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Public Defenseless
487 | Iowa Public Defender Secured a Major Victory for Workload Controls, but will New Tough on Crime Policies Send the System into a Crisis? w/Eric Tindal
01:09:31
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- [00:00]
A
Foreign. Welcome back to Public Defenseless with Hunter Parnell as we explore the rot in the criminal justice system and what we can do about it.
- [00:18]
B
Hello everybody.
- [00:19]
A
Welcome back to another fantastic episode today. I was joined once again by Eric St. Tindall. Eric is a criminal defense lawyer out in the state of Iowa. And what are we talking about today? Well, folks, today is a pretty comprehensive episode about many of the issues facing the Iowa public defender system. We have some good, we have some bad, and we have some pretty terrible. First with the good A part of this episode is about a recent Iowa Supreme Court ruling where the public defenders in Scott County, Iowa, they made a determination that they had excess workload and that they needed to stop taking new appointments. And the question presented to the Iowa Supreme Court was how much deference does a court need to give to the public defender's determination? And the good part of this episode is that the court said those determinations by the public defenders, they should get a lot of deference, should be listening to them when they say they need to go unavailable, marking yet another state where public defenders who have had the courage to stand up against excessive workloads have achieved what I consider a victory. Now the bad the contractor public defender system is facing a pretty large crisis. Eric walks us through the multifactor problem facing the state, but the main driver behind public defenders having to go unavailable due to excess workloads, there not being enough contract counsel available to handle these cases is the ugly part of this episode. And at the end we talk about movements in the Iowa legislature to bring on even more tough on crime measures, things that will increase maximum penalties, that will drive a greater need for jury trials simply because of mandatory minimums, policies that we know do not improve public safety around the country. And yet the state of Iowa is pursuing them without any contemplation for how more carceral policies will put even more stress and burden on an already overstressed and overburdened public defender system. When we take the good, which means public defenders have the capacity to be empowered to do something about excessive workload and we take the ugly. A state that seems uninterested in stopping the demand for public defenders by increasing more mass incarceration policies. Well, I think unfortunately Iowa is on the track that so many other states are where soon you will see a lot of public defender agencies doing what Scott county office had to do. And because there is a shortage of contract attorneys willing to do this job and there is not a clear pipeline to replace those contract counsels, Iowa is getting dangerously close to the type of constitutional crisis that we have seen in Maine, in Massachusetts, in Oregon. And if policymakers do not wake up and listen to the alarm bells being rung by private counsel, by public defenders in the state, well, they might not like how this all turns out. As always, folks, if you're liking the show, like subscribe 5 star rating 5 star review. Feel free to reach out to me on Twitter, Instagram, via email, or on Blue Sky. If you are liking what you're hearing and you would like to contribute to the ongoing cost of production for the Public Defenseless podcast, you can go down below in the show notes to PayPal, Patreon or Stripe, where you can contribute for as little as $5 a month or as much as you feel you can afford to give. As a reminder folks, I take no sponsorship money. I do no advert reads. This show is funded predominantly from the generous contributions of listeners like yourself and out of my own pockets. So if you want to throw me some money while I'm studying for the bar, set up a temporary subscription that gets me through the summer. That'd be great. If not, I understand. But if you go below and subscribe on Patreon today, you will gain access to the video versions of the show. You will get the episodes a day early. And that means you will get to see my adorable co host, my miniature Datsun puppy, Beans, who has once again been scooped up from his mid introduction nap. Folks, you are catching us in a marathon introduction recording. So if Beans looks especially exasperated, it's because he is putting on show after show after show. So if you want to show how much you support Beans and his position on this podcast, I encourage you to go below and subscribe on Patreon today. And now, without anything more from me, let's get to the episode. Eric, welcome back to the Public Defenseless podcast. How are you doing today?
- [05:05]
B
Good. How are you, Hunter?
- [05:06]
A
You know, you know. So Eric, excited to speak with you. Really important Supreme Court decision out of state of Iowa that I think could, you know, really drastically change where things go from here, given some of the issues in the public defender system. But before we jump into all that, remind everybody a little bit kind of, you know, you've been on the show before. So I'll have people go back if they're curious about your background, about who you are. But just remind the people who are not following as closely about kind of the situation of public defense, both on the contractor side and the public defender side in the state of Iowa, just give us a Little bit of a fresher. What's been going on the past couple of years? What have been some of the issues? What have been some of the alarm bells that have been going off?
- [05:44]
B
Sure. So to start with, generally, Iowa has kind of a two part public defense or indigent defense system. And one of those parts is a formal public defender's office which has offices throughout the state of Iowa and has salaried attorneys taking indigent defense cases. When there's conflicts or there's more demand than the public defender's office can meet, then there are a series of what we call contract attorneys, which are attorneys in private practice who sign contracts with the state public defender to take court appointed cases. And those are, contracts are at a reduced hourly rate, typically right around $78 an hour would be your average rate for those cases. And so it's really this blended system that has been under significant pressure really for the last decade. And I, I guess I feel like we're probably moving from the area of indigent defense crisis, which has been the phrase that people have used for the last decade or more. And really here in Iowa, I think we're, we're trending towards an indigent defense collapse.
- [06:56]
A
Yeah. And I think the first place to start is with the contractor side of things because the Supreme Court case could potentially apply to both. But I really want to focus on the contractor side because this appears to be where the really cute issue is. And I think we can start off with it. $78 an hour. That's low. And I want to say that that's low even for the region. If you go and look in South Dakota, North Dakota, some of these other, you look in Minnesota, like the rates are higher for the people who take these conflict cases. So this isn't even just low for the country, which it is, but this is low for the region. Tell us some of the issues that are acute to the contractor system. Some of the places where they're just ain't anybody to do these contracts.
