Staffing shortages leading Big Island public defenders to withdraw from cases

Family and friends of Dylan and Leilani Alcain packed a District Court room in Kona on Monday to see the young couple make their initial appearance after being arrested over the weekend for an hours-long crime spree.

Dylan Alcain, cuffed at the ankles and wrists, was escorted into the courtroom first. He waved, giving a weak smile to his family as he sat on a courtroom pew. His wife Leilani followed, sitting stoically a few pews in front of him. The couple with young children are both charged with attempted murder for shooting at Hawai‘i police officers. If convicted, they face life in prison.

When Dylan Alcain faced the judge, the first thing requested by deputy public defender David Saiki — the attorney assigned to represent him — was to withdraw from his case. Saiki also requested to withdraw from the case of Lelani Alcain.

The reason Saiki gave the judge in both cases: a staffing shortage at the public defenders’ Kona office.

It’s a scene that has been playing out all too frequently on the Big Island.

Hawai‘i County Prosecuting Attorney Kelden Waltjen said he started seeing more public defenders withdrawing from cases in the past couple of months because “they didn’t have the bandwidth to handle the influx of those class A felony cases.”

There are 15 public defender positions on Hawai‘i Island — nine in Hilo and six in Kona — and four (26%) are vacant. Two each in Hilo and Kona.

Overworked public defenders are commonplace across the United States. The vacancies only exacerbate the workloads of already overworked attorneys, causing more case withdrawals and forcing the state to fly in Oʻahu-based attorneys to fill the void.

“Our attorneys are doing their best in Hilo and Kona,” Hawai’i State Public Defender James Tabe said. “They’re working hard and working overtime.”

He also said: “We’re trying our best to fill these positions.”

The Office of the Public Defender provides legal services for individuals who are financially unable to obtain counsel. When a public defender withdraws from a case, the court must appoint a new attorney, who needs time to get up to speed, resulting in cases being continued.

Third Circuit Court’s Chief Judge Robert D.S. Kim said judges have a pool of privates attorneys they reach out to when the public defender’s office withdraws. A court-appointed attorney is paid $90 an hour.

The shortage is starting to have a domino effect.

“When public defenders are withdrawing because they can’t handle the volume, it creates tremendous pressure to find attorneys,” Kim said, adding some private attorneys aren’t taking court-appointed cases anymore.

“We can’t let this injustice go on,” Kim said.

With the rising number of serious cases on Hawai‘i Island, Kim said the judiciary is trying to get O‘ahu private attorneys to provide representation. An attorney has yet to be found for Dylan Alcain.

According to court records, attorney James Biven was appointed to represent Leilani Alcain.

The Kona and Hilo public defenders office did not return calls regarding the shortage of attorneys, their caseloads or the status of their withdrawal from cases.

However, Tabe said attorneys are not withdrawing from all current cases saying “they’re probably picking and choosing” the cases to take on.

Because of the vacancies, no Big Island public defenders have the availability to cover the cases that appear in the South Kohala District Court in Waimea. (Because there are not enough cases to have a dedicated team at that courthouse, prosecutors and public defenders have historically split between Hilo and Kona offices).

Until positions are filled, the State Public Defenders Office will be sending an attorney to Hilo every Tuesday to allow for a Hilo public defender to be present in the Hilo court. An attorney from O‘ahu also will fly in on the first Wednesday of every month to help attorneys in the Kona office with the Waimea caseload.

Tabe estimates public defenders on Hawai‘i Island have more than 70 felony cases each for Circuit Court cases. District Court cases, which are traffic infractions and petty misdemeanors, are much higher.

According to data from fiscal year 2021-22 reported by the Hawai‘i State Judiciary, in the 3rd Circuit Court on the Big Island, there were 6,713 criminal cases.

Hawai‘i County’s District Court also had a whopping 70,488 cases in just traffic and parking, although Tabe said most of those cases are minor infractions not being handled by a public defender.

Attorney Matthew Sylva attested to the workload he experienced during his time as a deputy public defender in the Kona office. He started in January 2018, covering Kona’s District Court. He was promoted in October 2019 to Circuit Court, where he handled cases until he quit the office to start his own firm, Akamai Law LLC, in January 2022.

Sylva said he left because of the understaffing and unmanageable, overwhelming workload: “I had 70 felony cases when I left.”

A healthy caseload, according to Sylva, is about 30 felony cases. This number allows the ability for an attorney to keep up with filing motions and communicate with their clients.

“I got to a point where I felt I wasn’t doing a good job and needed to quit,” Sylva said. “I realized how unhealthy it was and how little support there was (in the office).”

He also was concerned because his license is on the line if there’s a mistake in a case.

In many cases, the representation of the defendants suffers. Sylva said it results in people being pushed through the judicial system, many times taking plea deals.

“You have to look out for the client’s best interest,” but the current situation does not allow for it, Sylva said.

“You can get through everybody and check all the boxes, but do they [defendants] really know what’s going on?” Sylva said. “Afterward, did they have regrets because they didn’t understand what was going on at the time?”

Waltjen said attorney shortages is a reality that most every employer is having to deal with, especially in the public sector because they are competing with the private sector (which usually pays more).

Waltjen said the prosecutor’s office suffered a staff shortage during the COVID-19 pandemic, but aggressive recruited with state and national advertising to fill the vacancies. Currently, there are no job postings for prosecutors on the Hawai‘i County jobs website.

“The courts, our office and public defenders, we all work in the same field and it’s important for us to be properly staffed because it’s bad for us as a whole,” First Deputy Prosecuting Attorney Stephen Frye said. “It allows us to do our job better.”

The prosecutor’s office is advocating for more funding from the county to hire five additional deputy prosecuting attorney positions. If the County Council approves the request, it would increase the department’s wage budget by $664,000.

Frye said additional positions would allow the deputy prosecutors the opportunity to give the appropriate amount of attention to the cases that need it “and not be so overwhelmed that they can’t do the best possible job on every case they have.”

Funding is the biggest reason the public defender’s office is struggling. Kenneth Lawson, who teaches criminal law and professional ethics at the University of Hawai‘i at Mānoa William S. Richardson School of Law, said the prosecution gets enough funding — and access to police departments and a variety of their investigators to help build their case.

In most cases, Lawson said, a public defender’s office has one investigator that is shared among the entire caseload.

Lawson said it is a person’s constitutional right to have competent counsel represent them in a court of law. When a public defender is overburdened with excessive caseloads, Lawson said that attorney cannot be effective.

“The state is violating constitutional rights by not providing enough funding for the office of the public defender,” said Lawson, who also is co-director of the Hawai‘i Innocence Project.

Tabe said a starting salary for a public defender is $80,000.

Sylva couldn’t recall what his pay started at in 2019, but he said his salary in 2020 was $75,840. He added the state pays based on the public defender title regardless of how long they’ve had that title or how much they work.

The lowest salary reported for a deputy prosecutor in Hawai‘i County was $76,620.

The Office of the Public Defender is currently advertising online for a full-time Deputy Public Defender position in Kona. Tabe said they will also be posting the opening positions with the Hawai‘i State Bar Association.

The help wanted ad for the public defender, posted on the job search website Indeed.com, said: “The applicant must be self-motivated and prepared to handle a heavy caseload.”