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Judicial trends observed

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One of the pillars of our American system of justice is that, when charged with a crime, everyone is entitled to a defense. Of course, when one can afford it, a lawyer is simply hired.

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When a defendant cannot afford counsel, a public defender takes up the case.

In North Dakota, historically, this was handled through contract attorneys – lawyers in private practice who contracted to accept a certain number of defense cases for such clients each year.

That process changed in 2005, when a public defender system was created. The state Supreme Court drove the change, out of concern that appointing contract attorneys for defendants constituted a conflict of interest for the courts because the same judges would be presiding over those cases. The transition was gradual in some areas, including Cass County, where contract defenders continued for some time, before the public defender office was set up.

Even since the change was completed, some attorneys work full­ time for the public defender system, but contract attorneys still continue to take on cases, as well.

As chairman of the Judiciary Committee and having been appointed by the chairman of the Legislative Council to the Commission on Legal Counsel for Indigents, I have become even more familiar with the details of the public defender system in the state.

The oil boom in western North Dakota has created challenges for this system, as caseloads are up and defense attorneys are difficult to find there. The NDCLCI staff, which is headquartered in Valley City continues to work to meet those demands and others around the state.

Another challenge involves the question of indigence – whether a defendant is truly unable to afford an attorney. Because taxpayers fund this system, only those who actually cannot afford to pay for their own legal defense should gain the services of a public defender. Currently, there seem to be questions whether every individual receiving this service meets that requirement.

Some courts are more vigilant about ensuring that indigence is a reality than others. This would appear to be a question that deserves greater scrutiny in the future, both to ensure a defense for those who legitimately cannot afford one, and also to protect the taxpayers from footing the bill for those who could pay their own way.

The interim Judiciary Committee is also working on a number of issues, one of which is monitoring the implementation of North Dakota’s tougher drunken driving laws. The committee is receiving testimony from those “in the trenches” and regularly dealing with the details.

A major question has been whether the law is making a difference. While it’s still too early to tell, after less than a year since it took effect, initial indications are that it is, indeed, making a difference. Last month, for example, there were five alcohol­related crashes, compared with 16 and 19 in the same month over the previous two years. Similarly, there were seven alcohol­-related fatalities, compared with 17 and 20 in those comparative months.

Rep Kim Koppelman can be reached at kkoppelman@nd.gov.

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