'I'll keep fighting … no matter what happens'

KALISPELL - In her "fight for justice," the first thing Phyllis Quatman did was get rid of the judges.

"I didn't really mean to," the Flathead defense attorney said. "It just sort of happened this way. But it is definitely a step in the right direction."

Next week, when the final applications for Flathead County public defender jobs are submitted, the paperwork will be shuffled straight to the county commissioners. For the first time, the area's district judges will not be hiring public defense attorneys. The change may be the first step in a push to implement a full-time, independent public defenders' office.

And while some of Quatman's fellow public defenders in the Flathead are as opposed to the change as they are to Quatman herself, public defenders elsewhere are applauding the move that takes judges out of the hiring loop.

"There are no ifs, ands or buts about it," said Sandy Selvey, chief public defender in Yellowstone County, "it's a conflict of interest to have district judges involved with hiring public defenders. Sometimes, the job involves pissing off the judges, and you can't do your job if you're afraid of being fired."

But Bob Allison, lead public defender in Flathead County, isn't so sure. Allison, who will be charged with making hiring recommendations to the commissioners, calls the change an "unfortunate step backwards."

"Philosophically speaking," Allison said, "there is, I'm sure, the theoretical problem of an attorney being hired by a judge and then having to argue strenuously in front of that judge … confronting that judge, and essentially taking on the boss. But it's never been a problem in reality. The judges have been hiring defense attorneys here forever, and it's worked fine. Now, suddenly, it's an evil thing."

Quatman, however, says she has never charged the system with evil; rather, she has charged it and nearly everyone in it with, at most, a benign neglect that has resulted in a skewed and flawed approach to justice.

The problem began, she said, the first time she sat down for lunch with the Flathead's public defender crew.

She was new in town, recently from a prosecutor's desk in California, and already had heard troublesome stories that raised questions regarding the potential conflict of interest in having judges hire defenders.

"It's impossible," Quatman said. "How are you supposed to advocate for your client if you're in danger of losing your job?"

For their part, the Flathead's two district judges say they never allowed courtroom pressures to spill into the hiring process, but they are nonetheless glad to hand over the chore. Already overworked, they look forward to the change that will remove a time-consuming administrative duty. And if it removes the appearance of impropriety as well, that's an added benefit.

Quatman, who claims she never intended to force judges out of the hiring process, ignored what she perceived to be a conflict until, in a writ filed for a subsequent case, she mentioned that the previous defense attorney on the case had been hamstrung by the process. That attorney, she argued, had been unable to fight aggressively for his client because of the threat that doing so might upset the judge - the same judge who held his job in his hands.

Not long after filing that writ, the Flathead's two district judges abdicated their hiring duties and placed the burden on the commissioners.

Quatman, pleased with the change, continued to elbow her way through the Flathead's long-established justice system, overturning apple carts right and left. She took on prosecutors, law enforcement, judges, secretaries and finally her own public-defender colleagues. She even hauled a deputy prosecutor in front of a judge, charging vindictive prosecution based on his dislike for her. That case remains before the judge, although it appears doubtful she will prevail.

A letter she shot off to the judges last month finally caused both judges to refuse to hear any further Quatman cases.

The result, she said, is that she has not made many friends since coming to

town. In fact, Allison has already indicated he will not recommend her contract be renewed at the end of this month, despite her considerable courtroom experience. She has reapplied nonetheless, "just to show that this wasn't my idea."

"Phyllis Quatman has basically alienated both judges," Allison said. "We're not going to have a public defender where we have to bring in a special judge just to hear her cases. That's just not going to happen."

And while he admits there is no love lost between himself and Quatman, he insists his resistance to her move to switch hiring from the judges to the commissioners has nothing to do with his dislike for her. Rather, he said, he objects because of his dislike for a bad idea.

The old system, he said, gave judges a special interest in defense attorneys. By hiring the defenders, he said, judges established a "relationship" with their "employees," and that relationship, Allison argues, worked to the advantage of the defense.

Quatman, however, believes that "relationship" can hinder more than help, and said any special interest between a judge and an attorney is to be avoided.