- [07:34]
B
Well, I think it's easy to kind of get stuck in the rate as being the significant cornerstone of the problem. And it is certainly significant. It's not the only problem. But if we, I live in Davenport, which is right on the Mississippi river, and if I go across the bridge and take a court appointed case in Illinois, that rate is $150 an hour. I take federal, I am a CJ lawyer, meaning that I take federal court appointed cases. That rate I think currently is 177 an hour. And in both of those areas, there's a crisis of attorneys being available to take those cases as well. So I think it's easy to get distracted by the hour early rate as the core issue. But it certainly isn't the only one. I think that if we kind of boil down the crisis into three areas, I would start probably first and foremost with law schools and law school graduates. Then I would also look at pay as another issue. And the last area I'd look at is work environment. And if we break those areas down, I think that really the law school crisis started, you know, 15 years ago, 16 years ago with the Great Recession in 08 09, 2010. Pay is something that is catching up to that crisis way too slowly. And then the work environment in general, representing criminal defendants across the spectrum, whether they are able to afford to pay for an attorney or are indigent, it's a difficult work environment. I'm happy to talk about each of those kind of in turn.
- [09:16]
A
Yeah, if you could talk to us a little bit more about especially the first and second one, because I think the pay obviously speaks for itself, especially when you compare the things that other people. If you're going to do contract work, why not do CJ Why not go to one of these other states that are close to population centers? So talk to us a little bit about one in three and how that's contributing to some of the issues you're seeing.
- [09:36]
B
Yeah, absolutely. So here in the state of Iowa in particular, we have two law schools. We have the University of Iowa, which is the state university, Iowa State, which is also a state university, and University of Northern Iowa. Neither have a law school. So the only state law school is University of Iowa. University of Iowa for many years has focused very heavily on being well placed within law school rankings for as long as I can remember. And my father was an attorney, so pretty much my entire life. The University of Iowa has really prided itself on being a high value, high ranked law school within the country. The problem is, is that about 60% of that ranking is based upon job placement. Another 10% is based upon the, I guess the level of student that they accept. So about 70% of the criteria really are contrary or work against filling the crisis that we have, which is there's really no attorneys. So after 2010, especially law school graduate numbers dropped considerably throughout the country. And so although they had been increasing for many years, by 2010 those graduate numbers were down below the number of law school graduates from 1975. And obviously our population is growing. The need is growing. Lawyers are needed in pretty much every corner of our life, whether that's for personal injury or contracts or wills or divorces. And so those decreased numbers over time just continue to compound themselves. And when we look at that in the context of public defense or indigent defense, one lawyer probably handles anywhere from certainly 200 to maybe a thousand cases a year or more, if you're an indigent defense contract attorney. And over time, when lawyers retire, lawyers pass away, Lawyers move from being practitioners to judges or in other capacities, and those positions aren't replaced, then it doesn't take very long in a given county or district where suddenly you need to place hundreds of cases and there's no additional lawyers to take them. And so over the last decade and a half, law schools have contributed to that problem, especially in the state of Iowa, because they have not graduated a high percentage of students who stay in the state of Iowa and practice, particularly in rural areas or small firms. And in it, kind of compounding that, which feeds into the pay issue, is the cost of law school has outpaced the rate of inflation pretty considerably. When I graduated from Iowa law school in 1999, I think my tuition per semester was like, $3,300, so about $7,000 a year. You laugh?
- [12:54]
A
Yeah, I do.
- [12:56]
B
My. My daughter is looking at going to law school this year, and so I've been looking at tuition recently, and now the University of Iowa is about $35,000 a year for tuition.
- [13:06]
A
That's what I figured it was going to be. It's. Yeah, checks out.
- [13:11]
B
Yeah. So then, you know, you kind of do the math on that, and the math really isn't math. And for lawyers to stay in small practices where, on average, you know, initial salaries are going to be 60, 65, $70,000 a year, you know, and if $2,000 a month is heading out the door to pay your student loans, it just doesn't work very well.
- [13:31]
A
Yeah. And I think just briefly here, because, you know, law school and the lack of lawyers going into the public defenders thing is a crisis around. Around the country. Right. This is a problem that we talk about workloads whenever we talk about it. I think a lot of people who always hit the, yeah, man, we should be able to go unavailable. We should use unavailability as a tool to, you know, point out that we're not funded properly. But I think a lot of people reach the conclusion, like, even if we get the funding, there's not enough people to fill this. Which raises a real, like, deep, deep Philosophical problem that can only be solved, I think, at a societal wide level. How are we going to produce more lawyers to meet our needs? Right. This is not something that one individual in any state is going to be able to solve. Legislatures, judiciary, law schools. We really need to actually take this and structure it in a manner to get lawyers where we need them to go. Because clearly the way we are doing this is just not meeting the demand that we need in so many critical areas. Let's move to the work environment. Obviously, we know that, like, just doing this is hard, but you know, when you're a contract lawyer, especially going into small rural jurisdictions, that can be especially difficult to practice because you're on your own normally you have your office to fall back on. You have maybe a defense bar who can come and bat with you and you can kind of commiserate. But when you're on your own in. I'm not going to say every rural jurisdiction is a hostile environment for contract public defenders, but I'm going to say a lot of them are. Talk to us a little bit about that.
- [15:00]
B
Sure. So here in Iowa, we have 99 counties and. And I don't remember how many judicial districts we have like 12 or something like that. I primarily practice in three of those judicial districts and probably about 25 of the 99 counties. And with 99 counties, you get 99 different systems. And even within the same jurors, the same judicial district, you would think there would be some consistency in practice, and there really isn't. And so when I look at work environment, I kind of put it into different categories. One of those areas is dealing with the prosecutors. Right. As a practical matter, we have gone from a system of trials to a system of pleasure. And in the counties where you can have very reasonable, good faith discussions on plea negotiations and working out cases and alternative resolutions, those counties have less of an indigent defense crisis than counties where the county attorney's office doesn't negotiate well, can actually be hostile, can be difficult. Some of the most difficult counties I practice in, the prosecutors don't really take their obligations to the overall system very seriously. They just kind of walk through prosecutions without regard to whether or not they really think they can prove their case beyond a reasonable doubt. So county attorney's offices make a difference. And so if you look at three of the most hurting counties in terms of indigent defense, which I would has largely been Scott County, Blackhawk county and Monona county, two of those are very big counties, Blackhawk and Scott, one is not a Big county. But those work environments are dramatically affected by not only the county attorney's office, but the courts. There are courts that are more hostile than others, courts that are more difficult to get things like court appointed experts, for example, courts that require us to appear for really kind of nothing hearings as opposed to doing them remotely or by zoom. And so when I have to travel for an hour and a half to a particular court just to show up for a pretrial, to get a new date to get it continued, well, there's three hours on the road that I can't get back for a five minute proceeding. Mm. So. And then environment includes the clients. And honestly, you know, I, I spend as much time dealing with clients, families and clients themselves and particularly if they're incarcerated, they take more time and often we are blamed for other people's choices. And you know, when you, you work in that kind of environment, it can be exhausting, especially if you're new to it and you're getting yelled at for things that clearly aren't your fault. That can be exhausting and you have to develop a particular shell to be able to do that work. But all of that filters into work environment and not to mention the hours that it takes, you know, to do this job.
