For a long time, Kansas’ public defender system was already understaffed, under-resourced and underpaid.


The coronavirus pandemic has only exacerbated those issues, said Heather Cessna, head of the State Board of Indigents’ Defense Services, the agency overseeing attorneys for defendants who can’t afford one.


Cessna has asked the state for more money in the next fiscal year, totaling around $16 million, for more public defenders, more technological infrastructure and other things. Having a well-funded public defenders system is critical, she said.


"Essentially we’re at a breaking point," she told a state commission last Monday. "Our problems have a huge impact on the rest of the Kansas criminal legal system."


That’s especially true considering that courts across the state are still figuring out how to get back to full speed after many shutting down in the early stages of the pandemic. That shutdown, plus jury trial cases mostly still on pause, has created a backlog of cases piling up.


As less cases were being moved, more cases were still coming in with crime still happening. They don’t have control over how many cases come into the system, Cessna said in an interview.


Public defenders in Kansas are already working with higher-than-accepted caseloads, with around 205 cases per attorney in the last fiscal year. That’s above a national recommendation of 150 felony cases per year. At some point, public defenders offices can’t take more cases for ethical and effectiveness reasons.


"We have to refuse cases because we have too many cases, and we're not able to clear the cases that we have because the courts are not operating," Cessna said. "Then we end up having to refuse cases for even longer periods of time."


Refused cases go to assigned counsel, private attorneys who in essence are backups and are paid by SBIDS. Thus far, they have been able to handle them, but the longer the virus drags, the less sure that will still be the case.


"I think our appointed attorneys are going to have a problem that our public defenders do, which is that they can only take so many cases," said Cessna. "That is certainly a real possibility."


Furthermore, assigned counsels cost more than public defenders, and with more and more of the former taking on refused cases, that’s more money from an already underfunded system.


But as some courts have begun to take their first steps in reopening, public defenders told the Topeka Capital-Journal that they are seeing things moving again. Lower-level cases, especially those not requiring a jury trial, are being done.


"The shutdown actually allowed us to kind of collect ourselves a little bit and get some cases moved along," said Wichita-based public defender Brad Sylvester. "We're still running a little higher than we should."


Nevertheless, things are still moving slower than usual. Witnesses may have to be re-contacted and subpoenas may have to be reissued as courts start moving again, said Sylvester.


"You're having to redo your investigation several times as you're dragging something out over a period of a year and a half rather than having it just play out over six months," said public defender Maban Wright, based in Topeka.


Remote difficulties


Even in processing those cases, public defenders are running into pandemic-related difficulties that signal the chronic underfunding the system faces. Technology is one of them.


"Our office, we don't have WiFi here," said Wright. "Our computers don't have cameras, so we had one webcam, that was all we had. And we were trading it around within the office to try to do our Zoom hearings."


Fortunately, the state has now provided the attorneys with laptops with webcams, but that took a long time to implement and distribute, Cessna said. WiFi is still nonexistent at her location, said Wright.


Court appearances over video have also been a struggle. For clients in custody, it requires the attorney sending a waiver of his personal appearance to him, delivering a physical document to the jail, having the client sign it and then delivering it back. Though now, the local jail has figured out to have that paper ready whenever video court begins, said public defender Jessica Glendening, also based in Topeka.


"There's just so many issues that complicate what is normally a fairly streamlined process, that it feels like a heavier burden, even though it's roughly the same amount of cases," she said.


Wright said meeting clients in jail through video has gotten more difficult. Whereas before, one could simply stop by in jail and meet the client, she has to now use the commercial platform the jail uses for inmates to meet their families. But visits are limited to a half-hour on that platform, require a 24-hour notice and cost money coming out from their own pockets to be reimbursed later.


"It is an enormous amount of additional paperwork, because you have to request the calls in advance, you have to be approved before you make the call, you have to say this is specifically the day that I will make this call and how many calls it will make," said Wright. "And then if you step outside those parameters, you're going to eat it and be required to pay for it on your own."


It gets worse sometimes, said Glendening, when after logging into a call, the client is not there, and time on that call has to be wasted trying to get the client.


Shawnee County Jail defended its system and said it has made inmates accessible to their lawyers.


"Hundreds of people use the software. It's not just defense lawyers," said Timothy Phelps, the jail’s public information officer. "The software clearly works, because people have been using it for years."


Phelps said, however, that the county department of corrections is working with a company to develop better software that would make things more accessible.


Attorney-client relationship


In Salina, public defender Mark Dinkel said its local jail was shut down recently, and the only way to contact inmates was through phone. But that has some concerns, as there was a federal defender’s case in the Kansas City area which found out that attorney-client calls were recorded.


"I'm very hesitant to discuss anything of a sensitive nature with a client over a phone call that could be recorded," he said.


That’s just one of the many factors going into how difficult it is to establish relationships with clients during a pandemic.


Glendening mentioned how for clients not incarcerated, many don’t have the technological resources to participate in a remote relationship.


"We're battling a number of people who don't have the technology to appear by video. So a lot of our clients have phones where they don't have internet on their phone, or they don't have minutes," she said.


Sylvester, who’s been writing a ton of letters to clients in jail during this time, said he’s had no problem establishing rapport remotely, partly because he’s been around a long time and is well-known. But he imagines for younger attorneys, it’s difficult.


"You have some guy who's been in prison three times and he's kind of been through the system. And he's gauging up this little kid in his opinion. He's not going to think much of that attorney," he said.


In the end, the best way to establish that relationship is still going to a jail in person, if possible. But that carries tremendous risk — if a public defender gets infected, that’s one less person in an understaffed system and numerous cases on hold.


But even Sylvester said there are times where he sees no other option, such as a murder case he recently was handed.


"That's somebody I'm going to have to sit down and talk with in person, because I just don't think that I can handle a big case like that, without that face-to-face contact," he said.


Low morale


Situations where one feels pressed to visit a jail during a pandemic can be a scary thing.


"Attorneys have probably had to deal with the fear and anxiety they feel about whether or not they're going to get sick. And they're no different from anybody else," said Phelps.


It’s part of a morale hit many feel is happening under this pandemic, which has made their job and court processes slower and more difficult.


"As public defenders, we are always sort of the underdog," said Glendening. "We have less power. We have less resources than prosecutors. We have less control over the case ... There are things that are always outside our control."


But adding on top of that a pandemic makes things more stressful, with folks worrying about child care, high-risk relatives and safety like anybody else.


But there have been advantages, such as less far-away traveling to do and more technological infrastructure finally being put into their hands, attorneys said.


In the end, many are in the job for the mission and purpose of helping society. And the best thing one can do now is rely on each other, said Cessna.


"We have offices that have pretty close-knit communities of attorneys, and are able to often rely on each other to support each other through some of those hard times," she said.