Roughly five dozen people attended a public hearing Sunday afternoon to share their views on whether Douglas County should have a public defender office to handle adult felony cases, and about 25 more watched a livestream of the hearing.
About 15 people spoke in favor of a centralized public defender office for the county, and a few others — including the county’s top prosecutor — spoke against it or expressed uncertainty.
In Kansas, 85% of adults charged with felonies qualify for defense attorneys who are paid by the state. In a handful of Kansas counties, the attorneys who handle these “indigent” defense services work in one regulated public defender office. In others — Douglas County included — there is a panel of private attorneys who accept appointed cases. The attorneys are all paid by the Kansas State Board of Indigents’ Defense Services, or BIDS, and funding comes from the state.
Heather Cessna, executive director of BIDS, said that in fiscal year 2020, it cost an average of $150 more per case for appointed private attorneys than for public defender offices. But even counties that have public defender offices still need appointment panels to handle cases when there are conflicts, co-defendant issues, case overloads and other such problems.
Several people who spoke in favor of a public defender office said they believed it would help prevent systemic inequities based on race, better outcomes for defendants with mental health and substance use conditions, improve defender accountability through data collection, and more.
“If we’re a community that really wants to make an impact on systemic racism; if we’re a community that wants to make an impact on prosecutorial misconduct and police abuse; if we want to make an impact on implicit bias — the best way to make that impact is to have a public defender system, because that is the best check on each and every one of those categories,” said Melody Brannon, Federal Public Defender for the District of Kansas.
One key point that proponents of a public defender office have pushed is for defendants to have representation during their first appearances in court. In most cases, the judge appoints an attorney during that first appearance — hearings where a defendant is formally charged and, if they’re in jail, their bond is set — so there’s no one there to advocate on the defendant’s behalf.
“If you are poor and innocent, you will go to that first appearance alone, with no one to even tell your side of your story to,” said Sam Allison-Natale, the director of Kansas Holistic Defenders. “The judge will not hear from an attorney on your behalf when making the decision of where you’ll sleep that night.”
But Shaye Downing, a Lawrence defense attorney who also serves on the Douglas County Criminal Justice Coordinating Council, said that even among the counties in Kansas that do have public defender offices, only Johnson County has attorneys present for defendants’ first appearances.
Downing also said there are racial disparities everywhere, and that isn’t dependent on whether there is a public defender or private attorneys on a panel.
“I would question the role that’s being taken and the promises that are being made by having one system over the other,” she said.
Douglas County District Attorney Suzanne Valdez said that since she took office in January, she has been “extremely impressed” with the attorneys on the appointments list, including their knowledge of community resources and how to get their clients assistance. She didn’t directly say she’s against a public defender office, but she implied that she thinks the panel system should stand.
She said she and her staff want defense attorneys to be effective so that when someone is convicted in a plea agreement or by a jury, that conviction will stand.
“At the end of the day what I would say is that is our goal — the federal and Kansas constitutional requirements of effective assistance of counsel,” Valdez said. “I’ve seen it; we want it to continue.”
Attorney Greg Robinson said a public defender office alone wasn’t a solution to all problems. He suggested that the county needs something more like the federal system.
“If we want to level the playing field, then every public defender should be paid and compensated the same as the district or county attorneys are being paid; have the same resources to investigators; the same resources to everything that they have to make it a level playing field,” Robinson said. “… In the federal system, if you want to be a lifelong federal defender, you can do so and know that you’re going to be advancing your career, the same as a prosecutor.”
He said if the panel disappears, a “plethora” of experience — attorneys with 15-20 years of dedicated, undercompensated service — would walk out the door. He said they couldn’t be replaced because public defender offices have “revolving doors,” since the pay isn’t where it should be.
Next, the board will digest the feedback and discuss it further at their next meeting, which is Friday, Aug. 13 in Topeka. Ultimately, the decision is BIDS’ to make.