1999 Annual Report #2

Felony Division - The Workload Crisis
The Lancaster County Public Defender's Office confronted a crisis situation in the first quarter of 1999 relating to the number of Major Cases and Felonies. In the first quarter of the year, the office had opened 22% more felony cases than had been opened during the same time period in 1998. The number of pending felonies at the end of that first quarter was also 22% higher than at the same time in 1998. To make matters worse, the office had 6 First Degree Murder cases pending in March of 1999 plus 2 other Major cases, which were consuming enormous amounts of felony division staff time. In a memorandum to the Lancaster County Board of Commissioners in March of 1999, Dennis Keefe outlined the problem to the Board and noted that the then current workload for the felony division staff was 41% higher than the Maximum Workload Standard for the office.

In addition to outlining the problem, Keefe advised the Board that he would present long range alternative responses to the problem, including the addition of staff, at the time of the budget process. In the meantime, Keefe was asking permission of the courts in Lancaster County to withdraw from a certain number of cases in an attempt to moderate the workload. Between March and June, 1999, Keefe sought and received permission to withdraw from 28 felony cases based upon excessive workload. In 14 of those cases the Nebraska Commission on Public Advocacy accepted appointments under a federal grant, at no cost to Lancaster County. In the other 14 cases, private attorneys were appointed just as in conflict situations. At the end of 1999, six of those private attorney cases had been completed and attorney fees ordered in the total amount of $6,971 or $1,162 per case.

Eventually, an additional attorney position was added to the felony division during the budget process. The felony workload problem also moderated throughout the year. At mid year, felony openings were running 14% higher than 1998; by the end of the third quarter, the openings had slowed to 9% over the 1998 figure; and by the end of the year, with a 20% decrease in the fourth quarter, the number of felony openings in 1999 (976) was only 1% higher that the number opened in1998 (962). Attorney time devoted to felony cases closed during 1999 increased by 2% from the 1998 figure. Also by years end, with the addition of another attorney to the felony division, the workload in that division exceeded the maximum standard for the office by 26%, compared to the 41% during the crisis. The chart below compares the felony openings by each quarter for the period of 1997 to 1999.

Dispositions
In terms of how the closed felony cases were disposed of, the 1999 cases did not deviate much from the pattern of the last four to five years. 32% of the cases were dismissed (this includes pre-trial diversion cases and cases dismissed because they were transferred to juvenile court). In 35% of the cases, the clients pled guilty to misdemeanor charges and in 30% of the cases the clients pled guilty to felony charges. In 3% of the cases, there was a trial, either to a jury or to the bench.

Looking Back at the 90s
In looking back over the past 10 years (1990 - 1999), we see that the total amount of attorney time spent on felony cases (including the major cases) has increased by 73%. This is due, in part, to a 35% increase in the number of non-major felony cases opened and a 20% increase in the average time per case in that category. The other major factor is the amount of attorney time devoted to the major cases, which increased by 94% when comparing the average for the first five years of the decade (90-94) to the average for the second five years (95-99). The chart below shows both the proportional and relative growth in attorney time for Major Felonies and all other Felonies for the two time periods of 1990-1994 and 1995 to 1999.

Changes in Felony Division staff
There was considerable change of staff within the Felony Division during 1999. Mike Gooch, a 19 year veteran of the office, resigned in October to pursue other interests. The office sponsored a farewell reception for Mike in the office, which was well attended by many people associated with the justice system in Lancaster County. Sean Elliott, a member of the Misdemeanor Division, joined the Felony Division in September. Tim Sopinski, who had worked for the office as a part time attorney in the Misdemeanor Division, joined the Felony Division staff as a full time attorney. Julie Hansen, who had previously been with the Juvenile Division, joined the Felony Division for three quarter time, and the Misdemeanor Division for one quarter time. In late November, Tim Eppler joined the office to work in the Felony Division. Tim had previously worked in the Public Defender's Office in Sioux City, Iowa. Joe Nigro and Kristi Egger- Brown transferred out of the Felony Division to join other division within the office. The Felony Division is divided into two teams, with Scott Helvie and Bob Hays acting as team leaders.

