State Public Defender: The Complexities of Criminal Defense

Host:

From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Kimber Russell interviews a public defender on the importance of representing those who cannot afford a lawyer.

Kimber Russell:

We're joined today by Alisha Backus, a 2014 graduate from Barry Law and Deputy Public Defender in Northern Montana. Now, let's start with some basics. As a public defender, you represent people who cannot afford an attorney against the State of Montana. Can you explain the importance of that in our justice system?

Alisha Backus:

It's really important to have a right to counsel for people who are facing criminal charges to keep checks and balances on the entire system. The right to counsel is stemmed from the Sixth Amendment and also through Gideon v. Wainwright. So by allowing people to have the right to an attorney, it helps everyone. We're able to protect everyone's rights through certain challenges and also by keeping the system in check to make sure that prosecutors and the police don't get out of control. And it also helps to kind of level the playing field so people who could hire a private attorney and have a defense, they can go to court with somebody and feel represented and not feel like the system's taking advantage of them, whereas other people may not be able to do that. So the public defender system allows everyone to have a right to counsel so that they don't have to navigate this scary and confusing system alone.

Kimber Russell:

So the right to counsel applies to all felonies, but only some misdemeanors. Can you tell us which misdemeanors does the right to counsel not attach to?

Alisha Backus:

In Montana, the right to counsel would not attach to any misdemeanor offense that does not carry jail time. So for any offense that carries jail time, whether it's a misdemeanor or a felony, you would have a right to an attorney.

Kimber Russell:

Public defender offices really vary from state to state and even from county to county. So tell us how it works in Montana.

Alisha Backus:

So in Montana, our public defender system was created in 2006, and the cases that we currently handle would include misdemeanors and felonies for both juveniles and adult cases. In addition to the criminal matters, we also handle involuntary commitments, and that's when someone may be a danger to themselves or to others and the state's trying to come in and take away their rights by sending them to a hospital or commit them for a reason because they can't be safe. We also handle guardianships. And in the guardianship, we would represent the person who the guardianship is for. In the involuntary commitments, we represent the individual that they're trying to commit.

In addition to that, we also handle dependency and neglect cases, and we would represent either the mother or the father in those cases where the state is trying to come in with Child Protective Services and take the children away from the parents. In those cases, we represent both parties. Each party will get their own attorney, so the mother would be represented by someone, then we would conflict out the father if that's the case. But each person has their own individual attorney in those cases to represent their rights with their children.

Kimber Russell:

Now, you mentioned that this system has only been in place since 2006. What was the system prior to that time?

Alisha Backus:

So prior to 2006, Montana was on a contract system. What would happen is there would be a list of attorneys in the community and in the county that would take criminal cases, and the judge would then go down the list and pick the attorney that got assigned. So when a case came in, the judge would be the one that would assign it out. And they got rid of that system mostly for fairness because what would happen is attorneys would come in and they'd be challenging the system or politics would get into play, and they would be challenging the police or a certain prosecutor. And if someone didn't like it and the judges are elected, then they would stop getting cases or they would stop getting work. So the public defender system made it a little fair across the board.

Kimber Russell:

It sounds like the state of your office is subject to maybe legislative or political whims. So, what impact does that have on your own personal job security?

Alisha Backus:

It impacts a lot of what we do in our office. What happens is the legislator will fund our office, they give us the budget, and then the budget kind of trickles down to each attorney in each region that we're in. So every year, we are asking them for a certain amount of money so that we can handle our cases. And part of the issue is that Montana's growing. There's more people here, and we're getting more cases that we are obligated to defend. And so that's one thing that people don't normally think about is when the cases come in and they're assigned, you have this right to an attorney, our office does not have the right to turn people away. But the problem is the funding doesn't match that. So the continuous going back to the legislator to ask for more money, they think that we're just not managing it appropriately.

What they will do is try to limit that. So recently, they came up with a mitigation plan to try to save money. And part of this mitigation plan required us to put things into place, which meant we stopped spending money for certain evaluations, we stopped getting approval for certain investigations, and in addition to that, they cut our contract attorneys that we were using for overflow. And all of those cases came internally. And there's always this fear in terms of job security that we won't have a job because the legislator thinks that they can save money by getting rid of the Public Defender's Office and perhaps going back to the contract system. So it affects us day to day on the funding we can get, on the money that we can spend, and also just the mere fact of maybe we won't have a job if they think that we're not using the budget appropriately.

Kimber Russell:

So you mentioned that this mitigation plan led to a lot more caseload for individual public defenders. How many cases would a typical public defender be saddled with?

