Most people today are familiar with the portion of the Miranda warning that advises a person accused of a crime he or she has a right to an attorney and that if one cannot be afforded, an attorney will be appointed. Miranda v. Arizona, 384 U.S. 436, 471-72 (1966). This requirement is one that seems common sense today as it is a right that has been a guarantee since the adoption of the U.S. Constitution and Bill of Rights.

The Sixth Amendment of the Bill of Rights where it states, “[i]n all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.” U.S. Const., VI Amendment. This right is also contained in every State constitution in one form or another, including Utah’s Constitution which provides, “[i]n criminal prosecutions the accused shall have the right to appear and defend in person and by counsel.” Utah Const. Art. I, Sec. 12.

Because this right is so well known today, thanks primarily to its inclusion in the Miranda warning and crime shows, it is hard to imagine that this right was once treated very differently than it is now. This is because the Sixth Amendment does not say anything about a person receiving the assistance of an attorney at the government’s expense. It merely states that a person can have the assistance of counsel—presumably one paid for by the defendant. See U.S. v. Van Duzee, 140 U.S. 169, 175 (1891)(holding that “[t]here is, however, no general obligation on the part of the government to retain counsel for defendants or prisoners.”).

From 1791 when the Bill of Rights was adopted and continuing through to 1932, an indigent person’s right to an appointed attorney was controlled through a hodgepodge of state statutes and court authority. Powell v. Alabama, 287 U.S. 45, 72-73 (1932). This included some states only providing an indigent person an attorney at public expense if the case involved the death penalty. Id. Others would only appoint counsel in “more serious crimes” while others would appoint an attorney in “all criminal prosecutions.” Id. Meaning a poor person’s right to an attorney in a criminal case would change depending on where the case was brought and in many instances that person would not get an attorney appointed.

With the Powell decision of 1932 the United State Supreme Court imposed on all of the States an obligation to appoint an attorney and provide that attorney a reasonable time to meet with the defendant(s) and prepare a defense in death penalty cases. Id. The U.S. Supreme Court in that opinion declined to decide if that right should extend beyond death penalty cases. Id.

Indeed, ten years later, in 1942, the Unites States Supreme Court would expressly refuse to find that the States were bound under the Sixth Amendment to provide attorney’s at public expense to indigent defendants. Betts v. Brady, 316 U.S. 455 (1942). In its decision the Court observed that “in the great majority of the States, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial.” Id. at 471. The Court was particularly concerned that requiring the appointment of counsel in all criminal cases would “impose” upon the States “a requirement without distinction between criminal charges of different magnitude…” Id. at 473. Meaning the Court did not want to require appointment of counsel in all cases, but rather leave to the States which offenses warranted appointment of an attorney (with the exception of death penalty cases).

It would not be until 172 years after the Bill of Rights was adopted that the United States Supreme Court would finally find that the Sixth Amendment does in fact require States to provide an attorney at public expense for criminal defendants in all criminal cases. Gideon v. Wainwright, 372 U.S. 335 (1963). The Court noted that “[t]he assistance of counsel is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lose, justice will not still be done.” Id. at 343 (quoting Johnston v. Zerbst, 304 U.S. 458, 462 (1938)). Based on this changed understanding of counsel as a fundamental right, the United States Supreme Court overturned its earlier decision in Betts and imposed on the States the requirement to appoint counsel to indigent defendants in all criminal matters.

A few years later, Miranda v. Arizona would be decided and the police would now be required, in certain circumstances, to issue the Miranda warning informing the defendant of his or her right to have an attorney appointed at public expense if they could not afford one. Miranda v. Arizona, 384 U.S. 436, 471-72 (1966).

This would seem to be the end of it. Unfortunately, it is not. It merely moved the ball a little down the field.

For decades an issue connected to the right to counsel has continued to smolder and occasionally flare up. That issue is the matter of effective assistance of counsel in the context of public defenders. This is because “[t]he right to counsel includes the right to the effective assistance of counsel” and is deemed “critical to the ability of the adversarial system to produce just results.”  Strickland v. Washington, 466 U.S. 668, 685-86 (1984).

In Utah specifically it has been held that the required appointment of an attorney “is not satisfied by a sham or pretense of an appearance in the record by an attorney who manifests no real concern about the interests of the accused.” Alires v. Turner, 449 P.2d 241, 243 (Utah 1969). Rather, it is only satisfied where the defendant has “the assistance of a competent member of the Bar, who shows a willingness to identify himself with the interests of the defendant and present such defenses as are available to him under the law and consistent with the ethics of the profession.” Id. To that end, a defendant whether hiring an attorney or appointed one by the courts, it constitutionally entitled to an attorney that will zealously represent the interests and rights of the defendant.