- [18:21]
A
Well, yeah, I think especially to the other players in the legal system, the prosecutors and the judges. I think I'm not going to speak for every criminal defense lawyer out in the world, but I think criminal defense lawyers would have a much easier time if, you know, we were losing 50, 50 balls, like actual genual factual disputes that could go either way. We, I think people can live with that. I think where it starts to break down is when we see city attorneys, state attorneys, prosecutors, whatever, they go by just not following the law. And then the judge is being completely complicit in not following the law and not applying the rules consistently. And then we are left with this just we have to play ball with these two people because they hold the life of our clients in their hands. And then we turn around and our clients are pissed at us because they're not following the law and we have to eat that shit. And it's just really, I think it's, you know, I don't know how else to say more clearly is like if prosecutors and judges could just consistently apply the law, they would take off so much pressure that just doesn't need to be there. It. Because then we would have less pressure when certain hearings that just go counter to everything legal to deal with, with our client because we tell Our client, hey, man, here's the rule of evidence. You know, there's really no way out of this. And then bam, we just ignore the rule of evidence. Those kinds of things make representation at an individual level very difficult because then it seems like, well, your client, you tell, your client tells you, oh, well, you told me this was going to happen. I was like, well, the judge just decided not to follow the law today. This is the same kind of problem with law schools. We can fix this. We can. Like, this is not an intractable problem that can't be solved, but it does require some level of accountability to the people with more power in the system than us to actually solve it. So we kind of lay all this stuff out. To be very clear, then where does that leave this? You mentioned three counties in particular. But more broadly, how short do you have a sense of how short there are on people taking these contracts? Some people weren't willing to do the private side of indigent representation throughout the state of Iowa. How bad is this issue becoming for the state?
- [20:28]
B
Sure. So I can speak generally with some numbers. There's approximately 47,000 claims filed with the public defender every year from contract attorneys. Now, some of those claims may involve the same defendants. So it's not exactly an apples to apples thing to say that there are 47,000 cases necessarily, but there's a huge quantity in the contract attorneys. Just looking at the criminal defense, not looking at juvenile court, which has its own shortages or appellate level or post conviction. There are 310 total attorneys, contract attorneys across the state of Iowa. If we eliminate certain high density population areas, particularly Johnson, Lynn county corridor, kind of Des Moines and the surrounding area, that number actually drops to about 248 contract attorneys. And so I think it's important also to emphasize that in Iowa, out of those 99 counties, the vast majority are very rural. And we have growing areas of what we would generally call as legal deserts because there's not more than one attorney for x thousand of people. And so this is really growing from an indigent defense crisis into an access to justice crisis across the board. Because although the initial real shock to this system is coming from criminal defense, we are now seeing it in the areas of, we're seeing it in personal injury, workers compensation, essentially all areas where individuals who need legal help go to get that legal help. And so, you know, those, those are the kinds of numbers we're dealing with. In my office, we have five attorneys. We're a little bit unique in that we're, we're A true firm. We're not an association of attorneys. We're a true firm, true small firm, and all we do is criminal offense. We're a little bit of a unicorn in that regard. There are a number of attorneys who are only do criminal defense, but many are in solo practice. And that creates real difficulties in and of itself because, for example, you know, my schedule is a Jenga puzzle. Every week we're trying to figure out which attorney can go cover which pretrials where when you're in solo practice, you know, it's just not that easily done. And so you have to limit the number of cases you do and the geography you cover as a result.
- [23:10]
A
Yeah. So, you know, I know you said that the 47,000 aren't individual cases per se, and those 310 aren't necessarily spread out around the state. So these aren't perfect numbers. But I do want people to just consider kind of. Let's. Let's pretend for a moment that that number is, you know, relatively close to being the number of actual cases that's out there. That means that if everybody is taking all those cases, which we know they're not, that that would be evenly distributed, distributed to have everybody having more than a hundred cases. These people, because of the hourly rate they are paid, have to take other cases too. They have to, like, there's just no way that they can keep the lights on if all they are doing is taking that many cases at the rate that they are compensated at. So we know that their workloads are actually higher than just the ones that they are taking. So these people are being spread incredibly thin. Incredibly thin. You know, this number is nowhere near sufficient if we are thinking about things like the National Public Defender workload study, about what people should or shouldn't be doing, you know, these ballparks that we have, people are going to be running over that. And all of this is now without talking about what is actually going on in Davenport, because that's the public defender side of things. So. Yeah, you mentioned the Davenport. Real acute issue here in Scott County. Tell us a little bit about what the issue was and how we get into a position where public defenders are having to say, I don't know, Judge, we might not be able to do much more here.
- [24:36]
B
Yeah. So I. I think maybe we need to take one step back and go back into a little bit of history for Scott County. Scott county is a very unique area to practice. They call it the state of Scott, and they call it the state of Scott for a reason. It tends to run on Scott county rules.
- [24:54]
A
I want to just take one, one quick pause here. It is universal that in every single state, the jurisdiction that does this shit is always referred to exactly like that. The state of whatever it is, it is. I love how ubiquitous it is. Doesn't matter if it's the west, east, south, Midwest, wherever the county is just doing whatever the hell they want, that's exactly how it's referred to. So I think everybody's going to know exactly what kind of jurisdiction you're talking about.