Alisha Backus:

What happened when they took away our overflow was all of the cases would stay in-house. Prior to the mitigation plan, the misdemeanor attorneys would've been handling anywhere from 150 cases to about 200 cases. And when I went and pulled the numbers, again, it looked like they were handling anywhere from 200 to 300 cases at any given time. And the felony attorneys were somewhere between 50 and 60 cases prior to the mitigation plan. And then after the mitigation plan, it's anywhere from 60 to 80. And so part of it is them taking away those attorneys that we were using for overflow, and part of it also could just be it getting busier.

Kimber Russell:

So, how many cases do you work on at a time?

Alisha Backus:

Right now, I have around 70 cases, and they are all felonies.

Kimber Russell:

And what sort of offenses do you deal with?

Alisha Backus:

I will handle anything that's a felony as an original charge. I also handle any type of probation violation or revocation that someone may have, and I also handle juvenile cases. The types of cases that I will see for felonies goes as severe as deliberate homicide. I've got two deliberate homicides right now. We also see thefts. If a theft is over a certain amount in Montana, if it's more than $1,500, it's a felony. We see driving under the influence. A felony in Montana is a fourth offense or greater. I also have a Medicaid fraud case right now. I just had an exploitation of an elderly person. We'll see sexual intercourse without consent. We'll see other domestic-type cases that involve assaults. And then we have another one that comes up from time to time called privacy and communications, which can be a felony if it stacks, but essentially it's using inappropriate, profane, lewd, or lascivious language over an electronic device and that can be a felony as well.

Kimber Russell:

At what point do you first meet your client?

Alisha Backus:

When someone comes into jail on a felony case, they will have an initial appearance in front of a Justice of the Peace in Montana. At that initial appearance, they are not represented by our office, but the judge will advise them of their rights, what they're being charged with, and ask them if they can afford an attorney. If they cannot afford an attorney, it's at that point that the Public Defender's Office is appointed. And what they do as a conditional appointment. The individual still has to fill out an application for our office and meet certain eligibility requirements to qualify for our services.

Once they do their initial appearance, the judge will also determine if there's going to be bail or if they're going to be released on their own recognizance. If they are released, our office will get the appointment and then we will call them to either meet with them over the phone or have them come to our office for an initial meeting. If they are still in jail, once we receive the appointment, we try to go down and talk to them within the first two days that they're in jail.

Kimber Russell:

Is there a level of investigation that you do with each of these cases?

Alisha Backus:

Absolutely. The attorneys in our office do a lot of the investigation themselves, and we also have access to two investigators that will review cases or help with assignments if we need things done. The investigators in our office are available to felony case attorneys. They are not available to misdemeanor attorneys unless they ask special permission. But you have to realize the investigator is shared amongst all the attorneys so most of the time, you're doing the investigation yourself.

Kimber Russell:

How do you prioritize your cases? You have so many different types of cases that you handle. How do you determine which ones you should focus on the most?

Alisha Backus:

Yeah, you absolutely have to learn how to kind of triage, may be the best word for it, kind of like an ER. Unfortunately, some days, you're prioritizing because of court deadlines so you know, "I have to go to court on these cases on this day, what's due on that day? This is what I have to do right now." In other instances, it's kind of a time-sensitive thing. So for example, I recently got a new deliberate homicide case, and I pulled it up and you kind of have to drop everything else and say, "These are the things that need to happen." Because if you don't do certain investigation, it could be gone.

So for example, I knew that there was video surveillance from certain businesses, so you have to immediately get out there and get to those businesses to try to preserve it or obtain the video surveillance because if not, it may be taped over or deleted. In Montana, we have certain deadlines for motions and if you miss the deadline, you could potentially waive some of your client's rights and you run the risk of becoming ineffective at that point. So going through, looking at the court deadlines, the motion deadlines, and also other time-sensitive things that need to happen so that evidence isn't lost is how I prioritize the cases.

Kimber Russell:

Can you give us a little bit more insight into motion practice and how this can impact your client's rights?

Alisha Backus:

It kind of goes on a timeline. The first thing you're going to do is find out, "Is my client in jail or not?" The very first motion that you are going to be looking to file is a bond motion. So if your client's still in jail, we'll file for a hearing and try to get them released from jail. Or, if the best-case scenario is getting a reduction, you could ask for that as well. So sometimes when you have a person who's released, they're not kept in jail, they may be subject to pretrial monitoring. They may have to submit to drug testing. They may have to submit to alcohol testing.

They may also have no-contact orders. A lot of our domestic cases or assault cases, the initial judge who sees them will automatically order a no-contact order. It's very frequent that the victim or whoever the no-contact order is with will call us and say, "I really want to talk to them." So it would be on us to file a motion to modify their conditions of release as well. Beyond that stage, what will happen is you will take a look at all of the discovery that comes in, the evidence that the state provides you, and they have to provide it to you based on your specific state's discovery practice.

