Ineffective Public Defense Under Fire

witnessstandBy Jason D. Williamson

Innocent unless proven guilty…

These words are the bedrock of our criminal justice system. Yet for many Americans who are currently navigating the justice system maze, this fundamental principle is but a dream—a reminder of what could be, if only they had the money to pay for a lawyer with the time and resources to represent them effectively.

Adequate representation in court is mandated by law. Before the government can take away a person’s liberty, the Sixth Amendment requires that the case against the defendant be put to the test. It is largely up to criminal defense attorneys to make sure the state fulfills that requirement.  The failure of the State of Idaho to ensure all public defenders there  have the resources they need to do so in an effective way puts the entire system—not to mention the liberty and livelihoods of criminal defendants—in jeopardy.

When these same issues arose in Michigan and New York in recent years, the ACLU stepped in and sued both states for their longstanding failure to provide public defenders with the tools and resources they need to represent their clients in a meaningful way.  Both cases resulted in wholesale changes to public defense delivery in those states.  And in 2013, a federal court ruled that the structural flaws of the public defense systems in two municipalities in Washington deprived indigent criminal defendants of their Sixth Amendment right to counsel.

Most recently, The ACLU, the ACLU of Idaho, and the law firm Hogan Lovells filed a class action lawsuit against the state of Idaho asking the court to force the state to fix its unconstitutional system of public defense.  The case was brought after years of advocacy and alternative efforts at encouraging state officials to address the problem with real solutions—and real funding.

The process began in 2010, when the National Legal Aid and Defender Association released a report analyzing the representation provided to criminal defendants in Idaho’s trial courts. The report found that “none of the public defender systems in the sample counties are constitutionally adequate.” Despite this disturbing reality, the Idaho Legislature has failed to make the necessary changes to ensure that anyone prosecuted for a crime in Idaho—regardless of income level—has access to an attorney with the time, training, and resources to represent them effectively.

Five years later, nothing has changed.

Low-income defendants are still unrepresented at their initial bail hearings, resulting in many pleading guilty and suffering lifelong consequences just because they felt they had no other realistic options, and in others spending extended time in pretrial detention. Public defenders are so overloaded in many counties that defendants are unable to communicate with their attorneys on a consistent basis, leaving them in the dark regarding developments in their own cases. Worst of all, without adequate resources, many public defender offices lack the resources needed to thoroughly investigate many cases, if at all, leading many defendants—even while proclaiming their innocence—to simply plead guilty rather than risk going to a trial where the playing field is tilted in favor of a better-funded prosecution.

In January 2015, even Idaho’s Gov. “Butch” Otter acknowledged that “the courts have made it clear that our current method of providing legal counsel for indigent criminal defendants does not pass constitutional muster.” Despite the governor’s admission, and the various committees and commissions that have been formed to study the issue over the last few years, the reality is that some of the most vulnerable people in Idaho continue to fall victim to this failing system.

It is the state’s responsibility to ensure that people charged with crimes within its borders are given a full and fair opportunity to defend themselves in court—and that can only be achieved when public defenders have access to the training and resources they need to zealously advocate on all of their clients’ behalf.  As the U.S. Supreme Court reminded us more than 50 years ago, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”

Jason Williamson is a staff attorney with the ACLU

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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  1. zaqzaq


    Why find an article that proclaims problems in Idaho?  Why not focus on what is happening in California?  Because the system here works.  Your title for the story should be “ACLU Hit Piece Alleging Ineffective Public Defense in Idaho”.  Pathetic.

    Just like you and supposed hot shot attorney DP’s  failure to acknowledge that  Officers Nero and Miller were charged with two crimes for the detention and arrest of Grey in Baltimore.  I provide two links with the video where DA Mosby reads the charges and all the two of you do is refer to the written summary in the story.  The two of you like to avoid the facts when they do not support your narrative.  Just like the fact that our system of publicly funded defense works in California.

    Here are the links AGAIN.  All you have to do is listen to the video.  I invite other Vanguard readers to do the same to determine for themselves how factually incorrect the two of you are.  Stop hiding from the facts when they do not support your narrative.

    1. David Greenwald

      I’m not convinced the system here works, though we have good public defense here in Yolo. I think the article illustrates enough problems that are universal to run it here. The rest is off-topic.

      1. zaqzaq

        Why didn’t you do a story on how it is working in Yolo instead of finding an ACLU hit piece on a perceived problem in Idaho?  That would be more appropriate but would not support your narrative.

        1. zaqzaq


          Still not willing to admit you were factually wrong that Officers Nero and Miller were charged with crimes for allegedly being wrong when they detained and arrested Grey.  Your silence on the issue just proves my point and just makes you look silly.

          1. David Greenwald

            Haven’t had a chance to look at it yet and you’re way off topic so please stop.

        2. zaqzaq

          The more you delay and avoid the truth the sillier you look.  At some point you are going to have to look at it and address it instead of telling me that I am off topic.  You are the one that challenged the veracity of my factual statement and DP hopped on board.  Soon you will have spent more time telling me that I am off topic than it would have taken you to watch the video and admit that your are wrong.  This is a factual detail, not an opinion.  Your opinion is based on an erroneous factual analysis.  Please man up and admit you were wrong.

