The defense rests: Kootenai attorneys warn of looming crisis

Idaho's public defense system is about to undergo a seismic shift, leaving many attorneys and officials concerned about the future of legal representation in the state.

Beginning Oct. 1, a system 10 years in the making will give the newly formed State Public Defender office broad control over county public defense services. The changes, made in response to lawsuits over the state’s deficiencies in public defense, mean new rules and a pay scale that are already driving experienced attorneys away. 

“I am gravely concerned our Idaho State Constitutional mandate to provide representation to indigent persons cannot be met and the new system will fail,” said Kootenai County Commissioner Leslie Duncan. “I always try to remain hopeful, but I am currently not seeing how our mandate will be met.” 

Right to an attorney  

Ahead of the changeover, several attorneys have left the Kootenai County Public Defender’s Office.  

Among them is Anne Taylor, who led the office from 2017 until this July when she returned to private practice. Before becoming the county’s chief public defender, she worked for the office from 2004 to 2012.

“I intended to stay until I retired,” she said. “It was my dream job.”

Taylor’s reservations about the state-run system are no secret. Last year, she shared with legislators her concerns about political influence on the work of public defenders in a system where the governor chooses the director of public defense. 

She said she believes the new system is underfunded and was created too quickly.

“My belief was, and is, there’s not enough money in this new system and it’s being pushed too fast,” Taylor said. “My fear is hundreds and thousands of clients will be harmed.”

She’s not the only one. Kootenai County Prosecuting Attorney Stan Mortensen said he thinks the new system is flawed in part because the state rushed to create it.

“This bill was viewed as a fix, but in a way, it’s made things worse,” he said. “They’re drowning.”

Public defense and prosecution are two sides of the same coin, Mortensen said. One can’t exist without the other.

“Our community is blessed,” he said. “We have very good judges, prosecutors and police. A big part of why everyone is so good is because we have good public defenders to keep them in check.”

But what happens when there aren’t enough public defenders for the people who need them?

“We’re going to have defendants appear in court, and the public defender’s office is not going to have anyone to represent them,” Mortensen said. “Are the judges going to allow them to make bond arguments? Can they make a competent argument? Are judges going to feel pressured to release people because it’s not their fault they don’t have a lawyer?”

The state of Oregon is already grappling with this problem. In late 2023, Oregon Public Broadcasting reported on the state’s massive shortage of public defenders, which has resulted in the state violating the constitutional rights of low-income people charged with crimes. Thousands of indigent people had been charged with crimes but had no lawyer to represent them.

A federal judge ruled last year that Oregon must provide defense attorneys to anyone in jail, within seven days, or release them.

Mortensen said he’s concerned that a shortage of public defenders will cause cases to be delayed. Such delays create challenges for prosecutors, he said, but they also pose problems for criminal defendants.

“These defendants are people,” he said. “They’ve been accused of crimes. They’re innocent until proven guilty. Some of them are entitled to a free lawyer and we do not have a system that’s going to be able to accommodate those needs.”

Even so, Mortensen said, Kootenai County prosecutors will continue to carry out their duties, no matter what happens after Oct. 1. 

“My office is not going to give more lenient plea deals just because somebody doesn’t have an attorney,” he said. “My office is going to do business as aggressively as before and we’re going to let the chips fall where they may. I owe that to the victims in this community.” 

Conflict attorneys  

Also at issue are wages for the attorneys who step in when public defenders can’t take a case.  

A conflict attorney is a private attorney assigned to an indigent defendant who can’t be represented by the public defender.  

Two years ago, conflict attorneys in Kootenai County were paid between $95 and $110 per hour, depending on the case’s type and complexity. It wasn’t enough. 

“Current conflict lawyers couldn’t take additional cases, and the administrative district judge was calling local attorneys late into the evening to find representation,” Duncan said. 

In October 2022, county commissioners raised the rate to $150 per hour for all cases.  

It worked. Kootenai County retained the attorneys who were already under contract, and eight more signed on. 

Under the new system, however, the county will no longer control the rate of pay. The State Public Defender’s rate is set at $100 per hour.  

Chris Schwartz is one of more than 30 conflict attorneys who helped handle the county’s public defense work. Like most of his fellow conflict attorneys, he won’t work for the State Public Defender and will instead let his contract expire Sept. 30.  

“My office alone has 200 cases that will need a new attorney, and no one knows who that’s going to be,” he said.  

