Working as a public defender is Dan Reuter’s retirement gig.
He chooses to serve those who can’t afford an attorney because he sees it as his obligation to society.
“We talk about justice. We talk about equal justice. We talk about all of these things, but the reality is, if you haven’t got much money, it’s hard for this (legal system) to work for you.”
Reuter was hired as a public defender in January 2017 alongside Jacob Moore and Courtney Allen.
At any given time, they could be handling about 100 cases per lawyer, which is 140 percent of the recommended caseload, according to the Indiana State Public Defenders Commission. The recommended maximum is about 75.
“We were falling behind the state standards,” said James T. Roberts, who’s been practicing law for almost 50 years and is now president of the Brown County Public Defender Board.
State standards need to be met for the county to get reimbursed for 40 percent of its public defenders’ salaries.
“A fourth lawyer is the only way to push our caseload down to the point where we are meeting the minimum state standards,” Roberts said.
The caseload in itself also is an issue of concern.
The public defenders and Roberts had asked the Brown County Council last summer to hire an additional lawyer because of an increase in criminal cases and child in need of services (CHINS) cases.
The new hire, recent law school graduate Andrew Penman, starts work this month.
Neighboring Johnson County faced a class-action lawsuit in the fall of 2015, claiming that the county had violated offenders’ right to counsel and that public defenders and judges had breached their contracts by not providing adequate representation. In that case, one part-time public defender was handling 176 felony cases and 32 misdemeanors in a year, the lawsuit said.
Reuter said the caseload here has not gotten to the point where the public defenders are “overwhelmed,” but adding a fourth public defender will help them give people the defense they are entitled to.
“What’s important is the citizens who are charged with criminal offenses get the same level of representation as the people who can afford to hire their own experts,” Roberts said.
“If you really want to look and visit the scene, talk to people and figure out what happened, those cases can be very, very time consuming,” Reuter said. “… Sometimes what’s lacking is time to think, and I think that’s true of everybody in this business.”
In 2016, Indianapolis lawyer Michael Sutherlin — who used to be president of the Brown County Public Defender Board — and Fort Wayne lawyer David Frank asked the Indiana Supreme Court to look at issues highlighted in a report prepared by the Indiana Indigent Defense Study Advisory Committee.
The report focused on Elkhart, Blackford, Lake, Lawrence, Marion, Scott, Montgomery and Warrick counties. It stated that some counties had inadequate funding and oversight for public defenders. Sutherlin’s and Frank’s petition asked the court to ensure that training, payment systems and oversight of public defenders in all 92 counties is consistent.
The Brown County Public Defender board’s total approved budget for 2018 — including salaries — is $193,742.
That includes $21,600 to pay for appeals, investigative services, psychiatric services and transcripts.
The appropriation for investigative services was exhausted last year, Roberts said.
“The practice of law and criminal defense is unpredictable. Some years you don’t have those expenses; other years you have cases in which you have to spend three times as much,” he said.
To level the playing field among those who have means to hire their own attorney and those who don’t, “it’s important that we have money for expert witnesses and for investigators,” Roberts said.
A public defender is appointed to a defendant when a judge determines that employing an attorney “would be a substantial hardship on that person,” Roberts said.
“Many of the cases are just obvious. You have someone who is homeless, owns no property and is sitting in the Brown County jail with no income. That’s a slam dunk. They are going to have a public defender,” he said.
Judge Judith Stewart and Magistrate Frank Nardi will often ask defendants to “shop around” to see if they can afford an attorney, because people will say they cannot afford it without knowing the cost, Roberts said.
The court has applicants fill out an affidavit listing their income and property, “but there isn’t any set, ‘OK if you make over $25,000 a year you can hire an attorney’ (standard),” Roberts said.
Public defenders cannot deny taking on a case unless they have a conflict. If they do have a conflict, a private attorney is hired at a rate of $90 per hour, which comes out of the board’s general budget, Roberts said.
If a public defender spends more than 20 hours on a case, he or she is paid on an hourly basis.
Reuter and Allen estimated they have 90 to 110 public defender cases each.
“The ideal is that each of these underpaid lawyers have enough time to give personal attention to each one of their clients. I don’t know if anyone can do that perfectly,” Roberts said.
Allen, Moore and Reuter said most of their public defender cases end up in plea deals or in a pre-trial diversion.
Pre-trial diversion is offered to individuals without significant prior convictions who have been charged with minor offenses to avoid a criminal conviction if they complete certain requirements.
“Once you’ve exhausted everything, that’s when you start exploring a plea deal. There’s only so much you can do. The system is set up in a specific way. You present the defense you have, you can’t really make up a defense,” Allen said.
“The goal is to not have them all found innocent, but it’s to give them the support they need and the defense that they are entitled to.”
‘Doing my best’
Reuter, 83, started law school at Indiana University after retiring from ministry. He’s been a lawyer since 2009. His father was a lawyer, too.
“An elderly lady I knew said, ‘It’s better to wear out than rust out.’ I had to do something, having been granted reasonably good health and so forth,” he said.
His ideal job was to be a public defender, because when working privately with those who have difficulty affording an attorney, lawyers don’t always get paid. “It’s nice to have a direct deposit,” he said.
