Offense for the defense: Aurora public defenders take the stand

AURORA | As the Aurora City Council prepares to finalize its bidding process for private lawyers to take over the work of the Public Defender’s Office, opponents both inside and outside of the city have begun campaigning against the change, saying privatization would jeopardize the legal rights of Aurora’s poorest residents.

The council finalized details of the requests for proposals — known as an RFP — at its Dec. 11 study session, with critics insisting the city do more to ensure any analysis takes in a wide range of considerations. At the group’s last meeting, public defenders and others again showed up during the opening public comment period to protest privatization.

“It’s disheartening as a resident to hear that the city’s elected officials don’t seem to take their constitutional duties to provide good and effective assistance of counsel to our neighbors as something to be defended and to be held precious,” said Tasha Steward, a chief public defender in Aurora who said she was speaking on her own behalf, on Dec. 4.

Supporters of the item have stressed that the council’s vote on Oct. 9 was not a commitment to eliminating the office, but only a request for bids to see if private lawyers can do the work of public defense more cheaply. Opponents, in the meantime, have described the move as a calculated first step toward reducing the quality of legal representation offered to poor defendants.

“I don’t know what people are so afraid of with doing this RFP,” Councilmember Dustin Zvonek said Nov. 27 when the RFP was challenged during a discussion about the city’s 2024 budget.

“If they’re so confident that it’s going to show that there is no savings, then let’s just hurry up and get it done so that we can move on with this. But my assumption is that they’re fearful that it will, in fact, show a significant cost savings, and that will lead to us having the responsibility of asking the question of whether or not we should go to a contract basis.”

Zvonek is sponsoring the search for alternatives to Aurora’s Public Defender’s Office –– a proposal that so far has earned the support of council conservatives and the consternation of  progressives, public defenders and outside attorneys.

The office is slated to have an operating budget of about $2.26 million out of a general fund budget of about $508.79 million in 2024. Last fall, a subcommittee of the Citizens’ Advisory Budget Committee also suggested that the city look into handing the work of public defense over to outside attorneys.

This week, critics told city lawmakers that a preliminary internal analysis offered to lawmakers earlier this year estimated an approximate $1 million in annual city savings by essentially privatizing the public defender unit. Chief Public Defender Elizabeth Cadiz said the document is fraught with errors.

“This is not a study,” Cadiz said Monday.

Jono Scott — the chairman of the committee, who also ran unsuccessfully for City Council this year — said at the time that Aurora should look into how other municipal courts in Colorado satisfy the constitutional requirement that defendants facing jail time have access to a lawyer.

To qualify for public defense in Aurora, defendants, generally, can make no more than $1,519 per month, for a single-family household. A family of four, under the federal court guidelines, can make no more than $3,125 per month, according to Aurora public defender office officials. Cadiz said her staff can appeal the limits for applicants who are near the thresholds, perhaps by a few hundred dollars.

Scott specifically mentioned Colorado Springs, which pays private attorneys flat fees for two hours of work on each case assigned to them, as an alternative.

“All of those other cities, are they onto something?,” Scott asked in 2022. “We need public defenders. We’re not suggesting to get rid of public defense. That’s constitutional. That’s something we need. But what we’re asking is, ‘Can it be done in a more efficient way?’”

Then-Chief Public Defender Doug Wilson said he did not believe Colorado Springs was comparable, as that city’s court does not handle the serious and complex cases sometimes heard in Aurora’s municipal court.

While the city council majority expressed its support for analyzing the cost of the change, that analysis was either not done nor was rolled into a larger workload study. The topic came up again at a budget workshop in September. In October, the council’s conservative majority voted to move forward with a request for proposals.

Conservatives said at the time that they would weigh the services offered by bidders against the work that is currently done by the Public Defender’s Office. But public defenders and other council members said they were worried indigent defendants will slip through the cracks if their cases are left to attorneys who are incentivized to wrap things up quickly with a plea deal.

“It’s a big risk to take,” Cadiz said Oct. 9. “Your decision will, in fact, affect an entire department full of full-time employees who work here and are good at what they do, and are providing a constitutionally-required service to this city.”

