Since 2008 Jennifer Harjo has been the public defender for New Hanover County. She started that office — and now she’s ready to create another one in Pender County. It’s expected to be up and running by May of this year.
The North Carolina legislature recently appropriated $500,000 to create five new positions for the Pender office: three attorneys, one investigator, and one social worker. In November, Pender County Commissioners approved a payment of about $301,500 to purchase and make updates to office space for the public defenders. Their new office is right next to the county courthouse in Burgaw.
North Carolina General Statutes § 7A-498.7 outline the offices across the state — and Cape Fear region counties like Brunswick, Columbus, and Bladen do not have one.
J. Corpening is the chief judge for the 5th judicial district, which includes New Hanover and Pender counties. He said Pender County has been a defense attorney “desert” for some time.
“Lawyers driving from New Hanover to Pender to do court-appointed work is incredibly inefficient. We saw inmates in jail not seeing their lawyers, delays in jury trials, and delays in other cases, and so this has been in the works now for several years, but when I got a call from Governor [Roy] Cooper about this being in his budget, I was just ecstatic,” Corpening said.
It’s not just the public-defender desert that was causing issues in Pender County — the jails have been overcrowded to the point where some detainees are sent to facilities in Onslow or Duplin counties, which can make it even more difficult for lawyers to see their clients.
The work of public defenders
In criminal defense, those who cannot afford a lawyer are deemed ‘indigent’ — and because of the 1963 Supreme Court case Gideon v. Wainwright, all defendants have a right to an attorney, even if they can’t afford one.
Currently, Harjo’s team of salaried employees represents New Hanover County’s indigent defendants. If someone from Harjo’s office can’t take the case, the defendant gets a private defense attorney from a court-appointed list. Those on the list get paid at a set hourly rate.
With her office coming to Pender, the hope is that criminal cases will move more quickly through the system, meaning, theoretically, people accused of a crime who cannot afford bond will not sit in jail longer than necessary. For those who are ultimately found innocent, it hopefully shortens the period where a defendant lives in limbo between being charged and getting their case dismissed — because living with an unresolved criminal charge hanging over their heads can impact everything from employment to housing to someone’s personal life.
Brian Moore is a criminal defense attorney who’s been practicing law for 25 years. He’s been on the court-appointed list for 23 of those years.
He said he’s looking forward to Harjo opening up the new office since it means there will be more consistent legal support for people in the Pender County jail.
Ben David has been the district attorney for the 6th prosecutorial district of New Hanover and Pender counties for about 19 years. He, too, is looking forward to the opening.
“When we talk about efficiency and fairness and wanting to make sure that justice is done, we want the very best people in the public defender's office, and we want them to be adequately funded to ensure that there are professionals on the other side of these proceedings,” David said.
Moore agrees: “The better everyone is at every level, including the prosecutor, the defense, the judges, the clerks, literally the better we all are, the more efficiently the system moves along.”
Harjo said her office contributes to the judicial branch functioning appropriately.
“The judges and the legislators and the Sheriff, they're going to be able to look to us and say, ‘there's a backlog in the system either caused by your office or the backlog has been reduced by your office.’ In the past, it's been reduced by the existence of our office and the work that we're doing. And I'm expecting that to happen in Pender County as well,” Harjo said.
The financial side of the public defender’s office
Those who need a court-appointed attorney must fill out what's called an ‘affidavit of indigency,’ where the person gives information about their assets and income.
At the defendant’s first court appearance, a judge determines whether the person qualifies as indigent. According to Corpening, that judge has a lot of discretion in deciding whether a person qualifies.
“It's not unusual for us to see an affidavit that has a lot of zeros on it,” Corpening said. He added that most people he sees in his court do qualify for legal support.
Corpening said he also takes into account nuances in people’s financial situations.
“But if all of a sudden they get charged with a felony, and they’ve been in jail for a few days, and maybe their job is in jeopardy, they may not have that spare change laying around to drop several thousand dollars on a lawyer,” so that person, according to Corpening, would qualify.
Further, he said he understands that just because a person posted bail, doesn’t mean they can afford their own attorney. Sometimes it’s because a family member or a friend paid the sum.
As the lead public defender of over 15 attorneys and 11 staff members, Harjo tells her employees to treat clients as though “they came in and paid us to give them good legal services.”
But, technically, if the defendant is found guilty of a crime they do have to pay back the state for some of those legal expenses.