The problem that keeps arising however, is not one of the willingness of the public defender to zealously represent his or her client, but rather the ability of the public defender to provide this service due to a lack of pay, heavy case-load, and lack of resources. Where a public defender is given no financial resources to hire experts, private investigators, or paralegals he or she cannot reasonably be expected to be able to provide a thorough and comprehensive defense of many criminal defendants. Likewise, where there are too few public defenders for the number of cases being brought, the public defenders’ case-loads become too much for the attorney to be able to spend sufficient time on each case. Such has been the case in Utah for too long. 

In 2008 the American Civil Liberties Union (ACLU) of Utah began examining the Utah public defender system as it was known that Utah was “one of only two states that provided no state funding for public defender services, and that Utah’s county-by-county approach was funded, at a statewide per capita average, at less than 45% of the nationwide average.” ACLU of Utah, Failing Gideon: Utah’s Flawed County-by-County Public Defender System, i (2011). At the conclusion of that study it was “confirmed that [the] initial concerns were well-founded” as every county that was studied showed “the public defender system fails Gideon in almost every (if not every) respect.” Id. at 7. The study concluded that Utah’s “[p]ublic defenders…appear to be chronically underfunded and overworked” resulting in those attorneys being drastically underpaid and substantially limited in the time they could devote to each case. Id.

Based on the alarming and considerable failures in the Utah public defender scheme to provide adequate legal defenses, the ACLU filed a lawsuit against the State of Utah. Remick v. Utah, Salt Lake County Case No. 160903921; Remick et al v. Utah et al, Utah D. Case No. 2:2016cv00789; M. Price, ACLU Lawsuit: Utah Public Defender System Unconstitutional, KSL.com (June 21, 2016). That lawsuit alleged that “Utah’s public defender system is underfunded, overworked, and fails low-income people accused of crimes…” Id. One of the issues pointed out by the ACLU in its report was that the public defenders were being paid and provided a small fraction of the financial resources being provided to their counterparts in the various county prosecutor’s offices. This was often amounting to only 25-35% of the financial resources dedicated to the prosecutor’s office. Failing Gideon at 7.

This disparity in resources becomes very pronounced in the defense of serious felonies.

One personal experience I will share involved a trial of one of my clients for several counts of child rape. The alleged incidents happened more than ten years earlier. The defendant was in jail almost the entirety of the time he was awaiting trial and therefore was not able to provide much assistance in his own defense. I was able to procure some funds to permit a key witness to travel to Utah to testify on his behalf, but other than that, I did not have any other resources.

When the case finally went to trial I arrived at the courthouse to find two full time county prosecutors, their paralegal, the victim advocate, and a full time police officer all present to prosecute the case. I would later learn that in addition to those five people, another officer was back at the county prosecutor’s office watching the trial live and fact checking the testimony of my witnesses in real time. The prosecutor’s had multiple expert witnesses paid for by the County. Each of the prosecutors, the paralegal, and victim’s advocate were likewise paid by the County. The officer was paid by the City of Logan.

Sitting opposite this well-funded and well-resourced team was…me…and only me. No paralegal, no officers, no advocates, no experts, no funds for exhibits, just me. It was anything but a fair fight. It was nothing short than a miscarriage of justice for a system to force a person to defend a decade old allegation with only a tiny fraction of the resources that would be brought against him.

This is not the only example, but one I think drives the point home. Any typical day in a Cache County court will manifest this inequity even further. The Cache County Prosecutor’s has the resources to staff every courtroom with two full time prosecutors, one or more paralegals, one or more victim’s advocates, and as many officers as necessary for that day’s hearings. By contrast, each courtroom gets a single public defender. If that public defender will pay for a paralegal out of his or her own pocket (which I do), then they may have a paralegal as well. The disparity in resources is pronounced and present every week and in every case.

The ACLU lawsuit was ultimately dismissed. But it did manage to draw some attention to the overall problem and prompted the State to at least make some movement towards improving access to public defenders and getting more resources to public defenders. For example, in 2019 Utah pass the Indigent Defense Act which created a body to assist in overseeing and regulating public defenders. U.C.A. § 78B-22-101 et seq. It provides grant money to assist counties in getting access to funds to pay for public defender services. Id. It also provides a means for the State to collect and review data on case-load and performance of the public defenders in the State. Id.

What it does NOT do is place the public defender system under State control. Rather, that continues to remain with the individual counties. Consequently, whether a particular county’s public defender system is getting access to these additional resources, or whether the increased access to funds is reaching public defenders, varies county-to-county. 2019 Indigent Defense Spending and IDC Grant Funding (available at idc.utah.gov/date-and-reports). For Cache County specifically this had made a difference, albeit far from what is needed.

In 2021 adopted a position recommended by the Indigent Defense Commission of a Managing Public Defender. J. Wilde, Local Attorney Appointed to Novel Public Defender Managerial Position, Herald Journal (Oct. 1, 2021). This is a position employed by and paid by the County as a County employee. That person oversees retention and management of the public defenders for the Cache County District and Juvenile Courts.

