1. the Utah Indigent Defense Commission
Utah Municipal Attorneys Spring Conference
Utah Indigent Defense Commission

2. United States Constitution Amendment VI
The Sixth Amendment
United States Constitution Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … and to have the Assistance of Counsel for his defense.

3. You have the right to an attorney

4. Gideon v. Wainwright, 373 uS 335 (1963)
6th & 14th Amendments require states to provide counsel to people accused of serious crimes, regardless of wealth.
In our adversarial system of criminal justice…we need “procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law” “This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”
- Justice Hugo Black
Delivering the opinion of the Court

5. ARGERSINGER V Hamlin, 407 uS 25 (1972)
The promise of Gideon, was extended in Argersinger to include the right to counsel for people accused of misdemeanor offenses with any potential penalty of incarceration.
“[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”
The right to counsel is not governed by the classification of the offense, but by the possibility of
imprisonment/loss of liberty.

6. The Right to counsel is the right to the effective assistance of counsel
Strickland (1984)
Standard to evaluate whether an attorney rendered ineffective assistance in a particular case.
Did attorney’s representation fall below an objective standard of reasonableness in a particular case and prejudice the outcome?
US v. Cronic (1984)
Standard to determine whether there is systemic, actual or constructive denial of counsel by state/local govt.
Asks if certain systemic factors were present (or necessary factors absent)—inexperienced attorneys, conflicts, etc.) such that court can presume ineffective assistance of counsel would occur in system.

7. Utah JUSTICE COURTs
You have the right to an effective attorney in Utah Justice Courts when you are charged with a criminal offense that carries a possible loss of liberty, no matter how remote.
Utah Constitution, Article I, Section 12.
In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel.
Utah Code § (1):
Every county, city, & town shall provide for the legal defense of an indigent defendant in criminal cases in the courts of the state.

8. PATCHWORK OF INDIGENT DEFENSE SYSTEMS
Nearly every county, city, & town in Utah separately provides for indigent defense representation in Utah’s:
36 District Courts (40,082 criminal cases FY16) &
118 Justice Courts (68,612 criminal cases FY16)
Results:
Patchwork of independent systems with diverse delivery methods, resources, quality, oversight, & court practices.
No substantive accountability/quality assurance.
Local governments may lack sufficient funding for indigent defense services.
Defendants routinely waive their right to counsel.
Appointed counsel may lack appropriate training, experience, and resources to be constitutionally effective.

9. Judicial Council TASK FORCE on indigent defense
REPRESENTATIVES
FOCUS
DEVELOPMENT
UNANIMOUS

10. Costs of Ineffective Assistance of counsel
HUMAN COSTS
Wrongful convictions and loss of liberty for an innocent person
Separation of families and loved ones
Financial hardships and loss of support
Justice denied for victims and their families
Community costs: lack of trust in those responsible for justice
FINANCIAL COSTS
Resource Drain: Re-trial, wrongful imprisonment, exoneree compensation
Unnecessary pretrial incarceration
Risk of costly, protracted lawsuits (ACLU lawsuit in Utah)

11. Ensuring effective assistance prevents worst case scenarios
Utah v. Hummel, 2017 UT 19
Attorney independently contracted with Garfield County to provide indigent defense services. Attorney convinced several indigent defendants who he was court-appointed to represent, to instead pay him money and collateral to represent them privately, and physically destroyed court orders of appointment.
Charged with 5 counts of theft and attempted theft.
Jury convicted him on all 5 counts
Utah Supreme Court affirmed convictions.

12. Ensuring effective assistance prevents worst case scenarios
Utah v. Martinez-Castellanos, 2017 UT app 13
Martinez-Castellanos convicted of 4 drug-related offenses from a traffic stop. Jury included “the legendary Sergeant Paul Mangelson” –notorious for his drug trafficking interdiction on Utah’s roadways. No objection to Sergeant by defense counsel.
Court of Appeals held it was “inexcusable for defense counsel not to have moved that Sergeant Mangelson be excused for cause” … “so obvious was his unsuitability to serve on the jury in this case.”
Convictions reversed for ineffective assistance of counsel.

