By Ruth Brown, Idaho Reports
The state’s reformed public defense system may have a fundamental flaw that excludes indigent defense for child protection cases.
The omission came to light during a Monday Senate Judiciary and Rules Committee hearing. Sen. Abby Lee, R-Fruitland, questioned the newly appointed State Public Defender Eric Fredericksen about the issue at his confirmation hearing on Monday. The committee will vote on whether to recommend his confirmation to the full Senate at a later meeting.
A 2023 bill created the Office of the State Public Defender to ensure qualified defending attorneys, investigators and other staff, and appropriate facilities for providing indigent public defense, or public defense for those who are unable to afford an attorney. Historically, the counties paid for public defense; The legislation shifted that responsibility over to the state.
Lee asked Fredericksen on Monday if his office would handle child protection cases in which the government is required to supply an attorney if a person involved is unable to afford one.
“The purpose of this was to deal with the Tucker litigation,” Frederickson told the committee. “So that was the intent behind it.”
That references the Tucker v Idaho case, first filed in 2015, that alleged the state of Idaho provided inadequate public defense, a violation of the Sixth Amendment of the Constitution, which guarantees all defendants have the right to legal representation.
In 2021, the Idaho Supreme Court unanimously found Idaho’s public defense system to be problematic after years of litigation.
“With child protection cases, more than any other case, we really need local control,” Fredericksen told the committee. “There is local control right now with the state public defense system, but it’s not nearly as robust as it would be at that level. We also need experts handling these cases. We don’t need a public defender that’s never touched a case before dealing with child protection jumping in on that case.”
Senate Judiciary and Rules Chairman Todd Lakey, R-Nampa, told Fredericksen he also thought the state would handle that.
Lee and Lakey later told Idaho Reports that Fredericksen’s answer was not their understanding of how the new public defense system would work.
“It may be a bill, it may just be a directive, but we’re going to have to get a resolution this,” Lee told Idaho Reports. “Because, again, if you look back on the legislation, they used those case standards. The child protection case standards were part of the listed cases of reducing our liability. We really felt like this (legislation) was going to mitigate some of our liability. I’m not seeing us do that.”
“I wasn’t aware of it. I will tell you that most Legislative leadership was not aware of it. You have the Chairman of Judiciary saying ‘hey, this isn’t what I thought I was voting on,’” Lee said.
Lee said it was a conversation the legislature needed to have with the governor and the counties.
“How is it possible that we don’t see this as a fundamental piece of our public defense system,” Lee said. “If I’m going to confirm (Fredericksen’s) position, I want to make sure that I’m not going to be confused on what is the role and responsibility of public defense.”
Lakey told Idaho Reports on Monday that when he supported the legislation in 2023, he believed the state would handle all public defense.
“I thought we were, in essence, taking public defense on as a state,” Lakey told Idaho Reports. “So that’s the way I viewed it. I understand there may be some nuances to child protection cases, like there are some statutory requirements that they’re supposed to provide an attorney. I don’t know that the state would provide anything above statutory requirements, but the statutory requirements I was envisioning we’d take.”
Lee noted that most child protection cases do not stem from a criminal case, but the consequences can be big.
“It’s the death penalty of parental rights,” Lee said. “Losing parental rights.”
Meanwhile, Tucker v Idaho is still active in Ada County, as the plaintiffs are arguing the state’s change is not enough, despite improvements in investment since 2015. The next court date in the civil dispute is scheduled for Feb. 2.
Gov. Brad Little announced Fredericksen as the new State Public Defender in September of 2023. The office will begin providing indigent defense services on Oct. 1, 2024.
Idaho Reports reached out to the Little’s office for comment, but did not receive an immediate response.
Ruth Brown | Producer
Ruth Brown grew up in South Dakota and her first job out of college was covering the South Dakota Legislature. She’s since moved on to Idaho lawmakers. Brown spent 10 years working in print journalism, including newspapers such as the Idaho Statesman and Idaho Press, where she’s covered everything from the correctional system to health care issues. She joined Idaho Reports in 2021 and looks forward to telling stories about how state policy can impact the lives of regular Idahoans.