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Broken Justice Episode 1: Triage – the full transcript

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Jeff Esparza
The screwy thing of it is you get so many cases that you just live under this constant fear that people are going to slip through the cracks and quite frankly I know they do. 

Amna Nawaz
This is Jeff Esparza. He’s a public defender in Kansas City, Missouri and he’s buried in cases.

Jeff Esparza
I’m at 150 percent of my maximum possible ethical case load, basically meaning that if I worked a 60-hour week, which would be a fairly modest week, for the next year and a half and didn’t get a single new case then I could do the bare minimum to ethically represent the clients I currently serve. 

Amna Nawaz
Jeff’s clients are people who are charged with crimes but who can’t afford to pay a lawyer. They all have their own stories but right now, they’re just stacks of case files strewn across his desk.

Jeff Esparza
So this right here, I just pulled this, you can see I’m not putting on airs for you, I just pulled this out of my mailbox. These are all of my new cases. I have no idea what’s going on with them.

Amna Nawaz
Kansas City is the largest city in Missouri and it sees all kinds of crime, but especially violent offenses. In 2017, the year that Jeff started in this office, city had the fifth highest murder rate of major cities across the country.

Jeff Esparza
This case is a first degree robbery where a woman ended up being shot.

Amna Nawaz
It also has one of the state’s busiest public defenders offices. In the two years since Jeff started working here, he’s gotten used to carrying more than 100 cases at a time.

Jeff Esparza
So I have a murder one. Two “A” or “B” felony drugs. Two attempted murders, one assault in the second degree with a knife, that’s a stabbing case. 

Amna Nawaz
But something Jeff hasn’t gotten used to? This fear that he’s taking too long to get to cases, that he’s going to miss something—and that ultimately he’s failing the people he’s trying to help.

Jeff Esparza
And you have these honest to god human beings and you know that some of them are slipping through the cracks. You know that there are things you’re not doing on the case because there’s just not enough time in the day.

Amna Nawaz
That’s a fear shared by all of the public defenders we spoke to in Kansas City.

Public Defender 1
It’s definitely, like I feel the stress of 150 souls on my back.

Amna Nawaz
It’s true of public defenders across Missouri. And it’s true of public defenders across the country.

Public Defender 2
Right now I have 119 open cases.

Public Defender 3
131 open cases.

Derek McKenner
I have 95 open cases right now.

Amna Nawaz
This is the world of public defense—a huge part of the justice system that often goes unnoticed.

Public Defender 4
Hey here’s your two hundred cases. You have court in 20 minutes. It’s across the street. Go.

Amna Nawaz
—and  one that insiders say for far too long has struggled with too many clients and too few lawyers.

Public Defender 5
It’s incredibly disheartening to feel like you’re failing every day.

Amna Nawaz
We’re going to take you behind the scenes of Missouri’s public defender system — to show you what it looks like for these lawyers and their clients.

Frank Carlson
Do they have a nickname for public defenders?

Defendant 1
Oh yeah yeah. They call ‘em public pretenders.

Amna Nawaz
And what happens when things go really wrong.

Automated Voice
Hello. This is a free call from

Ricky Kidd
Ricky.

Amna Nawaz
By telling you the story of one man, Ricky Kidd.

Automated Voice
This call is from a correctional facility and maybe monitored and recorded

Amna Nawaz
Who says he was sentenced to life in prison for a double homicide because the public defender system failed him.

Ricky Kidd
I 100 percent believe that I’m in prison today because of the Missouri public defender system. 

Amna Nawaz
This is “Broken Justice,” a show from the PBS Newshour about the public defender system in Missouri, and what it tells us about justice in America. I’m Amna Nawaz.

Amna Nawaz
My colleague Frank Carlson has spent a lot of time reporting on Missouri’s public defender system. He’s going to be walking us through this story.

Amna Nawaz
How are you?

Frank Carlson
Good, how you doin?

Amna Nawaz
So, Frank, take us to the beginning. 

Frank Carlson
Like a lot of people I’d heard about public defenders in TV shows and movies.

Actor
You’re under arrest, you have the right to remain silent, you have the right to an attorney. If you cannot afford one, one will be provided to you.

Frank Carlson
And as you hear over and over again in crime dramas, if you can’t afford to pay a lawyer the court will provide one for you.

Amna Nawaz
Ok, when you say someone can’t afford to pay a lawyer, how do they determine that?

Frank Carlson
Well it varies from state to state: in Missouri, they base it on the federal poverty line; individuals who earned $12,500 a year or less. Other states go with double that amount. 

