The state agency responsible for providing legal counsel to poor defendants across North Carolina would do a better job of serving its clientele if it depended less on judges' influence and set up systems to evaluate attorneys' performances and address complaints, a recent review by the state auditor's office found.
"Our findings show North Carolina is falling short related to its responsibilities for providing independent, competent and adequate legal defense for the poor," State Auditor Les Merritt said in a prepared statement. "We think [the Office of] Indigent Defense Services should propose legislation that addresses these shortcomings."
Currently, judges appoint public defenders to office, assign cases to attorneys and approve lawyer payment applications. As a result, "attorneys may be more concerned with maintaining the good will of the judge and obtaining future assignments than ensuring that a proper defense is provided to indigent clients," the report says. "This lack of independence may create a conflict between an attorney's financial interest and his or her responsibility to provide a vigorous defense."
The report recommends shifting appointment authority for public defenders from judges to the Office of Indigent Defense Services or some other independent body. Such a move would be in line with other recent reforms of the state's criminal justice system that protect the rights of the criminally accused, including the recent creation of the N.C. Innocence Inquiry Commission.
The reforms would mirror changes that have already been made in capital and appellate defense cases. The Office of the Capital Defender and the Office of Appellate Defender—not judges—assign lawyers to represent poor clients in those cases.
"The capital system has worked very well," says Ken Rose, a lawyer at the Center for Death Penalty Litigation. The number of death penalty convictions has dropped because clients are getting better representation, Rose says. "Merritt's recommendations are to expand that system. Having a neutral board appoint lawyers, experts and investigators—I think that's an excellent idea."
Auditors spent a year observing operations of the Office of Indigent Defense Services. They interviewed personnel, district and superior court judges, public defenders and representatives from the N.C. Academy of Trial Lawyers and the N.C. State Bar. The audit ended in October and the report was released at the end of February.
In addition to pushing to free the Office of Indigent Defense Services from judicial influence, the audit also concluded that the office has fallen short of ensuring that lawyers representing the poor are actually performing well in court.
"No statewide criteria are used to select qualified attorneys; attorney performance is not systematically evaluated; and standard procedures have not been established to monitor and resolve client complaints," all duties that are required by the statute that created the Office of Indigent Defense Services in 2000, the audit reports. "It is also important to ensure that effective defense is provided to defendants due to the high personal costs of ineffective representation to the wrongfully accused."
Also, inadequate accounting has allowed duplicate and unauthorized payments to attorneys and permitted some lawyers to fleece the system, according to the report.
In a written response to the audit, Executive Director Malcolm Ray Hunter said his office was already aware of the vast majority of issues contained in the report. Hunter says that an expansion and regionalization of the state's public defender system would be the best solution to the problems.
"Under the regionalized system that we envision," Hunter writes, "a chief public defender could oversee an office in one or more counties and also oversee appointed lists, contracts, and/or part-time state employed defenders in the more rural areas within the region."
He says the regional public defender would also handle attorney fee applications and resolve client complaints, which have been neglected in the current office.
These changes would require new legislation to restructure the agency, and such legislation has not yet been written. The state auditor cannot compel the Office of Indigent Defense Services to action.
"We don't have any sort of enforcements to require agencies to follow our recommendations," says Chris Mears, spokesman for the auditor's office. "However, we do check back periodically."