Both sides share concerns as Douglas County prepares to consider new model for public defense

photo by: Douglas County

Concerns were expressed on both sides Wednesday as Douglas County leaders discussed the county’s current system for handling public defense for people who are accused of crimes and cannot afford attorneys.

As part of its meeting Wednesday, the Douglas County Commission received a report from the Indigent Defense Services Work Group that included some concerns about the current system, which uses a panel of local attorneys who are assigned to cases. The commission also heard concerns from two judges about the county’s consideration of moving away from that system. The work group has been meeting over the last several months to discuss issues around indigent services for both misdemeanor and felony cases.

The report from the work group includes several concerns with the current panel system, including a lack of organization, transparency and accountability. The report notes the county’s investments in pretrial reviews, alternatives to incarceration, diversion and post-adjudication services, and that there is a strong desire to ensure clients have support to engage in those services. The report states there is no structure for panel attorneys to collaborate with service providers, or to report data about the services provided and the outcome of cases.

But some took issue with that. Former Judge Paula Martin, who retired two years ago after serving as a district court judge for 25 years, said in part that data wasn’t collected because it was never requested, and she didn’t think the panel should be penalized for that.

“I am not here to say that the panel as it has existed is the best; I’m here to say that what we all want, or what I think we all want, is the best representation that indigent defendants can receive,” Martin said.

The work group was formed in March, after a new nonprofit attorney group, Kansas Holistic Defenders, proposed that it help provide indigent defense for misdemeanors under a different model that would offer broader, holistic support to those accused of crimes. KHD requested $425,000 in county funding for 2022 to provide another option in addition to the existing panel. The county recently received another proposal to provide a similar service from a different attorney group, Douglas County Defense Services. DCDS includes some attorneys who have served on the panel and some who have criticized KHD’s proposal.

Martin questioned the experience of KHD and said that data regarding the panel could be collected. She said she had agreed to serve on the board of DCDS, and she said DCDS included qualified and experienced attorneys.

As part of the meeting, the commission also received written comments from Chief Judge James McCabria in which he said the panel had provided well-qualified and effective counsel to indigent defendants, and expressed some concerns about the potential move to a new system. In a response to a question from Commissioner Patrick Kelly, McCabria also clarified the court’s role when it came to ensuring the qualifications of attorneys providing indigent defense.

McCabria said that while the court would continue to review whether an attorney is qualified to take a case if the county moved to a new outside provider, the court would be limited to the attorneys within the service provider the county designates. He said an outside organization, such as KHD, would hire the attorneys it wanted to, and so such a transition would mean less discretion for the court.

“So there is a real consequence in making the decision to go from a panel position, which for a long time has left the discretion in the court — whoever wants to apply applies, the judges review those resumes and qualifications and put you on the panel or not,” McCabria said.

Commission Chair Shannon Portillo, who was on the work group, said indigent defense is a key issue in conversations about criminal justice reform, both locally and nationally, and that there have been critiques of the county’s current indigent defense system for both misdemeanors and felonies. She said one of the things the county wants to do is improve indigent defense from a racial equity standpoint, and the work group’s report highlights that there is not enough data about how the panel is working.

“So we need to look at systems where we can have equitable support for defense and prosecution in our community,” Portillo said. “And good data so we can make data-driven decisions of how we spend our taxpayer dollars and how we see if we truly do have equitable outcomes within our criminal legal system.”

The work group recommends that additional information be collected and analyzed, including the caseload of all attorneys, the days between assignment and first contact with clients, rates of pretrial detention, the number of referrals provided to outside service providers, and the outcomes of cases, among several other data points.

As the Journal-World reported, two attorneys also questioned the county’s process for reconsidering indigent defense services. They voiced some concerns about transparency regarding KHD’s connection to some commissioners, who disputed those claims. The County Commission will review both proposals as part of its meeting Wednesday.

•In other business, the commission voted unanimously to give the Douglas County Sheriff’s Office the go-ahead to begin discussions with design/construction consultants regarding improvements to the jail’s holding facilities. Sheriff Jay Armbrister said the goal was not to increase the number of beds at the jail, but to improve the function of the jail and correct inequities that exist between male and female facilities. He said the lack of a minimum security unit for women means that women in minimum custody still receive only 3.5 hours of free time per day, compared to men, who are able to receive 16 hours.