And you might think ‘that’s not a lot of people.’ But in the justice system, it’s most people. One study from the Department of Justice estimated that public defenders touch as many as 82 percent of criminal cases. 

And in Missouri last year, the state public defender’s office handled 93 percent of all the felonies.

Amna Nawaz
93 percent? That’s a lot.

Frank Carlson
It’s a huge amount. And it wouldn’t be a problem if they had enough lawyers. But last year in Missouri, the public defender system—which has about 380 lawyers—handled 75,000 cases.

And so with numbers like these, you can see why public defenders, like Jeff Esparza, the guy we heard at the top, worry about people slipping through the cracks

Amna Nawaz
Yeah, and I got to see what that looks like first hand on our trip to missouri earlier this year, when I visited one of Jeff’s clients. He’s an older African American man named Kevin Shepard.

Kevin Shepard
This is the view of Brush Creek; the best view of Brush Creek in Kansas City. 

Amna Nawaz
This is it right here? 

Kevin Shepard
Right here

Amna Nawaz
The best view? Lucky man. 

Amna Nawaz
Kevin Shepard was 57 when I met him at his apartment in south Kansas City. He hadn’t lived there long and he didn’t have much furniture so he dragged in some chairs from the common area of his building.

Kevin Shepard
Takes a little getting used to ‘cuz this place is so small. I’m used to a three-bedroom house.

Amna Nawaz
When I met Kevin, he talked a lot about his kids and grandkids and his fight against cancer.

Kevin Shepard
I was hard-headed and the doctors said you can’t do this and you can’t do that you can only eat this and you don’t but I would try to do and eat, you know my grandchildren would come over here. We’d play tag around a house and everything like that. 

Amna Nawaz
Last year, Kevin says he was living on social security disability and he was being evicted from his home. While he was packing one day, he says he lay down to take a nap.

Kevin Shepard
And just as I was getting to sleep it was this blam blam blam at the door. So I got up to see what was going on. And here comes these two guys through the door 

Amna Nawaz
According to Kevin, two men kicked open his door with guns drawn. Now he said he’d already had a break in, so he thought these men were intruders. He grabbed his gun and chased them away from the house. 

Kevin Shepard
And as I got to the door he fired a shot at me and he hit the doorframe right beside my head about four inches from my head. 

Amna Nawaz
It turns out those two men were county employees delivering eviction papers. And they say that  Kevin pulled a gun and threatened them with it. Police arrested Kevin, and took him to the Jackson County jail. He was charged with unlawful use of a firearm. And he couldn’t afford to post bail. 

Frank Carlson
And a side note here: that happens with a lot of public defender clients. Bail is a set amount of money a defendant puts up to get out before trial. It’s like collateral to say “I’m not gonna run and I’ll show up in court.” Now you can ask the court to reduce that amount, or to set other conditions for your release, but you often need a lawyer to help you do that. 

Amna Nawaz
And of course, Kevin couldn’t afford to pay a private lawyer either. So he called the public defender’s office. He says they told him they would get him a lawyer. And in the meantime, he sat in jail. 

Kevin Shepard
Well, a week later I went to court. Nothing. 

Amna Nawaz
After a week in jail, he still didn’t have a lawyer. And Kevin said he wasn’t getting his medications and that he had to sleep on a mat because there weren’t enough beds. 

Kevin Shepard
If you can imagine, people urinating on walls and on the floor and everything, overcrowdedness, and I’m not used to being in that kind of environment.

Frank Carlson
And look, it’s not just Kevin saying this about the Jackson County jail, there have been a lot of bad stories about that place. Reports of overcrowding, violence, and abuse.    

Kevin Shepard
I was just in shock that they wouldn’t let me out of there. I just figured they would let me go.

Frank Carlson
More time passed and after Kevin was in jail for two months, his case finally got assigned to Jeff, who already had a hundred and five pending felonies on his plate. And Jeff told the judge he couldn’t take any more.

Amna Nawaz
Wait you can do that?

Frank Carlson
Actually public defenders are supposed to do that. Their professional guidelines tell them not to take more cases than they can handle because you can imagine, doing that will hurt all the clients they already have. So that’s what Jeff tried to do, he told the judge he couldn’t take Kevin’s case.  But the judge said no, you have to take it. 

Jeff Esparza
And I filed an entry of limited appearance. I had too many cases and representation of Mr Sheppard would make it so that I would materially put the representation of my already existing clients at risk, so I had to decline the case. And Judge Standrige said no. 

Frank Carlson
But because of a computer glitch, and the huge number of cases Jeff already had, Jeff missed Kevin’s next hearing. So again Kevin’s case got delayed, this time so Jeff could catch up.

