Yellowstone County

The Yellowstone County Courthouse in Billings houses the busiest District Court in Montana. The county is expecting one or possibly two new judges from the Legislature.

LARRY MAYER, Gazette Staff

The Billings Interim Deputy Chief Public Defender has taken issue with the long-standing practice of public defenders alerting judges if a client loses contact with their attorney 30 days before a trial.

Douglas Day has told Billings District Court judges he believes it is a violation of attorney-client privilege to notify the court and that it may be unconstitutional.

But Chief District Court Judge Russell Fagg said alerting the court prevents a jury trial from being assembled, saving both time and money.

As a condition of their release from jail, a defendant must sign an order stating that within 30 days of trial they will maintain contact with their public defender so the attorney can tell the court if they are going to need to assemble a jury.

The release requires the defendant to waive, in a limited way, attorney-client confidentiality to allow this disclosure.

“Many times attorneys can do a better job at the start of a case to have meaningful discussions with their clients,” Day said. “One area to discuss is the importance of maintaining contact with their attorney.”

Day said the client should be able to indicate what they would like their attorney to do should they lose contact. While defenders can object to the release condition at their client’s arraignment, that objection would be granted to individual cases and would likely face an objection by the County Attorney's office. 

Fagg said Day told District Court judges about three months ago that he believed the release order presented an ethical dilemma for his attorneys. 

Fagg said he doesn't think there is an ethical problem. Rather, Fagg said, the release order is a “win, win, win” for the court, the defender's office and the county attorney’s office. The county attorneys don’t have to prepare for a trial that isn’t going to happen, the judges are able to prevent having to send home an assembled jury, and bail-jumping charges are avoided for the public defender’s client, Fagg said. However, the judges are open to working with Day on the issue, Fagg said.

“No one wants to delay proceedings or call juries when the client is absent,” Day said. “As such, a court could be notified that a jury cannot be confirmed and request a status conference that requires the client’s appearance.”

Yellowstone County Deputy Chief of Criminal Litigation Ed Zink said he and County Attorney Scott Twito are discussing the issue with Day.

“In recent weeks we have received a variety of opinions from different public defenders, which has led to additional court hearings and a strain on court resources,” Zink said.

With more than  100 cases scheduled on criminal trial dates, Zink said assembling a jury panel of 60 to 90 people for a trial that is not going to happen makes no sense and wastes court resources. It also means the state will charge the client with bail-jumping, an additional case for already crowded dockets. This also opens up the client to persistent felony offender charges, which allows a defendant to be given a sentence of anywhere from five to 100 years in prison.

In court Tuesday, Yellowstone County District Court Judge Michael Moses made a point of telling a public defender there must be a solution soon.

“This is a public policy issue that needs to be resolved,” Moses said. “The state of Montana has the right to bring bail-jumping charges against your client.”

The practice of alerting the court about loss of contact was established when the Public Defender’s office was still a county-run department. Before 2003, the release order from the district court required attorneys in Yellowstone County to report their client if they had not checked in with their attorney on a weekly basis.

At the time, the Chief Public Defender for Yellowstone County was Penelope Strong. Now a private practice criminal defense attorney, Strong said the practice of reporting their clients became an ethical liability for the attorneys. The office kept a call log of their clients, a log that was subject to subpoenae. When the violation of the defendant’s release was reported, a bench warrant was issued immediately, Strong said.

“The violations were being reported by receptionists and legal secretaries. The attorneys weren’t always doing it,” Strong said. Clients served by the public defender’s office were often transient. Most didn’t and don’t own cellphones, Strong said.

Strong told the Yellowstone County Attorney at the time her office was going to discontinue the practice.

The National Association of Criminal Defense Lawyers issued an ethical opinion condemning the practice.

“NACDL submits that the questioned practice is also unconstitutional because it requires the lawyer to testify against the client and it violates the unfettered right to counsel,” the ethics committee wrote.

To avoid “administrative chaos,” Strong said a compromise was struck that created the release condition that is now being questioned by Day.

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Justice reporter for The Billings Gazette.