about 12 to 14 working hours per felony case. For misdemeanors, it’s four or five hours, he said.

“I doubt that anyone would hire a private attorney who says I can only spend four hours on it,” Kajer said. “That’s the standard we’re operating under.”

It’s a misnomer, anyway, Kajer said. Part-time public defenders alone spend between 25,000 and 40,000 hours unpaid each year tending to clients, he said.

Case filings are on the rise. In 2015, some 3,939 appellate files were handled by the state public defender’s office. In 2018, there were 4,750. In 2015, the office represented clients at 3,982 parole revocation hearings. In 2018, they were present at 4,702 such hearings, a spike that Kajer said directly reflects rising incarceration rates.

That would be stressful enough in the paper-based world that existed when the public defenders’ current workload standards were adopted back in 1991 — two years before the Dzubiak decision. By 2010, the state’s legislative auditor reviewed public defenders and found them both “challenged” and in need of additional resources.


Video evidence

Since then, proliferating digital video technologies have entered the picture, adding to the crush, Kajer said.

“Imagine you get a call involving two or three squad cars that show up,” Kajer said. “You have three or four or more body cams or more to review.” For a public defender to view all that footage while noting what happened and what was said — and then review that information with the client — easily can eat up every hour the lawyer is supposed to spend on the case.

Video footage also stresses the office’s $88 million annual budget, the committee’s chair, Rep. John Lesch, DFL-St. Paul, noted. Courts require printed transcripts of any videos entered into evidence, he said, and the public defenders’ office must absorb that expense.

Next, throw in DNA and computer forensics evidence, which is expanding at a rate little dreamed of 10 years ago, Kajer said. One new crime lab shared by Anoka, Wright and Sherburne counties alone has four forensic scientists and a $1.7 million budget, he said. It tests virtually everything it can for forensics evidence, Kajer said — everything from rocks thrown at crime scenes to pop bottles left in stolen cars.

Yet Kajer’s office budgets just $400,000 annually for expert witnesses throughout the 10 judicial districts, he said.

“We’re not here to tell you it’s a bad thing,” Kajer said on the use of investigative technology. “I think we are here to tell you there are two sides to this.”

The flood of technology-generated evidence promises only to grow, Chief Public Defender Bill Ward said. “Now we are talking about transferred DNA, mixtures of DNA, new DNA that keeps evolving in different labs that we are expected to keep up on with our limited resources,” he said.

And that, of course, is not nearly the entire picture, both men indicated.

Add in the odd domestic-assault or DWI enforcement sweep that tends to suddenly flood the system with defendants. Next, factor in old-fashioned fingerprint analyses, ballistics and arson reports. Throw in a big spike in child protection, gross misdemeanor and felony case filed over the last three years.

On top of that, place a rising number of clients who are either mentally ill, drug-addicted or both. In sum, it could be seen as a recipe for an unending workplace nightmare.

“We work very diligently to create a safe, positive working environment,” Ward said. “But we cannot stop the crushing caseloads.”


‘Reaching a crisis’

Lesch shares his concern. “I would suggest that we could be reaching a crisis phase,” he said.

Lesch, a practicing attorney, doesn’t yet have data to verify that. But he sees plenty of anecdotal evidence. In court, he said, he often encounters overwhelmed public defenders who feel they can’t do the job they’re supposed to do.
“I see it a lot,” Lesch said, “and it’s not because they are not good attorneys. Many of these public defenders are good attorneys.”

Good enough to work elsewhere. In 2018, Kajer said, 9 percent of the office’s attorneys resigned from their jobs. The year before that, 8 percent of staff attorneys resigned. Many take jobs with other state agencies that offer more bearable working conditions, he said.

It’s not easy to replace them when they go, according to Kajer. He said the last three assistant public defender job openings advertised in the 5th Judicial District were met with no response. The one before that, he said, got five application — four from unqualified candidates.

Lesch sees three ways out of the mess. The state could crack down on eligibility requirements for defendants, reserving public defenders’ services for the truly needy. But courts are likely to balk because of the costs of investigating defendants’ claims of indigence, he said.

The state also could jack up salaries for public defenders. That could cause people to stick around longer, Lesch said.

The third answer — and the one most often discussed, Lesch said — is hiring more public defenders to offset caseloads. With a $1.5 billion projected surplus, that solution might seem within reach.

However, the 23 house finance committees and their attached subcommittees, plus all their senate counterparts, are competing for what legislative leaders say is a $382 million actual surplus — $1.5 billion minus more than $1.1 billion in inflationary effects that are not factored into the state’s official forecast.

Given that, it’s hard to say whether public defenders are a sexy enough subject for the entire Legislature to make a budget priority, Lesch said.

“But that’s why this committee is here,” he said. “Whether it’s going to be sexy or not, it’s our job to get the dirt under our fingernails.”

The state Board of Public Defense is expected to come back to the committee with a budget request sometime in the next few weeks.