The heart of indigent defense

We hear Miranda rights quoted so often on prime-time television dramas that most of us could recite it, in part, by heart: "... If you cannot afford an attorney, one will be appointed for you ..."

But providing legal representation to indigent defendants is not a uniform system across the state of Alabama, something at least one state judge and representative would like to rectify. In Lauderdale and Franklin counties, judges appoint attorneys to represent indigent criminal defendants from a pool of lawyers who have volunteered for the duty. In Colbert County, a team of six attorneys handles cases for people who cannot afford to hire a lawyer.

Alabama Chief Justice Sue Bell Cobb worries that what she calls a hodgepodge of methods for representing the poor prevent some defendants from receiving adequate legal representation. She also has concerns about the amount of money some attorneys collect for representing indigent clients and would like the state to create an oversight committee to look out for the interests of poor defendants and state taxpayers.

"I want to make sure poor defendants are getting a good solid criminal defense and that Alabama's tax dollars are being spent wisely," Cobb said.

Alabama is among a handful of states without a statewide indigent criminal defense oversight committee. Individual counties can either contract with attorneys to represent indigent defendants, assign attorneys to cases, or use a public defender system.

State Rep. Marcel Black, D-Tuscumbia, plans to propose legislation in the 2009 session to revamp Alabama's indigent defense program. A bill he introduced in the 2008 session called for establishing an indigent defense office and a 14-member Alabama Indigent Defense Commission to oversee legal services provided to indigent defendants. The bill failed to make it out of committee.

Cobb said an indigent defense office will bring uniformity to the system that this year will cost taxpayers about $70 million for 83,169 cases, up from $17 million in 1998, when there were 49,022 cases. Alabama's indigent defense program is paid for with money from a fair trial tax and the state's General Fund.

Black said he and other proponents are querying judges and criminal defense attorneys around the state for their ideas. "We need as much input as we can get."

Some local judges and attorneys agree more oversight is needed but worry that a Montgomery-based committee could derail a system they say works well in the Shoals.

Lauderdale Circuit Court Judge Mike Jones assigns criminal cases to attorneys based on an their legal experience.

"If I have a very serious case with complicated issues, I am going to appoint someone who has the experience and is capable of handling such a case," Jones said. "If it's a simple case where the issues are straightforward, I might appoint an attorney with less experience."

Jones said appointing attorneys from a list of lawyers willing to represent indigent clients works well for Lauderdale.

"I'm not against change, but I'm not advocating it," Jones said. "What we have in Lauderdale County works well for our county. If there is another system that works equally well and saves the taxpayers money, I would be for it."

Franklin County Circuit Judge Terry Dempsey said he knows the legal experience of the attorneys who are willing to represent indigent clients and assigns the cases accordingly.

"I'm not going to assign a capital murder case to a young attorney fresh out of law school," Dempsey said. "For the complicated cases, I assign an attorney who has the proper experience."

Tuscumbia lawyer Steve Aldridge said the indigent defense team system works well in Colbert. He does not see the need for a state committee to oversee indigent defense in the county.

"We already have an oversight committee," Aldridge said. "Our judges provide the oversight. If they believe someone is not receiving adequate representation, they are going to take action to remedy the problem. The judges are committed to ensuring every defendant receives proper legal representation. The circuit judges and district judge make sure every case is handled properly."

Black said revamping Alabama's indigent defense program is not to strip local judges from having oversight of indigent defense in their courtroom. Instead, it is aimed at creating a more uniform system and making sure indigent defendants in all counties receive proper representation.

"If a system is working well for a county, we probably don't need to change it," Black said. "We do need to identify the counties where their system is not working so we can make improvements."

Cobb said the latest proposal for revamping Alabama's indigent defense program calls for each judicial circuit to have a five-member committee to work with the state oversight committee. The local committee would make recommendations to the state committee about how indigent defense should be handled in each circuit.

"This is not a one-size fits all program," she said. "It can be individually tailored to fit the needs of each judicial circuit."

In addition to establishing an oversight committee, Black's bill would introduce a change the fees attorney receive for indigent defense work.

Attorneys receive $40 per hour for work on indigent cases outside the courtroom and $60 for work inside the courtroom and bill the state for overhead, which is the cost of operating a law practice, with a maximum fee based on the type of case. The maximum fee an attorney can collect for a Class A felony is $3,500, the maximum for a Class C felony is $1,500.

Cobb said under the current system, attorneys with offices next door to one another sometimes have huge discrepancies in the amount they claim for overhead. She would like to see an increase in the fees paid to attorneys and eliminate the overhead payments.

"The judges have no way of knowing if the amount an attorney claims in overhead is factual. The judge does know how much time an attorney has spent working on a case," she said.

Black said having a more uniform system for paying attorneys who handle indigent cases could attract more lawyers willing to handle the work.

Black said many of the top defense attorneys in Alabama began their careers by accepting indigent cases.

"Everyone is entitled to equal justice under the law," Cobb said. "We believe that establishing an indigent defense commission will not only make that an inspirational ideal but a true foundation of our court system in Alabama."

Dennis Sherer can be reached at 740-5746 or dennis.sherer@TimesDaily.com.