Gut Feeling

The always-informative web page of the North Dakota Supreme Court has a link to an article in last Friday's TwinCities.com Pioneer Press about unhappiness in the state public defender's office over the selection of a new appellate chief. The report:

The state's new chief appellate public defender has never filed a legal appeal in Minnesota.

The appointment of attorney David Merchant has raised eyebrows and, in some cases, hackles of attorneys who represent Minnesota's poorest defendants in sensitive and high-profile cases.

Among the complaints is that Merchant has made clear to them that, unlike his predecessors, he will not be handling cases himself. They say this will leave the office, already overwhelmed with appeals, further short-staffed.

Four attorneys from the state public defender's office have sent letters to the Board of Public Defense that appointed Merchant questioning why, at a time of budget cuts, a current employee of the office wasn't elevated to the top appeals spot, eliminating the need to budget for a new hire.

The controversy began Feb. 11 when four attorneys interviewed for the top appellate spot in the public defender's office, a position that oversees the 28 lawyers who argue most of the legal appeals for criminal defendants in the state.

Cathy Middlebrook, a managing supervisor in the office and the sole female applicant, had specialized in handling appeals for 23 years. Another candidate, Ben Butler, had just won a case before the U.S. Supreme Court. A third candidate, Paul Maravigli, came from the Hennepin County public defender's office and had once specialized in appeals.

Further:

After four hours of interviews, the Board of Public Defense announced its decision. Merchant takes over the position March 15.

"Shocking," "insulting" and "demoralizing" are just some of the words public defenders and criminal defense attorneys have used to describe the hiring of their new boss, who declined to be quoted for this article.

Interim Chief Appellate Public Defender Marie Wolf resigned from the position the day after Merchant was hired.

In a letter to the Board of Public Defense and the governor's office, Assistant State Public Defender G. Tony Atwal said his colleagues within the appellate office were "demoralized and devastated" by the decision to hire a top supervisor new to criminal defense work in Minnesota.

Atwal, an adjunct professor of appellate law at William Mitchell College of Law, called the meeting "an example of how fundamentally flawed the leadership at the board and within the public defender system is and how disconnected it is with the needs of the system."

"The citizens of Minnesota deserve better from its public agencies," he wrote. "... In my view, the leadership at the board and within the public defender system is broken."

Another attorney wrote in a letter that one board member preferred Middlebrook because she had spent nine years as a supervising manager in the office. The others overruled that board member after only brief discussion, with one board member mentioning having a "gut feeling" that Merchant was the better candidate.

"I sat in disbelief over what had transpired before my eyes. I felt ill," wrote Ngoc Nguyen, an assistant state public defender, in a letter to the board dated Feb. 19. "The board's inability to articulate why Mr. Merchant was more qualified was insulting and demoralizing."

Another lawyer, Bridget Sabo, wrote: "He has no criminal law experience in Minnesota. ... Mr. Merchant seems to lack almost all of the qualifications set forth in the job description for our Chief. ... To hear ... that he will not be able to offer us case support in any meaningful way and has never managed a group of attorneys before is, frankly, nothing short of shocking."

(Mike Frisch)