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Montana has approved legislation that is being hailed for establishing the first statewide indigent criminal defense system that meets national standards for delivering high-quality representation. A lawsuit brought by the American Civil Liberties Union (ACLU) that challenged Montana’s system for providing indigent defense was the catalyst for the change. Shortly before the date set for trial, the state attorney general and the plaintiffs froze the litigation in place to give the Legislature a chance to design a new system. [NLJ, 11-1-04.] The Montana Public Defender Act establishes an 11-member commission that is appointed by the governor. The commission will hire and supervise a chief public defender and set statewide standards and policies for attorney education, experience, caseloads and workloads, continuing education, performance criteria and evaluation. Conservative Republican state Senator Daniel McGee chaired the committee that wrote the law, which is said be the first in the nation to meet the American Bar Association’s Ten Principles of a Public Defense Delivery System. “This puts Montana in the forefront of the indigent reform movement,” asserted Vincent Warren, senior staff attorney in the ACLU’s national office in New York. The law could serve as a model for states that have indigency programs that are vulnerable to constitutional challenge, including Louisiana, Michigan, Pennsylvania and Virginia, Warren said. He added that the new system will work because it is flexible, cost-effective and constitutional. “It’s a geographically large state with relatively little money . . . .The hallmark of the new law . . . is that it’s not a monolithic system where services are going to be delivered in the same way everywhere in the state . . . .It allows for local nuances to be accommodated.” The Washington-based National Legal Aid and Defender Association studied the Montana indigent defense system about 30 years ago and again in 2002 and 2003, the latter years at the behest of the ACLU. It found that there were no attorney-qualification or caseload standards, said David Carroll, the legal aid association’s director of research and evaluation. That should all change now. Among the law’s other provisions, the chief public defender will hire a chief appellate defender, who will establish standards and training for appellate counsel. Regional offices headed by deputy public defenders will be established where the caseloads warrant them. Contracts with lawyers are permitted with qualified attorneys with regulated caseloads. The contracts can’t be awarded solely based on the lowest bid, and they can’t be for a fixed rate. The ACLU co-counseled and shared expenses with Ronald Waterman of Gough, Shanahan, Johnson & Waterman in Helena, Mont., and Julie North of New York’s Cravath, Swaine & Moore.

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