The council’s vote on Oct. 9 may have set the request for proposal in motion, but criticism of the proposal has continued, with council members taking the opportunity of recent votes on the budget to express their concerns.

“This was done for vindictive reasons,” then-Councilmember Juan Marcano said Nov. 27. “We had members of the Public Defender’s Office, including our former chief public defender, come out against some of the policy proposals that Councilmember Zvonek brought forward. This has nothing to do with good government. It has everything to do with political retribution.”

Zvonek said Marcano’s allegations about his motives were untrue.

Last month, Councilmember Alison Coombs hosted a forum at City Hall, inviting legal experts to weigh in on the proposal and other communities’ experiences privatizing public defense.

Speakers said the two most common models for a privatized system either result in higher costs for cities, such as when private attorneys are paid per hour of time spent on a case, or lackluster representation for poor defendants, specifically when lawyers are paid a predetermined amount per case regardless of the amount of work they do.

“If you’re doing it to cut costs, then you’re going to undercut the indigent defense function,” said Eve Primus, a professor of law at the University of Michigan. “If you do it in a way that is designed to provide constitutionally-adequate representation, it will wind up costing more than an institutional public defender because those systems are just less efficient and less effective.”

She brought up how the American Bar Association in the 1980s raised concerns about cities bidding out public defender services because of the incentive for lawyers to “reduce service to the lowest level in order to obtain a contract,” according to the association.

Speakers also talked about other benefits of having an in-house office, like having attorneys who know how to navigate specialty courts that divert offenders to social services rather than prison and who are familiar with patterns of unprofessional behavior by police and prosecutors.

Private defense attorney Casey Krizman told city lawmakers at the Dec. 4 meeting that private-practice defenders don’t want indigent cases. Krizman previously worked in the Aurora public defender office.

“The citizens of Aurora need to know that this proposal is not in their best interest,” Krizman said. “The experienced lawyers in the (public defender) office are much more effective than any plan that includes contract attorneys would be.”

Krizman said navigating the city’s “notorious” bureaucracy and processes is facilitated by a regular defense team and an impediment to a good defense by naive newcomer attorneys. 

Last year, the Public Defender’s Office uncovered a yearslong failure by the City Attorney’s Office to notify defense attorneys when police officers with demonstrated credibility issues were involved in criminal cases, which CU Law professor Ann England speculated after the forum could be motivating council members sympathetic to prosecutors to try to outsource public defense.

Among those present at the Nov. 15 forum were Cadiz, Councilmember Alison Coombs and Tom Tobiassen, chairperson of the Aurora Public Defender Commission, which oversees the city office.

The commission has since come out to formally oppose the city’s request for proposal, writing in a Dec. 4 letter to the council that multiple studies have shown that privatized models tend to be more expensive when considering how often defendants under those models are incarcerated and how long it takes for their cases to make it through the court system.

“Due to … efficiencies of scale and the quality of representation provided, the Aurora Public Defender’s Office is considered a model for other large municipal public defender’s offices around the country,” the letter states, mentioning how the National Legal Aid & Defenders Association recognized the office in 2021 as “a model municipal court public defense system.”

The debate has drawn the attention of state lawmakers and advocacy groups critical of the council’s decision, including the American Civil Liberties Union, which said in a social media post that privatizing public defense would allow other elements of the city’s criminal justice system to “operate without any accountability or transparency.”

State Rep. Mike Weissman, D-Aurora, last week stressed that providing high-quality legal representation for defendants also benefits crime victims by preventing defendants from appealing a guilty verdict on the grounds of ineffective assistance of counsel.

“Everybody else in the criminal legal system, and frankly the broader community, should also have an interest in robust indigent defense,” Weissman said. “No survivor of crime wants a protracted process in terms of appeals and so forth. So we should be mindful of things that might tend to draw things out, and not having the best defense that we can in the first instance is going to be prone to draw that out.”

Still, conservatives have insisted critics have been prematurely jumping to conclusions about what the council will decide and what impacts a shift toward private attorneys handling public defense would have.

“This is being made into a constitutional rights violation, like we’re trying to do away with public defenders altogether,” Councilmember Danielle Jurinsky said Nov. 13.

“There are multiple cities that have private defense. … All this is is an RFP. That’s all it is.”