“For lots of our folks that happens to be the state income tax refund intercept [i.e. garnishing someone's state refund]; we don't send collection agents to recoup the funds,” Corpening said.
According to Corpening, the person will get a letter from the court saying what they owe, and then they come in and pay. “But then I also get letters from people who say, ‘Here are my circumstances, I really can't pay. Will you consider remitting the judgment?’ And I do, because if people can't pay, then they shouldn't be repaying that.”
And if they’re found innocent – the state – or the taxpayer pays the bill.
What the public gains from the defender's office
Harjo has oversight over the court-appointed list of lawyers, which means making sure they’re living up to their responsibilities to their clients.
An example given by Corpening is, “‘I haven't seen my lawyer in two months, will you appoint me a new one?’ She [Harjo] looks into it, and she insists that people see and advocate for their clients.”
Though David and his prosecutors frequently try cases against public defenders, he highlighted the need for competent representation for indigent clients.
“When 98% of all cases in the criminal justice system at the Superior Court level are resolved through a plea and not trial, it's incumbent upon all of us to accurately assess these cases and figure out if there are triable issues and resolve them,” David said.
David also said the efficiency of the public defender office can keep costs down for the county taxpayer.
“They have to pay the bill for anyone who's sitting in our jails. It's almost $100 a day to keep someone incarcerated, pretrial. Because if it takes 120 days, on average, to resolve a pending felony versus 150 days, that's 30 extra days per defendant. And if you have 500 defendants in your jail, think of what that number turns into at the end of the year,” David said.
And it’s not just about keeping down jail costs for the taxpayer; Corpening said the public defender assesses the reality of the situation for the defendant.
“For misdemeanor traffic stops, it’s looking at the dashcam, looking at body cam, looking at the reports from the officers, or in Superior Court, it’s the discovery process, and then making an assessment about where we are, and then having honest conversations with their client. And that's why that quality representation is so important to be able to recognize, ‘we got something’ or ‘we don't have anything’, and we need to look at how we can mitigate the damage here. You know, what kind of plea offer can we get from the state?” Corpening said.
Harjo agrees, saying, “Our job is kind of like internal affairs, trying to make sure everybody's doing what they're supposed to be doing appropriately.”
While Harjo’s job is to provide a competent defense, she said her office is not about condoning crime.
“It is not as though we're just trying to get our clients out of jail. Quite frankly, we take the same oath that the judges and the district attorneys take. Any evidence that we put in all has to be authentic; we can't put in perjured testimony. We can't make things up. What we're trying to do is make sure that the system is honest, make sure it's reputable in terms of the evidence and the testimonies of police and witnesses,” she said.
Public defender pay is notoriously low
“We are overworked. We're underfunded. I feel like we are, in some sense, underappreciated by all aspects of the system, sometimes by our own clients. But I can assure you, the people that I have hired in my office, and myself, we all feel very strongly about and committed about the work that we do representing the clients that come before us,” Harjo said.
Moore, who is on the court-appointed list, agrees that the hourly rate is “difficult because of the overhead associated with it. So if you were just being paid directly that hourly rate, and you didn't have rent, you didn't have a secretary, you didn't have all the other associated fees or expenses of running a business, the rate would seem fine in a vacuum, but it's not in a vacuum.”
Moore said there has been basically no growth in that hourly rate in his 23 years of public defending, but “I can promise you my rent’s gone up, the wage I pay my staff has gone up, every other expense there is has gone up, but that has not gone up.”
So why does Moore still do some public defending? “It's important to me to be able to offer that to people because I think in our society how we treat people with the most need says a lot about us, and that's why I do it.”
According to a 2019 report commissioned by the North Carolina of Indigent Defense Services (IDS) the adjusted hourly rates for inflation should be at $85, $95, and $105 (rates correspond to the level of crime). The report further concluded, “Compensation systems that pressure attorneys to spend few hours on cases, such as grossly low flat fee schedules and inadequate contract payments compromise justice and erode faith in the criminal justice system.”
Asked why this rate has stagnated, Moore said, “other than the lawyers who are in the trenches, so to speak, who would like to see that kind of increase, but the idea of spending more money on and defending people charged with crimes isn't something that motivates the general public.”
Harjo receives state allotments for her lawyers ($88,000) and staff (investigator, $57,000; other, $47,000). Harjo can adjust how that actually translates into salaries. In her office, more experienced attorneys and staff make more than ones who are just starting out — but that means some staff are making less than the already low allotments.
