Kootenai County faces public defender shortage

COEUR d’ALENE — In the month since Idaho’s new public defense system went into effect, some indigent defendants in Kootenai County have appeared in court with no specific public defender to represent them.

Beginning on Oct. 1, public defense services in Idaho’s 44 counties were consolidated into the office of the State Public Defender. The new system was created in response to lawsuits over Idaho’s deficiencies in public defense, but it has led to an exodus of attorneys from county offices and a shortage of public defenders. 

A tense exchange in court between First District Judge Tristan Poorman and Ben Onosko, the lead attorney for Kootenai County’s public defense office, appeared to illustrate the situation.

Onosko addressed the court on behalf of a 40-year-old Hayden man who had been in jail since Oct. 16 on charges of grand theft and resisting or obstructing officers. 

“(This defendant) would like this court to honor and respect his rights,” Onosko said. 

The man was one of three indigent defendants who had been brought from jail to a courtroom on an upper floor of the county’s old courthouse Wednesday afternoon. Though the State Public Defender had been appointed to their cases, none had a specific attorney prepared to represent them. 

The Kootenai County office has lost five felony attorneys since July, Onosko said, and no new hires have replaced them. The office has 11 attorneys at present, according to the State Public Defender, with openings for 10 more. 

Onosko said the remaining public defenders, only five of whom work felony cases, all have full caseloads and couldn’t take on the three in-custody defendants who appeared in court Wednesday. 

“There is certainly a bottleneck of caseloads,” he told the court. 

Before the new public defense system went into effect, Kootenai County contracted with more than 30 local private attorneys to represent indigent defendants when there was a conflict of interest or when caseloads were full. 

The county paid those attorneys $150 per hour, while the State Public Defender’s rate is set at a nonnegotiable $100 per hour. The state office said the standardized rate will ensure consistency and better service quality. 

Some contract attorneys said the new rate is so low that they can no longer afford to provide indigent defense services. Most contract attorneys in Kootenai County chose to let their contracts expire Sept. 30, rather than sign on to work with the state. 

Now just six private attorneys have contracted with the state to handle public defense cases in Kootenai County, according to the State Public Defender. 

“That is why we’re at a caseload crisis, Your Honor,” Onosko said in court Wednesday. “We simply have no attorneys.”

The state office acknowledged staffing shortages in Kootenai County.

“It is our top priority to fill every vacancy in the office,” Patrick Orr, spokesperson for the State Public Defender, told The Press via email. “We understand the issues they are facing and doing what we can to help. We want every one of those positions filled.”

The office of the State Public Defender maintains that all indigent defendants have representation. Their cases have been assigned to the Kootenai County office, the state office said Friday, and it is the lead attorney’s responsibility to make the assignments and manage the caseload. 

For defendants who are in jail, a preliminary hearing must be scheduled within 14 days of their initial court appearance, with some exceptions. 

Judges have latitude in determining how to handle situations like the one that came before Poorman this week. 

“Courts definitely have a responsibility to ensure defendant’s rights under the Sixth Amendment are protected,” said Nate Poppino, Idaho Supreme Court communications manager. “If representation becomes a concern in the case, the judge will consider the circumstances and any possible prejudices against the defendant in deciding how to move forward.” 

Ultimately, the preliminary hearing went ahead for the defendant charged with theft. Poorman found that probable cause existed for only one charge and dismissed the others, then halved the defendant’s bail. 

Idaho State Public Defender Eric Fredericksen acknowledged his new office’s “bumpy” first month when he met with Shoshone County commissioners this week. 

“One of the biggest struggles we’ve had is North Idaho,” Fredericksen said. “We’ve had a lot of attorneys withdraw from cases. I never anticipated that we’d walk into a system and have 1,500 withdrawals (statewide) in the first two weeks. We’ve worked to cover all those as much as we can.” 

Attorneys can’t withdraw from pending cases without permission from the court. The Idaho State Bar issued an ethics opinion in September that said lawyers whose pay will decrease from the county rate face a potential conflict of interest. 

When there is a “significant risk” that a lawyer’s representation of clients will be materially limited due to reduced pay to perform the same legal services, the lawyer must seek withdrawal from a pending case, though the court may not allow it if doing so will jeopardize a defendant’s rights. 

In Kootenai County, judges have uniformly allowed contract attorneys to withdraw from public defense cases due to financial issues stemming from pay cuts. 

Fredericksen said he was surprised to see so many lawyers withdraw from cases. 

“Most of the public defenders are dedicated to their clients,” he said. “All it does is harm clients when people get out.” 

Coeur d’Alene attorney Safah Riadh is one of the former contract attorneys who chose not to work with the State Public Defender. He said the 1,500 case withdrawals across the state should not have come as a shock, considering he and other attorneys made their intentions clear months in advance. 

“We care about our clients,” Riadh said. “Nobody does public defense work to get rich. That said, cutting the pay, not paying paralegals and a slew of problems in the contract — including telling me what I can and cannot do with my money, politically — is a problem. To say that it’s our fault is outrageous and not someone who is taking responsibility for being put on notice that we were all quitting.” 

Months before the changeover, anticipating that he would let his contract expire, Riadh stopped taking on new criminal cases. For the handful of child protection cases still on his caseload when the new system went into effect, he took a different approach. 

“I didn’t feel ethically right withdrawing from those cases, so I subbed in as a pro bono attorney,” he said. 

Some Idaho attorneys say the new system is sorely underfunded. For fiscal year 2025, the Legislature set a budget of $49 million for the state office to administer public defense services in the entire state.

Fredericksen said the budget was based on 2021 financial information and his office will request $70 million for fiscal year 2026. 

In the meantime, Riadh said indigent defendants in Idaho are suffering, particularly those who are in jail without a specific attorney prepared to represent them. 

“They don’t actually have an attorney, and they shouldn’t be held in jail,” Riadh said. “Nobody’s actually handling their case. That’s a big problem. Everyone is innocent until proven guilty.”