photo by: Mackenzie Clark

The Douglas County Judicial and Law Enforcement Center, which houses Douglas County District Court and a number of other criminal justice services at 111 E. 11th St., is pictured April 8, 2020.

While the Douglas County Commission prepares to set aside hundreds of thousands of dollars to help establish a public defender office for misdemeanor criminal cases, some local defense attorneys have expressed reservations about the idea.

Hatem Chahine and Michael Clarke, two prominent defense attorneys who have worked for decades in Douglas County, recently told the Journal-World they are skeptical of the county’s plan to fund the Kansas Holistic Defenders, a nonprofit organization poised to become a county-funded public defender office serving clients in the Douglas County District Court.

Chahine and Clarke question whether the goal of the KHD will be realized, specifically the organization’s aim to increase court efficiency, help reduce the local jail population and provide social support for clients.

They also said they believe the county’s plan to fund the group, which would house three attorneys providing counsel to indigent defendants of District Court misdemeanors, is not cost effective and wouldn’t improve on the work that a panel of about 30 private attorneys are already doing.

“Funding this small group that’s going to take a small portion of the misdemeanor cases just doesn’t make sense,” Clarke said.

But KHD Chair Sam Allison-Natale said he disagrees with Chahine’s and Clarke’s criticisms, adding that he believes their concerns are based on the false premise that the county’s criminal justice system is working as well as it possibly could.

Meanwhile, County Commission Chair Shannon Portillo said she believes the KHD operation would work well with the county’s focus on improving the criminal justice system. She said the county providing the funds directly to the organization would give the county the ability to require KHD to track important information that the county can oversee.

She said that’s a way for the county to make sure it is holding its local criminal justice system accountable.

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In Douglas County’s proposed 2022 budget, the County Commission has tentatively set aside $425,000 that would be provided to KHD, the Journal-World reported. The commission expects to approve the budget in the near future, but that does not mean KHD will automatically get the funding.

Portillo said the $425,000 has been set aside to give the county more time to work with KHD to consider the organization as an option for public defense. She said the county would likely enter a contract with KHD outlining how much of that funding would go to the organization if the county officially chooses to take that route.

Currently, individuals accused of crimes in the District Court who cannot afford an attorney are appointed one from a panel of local attorneys who agreed to take on those cases. Douglas County funds these attorneys when they take on misdemeanor cases, while the State Board of Indigents’ Defense Services, also known as BIDS, funds them when they take on felony cases. Similarly, BIDS is currently reviewing whether to install a public defender office in Douglas County to take on the felony cases as well.

Chahine said one of his concerns was that KHD would run into conflicts while representing some individuals, which would make them unavailable to serve them. Under law, the county must provide funding for attorneys to represent individuals charged with misdemeanor crimes who cannot afford an attorney.

An example of a conflict of interest for a defense attorney would be when they are asked to represent someone accused of committing a crime with an alleged victim who is someone they have already represented. The attorney would have information on the alleged victim, making them ineligible to represent the accused individual.

Chahine said those kinds of conflicts can come up often, and if it arises for one of the attorneys in KHD, the conflict of interest would apply to the entire organization. He said the county would need to fund the conflict cases as well, which he doesn’t think would be cost effective.

Portillo said the county is looking into ways that the defense panel would continue to exist to serve as a backup to the KHD when it is unable to serve someone because of a conflict of interest. The county would continue to pay for the misdemeanor cases the panel takes on in a second pot of money in its budget, but it would likely be less than the panel had received in the past.

Both Chahine and Clarke also acknowledged that the shifting of county funding toward KHD means some private attorneys of the current panel who are being appointed to the defense of misdemeanor cases will lose a revenue source.

But Clarke said the move doesn’t affect him. He no longer takes on misdemeanor cases, but continues to work felony cases. He said his concerns stem from him being active in the defense bar and knowing how this is going to affect local attorneys already providing defense counsel through the panel. He said he knows that the installation of KHD and the loss of some revenue to attorneys who currently take on those cases means rates for an individual to hire a private attorney will go up in Douglas County.

