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Douglas County judges highlight concerns about criminal defense proposals

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Two competing proposals on the table aim to improve outcomes for defendants charged with misdemeanors in Douglas County, but they could also bring a slew of new problems. 

Douglas County commissioners on Nov. 3 discussed how to evaluate two proposals — one they received from nonprofit Kansas Holistic Defenders (KHD) in March, and one from a for-profit business called Douglas County Defense Services (DCDS), submitted Oct. 1. Both groups seek to contract with the county to provide criminal defense services for people charged with misdemeanors who cannot pay an attorney and need one appointed for them. 

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Though the judges of Douglas County District Court cannot advocate for any political positions or one proposal over another, they provided an informational memo as the County Commission considers its next steps. 

When defendants need an appointed attorney, the state pays for defense of felony cases; the county pays for defense of misdemeanor cases. The judges note that how those misdemeanor services are paid for is the responsibility of the County Commission, and it’s primarily a political decision. Currently, a panel of independent attorneys contract with the county for misdemeanor defense. They do not come from one institutional defender office. 

Judges are required to appoint attorneys — and in doing so, they assess attorneys’ competence for any given case. The memo says that’s different from a structure where some defendants have access to attorneys who receive funding for a broad suite of services, such as in-house investigators, advocates or social workers. 

Those types of resources are central to the holistic model that KHD has proposed, and they could also be included in the DCDS proposal, should the county agree to cover the cost. 

But it could create disparities if not all defendants have access to attorneys with “Constitutionally equivalent resources,” the judges’ memo states. “Such a structural disparity invites challenges from both a community and legal perspective.” 

Another issue is frequent conflicts that can arise — a single office cannot ethically represent co-defendants, and there are issues when a current or past client is a victim or witness in another case, the memo says. 

“These conflicts are normal and will occur with some frequency. Our hope is that the Commission will thoroughly consider the equity and fairness issues that will inevitably arise.”

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Judges would have to make the call when those problems do occur, and the memo says the commission “should seriously consider” the issue and possibly seek independent legal counsel to advise them. 

The number of attorneys available is another issue the judges note. The panel of attorneys who accept misdemeanor appointments has historically included more than two dozen attorneys at a time, whereas the proposals the commission has received have budgeted for staffs numbering in single digits. 

“The presentations to date of exactly how any office plans to operate within the environment of this district have been generic and, in many instances, reflect a lack of familiarity with local processes,” the memo says. “Comparisons to other districts or to federal models are not persuasive when it comes to evaluating viability here.”

The judges aren’t concerned about attorneys adapting to how Douglas County District Court functions; “We simply encourage the Commission to insist on as much detail as possible so that the viability of the proposal can be properly evaluated.” 

Throughout the process, stakeholders have noted that regardless of what the county ultimately does, it will still be essential to have other attorneys available to handle cases where there are conflicts, or simply when there are too many cases for one office. 

Both proposals on the table exceed the county’s budgets of previous years for misdemeanor defense services. If the county must also pay a significant amount to attorneys outside of the institution it selects, it could strain the budget. In addition, although the county can decide its own contracts, nothing under Kansas law gives the County Commission the authority to tell judges they must appoint certain attorneys. 

The county’s indigent defense work group’s completed report is included in the agenda for the commission’s Wednesday meeting, too. It contains data about case counts over the past few years, plus some recommendations for data to be collected and analyzed — attorneys’ caseloads, outcomes (including racial, ethnic and gender demographics), changes in bond conditions, numbers of continuances and more. 

The report also notes some problems with the current system: “There is no requirement for panel attorneys to learn about alternatives to incarceration, or to engage with community based services. Oversight and accountability falls to the Chief Judge and Court Administrator. Any client concerns about their attorney must be brought to a judge, leading judges to play an oversight role for defense counsel in a way that it does not for prosecutors.” 

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The indigent defense work group included the following: Douglas County Commission Chair Shannon Portillo; Judge Amy Hanley; Judge Stacey Donovan; Sarah Plinsky, County Administrator; Pam Weigand, Director of Criminal Justice Services; Sam Allison-Natale, Kansas Holistic Defenders; Carrie Neis, Douglas County Correctional Facility Reentry Director; Jason Hess, CEO of Heartland RADAC; Josh Seiden, Deputy Douglas County District Attorney; Heather Cessna, BIDS (Board of Indigents’ Defense Services); Brandon Barrett, BIDS; Blake Glover, Defense Bar; Melody Brannon, Federal Defense Panel; Matt Cravens, Data Analyst; and Mike Brouwer, then-Criminal Justice Coordinator. 

The final few pages of the work group’s report contain the judges’ memo, which is attributed to Chief Judge James McCabria. However, he clarified via email: “The memorandum was meant to be a statement on behalf of all of the judges in this judicial district to emphasize that none of the judges, including those who participated on the work group, are taking a position on which approach the County Commission should adopt if it moves away from the current appointment model.”

The Douglas County Commission will meet at 4 p.m. Wednesday for a work session on a restorative justice initiative from the Douglas County district attorney’s office and Building Peace, and again at 5:30 p.m. to discuss indigent defense services, “adaptive reuse” of spaces at the county jail, and more.

Find the full meeting agenda at this link. Find the link to join the meeting via Zoom here. Members of the public can make comment during the meeting in person at the historic courthouse, 1100 Massachusetts St., or via Zoom.

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Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark (at) lawrencekstimes (dot) com or 785-422-6363. Read more of her work for the Times here. Check out her staff bio here.

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Douglas County judges highlight concerns about criminal defense proposals

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Two competing proposals on the table aim to improve outcomes for defendants charged with misdemeanors in Douglas County, but they could also bring a slew of new problems. 

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