Editor's note: This story is part of 'Broken Defense,' an investigative series from Lee Enterprises. More details about this project can be found at the bottom of this article.
Montana resident Joseph Jefferson-Dust often found himself staring into space sitting in jail four years ago, fantasizing about the day he might prove his innocence.
As he served his sentence partially on probation in 2021, Jefferson-Dust had no idea a memo that could clear his name was sitting in an overwhelmed public defender’s office, delaying his exoneration fight for more than a year.
He was accused of sexual assault by a 9-year-old girl, prompted by her father, who detested Native Americans. Jefferson-Dust, a 38-year-old member of the Crow Tribe, pleaded guilty to a lesser charge, criminal endangerment, and was sentenced in 2017 to probation. He’s since been in and out of jail for probation violations.
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His accuser recanted three years later at the public defender’s office. It changed nothing for more than a year.
The appointed public defender was 10 days from retirement with a workload more than 25% beyond the agency’s case management standard. The internal memo explaining the recantation went unseen for 13 months.
“I don’t even understand how that can work like that,” Jefferson-Dust said of the delays in raising the recantation. “Don’t people feel an obligation to do the right thing?”
Jefferson-Dust discovered the girl’s recantation in December 2021, yet again was jailed twice for probation violations: Two months for an unplanned detour to get gas on the way to work and four months after he and his probation officer failed to connect in person. He visited the probation office to check in on the day he was told, but his probation officer wasn’t there, he said.
He remained on probation as of early January.
Across the West, public defense systems face crushing caseloads, historic underfunding, structural problems, and severe staffing shortages, imperiling criminal defendants’ lives and in many cases denying them their constitutional right to counsel. Defendants have lost jobs and homes while in jail waiting for attorneys to argue for a lower bail or for their release. They’ve had public defenders who were too busy to investigate their cases and felt pressured by their own attorneys to plead guilty when they said they were innocent, according to more than 15 people accused of crimes.
Public defenders have so many cases they struggle to provide effective representation, according to a Lee Enterprises investigation. Some regions have no attorneys at all. Failing public defense systems across the West routinely violate the Sixth Amendment right to effective counsel.
"The system is completely broken at this point," said Jared Hawkins of Oregon. "People like me are finding out how badly broken it is (while) sitting in jail with no lawyer."
Stephen Hanlon has practiced law for 55 years and leads a national public defense reform effort. The nation’s public defense systems are "systemically unconstitutional and unethical," he said. Judges and attorneys push defendants through the system as quickly as possible instead of investigating cases and seeking justice, Hanlon says, calling it a "criminal processing system."
“This is a national disaster and has been for 50 years,” Hanlon said. “The pandemic has exacerbated the problem somewhat, but the pandemic will be over and this problem will be here regardless.”
Variety of problems
Hundreds in Oregon currently are defenseless as the state faces a public defender shortage. Wyoming didn’t have enough public defenders in 2019 to represent people charged with misdemeanors. Arizona attorneys might be unable to keep up with filed cases.
“We’re hitting a crisis point,” Arizona public defender Megan Page said of Pima County. “My concern is that if we continue to pursue low-level felony cases, we won’t be able to have an attorney for everyone.”
The American Civil Liberties Union has sued Nevada and California for failing to provide attorneys, and Idaho for having so many cases that attorneys can't effectively represent defendants.
Montana’s public defender’s office has historically been underfunded, but the pandemic sparked what’s become known as the Great Resignation. Public defenders left the office to double their salaries in the private sector or move laterally in state government for a $13,000 pay hike. A recent analysis by the office shows it needed another 63 attorneys on average since 2019 to handle the caseload assigned to the agency and still meet its workload management limits.
A Montana judge in 2021 held the state’s public defender office in contempt when more than 650 Yellowstone County area defendants were unrepresented during historic turnover and vacancies.
The Yellowstone County regional office, which handled Jefferson-Dust’s case, had double the cases it could handle when his accuser walked in to recant.
At the time, the office had developed a practice that masked the severity of the staff-caseload imbalance.
As cases were filed, regional deputy public defender Kris Copenhaver assigned herself incoming cases, then sought delays. A placeholder attorney would be on hand for the defendant’s initial appearance, but neither that attorney nor Copenhaver would follow the case. Clients were then unrepresented until workloads lightened, and a dedicated public defender could take it.
“We had no idea how understaffed we were,” said Brian Smith, division administrator at the state public defender’s office.
Calls to Copenhaver seeking comment were not returned. She no longer works at the office.