“That means some people are always going to be underpaid, and pretty much all of them are underpaid. And so that's a problem,” Harjo said.
The state did recently authorize a pay increase for paralegals, but Harjo said it wasn't much.
“It was pathetic, it was about percent or maybe a percent and a half, it was nothing. And so, that's the tough part. And they are so key to my office, and quite frankly, they do so much of the work,” Harjo said.
Harjo added that her administrative assistant has been also serving as the office’s ‘mitigation specialist.’ This specialist presents the background and history of the person accused of a crime. They gather things like medical records, substance abuse treatment documentation, and family history.
“So I really would encourage our legislators to give every public defender office at least one mitigation specialist, really no office should be without one,” Harjo said.
She added that while some of her clients may be responsible for a particular crime, “there's something else that put them there to help explain their conduct, and that's kind of what we try to do.”
Harjo said a few years ago her office participated in a comprehensive work study with the National Center for State Courts. She said all her employees had to put in, for example, their time working on a case, and how many cases they resolved.
It found that, according to Harjo, “basically all offices were underfunded and understaffed, and those recommendations to fix those issues were not implemented.”
The attorneys who handle felony charges in Harjo’s office can have up to 125 cases at a time; for misdemeanors, it can exceed 200, but most attorneys handle a broad range of cases. However, Harjo said she’s trying to move toward a ‘person-centered’ approach rather than ‘case-centered.’
“I can think of several times I've represented a parent that's in a case with the Department of Social Services, but they also might have mental health or substance abuse issues, so then they find themselves in criminal court. I think it's important to be able to understand the individual and their needs, by representing them on all their issues at once, as opposed to just handling one case, and letting another attorney handle the other issues,” Harjo said.
Who they represent
Moore said he represents people on a wide range of cases. He’s worked on everything from lower-level misdemeanors, larcenies, and shoplifting to higher-level armed robberies and murders; he’s also on the court-appointed 'capital defender' list for cases where the prosecution is seeking the death penalty.
Most of these crimes, according to Moore, are fueled by the person being “under the influence of something to one degree or another, or in the process of trying to secure some sort of money to purchase that sort of thing.”
Harjo also boils most crime down to dealing with people who have mental health and addiction issues. And the roots of these problems are typically started early in life.
“Maybe something with their childhood or upbringing, or maybe just a horrible life experience in foster care, or maybe it's just the surroundings of where they grew up, which just made it difficult for them to get a job and do things the way we would expect them to do,” Harjo said.
Judge Corpening agreed, saying, “We don't see people on their best days. And trauma is the root of so much of what we see. Folks' lives are sometimes just literally in the tank. [...] But best outcomes are something to aspire for, and it's important to have a skilled advocate in their corner.”
Both Harjo and Moore say that through their legal support, they try and connect their clients to services for mental health and drug and alcohol dependencies — although that can also present challenges.
“One of the issues you always have with people is getting them to participate in whatever options they have available to them. That can be a challenge. There are people with some mental health issues who don't want to take medication. So maybe we've got a solution for them, but we can't kind of execute it. I don't know how you solve that, but that's part of the issue, too," Moore said.
And access to these services is difficult, too.
“I've had juveniles who need to be evaluated for mental health reasons, and there'll be a very long wait to get them in there to be seen. And these are children who are locked up if you will. And we need to address those matters immediately. We put them on a six- or eight-week waiting list. That's happening, and that's a big problem,” Harjo said.
Further, she has several clients right now at the New Hanover County jail who are waiting to be committed because they've been deemed incompetent.
“And unfortunately, that list is getting to be longer and longer because the timeframe which one gets services for competency, there's just not enough resources for mental health locally, or even in the jail facility,” Harjo said.
Essentially, for Harjo, “it's unfortunate that the resources are so limited. There are just limitations on housing. There are limitations on where clients can get good mental health treatment.”
Harjo and her team will more than likely face these challenges in Pender County when they open their new office this year – but, at the same time, she’s looking forward to bringing the benefits of her office to defendants in Pender.
*Editor’s Note: On February 2, WHQR reached out to North Carolina Indigent Defense Services to request information and documentation on the efficiencies of the New Hanover County Public Defender’s Office and has yet to hear back. Both Harjo and David said that IDS recognized this office as one of the “most efficient” in the state.