Kevin Shepard
I was like, this is a nightmare and this can’t be going on. You know this is supposed to be America.

Frank Carlson
S
o at this point, Kevin had a lawyer, but he’d already been in jail for two and a half months, and Jeff had just started working on his case. So the first thing Jeff did was try to get Kevin out of jail. Jeff asked the court for a hearing and then the court denied that motion.

Kevin Shepard
Each time I went to court I thought it would end, but it just continued and continued and continued 

Frank Carlson
Finally, with Jeff’s help, 118 days after he was arrested, Kevin got out of jail. 

Amna Nawaz
Right, but since he was being evicted when all of this started, his home and all of his stuff were long gone. 

Kevin Shepard
It’s not about me as a person, it’s not about me as an individual and what they’ve done to my life because they’ve destroyed it. No home, no property.  I’m still trying to figure out how to explain this to my grandchildren because all they they thought paw-paw went on vacation. 

Frank Carlson
So Amna, this is one of the things Jeff means by people falling through the cracks—people spending weeks or months in jail because there aren’t enough public defenders to get to their cases quickly—and because clients are too poor to pay to get out on bail. 

Jeff Esparza
Cases like this show how different somebody is treated if they are poor, compared to somebody of relatively modest middle class means. If Mr Shepherd had had a friend or a family member who could have lent him a thousand dollars. He would have spent one day or no days in jail. He did not have those resources.

Frank Carlson
And remember, Jeff told the judge that he couldn’t take Kevin’s case because he already had too many, which means he had to put aside everything else to get Kevin out. 

Jeff Esparza
There were definitely whole days ahead coming up to what was the first trial setting, an entire week where I completely had to set aside everything else that had to be done on everybody else’s case. Some stuff that was pretty darn important. Some things that I’m just now catching up on.

Amna Nawaz
You know when I met Kevin, more than a year after his arrest, he said he was determined to have his day in court. 

Kevin Shepard
And for the first time it came up in court they wanted to make a plea deal and I said “No way”.

Amna Nawaz
A plea deal is an agreement with the prosecutor. If clients plead guilty, often they’ll get a lesser charge or punishment in return. 

Amna Nawaz
Why’d you say no? 

Kevin Shepard
Because I’m not guilty of a crime. I’m convinced that God’s going to see me through this. 

Amna Nawaz
We kept in touch with Kevin after our trip to Missouri, but after a couple of months, he suddenly stopped returning our calls. A couple of days passed, and then we found out through Kevin’s friend that Kevin had passed away. Without ever getting his day in court. 

Frank Carlson
And around that time I happened to be in Kansas City and so I went back to see Jeff. He hadn’t spoken with Kevin for a few weeks, and so I gave him the news. Jeff told me the state would drop the charges and Kevin’s case would be sealed.  

Frank Carlson
Does that feel right to you? I mean that he died with this hanging over his head. 

Jeff Esparza
 No I, I, I, I guess I just found out about his death today. So truthfully I’m still kind of processing it. 

Frank Carlson
I’m sorry I didn’t mean to. 

Jeff Esparza
No, no, no, no it’s fine. You know, trials are very stressful. I’m not worried about me but they’re very stressful for people. I’m glad that a sick man didn’t have to go through days of what would have been an extremely stressful occasion.

Amna Nawaz
Kevin Shepard, a sick man who spent months in jail waiting for a lawyer, that’s just one example in one state’s public defender system. But the public defense crisis is playing out across the country. 

After the break: how do public defenders manage all these cases, and how else are clients affected? And later, what happens in a more serious case, with a life sentence on the line? 

Amna Nawaz
We just looked at one particular case in Missouri but these stories are playing out everywhere.

Radio announcer
And now to New Orleans where some defendants, especially poor people arrested for major crimes are going without legal representation. 

Frank Carlson
In Louisiana, California, New York  

Radio announcer
Public Defender in Portland talks about why he and more than a dozen of his colleagues walked off the job today.

Frank Carlson
Wyoming, Nevada, New Mexico, Oregon.

Radio announcer
He says they’re overwhelmed with too many cases and the system needs to change. 

Frank Carlson
This is a widespread problem that affects a huge part of our justice system and a critical one. Because public defenders, they’re supposed to do everything private lawyers do. They’re with you at your hearings and go through the evidence in your case. They investigate that evidence to find out if what the police say is true. They talk to witnesses and help negotiate plea deals and they represent you at trial. 

But this crush of caseloads can lead to poor defendants spending longer in jail, waiting for their public defenders to get to their cases. And courts need public defenders to move their cases through the system. So without enough public defenders, the whole system grinds to a halt. 

