O’Neill: Kent County public defenders are overworked

DOVER — Delaware’s public defenders are overworked to the point where they sometimes struggle to provide the best possible defense, Chief Public Defender Brendan O’Neill said Wednesday.

Appearing before the Joint Finance Committee to discuss his budget request, he called the caseload for lawyers in the Kent Court of Common Pleas “ridiculous.”

Several lawmakers agreed. Sen. Brian Bushweller, D-Dover, referred to the workload as a “potential miscarriage of justice.”

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Brendan O’Neill

The average lawyer in the Public Defender’s Office handles more than double the industry standard for Superior Court cases and nearly three-quarters more for CCP cases, Mr. O’Neill said.

In Kent, it’s even more magnified — a lawyer deals with 1,014 CCP cases, up from the state average of 682 and the American Bar Association recommendation of 400.

“I wonder how many people reside currently, how many Kent County defendants, currently reside in one of our state prisons unnecessarily because their attorney had 1,014 cases and just didn’t have time to get into. There could be people who are just flat innocent,” Sen. Bushweller said.

Mr. O’Neill acknowledged afterward he did not know of any specific cases where someone has been wrongly sentenced due to ineffective counsel, but he agreed it is a possibility.

He is seeking about $450,000 more on top of the $23.1 million the governor recommended. That sum includes $102,000 for a Kent County attorney, which would help ameliorate the workload and bring the average figure, while still well above the industry standard, down to 761.

The Public Defender’s Office dealt with 46,582 cases in fiscal year 2015, while the Office of Conflicts Counsel annually processes about 5,000.

The agencies fall under the Office of Defense Services since a 2015 merger.

Mr. O’Neill urged lawmakers to provide the requested additional funding, particularly the salary for a Kent lawyer.

“When you’re underpaid and you’re really not able to do what you signed on to do, that’s going to become a morale problem, and I think we’re getting to a tipping point, certainly in Kent County, where the lawyers aren’t really being resourced enough to do the job they signed on to do,” he said.

The office is also hoping to gain funding for a legislative liaison, office space and resources for body cameras.

JFC Chairman Sen. Harris McDowell III, D-Wilmington, appeared reluctant to grant his approval. He called a salary

Senator Harris McDowell by The News Journal/BOB HERBERT.

Harris McDowell III

increase for office attorneys “hard to swallow.”

He also noted the additional $450,000 would likely have to come at the expense of another agency.

One of the office’s main cost drivers comes from capital cases with the Public Defender’s Office allocating $3 million specifically for murder cases in fiscal year 2014. The Office of Defense Services is currently handling 40 murder trials, where the state automatically has the option to seek the death penalty.

While the prosecution often ends up not doing so, the defense still must prepare to combat a potential death sentence in every case unless the Department of Justice elects not to push for the maximum punishment.

A temporary stay ordered Monday by Superior Court President Judge Jan Jurden to allow the Delaware Supreme Court to review the constitutionality of the state’s death penalty statute changes nothing at this time, Mr. O’Neill said.

He also pushed lawmakers to provide additional resources to examine police body camera footage. Gov. Jack Markell’s budget recommendations include $500,000 to purchase body cameras and allow the Department of Justice to review the findings.

That’s an opportunity that needs to be extended not just to the prosecution but to the defense, Mr. O’Neill said.

“Do we ever question the amount of prosecution and police investigation resources that go in on the front end?” he said. “I’m not suggesting that we should, and the law enforcement community does a terrific job. Our prosecutors do a very good job.

“But when assessing how much it costs to defend these cases, I think we have to bear in mind how much it costs to put them together and to bring them.

“You can’t give all the resources to the state and the police and the prosecution and then, on our side of the equation, say, how come it costs so much?”

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