While that position is a county employee position that comes with all of the benefits of being an employee (i.e. access to group medical insurance, paid time off, etc.), the remainder of the public defenders in Cache County are all independent contractors. Prior to May 2022 the public defenders in Cache County were generally being paid a flat rate monthly fee of $6,500.00. When Cache County was unable to fill some positions, it finally increased that monthly stipend to $8,500.00. B. Marchant, County Council Approves Raise for Short Staffed Public Defenders Office, Hearld Journal (May 25, 2022). With that increase in funds there are enough public defenders to staff one attorney per courtroom (to the prosecution’s two attorneys) and to have a serious offense/conflict attorney not assigned to any one courtroom.

Under the management of the current Managing Public Defender, Mike McGinnis, there has also been an increase in resources available to the public defenders in Cache County. This includes access to a 24/7 translation service via telephone, a retained private investigator, legal research software, case tracking software, and some money that can be applied to retaining experts.

These improvements that have been taking place since 2019 were badly needed and greatly appreciated. They are however, simply not enough to fill the gap and ensure a complete and zealous defense of all criminal defendants. Indeed, “[p]roviding effective representation requires adequate support resources, such as investigators, paralegals, and access to expert witnesses. This is particularly true for indigent defense providers who do not have the same access to government resources as their prosecutor counterparts.” B. Furst, A Fair Fight, Achieving Indigent Defense Resource Parity, Brennan Center for Justice, 9 (Sep. 9, 2019). Consequently, where the continues to be a striking disparity in resources and pay given to public defender as opposed to the prosecutor’s office, there will continue to be a striking disparity in the respective parties’ ability to effectively present their case.

For instance, most people probably look at $8,500.00 per month as a solid income. This would be true, if that were actually the monthly income of a public defender. But it is not income. It is pay to an independent contractor. As independent contractors all overhead must come out of that money. This includes paying for a paralegal (appx. $2,400.00 per month), paying rent (appx. $1,000.00 per month), paying for supplies (appx. $300.00 per month), and for necessary software above and beyond what is being provided (appx. $75.00 per month). Once the overhead is paid for, the attorney is left with an income of less than $5,000.00 per month before taxes (both the business and the personal taxes).

Compare that to the prosecutor counterpart. A prosecutor in Cache County can expect to earn anywhere from $71,685.00 per year to $101,495.00 per year. These amounts were taken from the most recent job posting from the Cache County Attorney’s office in late 2022. Already the prosecutors are individually making anywhere from $10,000.00 to $40,000.00 more per year than a public defender. Added to that, the prosecutor does not pay any of the overhead. That is all taken care of by the County. The County pays for their offices, their legal assistants, their paralegals, their full-time investigating officer, their supplies, their expert fees, their software, and their continued education requirements. None of that comes out of the prosecutor’s paycheck like it does the public defender. Additionally, they are taxed as an employee, get paid time-off, sick days, FMLA, medical insurance, retirement, and all of the other ancillaries to being employed by the government and none of which are offered to the public defenders.

The point of sharing all of this is not to complain. But rather to help people understand the inequities in our judicial system in Utah and especially in Cache County. Our judicial system is an adversarial system. “The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” U.S. v. Cronic, 466 U.S. 648, 655 (1984). However, this system presupposes each side has relatively equal capabilities in presenting their respective cases to the judge or jury. Where that equality in capability and resources are lacking, To that end, where public defenders are starved of resources while the prosecutor’s office feasts, “a serious risk of injustice infects the trial itself.” Id. Because the resources are still lacking, there continues to be a high risk that the public defenders in Cache County, myself included, will be unable to render effective counsel in some cases.

There is hope that with continued attention drawn to this issue, the gap may be narrowed and perhaps even closed.

In the meantime, the logical question to ask is why any attorney would be a public defender in Cache County given the problems that plague the system? The simple fact is we do it because we are fervent believers in our system of justice. We recognize that if someone doesn’t step up and take on the State, then our adversarial system fails. The innocent get convicted, the guilty get punished well in excess of what they deserve, and the rights of every citizen, guilty or innocent, erode away. We take the constitutional guarantee of a person’s right to effective counsel in every criminal proceeding literally. So while the State and the County may continue to starve us, we push forward with the sole interest of seeing each and every client get the legal representation they are entitled to under the Bill of Rights and Utah Constitution.

It is my sincere hope that we will soon be able to be on equal grounds with the prosecutor’s office when it comes to resources and compensation. Only then, will the people of this State and County finally get the full scope of representation they have been promised under the constitution. Until then, I, like the other public defenders in this County, will continue to do everything in my power to provide effective and competent representation to each client assigned to me.