Michael Barrett
Keep in mind this is a national epidemic of underfunding public defense. Missouri’s 49th in the United States, only Mississippi is behind us.

Frank Carlson
That’s Michael Barrett, the head of Missouri’s public defender system. 

Michael Barrett
Everything you’ve been told in grade school about, these mantras that are associated with the criminal justice system, what makes us so wonderful, it’s all a load of crap. It’s all a load of crap. 

Frank Carlson
We could have told this story in a lot of places. But Missouri is near the bottom of the pile in funding for public defense. 49th out of 50, according to reports. At the same time, the state has one of the highest incarceration rates in the country, and a disproportionate number of those incarcerated people are African American. 

Michael Barrett
There is a correlation here. We don’t funded indigent defense and for that reason we lock up everybody. 

Frank Carlson
And so Michael Barrett has been telling anyone who will listen that this system is in crisis.

Michael Barrett
You should be cynical it’s all, it’s all a charade.

Frank Carlson
He says the state government, it just doesn’t provide enough money to hire all the lawyers to defend all the clients in all the cases prosecutors want to charge. And so it’s those clients who ultimately suffer. 

Michael Barrett
We pride ourselves on getting to be the ones who stand up for these individuals, who try our best to make sure that they receive adequate protections under the Constitution. We can’t do that because of the sheer number of clients we have but that’s certainly our goal. 

Frank Carlson
And no matter what clients are charged with, or whether they’re guilty or innocent, they still have the right to a lawyer, a lawyer who can actually represent them. But these clients say they’re being treated a lot differently than people who can afford a private lawyer, and that’s why in jails and prisons and on the streets, there’s a nickname for public defenders. 

Defendant 2
Oh, do you have a public pretender? 

Defendant 3
Public pretender.

Defendant 4
Public pretender. 

Defendant 5
Public pretenders [laugh].

Frank Carlson
They think this system is a joke. 

Amna Nawaz
That says a lot coming from those folks, but practically speaking, I guess, if these lawyers have too many cases, how do manage them all day to day? 

Frank Carlson
Well, in one word: triage. 

Beverly Hauber
I think you hear a lot of PD’s talk about this is an emergency room. 

Frank Carlson
They’re not supposed to do this, but Beverly Hauber, a public defender in St. Louis County, says that’s exactly what they have to do.

Beverly Hauber
You can’t keep looking at the next ambulance that’s pulling up. You have got to just put your head down, treat the patient in front of you and then move on to the next. 

Frank Carlson
Public defenders take the case that needs the most attention right this second, whether that’s hearing, or a plea deal, or a trial, that’s the patient bleeding out right now. And they focus all their resources on just that patient. And they push all their other cases off until they can’t push them off any longer.

Walter Stokley
Every case is the most important thing to that defendant, right? 

Frank Carlson
Here’s Walter Stokely, a public defender in Kansas City. 

Walter Stokley
But if I get a case that’s just assigned to me and I have 50 other cases the one that was just assigned to me may be the fiftieth most important at that time. 

Frank Carlson
And here’s David Wiegert, also in the Kansas City office.

David Wiegert
You end up with a system of putting out fires, and those fires are people’s lives.

Amna Nawaz
So there are too many cases, the state isn’t funding more public defenders, and that keeps clients in jail longer without any movement on their cases, like we heard with Kevin Shepard, is that right? 

Frank Carlson
That’s exactly right, but that is not the only problem. There’s also really high turnover across the state: last year 15 percent of missouri’s public defenders quit. And so public defenders are constantly picking up the cases that were dropped when their colleagues quit. And that means that new lawyers are starting from square one. So, more delays. 

And then there’s another big problem we saw: investigation.

Frank Carlson
How’s it going? 

David Weigert
Good! Good good good. 

Frank Carlson
Amna, do you remember when we were in Kansas City and we went out with David Weigert? 

Amna Nawaz
Oh right, he was looking into that murder case right? 

Frank Carlson
Exactly, David showed us what “triage” can look like for the cases that get sent to the bottom of the pile. 

David Wiegert
We talked to some folks, got a little bit information, not a lot. 

Frank Carlson
David invited us on a trip to an apartment complex about 25 minutes into south Kansas City where he was fishing for any information or witnesses that could help his client, a man accused of murder. 

Frank Carlson
It took a long time to figure out they were in the wrong building. 

Amna Nawaz
I, I was going to say that but this is also a very confusing sort of apartment complex. 

Frank Carlson
Yeah.

Amna Nawaz
David didn’t want us to spook anyone with our microphones so we had to sit in the car while he worked.

Amna Nawaz
But man, it’s been an hour.