The first step is reviewing it for constitutional motions. When you're looking at those, you're looking for constitutional violations, which could be, obviously, any constitutional right that you have, whether it's in Montana, the Montana Constitution, or federally. In Montana, we have what's called an omnibus hearing. At the omnibus hearing, all of those constitutional motions are due. It's a deadline. And if we don't file them by that deadline, then they can say that we've waived that client's rights. So those motions we're looking at, "Did they read them Miranda? Did they violate their Fifth Amendment right?"

Sometimes, we have instances where they violated their Sixth Amendment right. Maybe the person's in jail, we've already been assigned, but the cop goes down and interviews them anyway. That would be another motion that we would file. And for anything that involves a traffic stop, you're looking at it from start to finish to make sure that the procedures were followed. You also have motions when they're searching things. So maybe you're challenging your Fourth Amendment rights to a search in a seizure. We also have another deadline. Typically, here it will be at the pretrial conference. You're looking for more of what I would call evidence motions, motions in limine. And the motions in limine can be for the introduction of evidence or if you're trying to preclude the state from introducing evidence.

Kimber Russell:

So that is an overwhelming amount of motions that you are on a deadline to file, and you have so many to do. So, what's the process for that?

Alisha Backus:

The process will be case by case. When it comes in, you've got to review the discovery. So the first step is identifying that there's a problem. And a lot of times, especially for newer attorneys, what I think of is you're reading something and you think, "Hey, that just doesn't sound right." You may not know what they've done is wrong, but you think there's a problem. For example, it's a bad stop. You see that your client got pulled over, but you don't think they did anything wrong. They weren't speeding, they stopped at the stop signs, but the cop pulls him over anyway. Why did he pull him over? So when you're looking through, you kind of have to identify the issues first.

Once you've identified an issue, we'll go with an easy one, they didn't read your client his Miranda rights and they're in custody. They're giving a confession, now you want to suppress it. You're going to need to state the basis for the motion. So you're going to state that this is a Fifth Amendment violation. You'll need to find the actual statute or code that says that should be suppressed. So you put that right at the top. You'll have your factual basis after that, a summary of what happened. And then following that, you'll make your legal argument.

So the next part of your motion will have all of your cases, and that's where you learn in law school kind of the hierarchy of cases. In Montana, we'll start right out with Montana law because the judges here to see that first. They want to know, "Here's Montana law. Here's why you're right." So you put that in the argument section. If you have anything to kind of bolster it, you want to use whatever your circuit is. So we're in the Ninth Circuit, I would use that next. And then, obviously, the United States Supreme Court, you would put that in there as well.

And then the final part of it would be your conclusion. "This is what I'm asking for. I want you to suppress this." Or, if it's a motion to dismiss, "I want you to dismiss it." Once you've written it and you've filed it, you would need a hearing. If there's any facts in your factual section that are contested, you would have to actually have a hearing to establish those facts. You can't just say them in your motion.

Kimber Russell:

How many of these cases end up actually going to trial?

Alisha Backus:

Well, I think that's different based on every attorney. I'm not afraid to go to trial, so I have quite a few cases that go to trial. I believe that I've had five felony jury trials just this year. So I've had a lot of cases go to trial. Obviously, when I did misdemeanors, more misdemeanors would go to trial than felony cases, largely in part because the consequences are more severe. But there's a lot of times where you just can't come to an agreement, or you have a client who truthfully is innocent and they want to take it all the way to trial because they are not willing to go into court and say that they're guilty.

Kimber Russell:

Now, you had mentioned you are not afraid to go to trial, but it sounds like some attorneys might be more reticent to go to trial. So, what factors do you as a public defender consider when you are determining whether to actually counsel your client to maybe take that plea?

Alisha Backus:

The way that I interpret my ethical obligations and how I should do my job is that that's not my decision. So whether you're afraid to go to trial or not, if you don't want to be in the courtroom, public defense is not for you. But at the end of the day, where I feel we should counsel our client is on the pros and cons and on the risks. And I usually sit with my client and I talk about the risk assessment. And I tell my clients that right in the initial meeting with them that there are certain decisions that they get to make, and one of those decisions is whether or not they're going to take a plea offer and whether or not they're going to go to trial.

So at the end of the day, we can sit there and we can talk and we can say, "It's a good deal. It's not a good deal. Maybe it's going to get better. Here's the risk." If they decide that they want to go to trial, I don't feel that it's my place to tell them no. So if they want to go to trial, we go to trial. And I've seen people who I've told not to go to trial, go to trial, and end up winning. And I've seen people who I've told, "This is a good case, you should try it," go to trial and lose. So it's really hard to determine what a jury's going to do, but ultimately, it's their decision.

Kimber Russell:

Now, in your pre-interview with us, you had told our producers that you don't think there's any kind of cases that you would be unwilling to take. Were you always so sure of this?