- [25:19]
B
Well, and let me just say from the start, from the top. I love Scott County. I love practicing in Scott County. I love the people in Scott County. I love the judges in Scott County. They have grown a lot from my perspective over the last half decade or so. So I should say that from the start, just so I don't get myself in too deep a water county I live in. But the, the Scott county has been very protective of its own bar for many, many years. And so it was the last county to allow a public defender's office to come into the county, or last major population area to allow a public defender's office to come into the county primarily because they wanted to protect their contract attorneys. And as a result of that, they had developed a number of rules. And in my opinion, this is where these rules developed. They made it difficult for out of county attorneys to come in and practice because they had a number of pre trial regimens that were intensive and time intensive. When I really, really got deep into the indigent defense crisis was in about 2021, when a local attorney who handled a lot of court appointed cases was unable to practice anymore. Um, and overnight they had to find 80 felony cases to place. Um, and the public defender's office approach was to email people and say, hey, we have this case or that case, could you take it? And after a couple weeks of this, Andrea Yeager, my law partner, I decided that this was never going to work. So we put together about 15 attorneys that we knew, called in some favors and said, hey, will you take five cases? And so basically between Friday and Monday we placed 81 cases for the county. And that's when it really dawned on me how much trouble we were really in because the loss of one attorney could rock an entire large population based county. Since that time they have worked on their procedures, they have worked on. The county attorney's office has become much less, there's a lot, much less animosity, much less adversarial in the system. It doesn't mean there's not still work to do. But this is kind of the genesis of the. The public defender case you're talking about. That came down in January of this year, which the. The gist of it was public defender's office was down about three positions. The Scott county docket is enormous because although Davenport itself isn't very large, it's part of a quad cities area that is between Iowa and Illinois, which has a population base of about 1.3 million people. And so there are thousands of cases that come out of Scott County, 80% of whom are indigent. And so the public defender's office filed a motion to withdraw because they have work overload. And simultaneously there were or are no contract attorneys available currently. And as it's been for many years, the only attorneys on the class C felony, class D felony list are Andrea Yeager, myself, another associate of ours, and another attorney who, you know, takes a fair number of cases and just real
- [29:01]
A
quick clarify class C and D felonies in Iowa. Is that a high level, low level, mid level. Where does that fall for y'? All?
- [29:07]
B
Sure. We have four levels of felony. A, B, C and D. A being the highest. A is a life sentence, b being 25 years, c being 10 years, d being 5 years. We thankfully still have an indeterminate sentencing system. We don't have guidelines, so. But C and D are kind of the lower level felonies, but by their very nature, they're the most common felonies.
- [29:30]
A
Yep. That's why I wanted to clarify that. Yeah, okay.
- [29:33]
B
Yeah. Huge numbers of C and D felonies. So then the court started denying the public defender's motion to withdraw on the basis of work overload without further evidence. And this Supreme Court case was born. And so it was really a tension between the state public defender and the local public defender's office and the courts and the courts trying to deal with the indigent defense crisis it was faced with.
- [30:05]
A
So let's start then. Just very basically, you know, we obviously get up to the Supreme Court until we get to the supreme Court. What are lower courts saying about the public offenders ability to engage in this type of withdrawal due to workloads?
- [30:21]
B
Historically, I, you know, the. There wasn't much dispute, you know, if they. And I'm talking not just Scott county, but across the board, if a public defender's office filed to withdraw for any reason, conflict, work overload, whatever it was granted and other attorneys were appointed. As the indigent defense crisis has grown, there's been increasing tension about that. And Scott county was really, I suspect that there it was really the what a lot of judges across the state were starting to think about. But since Scott county was kind of the first to do it, everybody was waiting to see what happened. And so it's really the first time that I can recall in my quarter century of practice that a court had denied that kind of motion and basically people were left unrepresented.
- [31:22]
A
So then we get up to the Supreme Court and let's be very clear here, who is asking for what, what are, what relief are we seeking and then we'll get into what the court actually holds.
- [31:33]
B
Well, I think what it comes down to is how much, how much does the court have to allow the public defender to determine when it's work overload is reached without evidence? In other words, who makes to get, who gets to make that decision? Does the court make that decision? What's the court's oversight role in that decision? And how much does the public defender's office get to control that determination? I think that's really the, the core issue at its heart.
- [32:08]
A
Yeah. And I think the reason why this issue is, it should be fascinating for people around the country is because there are people, I think, who have very clear statutory authority to withdraw. I think there's very clear ethical authority to withdraw to. I don't think you actually need statutory to withdraw, but we could put that aside for a second. There's a lot of states that do have, I think a similar statutory regime to Iowa that grants this like it is a thing that public offenders can do. That's not dispute. So it often comes down to this very question that you're asking is what role can the judge do here? Right. We have covered on the show what's been going on in the state of. I almost said the state of San Francisco. Look at what I did in San Francisco, where a judge has basically just ignored the evidence provided by the public defender and said that that's not good enough. So that this is the next question, the next logical question is once you get the power to do it, once you say you can do it, how much deference do we have to give? And this is why I think this could be a very powerful, persuasive piece of law for people to point to around the country. Because here we have a rare opportunity where the public defenders have the power that they should have, which is to be the ones who ultimately make this determination. Tell us how the court reached this decision.
- [33:22]
B
Well, I think our Supreme Court is fairly practical minded these days and that can be good and bad. But I think in this particular case, the ultimate determination was that the public defender's office should be given great deference to its determination that it can't do another case because of work overload. And I think it created that opinion in part from just a core understanding of. Part of the Supreme Court's job is not only to make sure there's actual justice, but the appearance of justice. If, if people get a just result, but it's given in an unjust way, that just result can be lost. And so if a public defender's office is forced to take cases or, or keep cases that it doesn't believe it can handle in a competent, productive way, that's not good for anyone. I think that the thing that wasn't really decided was how much evidence necessarily needs to be presented to reach that threshold. But I think the ultimate result of the ruling was not that much. If this office says it can't do it, it can't do it, and the court doesn't really have the authority to dispute that.
