Kruse: Status quo at OPD’s office risks severely impacting court operations

Pago Pago, AMERICAN SAMOA — In a June 15 letter this year, Chief Justice Michael Kruse brought to the governor’s attention, what he describes as a “brewing constitutional crisis within the Executive Branch brought on by the current state of affairs of the Office of the Public Defender (OPD)”.

This is the first letter, regarding “Staffing and Resources Needs of the Office of Public Defender,” from the Kruse to the governor, with a second letter in August, as the situation with OPD had gotten worse. (See Samoa News edition Sept. 07 for regarding the 2nd letter and the reply from the Administration.)

While OPD, is established by law as an independent agency of the Executive Branch, it has lately operated with no attorneys other than the Public Defender himself, wrote Kruse in the June letter to Gov. Lemanu P. S. Mauga. 

The governor was reminded that OPD is tasked with the legal representation of all indigent criminal defendants at all stages of the criminal justice process, a function which constitutionally mandates the government to provide indigent criminal defendants their protective right to receive effective assistance of counsel for their defense and to a fair and speedy trial.

“To illustrate the seriousness of the situation,” Kruse explained that the District Court and the High Court recently were forced to suspend their criminal calendars because the Public Defender became too ill to appear at any of the court proceedings.

Moreover, practically every defendant on our jury calendar, which is backlogged to 2033, is indigent and is therefore represented by the Public Defender.

According to the Chief Justice, the concern is that the OPD, as it presently stands, will not be able to effectively represent these individuals, let alone the incoming stream of indigent criminal defendants who are arrested and brought before the courts each day.

Kruse pointed out that at its inception in 1977, and for many years thereafter, the OPD was appropriately resourced with personnel — professional and administrative — and equipment. Over the years, however, OPD's situation has deteriorated from the functioning agency contemplated by local law.

“I can only surmise this to be the cumulative result of the policies of past administrations that have had the unintended effect of deprioritizing the needs of the OPD and marginalizing its constitutional significance,” he said. “This is evident, not only from the staffing problems that seem to perpetually plague the OPD, but also from the office's constant lack of basic office necessities.”

He also says that for years, the OPD has very apparently been treated as nonessential in terms of resource allocation relative to its larger and better staffed counterpart, to wit, the Office of the Attorney General.

Additionally, the same comparative perspective is reflected with the wherewithal of the office of the Administrative Law Judge to effectively discharge its statutory role.

Kruse shared that: “I can speak with first-hand experience about this disparity in treatment, having sworn-in and observed the number of assistant attorneys general cycling in and out of the Attorney General's Office, as well as responded to requests to donate the judiciary's used chairs, desks, filing cabinets, printers, computers, vehicles, and other office sundries to the OPD, which seems to be continuously short on funding and support.”

“To this day, the High Court continues to stock the OPD with printer paper and toner cartridges to keep the office afloat and operational. But it has become apparent to me that such efforts have done little to rectify the recurrent staffing and resource problems of the OPD,” he said.

“Without support staff and equipment, recent recruits have landed on- island and promptly departed on the first available flight, I do not see how the OPD can continue to operate effectively under the status quo which, in turn, risks severely impacting court operations and the constitutional rights of indigent criminal defendants,” he points out.

Kruse further informed the governor that: “More and more, due to ever growing criminal case loads and the bottleneck resulting from having only one public defender, the justices reluctantly find themselves faced with the unsatisfactory prospect of having to seriously consider appointing members of the Bar to represent indigent criminal defendants.”

“If the government continues to prosecute indigent defendants, the government is compelled to provide the effective assistance of counsel with the backup support of investigators and interpreters,” he said.

“I trust we can agree that a malfunctioning OPD benefits no one and serves only to harm the Territory's criminal justice system and its people. I, therefore, reach out to you in the hope that doing so would raise awareness of this imminent predicament and to immediately rectify and undo the inertial effect of past policies,” he concluded.

Kruse’s June letter was included in his second letter on Aug. 15 to the governor, that was copied to the Fono leaders.