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Rights of accused drive efforts of defense attorneys

Tue, 04 Feb 2020 16:40:53 GMT

Rights of accused drive efforts of defense attorneys

They get handed cases on short notice. They don’t have the option of refusing them. They don’t get to pick their clients. And people sometimes wonder how they can do what they do, especially when the court of public opinion can muster strong emotions.

But of all the obstacles a defense attorney can face, the biggest might be that of perception.

“The idea that we’re ‘just public defenders’ and not going to try our hardest, sometimes that exists,” said Travis Finck, deputy director of the North Dakota Commission on Legal Counsel for Indigents.

A person accused of a crime has the right to an attorney but may not be able to afford one. That’s when a public defender is appointed.

Public defenders represented defendants in about two-thirds of the felony cases and in about one-fourth of all criminal cases in North Dakota last year. The state's caseload has been somewhat level in the last couple of years, but there were 2,158 more felony filings last year than in 2012, according to data from the North Dakota court system. And it's getting harder to find attorneys to handle cases, according to Finck.

"It's just more difficult to find people to take cases because of what we pay versus what they can make in private practice," he said.

Best deal possible

Providing those services has been eye-opening for Josh Weatherspoon, of Bismarck, who joined the North Dakota Bar in the fall of 2018. He does contract defense work and practices family law, and like many law school students envisioned himself becoming a prosecutor. Starting his career as a defense attorney has been beneficial for him and something he’s “more than happy to do,” he said.

“I feel like we have to ensure (defendants') constitutional rights are being attended to,” he said.

He sees the defense attorney’s role being less about getting an acquittal and more about getting the defendant the best deal possible. That sometimes means putting personal feelings aside and presenting a client with some hard truths. For example, a client who represents himself or herself -- especially one with substance abuse issues -- can be tempted to eye the short-term goal of getting out of jail. To accomplish that, they might agree to two years on probation.

“They’re never going to succeed,” Weatherspoon said. “They won’t check in with their probation officer. They’re not responsible.”

A better solution, he said, might be a 60-day jail sentence that includes treatment.

Other times, though, it’s better if a person isn’t in jail. He or she may have landed there because of a bad day, Weatherspoon said. A person in custody isn’t home with children and runs the risk of losing a job. That’s when an attorney can help address pretrial issues that might keep the person out of jail. Bond issues can be “a crap shoot” from case to case and judge to judge, he said.

“I didn’t think I’d deal with that every single week,” he said. “I’ve had people sit on $100 because they can’t pay it.”

Seeing both sides

One attorney who sees both sides of the aisle is Grant Walker.

He’s worked as a prosecutor in South Dakota, as a special assistant U.S. attorney, and as chief prosecutor on the Standing Rock Reservation. He served a term as state’s attorney in Walworth County, S.D., and now holds that position in Grant County. But he's also in private practice in Mandan and is under a half-time contract in the South Central Judicial District -- 150 cases per year -- as a public defender.

His philosophy of crime prevention has changed since his first job as a prosecutor. He was tough, seeking jail time for offenders “to clean up crime and never have crime in the community,” Walker said.

“That’s never the way,” he said. “Rehab is a smarter approach.”

Some offenders, maybe 25%, he said, deserve to spend time behind bars. But a first-time DUI offender, for example, could lose his or her job, home and family if the case isn’t handled properly. Prosecutors often don’t get to see that side of a case, Walker said.

“As a defense attorney, you get the opportunity to tell that story,” he said.

He once took up the cause of a young man who had represented himself in a misdemeanor case for failing to produce proof that he had car insurance, even though he had insurance. The man's family counted on him to run errands and give his siblings a ride to school every day. They met with Walker after learning the boy would lose his license.

“The mom was in tears; the kid thinks his life is in ruins,” Walker said. He contacted the state’s attorney in that county, who was willing to work with him on a solution.

“Without an attorney, that family would have been traumatized by the repercussions,” he said.

Pitfalls and perceptions

Representing one's self is similar in some ways to a person attempting his or her own plumbing, electrical or accounting work, according to South Central District Judge John Grinsteiner.

If a person doesn’t have the skills, “important things may be missed, and there are pitfalls to any process,” he said.

Grinsteiner sees another perception –- more outside the courtroom than inside -- that some defendants don’t deserve any representation. Though he notices it more in high-profile cases, attorneys like Walker and Weatherspoon can run into it as they handle their day-to-day caseload. For Weatherspoon, it came up when he defended a person accused of robbery. The robbery occurred in a business he and friends frequented, but he couldn’t let that be a detriment to a solid defense.

“They have rights too, like you, me, mom and dad,” he said.

That’s another perception -- that an allegation is the same as a conviction -- that Finck said defense attorneys have to just roll with.

“It’s not my job to judge. Everyone is entitled to their day in court,” he said. “I’m still a firm believer that constitutional rights mean something.”

It’s not a glamorous job and it’s not for everyone, Finck said. But it’s an opportunity to help make a positive change in someone’s life, to lend an ear, find a solution.

“Victory for a public defender is measured so much differently because we don’t get to pick our cases,” he said.