The Misdemeanor Division - Openings and Closings
The Misdemeanor Division currently consists of two full time attorneys, two part time attorneys (one shares a felony caseload), and two paralegals. Cases filed by both the City Attorney (under the Lincoln Municipal Code) and by the County Attorney and the UNL Prosecution Clinic (under the Lincoln Municipal Code and state statutes) are assigned to the Public Defender's Office. The law requires the appointment of counsel in misdemeanor cases if (1) the accused is indigent, and (2) a jail sentence is to be imposed. The charge categories of Drunk Driving , Assault (including Domestic Violence and Violation of Protection Orders), Driving on a Suspended License, and Theft, account for 70% of all of the misdemeanor cases.

In 1999, the office opened 3438 total misdemeanor cases, representing a 9% increase over the 1998 openings (cases filed by the City Attorney increased by12% and cases filed by the County Attorney increased 5%). The five year trend is even more significant. Over the past five years, misdemeanor cases opened by our office have increased by an overall total of 64% (76% for the City cases and 51% for the County cases). The number of misdemeanor cases pending at the end of 1995 was 972 cases and the number pending at the end of 1999 was 1557 cases, a 60% increase. During that five year time period, the major misdemeanor charge categories showed the following increases in new open cases:

As can be seen in the chart below, the number of new misdemeanor cases has zig zagged up and down over the years, depending upon which judges were in the appointing courts for a particular time period. However, even allowing for that factor, the trend is clearly in the upward direction. When we compare the average number of misdemeanor cases opened for the three year period of 94-96 (2293 cases) with the average for the three year period of 97-99 (3077 cases), we still see a significant 34% increase in the average. Interestingly, the average amount of attorney time per misdemeanor case has remained virtually constant over the past 10 years.

Misdemeanor Staff Changes
The Misdemeanor Division saw significant changes in staff during 1999. Shawn Elliott and Tim Sopinski left to join the Felony Division. Joe Nigro joined the Misdemeanor Division from the Felony Division and Julie Hansen joined from the Juvenile Division. Susan Tast remains with the Misdemeanor Division. Also, Angela Franssen joined the office as a paralegal and spends half her time with felony cases and half her time with misdemeanor cases.

The Juvenile Division - Major Growth
In terms of both the long term and short term, the category of Juvenile Cases has seen the most dramatic increases in both numbers of cases and attorney time required. In the short term, we see that between 1998 and 1999, the overall number of new opened Juvenile Cases increased by 8%, with Law Violation Cases up 15%, while Abuse/Neglect Cases went down 8%, and Status Cases went down 14%.

The Short Term
The most unusual aspect of the 1999 openings is the Law Violation figures. The total number of Law Violation filings by both the City Attorney and the County Attorney actually decreased by 10% from the 1998 filings. The question that arises is "Why did the number of Public Defender Openings increase by 15%?" It is apparent that the indigency rate (the percentage of all cases filed requiring appointed counsel) has increased. In fact the indigency rate increased from 52% of the filings in 1998 to 67% of the filings in 1999. But this doesn't really answer the question of "Why?" We can only offer theories here. It is possible that the judges are more carefully explaining the right to counsel and/or are encouraging counsel in more cases than in the past. It could be due also, in part, to the relatively recent practice of appointing an attorney and a guardian ad litem for the child in certain law violation cases. It does not appear that the answer lies in the nature of the cases because the cases involving violence or sex crimes have remained relatively steady over the past 10 years.

In just three short years, from 1996 to 1999, the number of Law Violation cases opened by our office has increased by an incredible 74%. During that same time period, the number of Law Violations closed by our office for having been "Dismissed" went from 26% of the total to 44% of the total. It is suspected that much of this increase has to do with the increase in filings for cases that eventually are dismissed for Pretrial Diversion.

It is also interesting that the Abuse/Neglect filings by the County Attorney increased by 7% from 1998 to 1999 but the number of cases assigned to the Public Defender decreased by 8% during that same time period. Additionally, the number of Status Cases filed by the County Attorney (usually Truancy Cases or Habitually Disobedient) decreased by 41% during the same time period but the number of Public Defender Cases assigned went down only 14% for the same time period.

1991-1999
In looking back over the last decade, it is readily apparent what an impact the Juvenile Cases have had on the Public Defender's Office. Law Violation openings have increased an average of 20% per year; status offenses an average of almost 30% a year; and Abuse/Neglect cases an average of 84% per year. While some of this growth was planned and staff added to cope with the growth (Abuse/Neglect and Status), the Law Violation increases, particularly those in the past few years, were totally unexpected. The chart below demonstrates the growth in the case openings for law violation cases, Abuse/Neglect cases and status cases.

T of C   Page 1 Page 3