Chahine and Clarke said they also don’t believe KHD would help cycle people out of jail faster, which is one of the biggest concerns county residents have had in recent years as the jail’s population reached a critical mass before the coronavirus pandemic led to some changes of the jail’s operations that helped decrease the number of people being held there.

Chahine said he believed the issue of people being held in jail longer than necessary for misdemeanor crimes has already been addressed by the institution of pretrial services in Douglas County, which the county funds. Before an individual receives an appointed lawyer, the pretrial service screens the people being held in jail to determine if they qualify for an own-recognizance bond, which would allow them to be released from jail without having to pay for it.

“Pretrial services has gotten people out of custody for misdemeanors,” Chahine said, adding that only a small number of people would be held in custody for District Court misdemeanors. “It’s already been solved and now we’re putting money toward something that is already fixed.”

Additionally, Clarke said one of the main reasons some of his clients have been stuck in jail was because they were not able to be transferred to a treatment facility — such as the Heartland RADAC facility, which provides substance abuse services. He said adding more attorneys and social workers through KHD would not solve the issue, and he thinks the county should be providing its funding to help increase local service capacity instead.

That’s something KHD has said it hopes to provide: more support to make sure clients are getting certain treatment that they may not already be receiving, which could keep people from repeatedly ending up in jail.

But Chahine said he found that “insulting,” suggesting that KHD’s proposal made it seem like current defense attorneys did not provide those types of services to their clients. He also said he believes if the county wants to improve those services, it should be funding them itself and providing it to all of the panel attorneys, as opposed to funding a whole new attorney’s office in KHD.

He also suggested the county should have requested bids from law firms to serve as a public defense option, rather than just taking KHD’s proposal and using it. He said that would have provided a competitive bidding process and possibly led to a cheaper option.

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But Allison-Natale sees those issues differently. He said with one legal office automatically taking on the indigent misdemeanor cases, the attorneys of KHD will be able to get a start on their cases sooner.

He said currently, individuals who need an appointed attorney do not get one until a judge appoints one from the panel during their first appearance hearing. Additionally, those attorneys are not at the hearing when they are appointed, and the defendant often must get in touch with their attorney on their own. That may take some time, which could prolong the processing of their case.

But KHD would be able to be at the first appearance for all of those individuals because it would already know its attorneys will be appointed to their cases, Allison-Natale said. Additionally, he said the office would work to meet with clients while they are in jail and have not yet appeared at the first appearance hearing, which could provide more initial support and allow the office to begin working on the case sooner. He also said the attorneys may need fewer continuances for their court dates, allowing the cases to move more quickly.

Allison-Natale also acknowledged that not many individuals facing misdemeanor charges are held in jail for long. But that doesn’t mean all of them are released in a timely manner. He said some are spending two to three days in jail, which is really significant to that person.

“Even though the number of days we are talking about for misdemeanors is only three days, it is worth reducing as much as we can,” he said, adding that having an attorney at the first appearance would help with that.

Another layer to the issue is county oversight. Portillo said she agrees with KHD’s vision to make the court system more efficient and help decrease the jail’s population, but she said the office also provides the county with the opportunity to hold the public defense counsel realm accountable for how it serves its clients.

She said the county currently doesn’t have much data on the outcomes of the cases that the panel takes because they are private attorneys and they aren’t obligated to track it. Portillo said the county believes KHD will work with the county and keep track of that data, which could then be used by the county to improve areas of the criminal justice system, such as concerns about racial disparities in misdemeanor cases.

She also said because the private attorneys are not obligated to report their information to the county, the commissioners don’t know for sure if they are providing the social services help that KHD wants to provide.

The county would be able to make sure KHD keeps its promise in those areas because it has the power of the purse.

“There’s absolutely no oversight for the panel defense attorneys,” Portillo said. “Having an institutional office that we can hold accountable means we can ensure that every client is getting those kinds of services.”