Reach Travis Svihovec at 701-250-8260 or Travis.Svihovec@bismarcktribune.com

Attorney general visits UTTC for tribal conference

Tue, 04 Feb 2020 16:37:10 GMT

Attorney general visits UTTC for tribal conference

BISMARCK, N.D. — U.S. Attorney Tim Purdon told the crowd at the Tribal Consultation Conference that his motivation for becoming the U.S. attorney for North Dakota was to work in Indian Country. The first time he met Attorney General Eric Holder after his appointment to the post, Purdon told his new boss of the public safety struggles on North Dakota's reservations.

Holder responded it was unacceptable that one in three Native American girls and women will be sexually assaulted in her lifetime. And Purdon knew Holder "got it." Later, during a visit to the Pine Ridge reservation in South Dakota, Holder laid flowers at Wounded Knee, a memorial former Attorney General Robert F. Kennedy had said more than four decades earlier he wished he had made. And Purdon again saw Holder's commitment to Indian Country.

"You have the head and the heart for Indian Country," Purdon told Holder on Thursday at United Tribes Technical College, likening the attorney general to the assistant U.S. attorneys in Purdon's office who prosecute cases from the state's reservations.

Holder then took the podium, the most prominent speaker in the four-year history of the event that brings together tribal, local, state and federal officials to talk about public safety challenges facing the state's tribes.

The attorney general lauded the efforts of Purdon's office in working in Indian Country. He cited specific cases in North Dakota, including a prominent murder case and an ongoing drug investigation. Holder also acknowledged the failings of the federal government over the years, the broken treaties and promises. But he said the future is bright.

"We must both acknowledge and confront the lingering impacts — and the deep scars — inflicted by centuries of violence and deprivation," he said.

Holder said working in Indian Country has been a priority for him, as well as for President Barack Obama, who plans to visit Standing Rock next week. And he said they're working to make sure that legacy extends to future administrations.

"We've secured legislation making the Office of Tribal Justice a permanent component of the Department (of Justice), and worked to institutionalize our commitment to cooperation so that future administrations can build on the progress that we make today," he said.

Holder talked about the Obama administration's work so far in Indian Country as well as new initiatives to help youth on reservations affected by violence, to get lawyers versed in Indian law and to empower future generations of leaders.

After his speech, Phil Baird, the interim president at UTTC, presented Holder with a ceremonial blanket.

While Holder was the big draw for the conference, his talk was not the only thing on the agenda. Other speakers included Baird, Purdon, Allison Randall, the chief of staff for the Office of Violence Against Women, and Mario Redlegs, special agent in charge of the Bureau of Indian Affairs Office of Justice Services.

Attorneys in Purdon's office gave out the first Champions of Public Safety in Indian Country awards to officials working on North Dakota reservations.

Assistant U.S. Attorney Gary Delorme presented the award to Grant Walker, the former chief tribal prosecutor for the Standing Rock Sioux tribe. Delorme is assigned to prosecute cases off the Standing Rock reservation. Walker worked for the tribe from 2009 until April, and Delorme said Walker was an advocate for justice for the people of Standing Rock.

Walker did not hesitate to advocate to leave cases in tribal court rather than put them in federal court where sentences tend to be longer, when a defendant had little or no criminal history. Delorme said there are dozens of young people on the reservation who were granted second chances through Walker's work to keep the tribe involved in the process, and many of them may not even know that they would have ended up in federal prison without Walker.

Walker said he was honored to receive the award. Working on the reservat ion was a rewarding experience, and he urged tribes to continue strengthening their tribal court systems.

Assistant U.S. Attorney Rick Volk presented awards to two Three Affiliated Tribes Police Department officers: Detective Angela Cummings and Sgt. Dawn White. He spoke about Cummings' passion for her work and compassion for the people she works with — both victims and suspects. She has helped to bring people to justice, he said.

Volk called White the "eyes and ears of the reservation," and said her knowledge of people and cases on the Fort Berthold reservation is "astounding."

Cummings and White said they work to protect the reservation because it is their home.

"I sacrifice because this is the only place I'm going to be a cop," White said. "I want to be in the front lines to protect, because that was my vow: to protect my community."

"This is my home," Cummings said. "My biggest reward is to know my kids are going to live in a safe world."

After Holder's speech, Volk led a panel discussion on the U.S. attorney's office's multidisciplinary team approach to reservations. Each attorney assigned to a reservation organizes regular meetings with other officials on the respective reservations to go over case progress and collaborate on issues.

"What we want to know is what's going on on the reservation and how can we help," Volk said.

The meetings involve victim advocates, tribal law enforcement and prosecutors, child protection systems, school officials, children's advocacy centers and others. Assistant U.S. Attorney Brandi Sasse-Russell, who prosecutes cases off of the Turtle Mountain reservation, said all participants sign confidentiality agreements.

Volk said the approach helped in a 2-year-long effort to prosecute a man for human trafficking, sexual abuse and drug trafficking on the Fort Berthold reservation.

"You need to have a team that is able to connect with people if you're going to get a case like that to trial,” he said.

Reach Jenny Michael at 701-250-8225 or jenny.michael@bismarcktribune.com.

Rights of accused drive efforts of defense attorneys