Yellowstone County’s problems left cases in limbo with repeated delays waiting for counsel and let a potentially exonerating recantation fall through the cracks.
Montana’s public defender office director Brett Schandelson said his agency had a moral obligation to alert Jefferson-Dust that his accuser admitted she lied.
"There is no dispute that what happened to (Jefferson-Dust) is unfortunate and should not have happened," Schandelson said. "Unfortunately, the information about the recantation came to OPD at a time when the office was understaffed and overburdened. ... And while we did ensure that information was documented in a memo, it’s not quite clear what happened with that memo."
Stuck in jail
Oregon’s ongoing public defense crisis shows how having no attorney can devastate lives.
More than 750 people daily from mid-August through December needed an attorney but couldn’t get one, according to the Oregon Judicial Department. About 6 percent of them were in jail.
Richard Smith waited more than 40 days for an attorney last summer in the Coos County Jail, accused of burglary and unauthorized use of a vehicle. He lost his job, home and 10 pounds while in jail eating cereal with cockroaches in it.
He was released within two weeks once a public defender was appointed.
Jared Hawkins, also of Oregon, for more than six months had no attorney for non-violent offenses, including theft, possessing a stolen vehicle, identity theft, computer crimes and meth possession.
He lost his job and apartment waiting for a lawyer more than three months in the Douglas County Jail. His wife became homeless when she could no longer afford rent alone.
Hawkins also permanently lost feeling in his cheek after a jail dentist botched a tooth removal, slicing him about an inch.
“I’m losing more things every day in my life while I’m sitting in here,” Hawkins said from jail in August.
Hawkins got himself out of jail by filing bail reduction motions on his own. He began rehabilitation from opioid addiction. A day after completing the program in early November, he was arrested in Lane County for a probation violation from last January.
He was appointed a public defender for that, but not his other cases, keeping those stuck.
“Right now I’m just kind of in limbo,” Hawkins said in early December while incarcerated in the Lane County Jail. “I want to get my life back on track. I want to start working again.”
His public defender was able to take over his ongoing Douglas County cases by mid-December. For the probation violation, he was sentenced Dec. 19 to another two years of probation and 30 days in jail. He was released the next day for time served.
Busy attorneys
Public defenders are stretched so thin, some barely provide representation — a violation of people's right to effective counsel.
Nona Wiley, 55, met her public defender for the first time after her court hearing began in Matagorda County, Texas last October. "He's late," she said.
"I called him, and he won't even answer the phone," Wiley said.
Her lawyer had her felony drug possession case for a month before reading it the day of Wiley’s court appearance, she said.
Wiley sobbed in court, devastated at the possibility of losing time with her grandchildren. Her case was delayed to give her attorney more time to prepare, she said.
Theresa Dugas, 63, estimates she spent a total of 30 minutes talking with her Oregon public defender throughout her case last year.
She said her public defender arrived about 10 minutes before a court date and told her to sign papers. Dugas had no idea it was a guilty plea agreement for probation.
She admitted to drunken driving, but wanted to fight allegations that she also hit her 72-year-old boyfriend with her car. Dugas is her boyfriend’s caregiver and didn’t want to be labeled as an abuser.
“I would never have plead guilty to that,” Dugas said of the domestic violence assault charge. “I didn't know what I was signing for. … They’re supposed to be the ones telling me what it’s for. And she didn’t.”
‘I’m sick’
Idaho resident Chris Ellison was in the Twin Falls County Jail for most of 2022 pressing his lawyer to fight for his innocence or to get a new public defender.
Ellison was arrested Feb. 6 after police found $10 worth of meth and a pipe in his truck. Ellison has maintained the meth — possession of which resulted in a felony charge — was not his. He said friends had stayed at his house and left bags containing the drugs in his vehicle.
Public defenders have an ethical obligation to complete case investigations before recommending a plea, said Hanlon, the national public defense expert. Ellison said his first public defender, Douglas Emery, never questioned the friends, nor talked with witnesses who could have explained the bags weren’t his.
In August before court, Emery and Ellison discussed the prosecutor’s offer for Ellison to plead guilty and spend four to seven years in prison, Ellison said.
“‘I don’t want to take a deal and plead to a guilty charge for a crime that I didn’t commit,’” Ellison remembers telling Emery that Friday. “And (Emery) was like, ‘Come on man, I’m sick. I don’t want to spend all weekend preparing for a trial that you’re gonna lose.’”