- [34:59]
A
And let's look at. I think these are not quite one to one comparisons, but I find them to be relatively similar. All right, prosecutor stands up and says, judge, we need to dismiss this case for a lack of a witness. This happens all the time. You go into your courtroom any day, if you've never been in a courtroom, go and watch just your normal court docket, and you will hear a prosecutor stand up almost inevitably and say, judge, we are moving to dismiss for lack of prosecution. The prosecutor does not have to provide any evidence that there is no witness. The judge is just going to say, yeah, well, you obviously know your case better than I do. You know your witnesses better than I do. As an, an officer, as an officer of the court, I am going to take what you say at word. And yeah, we're going to, I'm going to, I'm going to grant your motion to dismiss because obviously you're in the best position to know this. Nobody's in a better position to know our workloads than public defenders. There's not a single person. So for a public defender to say, judge, I can't go on in this case because I have too many cases, it shouldn't require that much. If we take the ethical obligation as officers of the court to not make misrepresentations to the court, if an officer of the court comes up and says, judge, I can't do this anymore, I don't think the judge should need to see much. But we know that's not what happens when it comes to withdrawal for defense lawyers. When it comes to refusing more cases, judges often demand quite a bit because of the necessary implications of what might come from people saying no.
- [36:27]
B
Yeah, I mean, I think that that environment, going back to work environment to a certain degree, is across the board as. As criminal defense attorneys, especially those of us doing indigenous defense. You don't get to pick your clients. Right. I get an order appointing me to a case. I. I didn't ask for that case. I didn't ask. You know, I don't. I don't know who this person is. We don't have a prior relationship. I mean, sometimes that comes up, but pretty rarely. And so we don't pick our clients. And then the pressure is always on us. It seems to be ready to go to trial sooner than, rather than later. There's delay in the case. It seems like we're always the one who are holding the bag. Even if the state had delayed providing us discovery for four or five, six months, whatever it may be. So there is a disproportionate amount of pressure on us to resolve cases. Right. Just recently, I had a court refuse to recall a warrant because, you know, previously you had asked for more time for plea negotiation. So I'm not gonna. I'm gonna deny recalling the warrant. If you file a written plea or a dismissal, then I'll recall the warrant. And my reaction to that was, that's crazy. You're putting your thumb on the scale, putting pressure on one side but not the other to resolve the case. And if this is what we're going to do, then everybody who's involved in plea negotiation should be required to show up to every hearing, including every law enforcement officer and every complaining witness, because often the state says they need to talk to those people to resolve. I guess that's a long way of saying that there is a disproportionate amount of concern on our side of the courtroom in resolving cases when the other side of the courtroom has absolute and total authority to manage their docket however they want. They can dismiss cases they want. They can plead things down however they want. They have disproportionate amounts of power. I don't know that you ever remedy that. I think the. The best way to deal with that is just to continuously make courts and others aware of what they're doing, because I don't think they're necessarily aware that that's what's happening.
- [38:54]
A
And I think that this is where some of the onus has to fall on public defenders and criminal defense lawyers. Right. Because, you know, part of the reason why judges get into this mind state that our job is to just process cases is because in a lot of places, we. That's what. That's what the culture becomes because of our workloads. Because public defenders and private defense lawyers, whoever's taking the cases, don't stand up and say, actually, you know what, judge, I can't take any more. Judges have a false sense of what we can do. Judges have a false impression of what's going on and that they do get perturbed when all of a sudden, oh, well, you must not just know how it works here, because the last 17 years I've been on this bench, the public defenders have just taken the cases when they've been assigned. And we saw that again, to go back to San Francisco, there was a lot of alluding to by the city, by the city, by the judges that like, oh, well, this is just what we do here. Right. Your workloads can't be bad because they used to be higher at some point in time. And this will always be, you know, the first person to break the cycle to say that workloads are too high. They are going to run into this criticism. But that shouldn't be a deterrent from us to do it, because as soon as we start establishing this pattern, it's not going to be an issue. In places that have long had a culture of saying, no, it's not an issue. The judges just recognize that this is something that we can do, but you have to overcome the inertia, the status quo that is baked into a legal system where a bunch of the actors say, well, we've just always done it this way. It can't be illegal, Eric. We've always done it this way. That's something that everybody has seen and heard, which is why it's so important. And shout out to the public defenders in Davenport who have. Who have broken this chain, because that is. That takes courage to do that. So shout out to them for doing it. It looked like you had something there you wanted to add on to my comment before we move on.
- [40:43]
B
Yeah, I just want to say the other area that I think we society, we need to work on is we need to work on more people within the system representing clients at some point in their career.
- [40:53]
A
Oh, yeah. Oh, yeah.
- [40:56]
B
You know, too many prosecutors have been lifetime career prosecutors. And not that there's anything wrong with that, but there is a difference. I mean, they've never represented a client. They don't have a concept of what it's like to represent clients, much like, I don't know that I have a great concept for what it's like to communicate with complaining witnesses and their families and they deal with that kind of pressure. But you know, I've got a lot better sense of it than they do on the other, other end. And by extension of that, how many prosecutors become judges? I don't know what the percentage is of judges that are former prosecutors, as opposed to former criminal defense attorneys or even, you know, in, in private practice for, you know, plaintiffs lawyers, but it's not great. The percentage is not great. So you're dealing with a judiciary that has often not represented clients and, and that just unintentionally creates a system in which the, the, the deciders can't relate.
- [41:59]
A
Yeah.
- [42:00]
B
And that's a problem.
- [42:01]
A
Yep. So we get the ruling favorable for the public defender. They have disability, a lot of deference given all great things. And now what is the consequences been? How has this played out in this jurisdiction? Are you hearing seeing things around the state that might indicate other people, like just tell us how far sweeping this decision has been or the fallout from it to this point?
- [42:24]
B
You know, I can't say that I have much more than anecdotal evidence on this. And that anecdotal evidence is that to this day there's still a huge problem in the misdemeanor courts because one of the things that occurred as part of all this was that the public defender's office, while this was pending, took away its designation to be appointed to misdemeanors, which it has the sole authority to do. So there are literally hundreds of misdemeanants who are eligible for court appointing counsel who don't have one. Attorneys such as myself who are swamped in felony land can't really go take dozens of misdemeanor cases. So that's still an ongoing issue. But simultaneously, the public defender's office has become fully staffed. Some of the lawyers have left the public defender's office, gone into private practice and taken court appointed cases. So there's been some easing of the particular tension, at least in the short term, of that doesn't mean there still aren't huge problems. In addition, though, I would say the court system in general has evolved to be more workable with indigent defense lawyers across the board. I just think at least in Scott county, people are working better together than they have been, say five, six, seven, eight years ago. That isn't necessarily true across the board. Throughout Iowa. But in Scott county, there's been a lot of growth.