          1. Don Shor

            [moderator] Now I am going to tell you that you are off topic. Any more on this will be pulled.

  2. sisterhood

    How on earth can you say CA’s system is working when a man is accused of a heinous crime, the cops set up a pre-text phone conversation to him in another language, and the judge allows the accuser to translate? Give me a break. Tell Ajay Dev the system works, while he sits incarcerated with a sentence of THREE HUNDRED YEARS.

    1. zaqzaq


      From my recollection Ajay Dev paid for his quality defense attorney.  This story is on the state of indigent defense representation.  Dev was not represented by the Yolo County Public Defender’s office.  Maybe the Public Defender’s office could have done a better job than the person that Dev hired to represent him.  I am sure David will jump all over this if I am wrong.

      1. sisterhood

        Hi zaqzaq, you started with:

        “Why not focus on what is happening in California?  Because the system here works.”

        I interpreted that to mean the entire criminal justice system in CA, thus, my response.

        1. David Greenwald

          I would not argue that the system works in California. There was a report a few years ago that more than 12,000 people a year plead guilty to crimes without having counsel. There was a huge scandal in Santa Clara County just a few years ago and I have heard there are problems in Sacramento with insufficient defense. This is not just an Idaho issue, though I do agree that Yolo County has a very good Public Defender’s Office and Conflict Panel.

      2. sisterhood

        P.S. With the caseload of the public defenders office and the prosecutor’s system of career driven and ego-driven pressure for convictions, I doubt he would have done better.

  3. Biddlin

    The state will always have the advantage of more money to pay experts who support their opinion and to perform laboratory testing. Frankly, I have always been advised that public defenders are the best option for criminal defendants, because they have the most practice.


    1. David Greenwald

      I talked to the family of one person represented by a private attorney – I asked them why no expert witness. Answer: no money. Had they used the public defender’s office, they would have had access to money for expert witnesses and publicly funded investigators. Everyone likes to believe that a private attorney is better, but in Yolo, I see a big advantage to those who use the public defender’s office with few exceptions.

    2. zaqzaq

      It would be interesting to see who spent more money on experts in the Marsh case, the district attorney or public defender.  I doubt that the state has unlimited resources to hire expert witnesses.  I would think that there is a process for the private attorney to tell the judge that they need an expert witness and the family is out of funds in order to have the court pay or county pay for it in order to have a fair trial.

  4. Tia Will

    The state will always have the advantage of more money to pay experts who support their opinion and to perform laboratory testing”

    As long as this is the case, I cannot see how one could possibly claim that defendants served by a public defender are getting a fair trial. Without equal resources for prosecution and defense, how could one possibly not see the scales balanced against the accused and therefore a breach of our supposed premise of “innocent until proven guilty” ?

    1. zaqzaq


      Define equal resources?  How much money did the public defender’s office pay for experts in that case compared to the prosecutors.  Both had two attorneys on the case.  A little know fact is that the California Department of Justice will do laboratory testing and be called as expert witnesses for free for public defenders offices.  Equal resources does not mean unlimited resources from my perspective.

  5. tj

    Perhaps there should be an article one day critiquing the Yolo PD’s performance.

    Tracy Olsen’s not much committed to justice and public defense and some of her staff are totally useless as defense attorneys.

    When a judge threatens one of her attorneys to lose a case, what’s her policy on handling those situations?

    The oppositional tone starts with the reception staff.

    And then there was Barry Melton who interviewed the wrong person, a person with the same first name as the person he was looking for.  He never confirmed who he was actually interviewing by checking or using their full name, or their address. Duh.

  6. Tia Will


    I don’t think my post was difficult to understand. Equal means equal, not unlimited.I have posted that I believe that exactly the same information should be presented to the state and to the defense without the state in any way vetting what the defense gets to see. The same, means the same…..not the same plus or minus.

    I also have posted on a number of occasions that I do not believe that our adversarial system truly achieves just outcomes, but rather tends to favor which ever side manages to present the best story. Sometimes that will favor the state. The Dev case being an example. Sometimes that will favor the defense. The OJ Simpson case being an example. Sometimes it probably arrives at a just resolution. Too often, with once as the definition of “too often” when it could possibly have been avoided, it does not.

    1. sisterhood

      Tia, I continue to agree with your recent posts. I also firmly believe that prosecutors and defense should rotate duties, for a number of reasons. Two reasons: to stay fresh and to stay objective. My two cents….

    1. sisterhood

      P.S. If you are a middle income American of the United States,  and wrongly accused of a crime, you must decide how to support yourself, your family, and lastly, your legal defense. It is a very painful process to experience. Thank you. Below is a quote from the Yolo Co. URL link I provided in my earlier post. Thank you for reading this.

      “If you cannot afford to pay the Public Defender fees you can request that Yolo County Collection Services (YCCS) waive the Public Defender fees. YCCS has authority to waive these fees, in whole or in part, after conducting a financial evaluation and concluding that a person is unable to pay the fees, in whole or in part. Any person who disagrees with YCCS’s assessment regarding ability to pay may request a court hearing on the matter.”

  7. Tia Will


    Tracy Olsen’s not much committed to justice and public defense and some of her staff are totally useless as defense attorneys.”

    Since I have virtually no knowledge of the office of the public defender, it would be nice to see the evidence on which you are basing these claims.

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