Crisis at Public Defender’s Office

Pago Pago, AMERICAN SAMOA — To help alleviate the dire situation of the lack of attorneys at the Public Defender’s Office, Chief Justice Michael Kruse has suggested to Gov. Lemanu P. S. Mauga that the Executive Branch issue a bid for private attorneys to represent indigent defendants, as was done many years ago, at the time when the PD office was first established by law.

In response, the Lemanu Administration says it has been actively pursuing the development and implementation of immediate and long-term solutions for the Public Defender’s Office.

KRUSE’S AUGUST LETTER

 Kruse in his Aug. 15 letter to the governor noted his first letter in June this year, “urging the realistic commitment of resources to provide for a functional Office of Public Defender (OPD),” and now the Judiciary Branch finds itself in the constitutional quandary that he had alluded to in that June letter.

“Sadly, the resulting band-aid measure of appointing an ailing senior member of the American Samoa Bar Association as Public Defender (PD) is not working out as a sustainable solution,” Kruse wrote in the Aug. 15 letter, which was copied to the Senate President and House Speaker.

Samoa News notes that the current temporary public defender is David Vargas, and also the only attorney for the office. Vargas was not identified by name as the public defender in Kruse’s letter.

The Chief Justice, in his letter, noted that the public defender, “had initially represented in open court that his term with the OPD was provisional in nature; however, he has with taking office been inundated with the OPD's burgeoning caseload.”

“As a result, he has obviously had little, to no meaningful time to recruit the necessary legal and clerical support staff,” said Kruse, who cited local law, involving the role of the Public Defender to hire necessary employees, such as, one or more assistant public defenders, and at least one investigator.

Kruse pointed out that the “Territory's growing class of criminal defendants is mostly comprised of indigent individuals. With the onset of illicit drug-related charges, these indigent numbers have, in my view, swelled beyond the service needs provided by the stagnant OPD annual funding of under $500,000.”

Furthermore, the temporary Public Defender has lately been unable to attend to his court-related duties owing to health reasons. “Consequently, his illness has put an abrupt halt to the courts' seriously back-logged criminal calendar due to the Covid lockdown,” Kruse said.

The governor was reminded by Kruse that a criminal defendant has the right to counsel to assist in his defense, even if he is unable to pay for one. And this right — including the right to a speedy public trial by jury — is secured under the United States and American Samoa constitutions.

Moreover, the Fono enacted a local law, which mandates the Public Defender to represent indigent persons, without charge, if such a defendant so desires or if he does not affirmatively reject such an appointment.

While he has lately sanctioned the appointments of private counsel to help out with indigent representation at discounted billings, Kruse said the private bar cannot be expected to regularly shoulder the Executive Branch's statutory duty to provision a functioning OPD, and to avail access to counsel.

“Among other things, I am not unmindful to potential complaints of ‘involuntary servitude’ from the private bar,” Kruse informed the governor.

“Therefore, given the exigencies presented by the circumstances and the enduring criminal element on-island, I am forced to support a court-appointment rotation involving every member of the American Samoa Bar Association who is not a criminal prosecutor to address the needs of indigent criminal defendants,” Kruse said.

The Chief Justice added: “Frankly Governor, if the Executive Branch's prosecution arm is to continue with the filing of criminal complaints, seeking to invoke the judiciary's process against those accused by the government of criminal conduct, then the Executive Branch's public defender arm must also be furnished the resources to step up its functionality in order to serve the needs of the indigent members of society as mandated by law.”

“Otherwise, the continued diminution of the law's mandate owing to paltry resource allocation could well lead to prosecution outcomes that society would find thoroughly repugnant,” he pointed out.

Kruse recalled that prior to the Fono's establishment of the OPD under law in 1977, all members of the private bar were required to function as public defenders on a gratis basis.

With creation of the OPD, he said the government initially invited bids from the private bar to undertake indigent representation. And the successful bidder, the Law Offices of Tuinei and Gurr, took on these services for a decade or so with the rest of the bar subject to a rotation call, at discount rates, where the contractual OPD encountered conflicts.

“May I suggest then that your recent supply of legal advisers, whom I have admitted to practice law in the Territory, seriously look into the feasibility of this option; it would, among other things, alleviate a lot of time consuming logistics entailed with recruitment and office setup,” Kruse informed the governor.

ADMINISTRATION RESPONSE

“Upon receipt of Chief Justice Kruse letter, then Acting Governor Talauega Eleasalo V. Ale responded to the Chief Justice in person,” according to the Governor’s Chief of Staff, Loa Tuimavave Tauapai Laupola, in a response to a request for comments from KHJ News — that first reported on Kruse’s letter late last week. Loa also copied the other local media outlets, including Samoa News, on his reply.

Talauega “assured the Chief Justice that this is a matter of the highest priority to the Administration,” said Loa in his email reply. “The Administration has been actively pursuing the development and implementation of immediate and long-term solutions.”

Loa explained that the recruitment and retention of attorneys by ASG has been a recurring challenge. “One which is compounded by less than competitive salary and benefits packages compared to similar jurisdictions in the continental United States,” he said. “Efforts to address this issue are currently under review and will be implemented immediately upon approval.”

“Despite these challenges, there are a few individuals, both local and off island, who have expressed interest in either being the Public Defender or otherwise working with the Public Defender's Office,” Loa pointed out.

He said that the Governor’s Office has also stepped up and tasked one of its attorneys to assist the Office of the Public Defender through a project designed to assist in the timely disposition of cases.  

From an office infrastructure perspective, Loa said the Office of the Public Defender has been moved to a new location closer to the Court House.  Additionally, it has secured federal funding to implement an office infrastructure plan. Furthermore, proper office equipment and furniture have been provided.

“An advanced case management system is in the process of being purchased.  The hiring of additional investigative and administrative support staff is under consideration,” Loa said.

Samoa News will report in future edition on the Chief Justice’s first-letter, sent to the governor in June, regarding “staffing and resource needs” of the Public Defender’s Office.