- [44:07]
A
Okay. So now I want to take a little bit of a step back because we see that this crisis in Scott county could become something that happens in other counties. Right. The, the. All of the formula that has happened here exists in other places. And Iowa could be on the path of, say, a Maine, in Oregon, where there are hundreds, thousands of people going unrepresented. Nobody wants that. In that environment, we would hope that the legislature kind of sees what's going on and goes, okay, maybe we don't need to pass another tough on crime bill. Maybe we don't need to give more money to police and prosecutors. Maybe we need to come up with alternatives because our legal system is just breaking under the pressure of criminalization. Unfortunately, that legislature does not exist in the state of Iowa. Eric, what is going on from the legislative side that is seeming to not draw the connection that I just laid out? That we have a public defender crisis and our criminal legal system is breaking under the pressure, and that's because we are criminalizing basically everything.
- [45:15]
B
Yeah. So here in the state of Iowa, there are a lot of political difficulties that have not improved over the years. Obviously, Iowa has a long history of being a purple state. You know, we were in Obama state, but we have trended towards being more conservative over time. And currently there's not a lot to campaign about in Iowa. You know, you can't look at economics as a great boon. I mean, we have negative GDP here in the state of Iowa. Can't look at employment. There's just not a lot of positives to run on. So when you don't have a lot of positives to run on, you run on fear and being hard on crime. And so our state legislature, particularly the house, has passed a series of very wise measures, including habitual offender bill. That's going to be a nightmare. It scores basically every aggravated misdemeanor and every felony, regardless of whether it's a crime of violence or not. That will result in the state tripling or quadrupling its prison population over the next 25 years. The cost of that from the department of Corrections alone is anticipated to be $8.4 billion with an annual cost of maintenance of half a billion dollars. They've passed a bail provision bill that is specifically intended to keep more people in jail on a pretrial basis. That will create huge problems for sheriffs across the counties who are. Jails are already bursting at the steams. Here in Scott county, currently we have 85 individuals who are housed in out of county jails because we don't have the space here in Scott County. And importantly, more than half of them are housed out of state. They're housed in Wisconsin and Illinois. And so those are Scott county tax dollars that are leaving the state, never to return. And then, you know, there's just been some other pressures, increased mandatory minimums on things like being a prohibited or, excuse me, a felon in possession of a firearm. They've created some mandatory minimums and increased mandatory minimums in other areas. Circling back to where I started, that habitual offender bill. If you score three points, it's a mandatory 20 years in prison. And it's just insane.
- [47:41]
A
So let's, let's break each one of those down just real quick because, you know, I think for the legal listener of the show, the lawyer, they probably understand what kind of pressures are created by these bills and there is intuition to it. But I really want to talk about the specifics of how you go about strategically operating differently that puts more demands on you as an individual person, as a lawyer, when you have somebody who's up against this new habitual offender law, like how is that going to change the calculus, your strategy and the time that is necessary to deal with these cases?
- [48:12]
B
So, you know, the easiest way to describe that is that every conviction is going to matter a lot more. So, for example, there are a number of status crimes that are aggravated misdemeanors. So a status crime is not necessarily based upon any particular act. It's you have a certain status, so you get charged with it. So driving while barred, you lost your license for some reason and maybe you had three speeding tickets in a year and then you got caught a couple times for driving while suspended. Because believe it or not, we don't have a great public transit system here in the state of Iowa. So. So driving while barred's pretty easy to get to. That scores under the habitual offender system. So that's a half point. So if it's the third, the person's third point, then I'm going to have to try that case because I can't agree to a driving while bar that's going to create a 20 year mandatory minimum. So just anecdotally, let's say you're 21 years old, you get in a fight at a bar, you leave, you're intoxicated and you have a little weed in the car. Well, that's an owi and that's a possession of marijuana. The possession of marijuana is going to score then 10 years later you get another OWI. Well, that's going to score another half point. And then all of a sudden, if you had marijuana in the car that time, that's another half point. So then you got your driving while barred coming up, and that's going to be two and a half points. Well, I'm going to have to try that case. Right. I can't in a case that I would normally agree to a fine on. Right. Because it's not hard to prove. Were you driving where you barred? I'm going to try that case because I can't afford the half point. And not only am I going to have to try that driving while barred, I'm going to have to try try the next 15 or 20 because the only way I'm going to be able to make a difference is by overwhelming the county attorney's office to get them to dismiss those cases outright or dump them down to something that's not going to score. And that's a calculation we just don't have to do right now. And that's a calculation that, for example, many rural counties only have X amount of trial dates because they only have a judge one day a week. They only have so many trial dates, usually one per month. So they have 13 trial dates in Washington County, Iowa, small county south of Iowa City. If I'm filling up half of those with driving while barred, you know, what do you think they're going to do? Like, what are they going to do with the first degree robbery or the second degree sexual abuse? Right. So this whole thing is cascading for no beneficial effect on public safety. It's just pure. We want to be hard on crime, prove we're tougher than anybody else. I mean, this is just a schoolyard analysis that doesn't work and dramatically and negatively impacts the state of Iowa.
- [51:17]
A
Yeah. And you know, the, some of the people who are going to be getting this are public defenders and they're going to be overwhelmed in a similar situation. You know, when your trial rate goes up, the total number of cases you can handle in a year goes down because the number of working hours now greater in individual cases than not. So you are, you are decreasing the, the capacity that public defenders and the other people who take these cases on the private side, you're decreasing their capacity by increasing the amount of trials that have to go. And it, and this is one of the most frustrating things in the world because every defense lawyer is probably saying this in the state and nobody is listening to them. And then five to ten years from now when defense lawyers are withdrawing from cases or there are no defense lawyers to take these cases and they are pointing to this fact, everyone's going to go well why didn't you tell us? And because we know this is how these three strike habitual offenders laws have played out. The parts that you didn't touch on that I think are important to remember for everybody is this creates a large like over time this increases the geriatric population in prisons and those people have exceptionally high costs for their health care to keep them alive, which we have an obligation to do. So that like that doc, like the reason why it's so big is because even if they're doing an under projection on the amount of people who are becoming gray in prison, that cost is just going to explode. Right? Because we can't predict what the actual health care costs are going to be five, ten years from now. We don't know. But we know they're going to be real, real high because there's people who are just dying in prison. And all of this sets a state up to start sucking from other fields. This is why I've been saying this more and more episodes. But even if you're not like a criminal justice is your number one thing. The criminal legal system will eventually come for your budget because DOC is just going to keep getting more and more and more and the police are going to keep getting more and more and more and eventually to fill in for the completely predictable failings of these policies, they're going to have to start going into education, they're going to have to start going into health care, they're going to have to start going into infrastructure and all the things you might care about more, they will be impacted by bills like this.
