Public Defender John J. Hardiman says his staff is overworked, with each lawyer handling 1,517 misdemeanor cases and 239 felony cases yearly, far beyond national standards.

The Providence Journal / Steve Szydlowski

PROVIDENCE — As Rhode Island Public Defender John J. Hardiman looked around at the lawyers in his downtown office, he realized something had to give.

The attorneys were overworked, providing legal representation for the steady stream of Rhode Islanders who can’t afford private attorneys, and Hardiman needed a way to lighten the load. In February, he sent a letter to the presiding justice of the Superior Court stating that the office would no longer accept any post-conviction-relief cases — those which seek some sort of remedy after a defendant has been sentenced. Hardiman has learned that he would have to file a formal motion with the court to get a reprieve on the cases.

It would be a small step — since July 2008, the judiciary said, there have been 77 civil filings for post-conviction relief statewide; not all of them were handled by the public defender’s office — but one that Hardiman says would take a time-consuming burden off of his lawyers. For each post-conviction-relief case, a lawyer must review the file, any transcripts from hearings of the trial, interview new and old witnesses, as well as the lawyer who handled the trial, just to determine whether there is merit to go forward.

“Given our caseloads, I made the determination that we could not be effective in our representation in a timely manner for our clients,” Hardiman said.

Superior Court Presiding Justice Joseph F. Rodgers Jr. sympathizes with the lawyers’ plight, but has ordered judges in his court to continue referring such cases to the Office of the Public Defender until that office files a formal motion and presents “satisfactory evidence” that it cannot deal with the additional cases. Meanwhile, the judiciary is considering expanding a partnership with Roger Williams University to allow senior law students to assist the public defender’s office with the post-conviction motions.

Hardiman, who has yet to file the motion with Rodgers, said he was digesting the information about the law school partnership and weighing the benefits of filing the motion. “I didn’t expect I would get much resistance,” Hardiman said, especially since his office doesn’t receive many referrals for such cases. “We haven’t received any referrals in the last couple of months. If we did, I would probably have to make that motion and may still have to do it.”

A refusal to take post-conviction-relief cases, which are civil matters, does not violate a defendant’s constitutional right to representation, but it may conflict with state law, which guarantees legal representation to indigent clients in post-conviction-relief cases. While the idea of defendants not having access to a public defender for post-conviction-relief cases is troubling, the only people who can fix the problem, Justice Rodgers said, are legislators.

“It’s not a constitutional requirement, it’s a separate right created by the legislature,” Rodgers said. “Although the legislature created this right, because the legislature didn’t fund the program, they created a right without a remedy.”

The public defender’s office, created in 1941, is a subsidiary of the executive branch, rather than the judiciary. The office has a $9.3-million budget this year. By contrast, Hardiman said, the State of Delaware, which is of similar size to Rhode Island, allotted $14 million in state and federal funds to its public defender’s office.

In an average year, each lawyer in the Rhode Island office disposes of 1,517 misdemeanor cases and 239 felony cases. By contrast, the National Advisory Commission on Criminal Justice Standards and Goals suggests public defense attorneys handle no more than 400 misdemeanors or 150 felonies a year. In the 26 years Hardiman has worked as a public defender, he said, the office’s lawyers have exceeded the national recommendations. The number of criminal cases alone referred to the office increased substantially, from 15,168 in 2004 to 19,641 in 2008.

“The office of the public defender has always been severely understaffed and underfunded,” Hardiman said. “Even though we have been successful in recent years in receiving an increase in staffing and funding, the depth of our chronic understaffing has not nearly fixed the huge disparity in what we need to meet national standards and to meet the ever-increasing demand for our services.”

To bring the office in line with national caseload standards, Hardiman estimates he would need 26 more lawyers in the adult trial unit alone to add to the 45 lawyers currently in the office. Each attorney, Hardiman said, has an average of 230 cases pending in court and the office accepts more than 200 new cases monthly. An entry-level lawyer costs the office about $76,000 in salary and benefits.

When a public defender can’t represent a client because of a conflict of interest or heavy work load, the judiciary can appoint private practice lawyers who are paid out of the court budget at a set rate. Currently, there are 90 attorneys on the various criminal court-appointed eligibility lists. However, paying for that representation may become more problematic. The judiciary budget for indigent defense started this fiscal year with just over $3 million, according to Craig Berke, spokesman for the judiciary. As of March 30, there was roughly $300,000 remaining, which means the courts are spending roughly $300,000 each month to pay for court-appointed attorneys.

“We’d be looking to find [additional money] somewhere within our budget between now and the end of the year,” Berke said. “I don’t think we’ve reached that point yet … we’re not up against the wall today. But, we certainly need to be looking ahead for the next three months.”

tbuford@projo.com