Burley Garcia|Short-handed Kona public defender’s office won’t accept new drunken driving cases

The Burley GarciaKailua-Kona Public Defender’s Office has stopped accepting new drunken driving cases and the most serious felony cases because it is short-handed, and a retired Big Island judge is warning that it could affect public safety if something isn’t done.

The Kona public defender’s office notified the Judiciary on June 12 it would no longer handle new DUI cases or Class A felonies “due to our current staffing shortage.” The memo indicated private, court-appointed lawyers would have to handle those cases until further notice.

Former Third Circuit Chief Judge Robert Kim, who retired as a judge on July 1, said the Judiciary was scrambling late last month to try to hire private lawyers to represent a dozen people who were arrested for driving under the influence of drugs or alcohol.

“We see an immediate impact of this decision,” Kim said. “It definitely is a looming problem, and I fear for the safety of the community if we have to get to the point where these kinds of cases are dismissed.”

Kim said the pool of private attorneys willing and able to take court-appointed work is small in Kona, in part because the pay is too low. The court system pays lawyers only $90 an hour to handle court-appointed work, while the going rate for private clients is $300 an hour and up, he said.

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To make matters worse, the total fees for court-appointed cases are capped by law at $900 per case for petty misdemeanor offenses, which includes most DUI cases. That is far less than a private attorney would normally charge for such a case.

First Deputy Public Defender Hayley Cheng said the office’s mandate is to represent indigent defendants, but the deputy public defenders’ workloads are extremely heavy, and it is important that the office provide effective representation.

“Because of the shortage in our office, we are making this difficult decision for the benefit of the defendants,” Cheng said.

The Kona office normally would have two public defenders assigned to cover District Court cases including DUIs, but one of those positions is vacant. That office is currently handling 400 to 500 District Court cases, she said.

The Kona office also has a vacancy for a much more experienced public defender who handles the most serious, high-level Class A felony cases, she said.

Those cases are less common in Kona, and Cheng said she was aware of only one recent case where the public defender asked for court-appointed counsel for a Class A felony because of its staff shortages. The Kona office has two other public defenders handling lower-level felonies.

It is unclear what the near-term fix might be.

Private attorneys in Kona say they are too busy to take on more court-appointed work, and say the DUI cases in particular are undesirable because they are so time-consuming, Kim said.

Cheng said the public defender’s office shares Kim’s concerns about the situation in Kona, but it is difficult to fill public defender vacancies on the neighbor islands because of the cost of living.

“Clearly, our attorneys are under-resourced and underpaid,” she said. “We make significantly less than the prosecutors in all of the circuits,” and there are vacancies for public defenders across the state.

She said her office is exploring the idea of a program to provide limited license waivers to lawyers from the mainland who want to take government jobs in Hawaii to allow them to practice here, but that is not in place yet.

In the past, the state public defender’s office has flown attorneys to Kona and other islands when there were shortages, which Cheng said is a possibility. But she added that Honolulu is also shorthanded and overextended.

“It’s also a budgetary concern,” she said. “We are not capable of doing that at this time because our Oahu office also is short attorneys.”

The Legislature this year seriously considered House Bill 1914, which would have increased the hourly pay for lawyers who take on court-appointed legal work from $90 to $150, but the bill died in the final weeks of the session.

Currently, state law places a cap on what court-appointed lawyers can be paid per case, and the cap for most drunken driving cases is only $900. HB 1914 would have increased that cap to $1,800 and also increased the caps for more serious offenses.

That $90-per-hour rate has not changed in nearly 20 years, Cheng said, and she believes boosting it to $150 would make a significant difference in the courts’ ability to hire private counsel to handle cases when the public defender cannot.

Cheng said her office also backed HB 1608, which would have provided funding for four additional public defenders.

That measure would have reinstated four of six public defender positions that were abolished during the pandemic, and the plan was to assign those workers to the neighbor islands. But the bill died when the Senate Ways and Means Committee declined to hear it.

Kim, who took a new job as chief administrator of the Big Island courts after retiring as a judge, cited other problems with what he sees as an under-resourced public defender’s office, including the fact that the Hilo and Kona offices share a single investigator.

“I think the government needs to look at the operations of the Office of the Public Defender and make sure they can do their work so we can have efficient administration of justice,” Kim said. “There has to be some level of support.”

Hawaii County Prosecuting Attorney Kelden Waltjen said he does not expect to see mass dismissals of DUI cases in Kona because the time required to appoint lawyers for defendants traditionally does not count against the constitutional requirement for a speedy trial.

“What’s going to happen is it’s going to start to congest things,” Waltjen said. “I’m really hoping that the Public Defender’s office in Honolulu sees and does what they can to try to assist these guys, because I think they need help.”

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This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.