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The Honolulu Advertiser
Posted on: Sunday, January 10, 2010

Staffing crisis forces Maui public defender's office into 'triage mode'


By LILA FUJIMOTO
The Maui News

WAILUKU, Maui Short nearly one-third of its allotted attorneys and stuck in the state hiring freeze, the Maui public defender's office will no longer appear for defendants in Wailuku District Court.
"It's just desperate times calling for desperate measures," said Wendy Hudson, supervising deputy public defender of the Maui office. "We are in total triage mode."

Although the office is budgeted for 13 attorneys to represent eligible indigent defendants in criminal and traffic cases in Maui County, two attorney positions are vacant and two attorneys are on extended leave. The lawyer vacancies, along with a job for a full-time clerk, haven't been filled because of the statewide hiring freeze.

Hudson, who is handling a full caseload in addition to her administrative duties, said the office had to set priorities to cope with the unprecedented 30 percent decline in staff attorneys. The decision was to focus on Family Court and felony clients. Usually, those defendants are facing more severe charges and penalties and may be in custody while their cases are pending.

So starting Monday, attorneys from the office won't be appearing in the two District courtrooms on the third floor of the Wailuku courthouse. DUI, traffic, misdemeanor, petty misdemeanor and other cases are handled in those courtrooms, along with initial appearances for defendants in custody, amounting to "easily 450" cases a month, Hudson said.

Second Circuit Chief Judge Shackley Raffetto, who was notified of the change this week, said the court will be appointing private lawyers to represent defendants in District Court cases that had been handled by the public defender's office.

"Nothing's going to change," Raffetto said Thursday. "We'll just provide the services through private counsel."

There may be some delays while new attorneys are appointed to take over current District Court public defender cases, Raffetto said.

Under state law, an indigent person arrested for or charged with a criminal offense punishable by jail or prison has the right to be represented by the public defender or another appointed attorney. The law says that if the public defender can't act, the court can appoint other counsel.

Raffetto said the court already appoints private attorneys for defendants who qualify when more than one defendant is charged for a crime or when the public defender's office has another conflict.

"We have a whole cadre of private lawyers who appear all the time," Raffetto said.

He said some lawyers might take on some of the District Court cases pro bono, or without pay for the public good, noting that attorneys are required to do a certain amount of pro bono work.

"Whether this all works out to a savings overall is a question mark," Raffetto said.

Court-appointed private attorneys are paid $90 an hour. Jack Tonaki, the state public defender, says his lawyers make "far below that" per hour, but he has many resumes on his desk of lawyers who would like to work for his office if the freeze ends.

"There are a lot of attorneys looking for jobs."

Deputy Public Defender Jim Rouse said the cost of paying private attorneys to do the work would be higher than the salary of a deputy public defender.

"The incentive for a hiring freeze is to save the state money," Rouse said. "But this is ultimately going to cost the state more money.

"We're talking about constitutionally guaranteed rights that have to be protected. These folks that are appearing in court are entitled to lawyers."

The hiring freeze has affected the Maui public defender's office for a while. A job for a full-time clerk has been unfilled for more than a year, Hudson said.

Since October, when two attorneys left the Maui office, lawyers from the public defender's Oahu office have temporarily handled cases in Lanai and Molokai District and Family courts. Also since then, deputy public defenders haven't been appearing for criminal and traffic cases in Lahaina and Hana District courts and for Molokai and Maui Drug Court status hearings.

Hudson said many of the Lahaina and Hana cases were transferred to Wailuku District Court, increasing the caseloads for those deputy public defenders.

The Maui public defender's office will continue to handle District Court preliminary hearings and will resume appearances for Maui and Molokai Drug Court hearings and involuntary commitment hearings in Family Court, Hudson said.

With deputy public defenders no longer staffing Wailuku District Court, Hudson said one attorney will be reassigned to Family Court to handle juvenile matters and the other will go to 2nd Circuit Judge Richard Bissen's courtroom, where Rouse has worked largely as the only deputy public defender facing four deputy prosecutors since October.

"My caseload doubled," Rouse said. "I did the best I could. Obviously, I could do a better job if I had help."

He said the judge helped by allowing continuances for some cases, and deputy prosecutors didn't oppose the requests.

Hudson said Tonaki has requests in to the governor's office for permission to fill the Maui vacancies. Tonaki said he has emergency requests in to fill 13 vacant attorney jobs throughout the state.

If attorneys are hired, Hudson said the office will try to return to handling District Court cases.

"I know this is wreaking havoc on the court, plus our clients," she said. "I'm hopeful this isn't going to be forever."

Saying the predicament could have been predicted, Rouse said he was disappointed that the Legislature didn't convene a special session to address the issue.

"I don't think you would subject your fire department or your police department to a hiring freeze," he said. "They obviously have a function that's very important to this community. And the same goes for the Office of the Public Defender. It's an essential function. It's probably the best bargain the state has for what they pay."