- [53:29]
B
Well and all for no corresponding.
- [53:31]
A
Yep.
- [53:32]
B
Safety benefit because the, the each person that goes in with a 20 year mandatory minimum, somebody with not a mandatory minimum is going to have to come out. So that means that those people are going to be coming out with fewer access to rehabilitative services, fewer access to treatment, fewer access, so they're more likely to recidivate. And, and so this is just a self fulfilling prophecy where we're going to be increasing our prison population by people with mandatory minimums, most of whom don't need to be there that long. And we've already done this experiment, we did this experiment in 1986 with the Federal sentencing guidelines. And the difference between the federal government and the state government is the federal government can print its own money to pay for those increased costs. State Governments are stuck. And so, you know, if there was a corresponding safety benefit, you know, it'd be worth a discussion. But there's just not. In fact, it's the reverse.
- [54:26]
A
And so you look around the country, you look at places like Louisiana, Mississippi, Texas, Florida, states that are doing this stuff and have continued to do this stuff, and they, across the board, have higher rates of crime than the states like Massachusetts or New Jersey that are moving away from these things. It's it. You feel like a crazy person sometimes because the data is really clear on this, and yet we're just going to keep doing it again and again and again. There's two other questions I had before. We just talk briefly about the in custody part. You said driving while barred. We have talked a lot about fines and fees and court fines and fees in the state of Iowa. Can a person who has unpaid fines and fees be barred from accessing their driver's license? Is that. Do you know if that's related?
- [55:16]
B
Well, yes and no. So if you fail to pay fines or fees, your license can be suspended. It doesn't automatically put you into bar status. Okay. Barred status comes if you pick up two driving under suspension. So there's a number of ways to get there. So, yeah, I will say Iowa has done an okay job with establishing payment plans through county attorney's offices that are at reasonable, relatively reasonable levels to kind of undo that. If you enter a payment plan with the county attorney's office, usually for 20 or 50 bucks a month, then they will lift the license sanction. So that's good. The problem in that regard isn't necessarily the services that you could work your way out of it. I'm not going to say it's not a problem because for many people, $50 a month is sizable. But. But there are solutions. The bigger difficulty is educating people that that's available so that they can help dig themselves out. Because a lot of times people will get to that Bard status before they even knew there was a solution to avoid it. And so. So, yeah, fines and fees do matter, but there are some paths out for people here.
- [56:30]
A
It's not as automatic as some other states. And the only reason why I brought this up is because I just want to, like, paint a story that I don't think is crazy or hypothetical, but that, like, a real person could end up in this. You are charged with a crime in the state of Iowa. You get a public defender, you are acquitted of that crime at a jury trial. You are then imposed all of the cost of representation for that Public defender for a case that you were found not guilty of, you cannot pay that fine because you are indigent. Obviously, that's why you got a public defender. And then what happens? Get your license suspended? Well, as you said, Eric, public transportation is not really an option. So you can spend my life in all you want, but in order for me to feed my children, keep a roof over my head, do anything, engage in life, I have to drive. So I, I can't pay the fine, I can't pay the fee. I pick up a suspension, I pick up another suspension, and boom, here I am right there. And this entire time I have not actually committed a crime.
- [57:29]
B
Yeah. That is not an unforeseeable set of
- [57:33]
A
circumstances that I can say that out loud and that just be the state of the law. Assuming that the legislature reimposes these public defender fines and fees, which by everything that I can see, it appears that they are going to. Folks, there is a world where the government can falsely accuse you of a crime and you can pick up a strike towards a mandatory 20 year sentence because the government wrongfully accused you of a crime. That is ludicrous. There is no other way to say that that can't, that has to strike at a sense of justice, regardless of your political affiliation. Like there is just something deeply wrong with that.
- [58:10]
B
Well, to bring this back kind of full circle to where we were earlier in the podcast here, if the county attorney had to pay the costs of the court appointed attorney for the cases that they lost.
- [58:22]
A
Oh, yeah.
- [58:23]
B
The problem is, is that the, there is no, there's not a lot to lose for the state. Right. They lose, they lose some pride, you know, whatever, but they don't really have an actual cost. So, you know, my feeling is, is that if, if defendants acquitted this, the county attorney should actually have to pay for the cost of the indigent defense to help kind of balance out the negotiation a little bit. The problem with mandatory minimums, the problem with three strikes, all those things is they, they give the side that has complete control of its own caseload more and more leverage to negotiate cases. And on the other side, we have less and less.
- [59:05]
A
Yeah, yeah. So the last place that I want to end with, again, this I think is obvious for people, but especially if there are unique parts about people who are in custody. You're talking about bail, more people being detained pretrial. We know that this creates a special burden on criminal defense lawyers and public defenders in the same way that, you know, more trials does. But tell us about some of the Things that you are anticipating seeing and how that will impact your ability to take more cases from the court because you have more clients that are now in custody.