Ellison wouldn’t budge. Emery visited him in jail on Sunday, the eve of trial, Ellison said. Prosecutors could charge Ellison as a "persistent violator" and pursue a life sentence because he has prior felony convictions.
“(Emery) was like, ‘You have until I walk out of this building to take this deal otherwise it’s going to get really bad for you,’” Ellison said. “He said, ‘I have an email right here from the prosecutor saying … they’re going to go for 24 years in prison.’ So life in prison, if I don’t plead guilty. I have three minutes to decide.
“So I had no choice but to plead guilty to a charge that I didn’t even commit.”
Emery declined to comment on Ellison’s claims because of attorney-client confidentiality, but in a written statement explained he handled “well in excess” of 200 Twin Falls felony cases in the last year. That's 50 cases more than the recommended maximum, according to national standards that experts say are already too high. Emery said he averages 42 to 65 work hours a week.
Ellison requested that Emery get kicked off his case, and a judge approved in October. Ellison and his new attorney had planned to withdraw his guilty plea in November, but by December the thought of more prison time changed his mind. He was sentenced Dec. 16 to three to seven years in prison.
‘Not justice’
Six other men in the Twin Falls County Jail had similar complaints about their public defenders. They said they felt pressured to delay their cases, saw delays in getting discovery documents and couldn’t reach their lawyers after dozens of calls. Scott Jaynes said his public defender, Emery, wouldn’t order a retest of a powdery residue police said was drugs unless Jaynes paid for it.
Emery said there’s “no constitutional right per se” to have evidence retested at the county’s expense. The defense must demonstrate a good reason why existing test results are questionable before the county would foot the bill, he said.
The six men believe their public defenders were more interested in plea deals than defending them.
"They want us to take these deals so they can get us moving through the system already," Victor Salazar, one of the men, said. "I’m not going to plead guilty to something that I didn't do. And then because of that, they’re going to punish me more by giving me a life sentence. That’s not justice."
Twin Falls County head public defender Ben Andersen declined to comment on the complaints. Twin Falls District Attorney Grant Loebs said his office and the public defender’s office struggle with staffing shortages, despite pay increases. Staff attorneys in each office earn the same salaries.
"We put ads out, and nobody applies," Loebs said.
Structural problems
The ACLU of Idaho in 2015 filed a class action lawsuit alleging the state’s public defense system is unconstitutional and structurally flawed.
Defendants each in Bonner, Shoshone, Ada and Payette counties say their public defenders didn’t investigate their cases or argue for lower bails and spent a total of 20 or 45 minutes with them.
Aadika Singh, ACLU of Idaho’s legal director, said the state’s public defense has improved, but "widespread, persistent structural problems" remain.
The Idaho Supreme Court is reviewing the class action lawsuit. The ACLU demands that the state develop a concrete plan for a new constitutionally acceptable system. Idaho plans to create a new, state-funded public defense system by October 2024, but the Legislature hasn’t detailed what the new model will look like.
A recent ACLU filing states the annual $50 million planned so far will not “even come close to adequately funding a constitutional public defense system.” Rep. Jon Weber, R-Rexburg, said it's difficult to estimate the new system's cost since a model hasn't been chosen, but he welcomes discussion.
Over the summer, the ACLU added a fifth person to the lawsuit. The man, Billy Chappell, had to investigate his own case in 2021 because his public defender didn't have time. It took two months for Chappell to talk with his attorney initially, a delay that may have caused exonerating evidence to be lost, the lawsuit says.
That attorney is unnamed in the lawsuit. Singh said the ACLU’s goal is to show public defenders lack resources.
“Our case is not about individual public defenders,” Singh said. “Our case is about an underfunded and overloaded system that makes it impossible for public defenders to do the kind of job they’d want to do for their clients. There’s too many clients. Too little time. Too few resources.”
About Broken Defense: Across the West, public defense systems face crushing caseloads, historic underfunding, structural problems and severe staffing shortages, imperiling criminal defendants’ lives and in many cases denying them their constitutional right to counsel. Defendants have lost jobs and homes, been pressured to plead guilty and been denied the benefit of exonerating evidence. People accused in more than 100,000 misdemeanors each year go to jail without ever talking to a lawyer.
Lee Enterprises’ West region Public Service Journalism team and local reporters attended more than a dozen court hearings and interviewed more than 25 defendants, 40 attorneys and 25 experts to reveal public defense in many western states is broken.
Lee Enterprises Public Service Journalism Reporter Emily Hamer may be reached at emily.hamer@lee.net.