Frank Carlson
Yep, it’s been 20, 25 minutes out here. Checked two buildings already. Going into a third. 

Frank Carlson
He eventually found the building he was looking for. The place where the murder happened and he handed out his business cards. And when he came back I asked him some questions. 

Frank Carlson
And how long have you been working on this case? 

David Wiegert
I’ve been working on this case um, not very long. A few weeks probably. 

Frank Carlson
And when did the shooting take place?

David Wiegert
This was early 2018. 

Frank Carlson
So we’re now in June 2019. 

David Wiegert
Yeah

Frank Carlson
So is this the first time you all are out here talking to these witnesses and finding out what they remember from a year and a half ago?

David Wiegert
Yes. 

Frank Carlson
Is that a problem? 

David Wiegert
Yes it is.

Amna Nawaz
Ok, wait, just to be clear: the very first chance David had to visit the murder scene, and poke around anything that could help his client, that was a year and a half after the murder? Just weeks before the trial begins? 

Frank Carlson
Yeah, it’s crazy isn’t it?

David Wiegert
This is not ideal by any stretch of the imagination. This is not what you think of if you’re facing charges and you get an attorney. You don’t want them to sit on the matter for months and months and then eventually try to do some work on it in the few weeks leading up to trial or whenever your hearing is or something like that and that’s not what you’re looking for and that’s not what we’re supposed to be doing but that’s what I have to do at this point.

Frank Carlson
Public defenders can’t do timely and thorough investigations. They can’t get to the facts of the case when they’re fresh, or spend time chasing down leads. And that can really hurt their clients’ cases. But I should point out that doesn’t always mean someone gets found guilty. I mean in this particular case of David’s, that client walked.

Amna Nawaz
He was found not guilty?

Frank Carlson
Yeah. Not guilty on all charges. But public defenders are the first to admit that that doesn’t excuse what’s going on here, and that many people are not so lucky. 

Frank Carlson
Test test test. One, two. One, two. Hey Ricky? Are you there?

Ricky Kidd
Yeah I’m here. 

Frank Carlson
Can you hear me well? 

Ricky Kidd
I can hear you much better

Frank Carlson
Oh great, great.

Frank Carlson
That’s Ricky Kidd, speaking to me from prison. 

Ricky Kidd
How are you, Frank?

Frank Carlson
I’m good, how are you doing?

Ricky Kidd
Good, good considering the circumstances. 

Frank Carlson
I’ve been talking to Ricky Kidd for over a year now because his story is one of the worst case scenarios for clients who depend on this system. 

See back in 1996, when Ricky was 21 years old, he was charged with killing two men. But he had a rock solid alibi for the day of the murders—multiple people who said he couldn’t have done it. 

On top of that, Ricky said he knew who did it, and he told his public defender and the police that. And it turns out, there was lots of evidence that could have acquitted him. 

Ricky Kidd
I just thought that my innocence was going to be sufficient enough to carry the day. I knew that .. 

Frank Carlson
But it wasn’t. Ricky got convicted and sentenced to four life terms without parole. And so he’s spent more than 20 years trying to prove the things he says his public defender should have found in the first place.  

Ricky Kidd
I do believe I’m in prison today because of the Missouri state public defender system. I think if these things would have been flushed out, years ago twenty three years ago that we would not be having this conversation today.

Amna Nawaz
On the next episode of “Broken Justice,”  we’ll tell you how Ricky Kidd got swept up in the system. 

Ricky Kidd
I was under arrest for the murder of George Bryant and Oscar Bridges. I was shocked and I just remember telling them that they was making a mistake, they was making a mistake. 

Amna Nawaz
We’ll also tell you about how we got this public defender system, starting with the landmark fight at the Supreme Court that earned all of us, right or poor, the right to a lawyer.

Karen Houppert
This was a really big change on, you know arguably the biggest change, to our legal system in the country’s history. 

Amna Nawaz
That’s on the next episode of “Broken Justice.”

“Broken Justice” is hosted by me, Amna Nawaz, reported by Frank Carlson and produced by Vika Aronson. 

Editing by Erica R. Hendry and Emily Carpeaux. Engineering by Tom Sadderfield. Production Assistance from Chris Ford. Fact checking by Maea Lenei Buhre, Amber Partida, and Harry Zhan. Taka Yasuzawa and Alex Sugiura composed our theme music. Additional music by Blue Dot Sessions. Sara Just is our Executive Producer. 

Let us know what you think of the show and send your questions to podcasts@newshour.org, Tweet at us @newshour, and leave us a review in Apple podcasts, check out the show extras on our website pbs.org/newshour/podcasts. 

 

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