Alisha Backus:

Personally, I wasn't. My boss had asked me that question in my original interview with the office, and I was always kind of skeptical about taking domestic violence cases. I have a hard time wrapping my brain around that initially. And the reason was was that I had personally experienced the effects of being a victim, and I had also seen through my mother her experience being a victim as well. And I always thought it might be really hard for me to switch roles to represent the person that's accused of domestic violence.

Kimber Russell:

So having this history, does that help or hinder you when you have to approach defending people who might be charged with those kinds of offenses?

Alisha Backus:

Honestly, I think it helps. And part of the reason that it helps is for other areas that people may not think about. Even though I'm representing the accused at that stage, you still have to talk to everybody else. And I have found that being able to connect with a victim in a case can make a big difference. If I have to interview a victim, I found that they will open up to me more because they can just tell that you understand. The way you treat them, the way you ask them questions, it helps for you to get more reliable answers when you're doing an interview. Ultimately, everyone is searching for and seeking the truth so being able to understand that aspect and get a reliable, accurate interview with a victim helps because you're looking for the truth and it's not necessarily a way to help your client or help get the charges dropped.

But even sometimes having bad information is good because it puts it in the right lane. So, for example, if you get some information that's just really hard for your client to hear, but it's the truth, I can take that information that you got from a victim and sit down with my client and say, "The victim's saying this, saying this happened," and get their response whether it's true or not. And it also helps because there's a certain part of negotiations that are going to take place with the victim. The prosecutor's not going to come out and make an offer to you that the victim's not on board with. So being able to interview and talk with people, especially in some very difficult cases where you have to interview the mom of an individual who's dead, or you have to interview a six-year-old girl who is the victim of a sexual assault, being able to talk to those people and understand how they're feeling in that moment really helps.

In another area that people don't think about, it also helps connecting with my clients. A lot of times, my clients have been the victims as well, and you see this kind of cycle of violence where they originally were the victims and then they turn around and start doing those same behaviors that were done to them to other people. It's actually really helped me on a more human level to connect to people than I would've ever thought because of the way that I was treated and navigating that system. It wasn't a good experience for me. I didn't have a very good experience with the law enforcement. I didn't have a very good experience with the prosecutors.

Actually, I was one of the people that ended up going back and saying, "I don't want to deal with you guys anymore." I didn't press charges. I dropped to the order of protection. I dropped all the no-contact orders just because of the way I was treated as a victim. So being able to treat people differently from that helps me in all aspects of my job.

Kimber Russell:

In the short time that you've been practicing, you have faced so many different challenges. You've seen so many different types of clients and have handled so many different types of offenses, and you're still doing this. So at the end of the day, what keeps you going? What keeps you motivated to stay a public defender?

Alisha Backus:

Well, I had always wanted to do the work that I'm doing. I actually started when I was still in high school. I played softball for an attorney who worked with the Illinois Innocence Project. And at the time, I didn't know that I would end up here, but I was fascinated with innocence projects, serial killers, all the cool stuff that you see on TV. And I never really found anything else that took me away from wanting to go to law school. When I got to law school, I learned a little bit about other types of attorneys. The criminal defense and the drama of it always led me back to the same place. Plus, a lot of times, we were told that you can gain experience, you can do trials, and either being a public defender or a prosecutor's where you start. I never wanted to do anything else.

And as hard as it is, every day, every hour, you live and you breathe the job, whether you're actually sitting at your desk and working on it or if you're sitting at home. They call it compassion fatigue, you're always worrying about somebody. You are living and breathing the worst day of somebody's life every day that you're working. And so for me, what kind of gets me up and gets me going is two things.

First, it's the people. I love being able to treat somebody like a human being. And my mom taught me best that we can go in and we can treat people like human beings no matter what has happened. And the amount of empathy that I am able to give people keeps me going because when they sit down with you for the first time, they don't pick you, and you have to earn their trust every day. They're not out there hiring you. So I can't imagine what it's like to sit across from the table with somebody you've never met who says, "I'm going to help you out."

Obviously, there's a horrible reputation for public defenders, and one of the things is the people. I want to change that. I want to be able to have people come in and say, "This attorney talked to me like a human being. This attorney helped me. She was smart. She fought for me, and she never stopped." And so being able to treat some people that most of the world would rather just discard, or forget about, put them in a jail cell and pretend that they're not there, I'm able to talk to them as a human being, represent them, and help them out when nobody else would want to do that.

And the other big part of it for me is kind of on a bigger scale. I like to see change, especially here in the state of Montana. We don't have all of the law decided like in some bigger states, so we're able to get together and we're able to push issues and we're able to try to see change. And maybe I'll do this every day until I burn out, which probably will happen someday. But if I could even help one person or change one law, change one practice so that it helps the next person, that's what does it for me.

Host:

I Am The Law as a LawHub production. Don't forget to subscribe and rate this show on your favorite podcast app.