By Andy Mannix
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Listening to McGee talk like that, you might wonder why he would want to go back to public defense. But, he says, his idea is that prosecutors and defenders "have more in common than we think. I'm not saying that the system should be tough on people. I think we should hold them accountable and say, we're going to put together a program that works for you. I think people need to come to the table. Cooperation does not mean co-optation."
McGee isn't the only one who thinks it's time for the public defender's office to, as some put it, join the '90s. Judges, prosecutors, and cops all have complained that Kennedy's feisty attorneys are more than the system can handle at a time of growing caseloads and clogged calendars. "Every time a public defender, a county attorney, and a judge get together, the public pays all three of our salaries," notes Burke. "Something meaningful has to happen in those appearances, or it's been a waste of time and money."
But Kennedy remains suspicious of corporate-style reengineering in a system where the line between efficiency and railroading is thin. "This idea that I should be part of a team and go along to get along is nonsense," he says. "Our job is to make the government prove its case." Which goes a long way toward explaining why he may not be chief much longer.
Take the story of the state takeover, which Kennedy fought from the start. What the Legislature had in mind, he thundered in meeting after meeting, would ruin public defense in Hennepin County. The union might be busted as employees became state workers. Staff might be cut. Resources for things like expert witnesses and law books would dwindle. The office would be at the mercy of lawmakers who might or might not have the best interests of big-city criminal defendants at heart.
Some of his concerns have since proven justified. Even with Hennepin County subsidizing it, Kennedy's office--or, for that matter, any other in the state--is nowhere near where it should be by the state's own standards. According to the board of public defense's figures, no public defender should handle more than 175 felony cases (not counting homicides); 450 misdemeanor cases; and so on. But to achieve those kinds of caseloads, says state board administrator Dick Scherman, the Legislature would have to appropriate an additional $27 million each year, 80 percent more than what it now spends.
And that, says Scherman, is not something the board is even going to ask for. "Politically I would never recommend that at this point in time. That would be political suicide. The state does not have that kind of money." The board is planning a major funding increase for Hennepin County next year, Scherman says, but that still depends on the Legislature.
That kind of realpolitik reasoning, however, hasn't appeased Kennedy. In April 1992, he filed a lawsuit against the state board, Gov. Arne Carlson, various state officials, and the Hennepin County Board. He alleged that the state "by negligence, misfeasance or nonfeasance, did not obtain or attempt to obtain sufficient funding" for his office; that as a result, the poor were being denied adequate representation; and that this violated both the state and the U.S. Constitutions.
It amounted to not only biting the hand that fed him, but gnawing down hard and drawing blood. Four years after the suit was first filed, Judge John Lindstrom of Willmar ruled in Kennedy's favor. Minnesota's system of public defense, he wrote, was in fact "not compatible with constitutional principles of equal justice." He threw in a compliment to Kennedy's staff, saying they had "performed admirably despite limited resources."
It was a fleeting victory. This February, the state Supreme Court overturned Lindstrom's ruling. Kennedy supporters called it a political decision, instigated perhaps by Chief Justice A.M. (Sandy) Keith, who wrote the decision. Keith once worked with Kennedy in the DFL trenches, but had since become an adversary. Critics said it was high time Kennedy got knocked down to size; now perhaps, he'd exhibit a little more cooperative attitude. So far, Kennedy has failed to oblige.
One effect the suit did have, though, was to cement the feeling, among a lot of members of the state board, that Kennedy had to go. In the end he stayed, but the fight it took did a lot to set the stage for this year's drama.
The Board of Public Defense has seven members, four appointed by the governor and three by the state Supreme Court. Two more are added when it's time to select a chief district defender. In the fall of '92, the inside word was was that at least five of those nine votes were dead-set against Kennedy. A scramble for his job set in. Ten candidates applied, including a series of prominent Minneapolis and St. Paul attorneys. One of them was Peter Cahill, a private defense lawyer who spent four years in the Kennedy's office during the 1980s.
Cahill says he ran because he'd heard Kennedy wouldn't be reappointed, and he felt the county office should cooperate better with the state. But, he adds, he might not have had he known how fast things would get ugly. "It wasn't Bill so much," he says. "He seemed to understand what was going on, but a lot of people in his office didn't. They took it personally.
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