13. the Utah Indigent Defense Commission
Created in 2016, to assess, give constitutional guidance, and financial support to local governments to ensure the effective assistance of counsel in all appointed cases.
Scope:
Criminal Indigent Defense
Juvenile Delinquency Defense
Abuse, Neglect, & Dependency and Parental Termination Defense
Statutory Duties (many), e.g.:
Collect Data
Give Guidance
Award Grants
Encourage Regionalization

14. the Utah Indigent Defense Commission15
Commissioners
Duties
$2.5 Million
in One-Time Grant Funds
$560,000
in Ongoing Grant Funds 4
Staff

15. IDC Statutory Duties: 1. Collect Data
“The IDC shall identify and collect data necessary to review, report, and guide Utah’s indigent defense systems.”
1st effort to understand Utah’s indigent defense services.
Data Sources:
Contracts with defense attorneys.
Administrative Office of the Courts data.
Local court data.
Surveys & studies.
Data to understand & inform state/local policymakers’ decisions on how to structure and fund constitutionally effective indigent defense throughout the state.

16. IDC Statutory Duties: 2. Give Guidance (“standards”)
“The IDC shall develop and adopt guiding principles for the
assessment and oversight of indigent defense systems.”
“Procedural and substantive safeguards designed to assure
fair trials before impartial tribunals in which every defendant
stands equal before the law.” – Gideon v. Wainwright
System Guidance to ensure effectiveness & fairness (Cronic):
Independence
Quality assurances
Appropriate compensation
Sufficient resources
Appropriate workloads
Attorney Guidance to ensure effective assistance (Strickland):
Professional conduct
Experience & Training
Zealous representation at all critical stages

17. IDC Statutory Duties: 3. Encourage Regionalization
“The IDC shall encourage & aid in the regionalization of indigent defense systems in the state.”
Regionalized indigent defense services help ensure:
Effective Assistance: through independence, oversight, & access to resources.
Independence – eliminate risk of improper government interference (Cronic)
Oversight & supervision – ensure effective assistance (Strickland)
Pool resources: experts & investigators (Strickland)
Effective Assistance provides efficiencies for local governments.
Decreases expense of wrongful convictions, appeals, & re-trials
Stretch local $ – economies of scale
Eliminate RFP process & streamline appointment process
Increase efficiency of all attorneys : defenders, prosecutors, & judges

18. IDC Statutory Duties: 4. Award Grants
“The IDC shall establish procedures to allow indigent defense systems to apply for state funding and award grants from state appropriations.”
Critical Needs Grants
Matching Grants
Other Grants
System can show:
Will incur expenses over adjusted annual spending to provide necessary effective assistance; and
Increasing local spending is an undue burden.
Discretionary Grant
Already increased spending above adjusted annual spending to improve constitutionality of indigent defense services.
Formula Grant
System wants to:
Establish and maintain an indigent defense data collection system; or
Provide for other defense resources.
Regionalization is key to any grant!

19. IDC Grant to Juab County
Independence – no risk of improper interference
Separation from county commissioners and county attorney
Procuring conflict counsel
Approval of expenses
Appeals
Efficiency – a good defense is efficient for all
Better communication between prosecution, defense counsel, and clients
Oversight & Supervision – ensure effective assistance
Managed workloads
Ensuring appropriate experience
Qualified attorneys appropriately testing state’s evidence
Local System-wide Improvements
Local law enforcement improving quality of investigations, reports, and processes

20. HOW WILL IDC GRANTs work for cities?
Possible Solutions
Contract with a county
Inter-local office with county or other cities & state funds.
YOU TELL US!

21. Director, Joanna Landau Jlandau@utah.gov Direct: 801-209-5440
Utah Indigent Defense Commission
Contact the IDC:
Director, Joanna Landau
Direct: