RUSSELLVILLE, Ark. – Some Arkansans struggling to pay their own bills have been denied a public defender in a system designed to appoint one for them.
Earlier this year, 25-year-old Devin Doty waited more than two hours in a line outside Pope County District Court after being cited on misdemeanor marijuana charges.
Records show Doty is one of more than 6,000 Pope County District Court cases in 2020.
“It screwed up my whole job career, I wanted to be a police officer before this started,” he said.
Doty claims the weed belonged to his friend and thought it would be a slap on the wrist.
“To save money and getting a lawyer, I’ll just plead guilty,” Doty recalled. “He [Judge Don Bourne] was like, well, this is going to be jail time and large fines.”
Doty said he could not afford a private attorney, so he filed an affidavit of indigency, an official state form that requests a public defender.
It shows he had $240 cash and $50 in his checking account. Doty’s monthly expenses begin with rent at $300, $150 in food and $40 in transportation. He also has a 2-year-old little girl, and his hourly job pays $12.50 an hour.
“A little over a grand a paycheck,” Doty explained.
Even with those circumstances, Pope County District Court Judge Don Bourne, who has been on the bench since 2001, denied Doty a public defender.
“He looks at someone like, ‘Oh, you messed up, you’re a bad person. Let’s make the most of it,’” Doty claimed.
State law defines a person who may need a public defender as someone in “substantial financial hardship” or to consider what the person’s monthly expenses are, their income, the seriousness of the charges they’re facing and/or any other financial obligations.
Public defenders are appointed if the person charged has the potential of going to jail and only a judge can make the appointment. The Arkansas Public Defenders Commission never reviews the affidavits, unless they’re approved and appointed to a case by the judge.
Despite Doty being denied, Working 4 You took his affidavit to Arkansas Public Defenders Commission Executive Director Gregg Parrish, a former prosecutor, to ask for his opinion on the request.
“You’re asking me if this person is entitled to a public defender, right? Yes,” Parrish said.
Doty’s case is not the only one where a public defender was not brought in by the court. In fact, there were several other affidavits Working 4 You found, including those involving people who were unemployed, an incoming college student with three children and a mom of two, which were all denied.
Parrish said he would have expected them to be approved.
Breaking down case numbers
District courts handle mostly misdemeanor criminal cases.
State records obtained by Working 4 You through a public records request reveal what appears to be a sharply different caseload between Pope County and other counties of similar size.
Attorney David Kamps practices law in Arkansas and is concerned by what those low numbers could mean for defendants.
“Five or six per year, less than once a month,” Kamps outlined, “You have to assume that some percentage of these people that went through District Court were innocent were denied an attorney, were wrongfully convicted.”
Bourne, in a written statement, said he appointed the public defender in three cases the week of October 4. Working 4 You traveled to Pope County to try and ask more questions, but the district court clerk said the judge would only communicate via email.
In a second written statement, Bourne said as many as 95% of people who go to district court plead guilty.
“They want their cases to be over with, and the[y] do not ask for an attorney,” he wrote.
Bourne said that if a public defender is requested, he always tries to make the right decision based on the information submitted.
“In District Court, every year, we have hundreds of cases where defendants plead guilty and sign a waiver of trial and waiver of attorney form,” he explained. “This form shows that the defendant made a decision that an attorney was not needed.”
Bourne, in a follow-up statement, added that if a person is employed and can afford an attorney, he does not appoint a public defender.
The median household income in Pope County is $43,462, according to the 2019 United States Census Bureau.
Attorneys speaking out
Attorney Kelly Ward said she took on a case pro-bono after an intellectually disabled man facing harassment charges, that could lead to up to one year in jail, was denied a public defender by Bourne.
“The client could not pay. He didn’t have any money, he was unemployed, he was on disability, he was hearing impaired,” Ward said. “He would kind of hang around, downtown Russellville, everyone knew him and he had a dog that he took everywhere with him. He would actually push the dog in a stroller.”
Ward’s client died before the case could go to court.
“There’s just no way he could walk through that process by himself,” she explained.
Doty said he had no idea that the man who he had seen around town for years and shared a meal with had also been denied legal assistance.
“I can only imagine what he felt,” Doty noted.
Kamps believes the state needs to step in and figure out why this is happening.
“I don’t see why the citizens should suffer because of a judge who was allowed to run his courtroom unconstitutionally for so long,” he said. “In a case like this, when you have known constitutional violations occurring routinely and consistently, then I think time is of the essence.”
The public defenders commission says its already sent notice to staff across Arkansas.
“You brought the issue to me,” Parrish said. “I want to know what it looks like in your district court? Are we getting appointed? What’s going on?”
Doty was able to pay off his court fines last week, which soared beyond $1,000.
“Him [Judge Bourne] making you get a lawyer, makes the lawyer money, him [lawyer] coming up here and getting those fines paid, makes them [district court] money,” he said. “It’s all part of the system.”
Doty gave his stamp of approval for the state to figure out why he was denied.
“Get us somebody in here that’s going to judge the people based on facts, based on what actually happened and be fair,” he said.
The Arkansas Judicial Discipline and Disability Commission is charged with enforcing the Code of Judicial Conduct. Records show that Bourne, during his 20-year career on the bench, was issued a Letter of Informal Adjustment in 2014 after donating to a political campaign. You can read that by clicking here.
Working 4 You uncovered another county that has about the same public defender caseload as Pope County and has filed a public records request to find out why.
The American Civil Liberties Union (ACLU) of Arkansas released the following statement:
“Unfortunately, the refusal or failure to provide representation to indigent defendants is not an isolated issue, and this happens in differing courts around the state in a myriad of ways for the gamut of criminal charges. We have a chronic problem in Arkansas where we criminalize and incarcerate the poor to fund our criminal punishment system and starve the public defender system at the same time. They often don’t get adequate or timely representation, they’re imprisoned because they can’t afford to pay fines and fees, or they sit in jail for months – even before being found guilty of any crime – simply because they can’t afford bail. Everyone facing the possibility of incarceration is entitled to an attorney. Recognizing the importance of representation, the legislature passed a bill this session (Act 502) that specifically directs the court to presume indigence in certain circumstances.”
Holly Dickson, Executive Director of the ACLU of Arkansas