"Personal feelings and personal relationships shouldn't enter into the courtroom," she said. "Period."

Allison also argues that if an attorney angers a judge, and the judge cannot take out frustration on the attorney, then the judge may aim that frustration at the defendant.

"Sure," Allison said, "now we can scream at the judge without fear of losing our jobs, but watch out come sentencing time. That's going to be the reckoning, and it's the client, not the defense attorney, who will pay that price."

But Quatman, despite her concerns and accusations, appears to give the judges more credit.

"I do not think either one of these judges would ever punish a client just because of who they're represented by," she said. "They wouldn't take it out on a client."

And even if they did, she said, it would not go on for long, as there are remedies for such actions through sentence reviews and other legal processes.

"But you know, there's no remedy for being fired," she said.

Defense attorneys in other towns agree, saying some of the changes Quatman has forced have been a long time coming. John Smith, a private attorney who spent four years in Missoula's public defender office, called having judges hire attorneys "ridiculous," and said he was "really very happy to see Phyllis Quatman shaking up the tree."

"It's not about personalities and who can get along with who," he said. "In the end it's about the system, and the Flathead's system needed shook up. If Quatman ends up not being Joan of Arc, so be it. What she has done is important, no matter what people think of her for doing it."

Craig Shannon, another former public defender from Missoula, agrees, but also says the real battle is not with the judges, but with those who hold the purse strings.

The fundamental problem in the justice system, he said, is the disparity between resources available to prosecutors and resources available to defense attorneys.

"That's the problem," he said, "and it's a nationwide problem."

Prosecutors have huge investigative staffs, he said, including the police, sheriff's office, and federal agents. Defense attorneys often must do all their investigating on their own. The prosecutors have the funding, he added, while "most public defenders don't even have computers."

But that problem, Quatman said, can only be fixed by setting up an independent public defender office, and the first step toward doing that is to take hiring duties away from judges. Having judges doing the hiring was bad. Having commissioners doing the hiring is better. Having an independent chief public defender doing the hiring would be best.

"The beauty of the independent public defenders' office is that you have everybody under one roof," she said. "Then you can create a team; when you have a team, you can work together for the benefit of all your clients…Multiple heads are better than one."

Selvey, the chief public defender in Yellowstone C

ounty, agrees, saying the potentially "corrupt" system of having judges do the hiring is only slightly worse than having a group of commissioners who know nothing about the courtroom do the hiring.

One problem, he said, is that commissioners are political beasts, and they respond when the electorate demands to know why they are spending taxpayer dollars to hire an aggressive public defender who is too successful at "putting crooks back on the street."

"Any county with more than 20,000 people needs a full-time public defenders' office," Selvey said. "If you have a full-time county attorney then you need a full-time public defender counterpart to level the playing field to some degree."

Missoula, Yellowstone, Cascade and Lewis and Clark counties already have full-time public defenders' offices, and Selvey thinks the Flathead is next in line.

A full-time office, he said, means defense attorneys receive a salary and benefits, just like prosecutors. Currently, in the Flathead, defense attorneys are considered private contractors, and most rely on their private practices to round out their pay.

That, Selvey said, leads to an overload, and when time is scarce, it's the paid private cases that receive the attention.

"For the Flathead," Selvey said, "getting the judges out of hiring was the first step forward. That's good; now take the next step and get yourself a full-time public defenders' office. It won't be easy, because with the system you have now, defense attorneys can get paid for not doing much at all and then can still have time for a private practice. Some of them won't want to change that set-up. What it will take is a real defendant's advocate."

Quatman may style herself that advocate, but she fears it will be an uphill battle.

"I'll keep fighting for it," Quatman said, "no matter what happens. We need some equity here in the Flathead. We need an independent office, we need to define some hiring guidelines, we need to fight for our clients, we need to appeal and file motions and fight back. I'll donate my time, if I have to, to keep up the fight for some kind of justice.

"I just wish it wasn't me. I wish I wasn't the Lone Ranger out here. I'm getting pretty tired of it, and to be honest, I'd rather be gardening."

Monday - 6/14/99

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