Private attorneys who do public defense work are responsible for their own expenses. They pay for their own offices and staff, and don’t receive the benefits that county or state employees receive.  

For that reason, Schwartz said, some conflict attorneys simply can’t afford to work for the state’s rate.  

“To cut our funding makes it so that we would actually lose money on the proposition,” he said.  

Family law attorney Safa Riadh charges $400 per hour in his private practice. But he was happy to do conflict work at the significantly lower rate of $150 per hour because he believes strongly in indigent defense.  

“I choose to take less compensation for it because I care for the people,” Riadh said. “Every one of the attorneys who do contract public defense work aren’t there to get rich. They’re there to do their duty that we are taught to do in law school. But at the end of the day, I’m not going to pay the state’s bill to do this.”  

Both Schwartz and Riadh said they’re concerned for indigent defendants in North Idaho and throughout the state. Those are the people who stand to be harmed by a flawed system.  

“No one really likes defense attorneys until they need one,” Schwartz said. “All we do is defend citizens. There will be no one there to do that after this.” 

Understaffed  

At present, 14 public defenders work for Kootenai County — about half of what the office needs to be considered fully staffed. To function comfortably, the office needs about 22 attorneys.  

“That’s when you can really let people handle the hearings that they’re assigned to and you don’t need to juggle who’s going to be in which courtroom,” Jay Logsdon, interim chief public defender for Kootenai County, said.  

So far, just seven Kootenai County public defenders have agreed to continue working for the state after Oct. 1. 

Across Idaho, about 77% of public defenders will see increased wages under the new system, according to the State Public Defender office. About 7% won’t see any change in compensation during the first year.  

The remaining attorneys, including four in Kootenai County, will see their wages drop.  

State Public Defender Eric Fredericksen said it was painful to deliver that news to public defenders, who are generally underpaid at the best of times.  

“That was my most difficult day as an attorney,” he said.  

Still, Fredericksen said, the wages and other resources available under the state office — including a statewide case management system and legal research services for all public defenders — will make a major difference in many counties, especially rural ones.  

“The vast majority of public defenders I’ve talked to throughout the state are incredibly excited,” he said. “One chief public defender told me the salary changes for that office are life-changing for them.”  

But not so much in Kootenai County. Logsdon will try to fill the ranks in Kootenai County with fresh graduates. He’s identified five hopefuls who are awaiting their bar exam results and will begin working in the Public Defender’s Office if they pass.  

Logsdon said the state office’s budget, $49 million for the first year, is too small and doesn’t account for some counties having a higher cost of living than others.  

“The idea was not to get public defense as cheaply as possible,” he said. “But the way things are set up, it’s obviously made a lot of people pretty unhappy.”  

Still, Logsdon said he remains optimistic about the state office.  

“There’s no reason to think this is how it’s going to stay,” he said. “We’re all committed to public defense. It’s the kind of system that can’t be allowed to fail. It’s got to find its way.”  

The bottom line  

No matter where they stand in the debate about the State Public Defender office, Idaho’s public defense attorneys agree on one thing: Idaho needs a robust system for indigent defense.  

“Life, liberty and the pursuit of happiness,” Fredericksen said. “We can’t be deprived of those essentials in our lives without due process of law. Public defenders are the people that stand between the state, society and their own rights. We’re here to protect our clients and make sure they get their essential constitutional protections.”  

He said the goal of the State Public Defender is to improve client-centered representation throughout Idaho.  

Of equal importance, he said, is cultivating a holistic approach to public defense in Idaho and a culture where attorneys, social workers and other staff know how to best serve their clients.  

“Setting the client up in the best position to succeed, whether or not they’re convicted, is the only way to really, truly represent a client,” he said.  

Looking ahead to the Oct. 1 changeover, Logsdon recalled a familiar adage: If all you have is a hammer, everything looks like a nail.  

“The vast majority of criminal cases are people who are in poverty or who can’t afford representation,” he said. “Having public defense keeps this huge quantity of people from being turned into nails. We humanize them. The system, without us in it, would be a lot more brutal. If you want the word ‘just’ to mean anything, you absolutely have to have a strong public defense sector.”  

Taylor emphasized that public defense work is a calling.  

“It’s hard work,” she said. “It’s always a fight. You spend a lot of time in the jails. People who do it believe in it.”  

As attorneys transition into the new state office, Taylor urged compassion for Idaho’s public defenders.  

“The people who are choosing to stay in public defense are good people,” she said. “They’re smart. They’re talented. They’re determined. They’re real warriors.”