Now might not be the best time to get in trouble. If you do, even if you’re not to blame, it could take a while to unravel your case. The courts, along with the schools, are on Furlough Fridays. Adding to the delay, the Maui Office of the Public Defender is operating with ten instead of 13 attorneys due to state hiring freezes. For those in jail, and those of us paying to keep people in jail, plan on some extra slammer time. Delays cost money—or worse.
The U.S. Constitution and the Bill of Rights are meant to protect our civil liberties, but they don’t do so on their own. The job wasn’t complete when the ink dried. Instead those documents set up the framework for the game. We then play roles within that game. In our adversarial judiciary system, two teams argue the merits of a case in court.
Forty-six years ago, the U.S. Supreme Court heard the story of Clarence Earl Wainwright. He had been found guilty of breaking and entering and was in jail. He used the prison library to file a lawsuit arguing that if he—an uneducated and poor man—was expected to square off against a trained lawyer in court, the system wasn’t fair. The Supreme Court agreed, ruling that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” They continued, “Lawyers in criminal courts are necessities, not luxuries.” Wainwright was assigned a public defender and his case retried. This time, he was found innocent.
In Hawaii, 75-80 percent of people who are accused of a crime use a court-appointed public defense lawyer, according to Hawaii Public Defender John “Jack” Tonaki. One of those defendants might be a habitual meth addict. Another might an honor-roll teen caught with alcohol. In both cases the person is assigned a public defender to bring them through the system and advocate on their behalf.
These days, due to the state budget crisis, the Public Defender’s Office on Maui is short-staffed and paid less due to furloughs. The Maui Public Defender’s office has handled nearly 10,000 cases in one year; with 13 lawyers, that’s an average of about 769 cases per attorney. Assuming 205 eight-hour work days a year—excluding holidays, vacation, sick days and weekends—that’s an average of 2 hours and 6 minutes of attorney time per case. When the number of attorneys goes to 10, each case gets 1 hour and 36 minutes. This includes court time, travel time and time to interview witnesses, in everything from misdemeanors to murder cases.
The reality is public defenders generally work more than eight-hour days, and sometimes on the weekends. And, obviously, the less serious cases receive less time, and the more important cases get more time. But Wendy Hudson, Supervising Maui Public Defender, says she personally has 100 cases, plus the job of supervising the office.
“Imagine it’s the World Series,” says Maui Public Defender Jim Rouse, “both teams get the same number of players. That’s a fair game. Now imagine your team doesn’t have a third baseman, a shortstop, or a left fielder.”
In contrast, the Prosecuting Attorney’s office on Maui has seen no budget cuts and was not put on furlough. They handle every case where the state brings charges, from parking tickets to capital crimes. Maui’s First Deputy Prosecuting Attorney, Peter Hanano, isn’t sure how furloughs in the Public Defender’s office will affect the general public, but he says courtroom furloughs will make a difference. “Think about any number of public services. Take away one day of services and the public’s gonna notice it.”
The overwhelming majority of national studies point to evidence showing that, no matter how skillful or diligent attorneys are, indigent defendants are not getting a fair shake due to overwhelming caseloads and under-funding. This leads to wrongful convictions. Nationally this year, according to the Death Penalty Information Center, nine people on death row have been exonerated. These were prisoners the government was scheduled to put to death on citizens’ behalf, released after years of incarceration. For one reason or another justice was not realized during their trails. Two of those former prisoners had already served 23 years.
Attorney Kerry Ison, of Ison and Rome in Wailuku, says the system is designed to produce fair judgments when the accused have a strong defense and the state makes its best case. When that balance is disrupted, justice is disrupted. “Think about a youthful mistake. You’re a minor caught in possession [of marijuana or alcohol] or you’re brought into traffic court. Without proper representation that could ruin your life.” She explains how if such incidents result in serious convictions, they forever affect chances of admission to school, entering the armed services or getting a job.
In November 2008, the Hawaii Deputy Public Defender said, “I think the quality of representation has suffered because we have to divide our time…. It’s hard to file motions, do legal research and do what needs to be done.” That was before November 2009’s furloughs and hiring freezes. Moreover, according to an April 2009 report by the Constitution Project in Washington, D.C., Hawaii was one of only six states that actually decreased funding for indigent defense (when adjusted for inflation) between 2002 and 2005.
Currently, due to a lack of Public Defenders on Maui, the Oahu Public Defender handles Molokai and Lanai cases. Maui’s PD no longer covers Lahaina District Court, meaning Lahaina defendants must find a way to Wailuku. Public Defender Gene Evans, who covers Lahaina and a host of other courtrooms, has one hour per month of court time for Lahaina issues. “I get about 20 new cases a week,” he says. And he estimates there will be closer to 50 cases on the docket for the December 11 “power hour.” Otherwise, people’s cases get pushed to the next month. “The system, in a sense, is going haywire,” says Tonaki.
Many things can happen when cases get delayed. For one, judges can throw cases out if court backlogs don’t allow for a speedy trial in six months or fewer. In that case, the guilty might not be punished.
Or, defendants who have yet to be convicted stay in jail on the taxpayers’ dime. Says Evans, “You have people staying in jail [awaiting trail] longer even than a possible sentence would be. And in some cases, they win.” In those cases, innocent people get punished.
According to Evans, when court is far from a person’s home or work, more bench warrants are issued because of defendants’ failure to appear on their court date. And though many people might say, “So what—they don’t show, they should be arrested,” the truth is they often aren’t. Instead they just add to police and judiciary workload—ultimately costing citizens.
Case in point: On December 29, 2008, Sia-Osi “One Eyed George” Feleunga was allegedly drunk driving on Farrington Highway in Waipahu. He hit and killed Lindsey Kane who was riding his Harley in the next lane. Feleunga was supposed to have been arrested after his second DUI conviction, but an overworked police force wasn’t able to get to his warrant, or more than a fraction of the other 50,000 currently on the books.
Help may be on the way. Tonaki says he’s confident the Governor’s office will approve filling the empty positions within the Office of the Maui Public Defender. He bases his confidence on what he characterizes as a quick approval the last time he submitted an exception to the freeze. In the meantime, be careful out there. Justice may take a while.
Number of attorneys in the Maui Public Defender’s office; state budget cuts led to a hiring freeze and the institution of furloughs
Number of cuts in the Maui Prosecuting Attorney’s office, which has not endured furloughs
Approximate number of cases handled by the Maui Public Defender’s office in a year
Portion of Mauians accused of a crime who use a court-appointed public defense attorney