- [59:34]
B
Well, let's just start from the base level here. First, everybody who's charged with crime is presumed innocent. And when you're presumed innocent, you should rarely lose your freedom based upon the charge alone. Second, the concept of cash bail or money bail is just silly. There is no corresponding impact between having higher cash bales and public safety. A person's either dangerous or they're not. And no amount of bail is going to make the public safer from the individuals who have the money to post the bail. And it's only likely to have negative, dramatic effects on indigent people. So it's just kind of offensive at the get go to create a system that by its very nature is intended to keep people and jail on a pretrial basis for longer. We also know that people who are in custody on a pretrial basis have worse outcomes. That's just statistically been proven over and over again. In part, that's because the state's leverage is even higher when they're in custody. So they'll plead to things that they wouldn't have ordinarily pled to or didn't do just to get out of custody. In part, it's because they lose the structures of their lives like jobs and homes while they're in custody. So all of that then by extension creates additional pressures on the indigent defense system. Because in custody people require more time and require it faster than out of custody people. It's just as simple as that. I have to travel up to two hours away, two and a half hours away to some jails to see my clients. And I always want to see them in person as opposed to over the zoom or over zoom or over phone for a lot of different reasons. They are tend to generate more calls, not just from them, but from their family members. And they also are unable to access services that may mitigate and ultimately lead to better resolutions in the case. Because while they're in jail, they're not employed, they're not taking drug treatment, they're not showing that they can be productive in the community. All of this means that the more people that are in custody, the fewer cases I can handle because I have to. They're more intensive, both in terms of time and in terms of speed or the necessity to get to them faster and get to a resolution faster. So it's a system that's flawed or a change in the system that's flawed from the very get go and will only enhance the indigent defense crisis.
- [62:17]
A
Yeah. So you take those two together, habitual offender, you're taking the bail. You know, I don't want to say reform, but regression if you will. What do you anticipate, you know, in the next year, two, three years? Where does this public defender crisis, this collapse that you have said, where does it go from here? What are you expecting? Are you thinking it's going to kind of stay where it is right now? Or do you expect this to kind of have some exponential growth if things are not remedy soon?
- [62:49]
B
So my, my dad is kind of is 80 years old. He's still practicing, he's still taking court appointed cases. And he's not alone. That generation, the generation that graduated from law school in the early 70s, many of whom are still practicing, but they're, they're at the end, obviously, you know, there's not a lot of years left and, and most of them are in rural counties. We need to make immediate adjustments now to get people into those counties. And there's been some, a lot of talk about that over the last four or five years, but there has been an absence of action. And I don't think this legislative year is going to be the year where we get the action we need. But here in the state of Iowa, things are shifting a little bit. I think that we may be back to electing people to government who believe in government. And so I think over the next few years we need to look at ways, inexpensive ways, frankly, that we may be able to address some of the problems. For example, giving private practitioners in small counties access to the state's health system. Right. And medical insurance is incredibly expensive. And if you're in a small practice, it's hard to provide staff or attorneys health insurance within your office. Giving access in exchange for indigent defense is one of those things. It's probably not going to cost the state much more money. It can be a huge benefit to local communities. Loan forgiveness, student loan forgiveness, you know, that's something that we need to get the word out in Iowa. Here in Iowa, we were able to get the federal government to agree that if you did 30 hours a week of indigent defense contract work, then you would qualify for student loan forgiveness. It's massive. So it's not just public defenders, it's contract attorneys as well. But so many lawyers don't know that or don't know about it. So things like that, we've, we've got to do that now because there are some cases that are getting dismissed in the state of Iowa right now for lack of a criminal defense attorney, mostly misdemeanors at this point, but that's going to spread. It's going to be an increasing problem, and we're. We're really running out of time to do anything about it.
- [65:12]
A
Yeah. And, you know, doing this show has probably made my pessimism worse. I hope that Iowa bucks the trend of being a state that addresses this before it becomes a genuine hundreds, thousands of people, unrepresented cases getting dismissed left and right. And like, everybody kind of point the finger like, you can solve this, because if you, if you wait until then, then that is a situation where the judiciary has a case and they can't offer the solution to this, and the legislature's out of session, so they gotta wait, maybe call an emergency session. Well, isn't there something more important we gotta deal with right now? After all, with all that's going on, like, it always becomes a moment where it's never the right time until it's too late, and then you got a crisis, and then what are you gonna do when there's 2,000, 3,000, 4,000 people unrepresented, when, oh, the newspapers start writing about all the cases that are getting dismissed? Oh, that's when it's going to be too late. And unfortunately, from what I've seen around the country, it often takes that level of issue, so. Eric, last shot thoughts?
- [66:16]
B
Yeah, I want to really leave people with a positive message, I guess, and maybe some guidance of what people can do individually. There's a lot of individual practitioners. I think one of the things you got to do is join organizations and be willing to admit what you. You don't know and that you could use help with Iowa association for justice, the Iowa State Bar association, there's organizations that are really working to kind of help people not feel alone. And so in iaj, for example, we. We really work to provide some support systems to people in individual practice. So, you know, go out, join organizations, do what you can to bring this message not just to the courts or to opponents in the courtroom, but talk to your friends, family, get people to understand that this is a system that needs them as well. And. And the last thing I'd say is don't be afraid to fight. Fight this stuff out. Don't give up. You know, the joy is in the struggle. And so, although, you know, now is a really difficult time of struggle, if we can get through this and, and improve our system and improve our criminal justice system. There's a lot to take from that and we should take a lot of pride in that. So, you know, I'd like to just leave people with a positive message, I guess.
- [67:36]
A
I love that change of pace on the show. More positivity, Eric. I appreciate that. Where can people contact you, learn more, read more, write more, anything you'd like to direct people to if they want to learn more about this or ask you any questions?
- [67:48]
B
Yeah, sure. So I'm kind of readily available. People can always email me at erickeganlegal.com K E E G A N L e g a l.com Eric with a C IAJ is a great resource. I do a lot of public speaking. You know, I think that any, any questions, any concerns? I'm always here to try to help not just individuals in their individual system situation, but the system as a whole. So, you know, I think we can all, all do this better together than individually, so.
- [68:23]
A
Absolutely. Well, thank you so much, Eric, and hope to hear from you soon.
- [68:27]
B
All right, thank you, Hunter.
- [68:28]
A
Thanks again everybody for tuning in today. If you like today's episode and you're liking the show, please remember to, like, subscribe, leave a rating, leave a review, and share with anyone who you might think is interested in learning more about our rotten criminal legal system. If you would like to contact me with any questions, concerns, feedback or potential guest recommendations, you can go to publicdefenselessmail.com and shoot me an email. You can also find more about the show at publicdefenseless.com or on Instagram at Public Defenseless Podcast or on Twitter at P. Defenseless Pod. As always, folks, thank you again for your support. If you have the means to do so, it would be great if you could go down to the Show Notes, go to Patreon and subscribe for as little as $5 a month where you can get access to the show at day early and the video versions of the show. Again, thank you all so much for the support and hope to see you soon.