ANNAPOLIS – The Maryland Office of the Public Defender is so bogged down with cases it would have to hire more than 300 attorneys just to meet the American Bar Association’s minimum standard.
The number of cases handled by the office since 1994 has increased by 38 percent, according to the state’s public defender’s office. An increased number of arrests, crowded dockets and plea bargaining have all contributed to the dramatic rise in cases, much of which derive from Baltimore.
The situation has gotten so desperate, as of the spring, Baltimore’s public defender’s office has refused to take anymore cases. Maryland’s Public Defender, Stephen Harris, capped open cases per attorney at 60.
The average Maryland public defender can only dedicate eight minutes a day per case, according to Harris.
“It was very apparent to me we couldn’t give a constitutional level of representation,” Harris said of his decision to cap caseloads in Baltimore, which accounts for almost 47 percent of the state’s public defender cases.
The situation is similar in many parts of the country, said Norman Lefstein, professor and former dean of the Indiana University School of Law in Indianapolis.
“What (overload) really does is risk the conviction of innocent people,” Lefstein said. “What courts have given as a constitutional right, states are giving away by the absence of adequate funding.”
Despite the caseload increase, the OPD has received no new personnel in more than five years.
The ABA standard recommends no attorney handle more than 400 district court cases a year. For this fiscal year, Baltimore defenders were handling 730.
Rural counties, too, are suffering.
Defenders on Maryland’s lower shore handled 1,361 district court cases last fiscal year and exceeded the ABA guidelines.
Maryland juvenile cases also lack attention. The ABA suggests attorneys handle no more than 200 juvenile cases a year.
Last fiscal year, public defenders in Howard and Carroll counties averaged 635 cases each.
“Juveniles really get the short end of the stick because (their cases) are in excess all over the state,” said Cindy Boersma, the state’s OPD counsel for finance and policy.
Delegate Joan Cadden, D-Anne Arundel, chairwoman of the House Public Safety and Administration Subcommittee, said her panel is very supportive of public defenders. However there’s little it can do to help because the General Assembly may only cut the governor’s recommended budget, not add.
It’s a matter of equity, Cadden said, since Gov. Parris Glendening’s administration increased salaries for the Attorney General’s Office.
“They’re in the same case, the same courtroom just on different sides of the case,” Cadden said. “Gov. Glendening – I’ve said this often – public safety was just not a top priority in this administration.”
Harris also wants to address, “salary parity.”
“We argue the same cases in the appellate court and you have one lawyer sitting at one end of the table being paid two grades higher than the lawyer at the other end,” Harris said.
The difference in pay negatively affects retention rates in the OPD, he said.
“We have lost experienced lawyers not just to the private sector. We’ve lost quite a few to the Attorney General’s Office and I can’t blame them. They’re doing the same work for (better pay),” Harris said.
Of the 43 states where the ABA has collected assigned counsel rates, Maryland ranks 41st. The federal standard rate for in-court and out-of-court is $90 an hour. In Maryland the rate is $35 for in-court and $30 for out-of-court.
New York, ranked below Maryland, is facing a lawsuit brought on behalf of the New York County Lawyers Association. The case is in the appeals process, but according to David Carroll, research and evaluation director for the defender division of the National Legal Aid Defense, it looks like New York’s assigned counsel rates will meet the federal standard.
Defenders hope Gov.-elect Robert Ehrlich will be more sympathetic to their cause. At a meeting of Cadden’s subcommittee Tuesday, Ehrlich’s surprise appearance interrupted a presentation by OPD representatives.
At Cadden’s prompting, Ehrlich assured public defenders that he was aware of their plight. After all, he started his law career clerking for Harris.
“You forget, I married a public defender,” he said of his wife, Kendel, who served in the Maryland OPD from 1990 to 1995, and who was also hired by Harris.
Through a three-year phase-in plan, the OPD is requesting a total of 212 new employees including secretaries, social workers, investigators and law clerks.
With the state facing a $1.2 billion deficit next fiscal year, Harris doesn’t expect to receive any extra funding. In fact, he expects to have to fight to keep the funds he has.
Boersma is also staying realistic. “I’m hopeful, but always with hedges,” she said, “because as we speak, the governor and governor-elect are talking cost-containment proposals.”