By RONNIE ELLIS
Somerset — Follow Teresa Whitaker into court and you’re likely to get there early and leave late. You’re also likely to watch her carry stacks of file folders, each representing a client, through which she thumbs looking for the appropriate file when a judge calls one of her many clients’ cases.
Often when she finds it, she looks at faces in the crowd, searching for the client, find the right face to go with the right folder, and then spend precious few minutes with him before the judge.
Whitaker is the Directing Attorney for the Somerset Field Office of the Department of Public Advocacy. She’s a 43-year-old mother of three who supervises five other attorneys who serve clients in Pulaski, McCreary, Russell and Wayne counties. She and each of the other attorneys have more than 550 cases to handle at any one time. In fact, they have so many cases, they practice “triage,” choosing which cases “are the most urgent, which come up for trial first.”
“I don’t believe clients can receive effective representation” in such an over loaded, over worked system, Whitaker said. Attorneys must prioritize their load, spending most of their time on felony cases, but “juveniles and misdemeanors are maybe not getting as much attention as their cases deserve.” But their situation may soon get a lot worse because the department will run out of money sometime in May..
The state’s Chief Public Advocate, Ed Monahan, says such a high case load – 10 of the state’s field offices average more than 550 cases per attorney – is well beyond “an ethical level.” But because of the state’s severe fiscal problems, Monahan has no prospect of filling anywhere close to the 55 attorney vacancies in the department.
Two of those are in Somerset. One position has been open for a year. Then in December, Whitaker’s predecessor, Jim Cox, retired and Whitaker was promoted to the position. But her former staff attorney’s position remains vacant – and she must now handle those cases as well as the role of administrator for the field office and supervisor of the other attorneys.
But public defenders don’t know if they’ll have any money to operate on by the first of May. The legislature failed to pass a budget clean-up bill which would have provided $4.7 million to operate the department through June 30 when the fiscal year ends. House Speaker Greg Stumbo said Gov. Steve Beshear has the authority to move funds within the budget to provide money for DPA “because it’s a constitutional mandate.”
Monahan agrees, but not everyone is so sure.
Ellen Hesen, Beshear’s General Counsel, said Beshear is “genuinely concerned about the disruption to the criminal justice system that could occur, and he’s charged his staff to be as resourceful as we can be to avoid that.”
Monahan and Stumbo are relying on a court case which said the governor may spend money on mandated services even if it’s not been appropriated by the legislature. And the U.S. Constitution guarantees anyone charged with a crime representation by counsel.
But Hesen said that ruling covered a situation when there wasn’t an enacted budget. This time, there is a budget but enough money in it for DPA.
“I don’t think that is crystal clear,” she said. “We’re reviewing what our legal authority is as well as what our fiscal options are.”
In the meantime, public defenders continue working long hours and carrying heavy caseloads.
Whitaker said judges in the circuits where her attorneys practice have been understanding. In Pulaski County, the same public defenders often face cases in circuit and district court on separate floors of the courthouse at the same time. But district judges schedule public defenders’ clients last on the docket. Her attorneys work the circuit court, then rush downstairs to district court for another load of cases.
Monahan said he remains “very hopeful” Beshear will find a way to fund DPA.
Until then, Whitaker and the other public defenders keep running, keep shuffling among their stacks of case files – and dealing with the stress.
“We’ll just do our job up until May and then I guess we’ll see what happens,” she said.
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Ronnie Ellis writes for CNHI News Service and is based in Frankfort, Ky. He may be contacted by email at rellis@cnhi.com.