But the pay is not much. Public defenders make about $33,000 a year.
Allen, Moore and Penman are all county employees and receive health insurance and benefits. Reuter is the only contracted public defender, because he does not need the benefits. Roberts said this saves the county $250 a month.
The benefits are one of the reasons Moore chooses to be a public defender, a job he’s held since January 2015.
“There’s no question that without the benefits, the salary would not, frankly, come close to justifying the workload,” Moore said.
Allen said another plus to being a county employee is being able to have her federal student loans forgiven if she works in public service for 10 years.
Being a public defender is considered a part-time job at 30 hours a week, so those attorneys are allowed to operate private practices, too.
In her office in Martinsville, Allen focuses on family law and adoptions. However, she has had to cut back on her private practice work in order to avoid getting in over her head with her public defender work.
“I don’t ever want to feel like I’m not giving them not just the adequate, but good representation — the representation they have a right to have. I don’t want to be neglecting cases or not doing my best or not giving it my all on cases,” she said.
Moore said the reality of being a public defender is that it’s difficult to maintain a private practice.
“The increase in the public defender workload has made that increasingly difficult,” he said.
More of a challenge
In 2016, 531 criminal cases were filed in Brown County. Toward the end of 2017, that number was over 700.
“If law enforcement gets better at what they do, that’s actually a good thing for society; however, one of the side effects of that is that it does put a greater strain on your public defender system,” Moore said.
One especially noticeable increase has been in cases involving children.
CHINS cases are opened when the Department of Child Services determines that a child is being abused or neglected and DCS intervention is necessary.
Unlike criminal cases where attorneys have the facts of the case and the law to follow, CHINS cases aren’t always clear, and this makes them more of a challenge, Reuter said.
In those cases, there are no trials. The judge decides what’s in the best interest for a child.
“You have the sense you’re always flying by the seat of your pants. It’s not a case of just establishing the facts. You’re arguing what would be a good thing to do here. You’re kind of a moral philosopher,” Reuter said.
Wednesdays tend to be CHINS case days in Brown Circuit Court. Allen said when she first started as a public defender in the spring of 2015, she was in the county one Wednesday a month, possibly two, dealing with CHINS cases.
“Now it’s every Wednesday, pretty much all day,” she said.
In 2015, 21 CHINS cases were filed. That number increased to 64 in 2016, then 70 as of Dec. 28, 2017.
“Being here, I don’t think I’ve been appointed or heard about an actual case of physical abuse,” Allen said. “… Every one that I have been appointed to tends to be drug use, or neglect as a result of the drug use. I don’t think I’ve had a case where drugs were not involved somehow with at least one of the parents.”
In your corner
Allen, Moore and Reuter do not have staff to answer phones or file paperwork for them. Often, they are working on private cases in between public defender hearings and vice versa.
While Moore was doing this interview, his phone rang twice in a 20-minute period, and both calls were from the same inmate who had questions about her multiple cases.
“It does sometime feel a little bit like lawyer-slash-social worker. That aspect of it is not the most fun aspect of it. That, indeed, can be sort of a taxing aspect of the job,” Moore said.
“You’d be surprised by the number of people who do not, for example, call you after you’ve been appointed to them. They very often will not show up, so they get a failure to appear warrant and then are upset at you for that. Then there are others who do show up to that first hearing and this is the first time you’ve ever spoken to them.”
Public defenders are not given phone numbers for their clients, he said. Moore often mails his clients a letter, asking them to contact him. “In my experience, 1 in 5 respond,” he said.
In his private practice, Moore handles criminal cases, including juvenile delinquency cases, record expungments, family law, wills, estates and tort claims.
“I find when you work with juveniles, there’s a lot of satisfaction, because obviously, you don’t ever want to say it’s too late for anybody. But with juveniles, you feel like it might be an easier thing to kind of put them back on track,” he said.
That, along with helping adults avoid “calamity in their lives,” are some of the rewards Moore receives as a public defender.
“You’ve helped somebody keep a job, or you get somebody an opportunity to do home detention instead of going to jail. You not only help that individual, you also help their children, their spouse, all of these different people,” he said.
Moore said that sometimes, people misunderstand the role of a defense attorney.
“We’re not pro-crime. We’re not anti-consequences. We’re there to protect the accused’s constitutional rights. That includes the right to make the state prove they’re guilty beyond a reasonable doubt,” Moore said.
“In many cases, you have an opportunity to help people who badly needs that help.”
A lot of being a public defender is supporting clients, Allen said.
“If there’s a setback, you encourage them. ‘Keep going. Don’t give up.’ It does become kind of a social worker (role). … Sometimes they don’t have anybody else to encourage them,” she said.
“They are really grateful to have somebody there that they can call.”
The Brown County Public Defender Board needs a third member to join James T. Roberts and Rick Kelley.
The Public Defender Board is responsible for applying and requesting the 40-percent salary reimbursement for the public defenders in Brown County.
“It doesn’t have to be a lawyer, but somebody who has some feeling for the court system and understanding the court system would be great,” Roberts said.
The Brown County Commissioners are responsible for appointing the third person. Judge Judith Stewart appointed Kelley and Roberts.
Anyone interested in serving on the board can call Roberts at 812-988-6671.