Defenders upset over selection of new appellate division chief 

Posted: 1:00 am Mon, March 8, 2010
By Patrick Thornton

The new head of the appellate division of the Minnesota Public Defenders Office starts his job on March 15. On the first day, he’ll have to figure out where to park, how to log in to his computer and how to win over the attorneys in the office who believe he is unqualified for the job.

The state Board of Public Defense hired David Merchant as chief of the division last month. He was selected from a pool of six applicants, four of whom the board chose to interview.

Merchant, an attorney who has worked in the employment division of the Minnesota Attorney General’s Office since 1998, beat out three attorneys who have more appellate experience. Two of those attorneys, Benjamin Butler and Cathryn Middlebrook, were internal candidates who already work in the state’s appellate division. The third, Paul Maravigli, works in the Hennepin County Public Defender’s Office.

Almost immediately after Merchant was hired, several attorneys in the appellate division fired off letters of protest to the board and state legislators begging the board to reconsider its decision. Marie Wolf, the interim chief of the appellate division, resigned her leadership post in protest and went back to her previous post.

The controversy comes at a bad time for the public defender’s office, which already faces morale issues due to layoffs, high caseloads and funding cuts.

“I question now whether I have a future at the office,” said G. Tony Atwal, an assistant state public defender in the appellate division. “This is such an irresponsible thing for the board to do. I don’t know how it could justify [this hire].”

Atwal said the decision to hire Merchant “demoralized” the office. Assistant State Public Defender Ngoc Nguyen said the integrity of the system was compromised by Merchant’s hire.

Wolf called the decision a “slap in the face,” She said when one of the board members was asked why Merchant was hired the member responded that it was a “gut feeling.”

“That was not very satisfying,” Wolf said of that statement.

‘A defender at heart’

The attorneys in the appellate division interviewed for this story say they would have supported any of the other three candidates simply because those candidates have the criminal appellate experience that Merchant lacks. Merchant last worked in criminal appeals in the Public Defender Service for the District of Columbia in the 1990s.

“[Merchant] called me after he got this job and told me, ‘I’m a public defender at heart.’ Well, that’s very nice, but everyone else here is a public defender in reality,” Wolf said. “He won’t do us any good at all.”

“How do you hire someone for the top appellate job in the state when he doesn’t even do appellate work?” Atwal asked. “This is unconscionable that the board did this.”

Atwal’s colleague, assistant state public defender Bridget Kearns Sabo agreed. She said overlooking more qualified candidates for Merchant speaks volumes about the “insignificance of my commitment and sacrifices.” She said the office needs a chief who can draw from his or her past experiences to help the attorneys build their case and brainstorm ideas as well as build relationships with other stakeholders in the legal system.

Merchant may be willing to learn the nuts and bolts of appellate work, Kearns Sabo said, but the attorneys need someone who can jump in now and take on cases. Merchant’s inexperience means the attorneys at the office will have to take on more work to cover the slack, she added.

“To hear … that [Merchant] will not be able to offer us any case support in any meaningful way and has never managed a group of attorneys before is, frankly, nothing short of shocking,” she wrote in a letter protesting the hiring.

Other attorneys in the office said the hire of Merchant, who is white, undermines the board’s public statements that women and minorities can advance from within the office.

There are 10 public defender districts in addition to the appellate division. Women head three of those districts.

Merchant declined to comment for this story.

Uphill battle

Board members interviewed for this story acknowledge that Merchant faces an uphill battle to turn office morale and lead the appellate division. A recent report by the state Office of the Legislative Auditor noted that Minnesota public defenders carry nearly two times the number of cases recommended by the American Bar Association. In the report, more than 40 percent of the public defenders statewide said they don’t have enough time to spend with each client.

When asked if Merchant has the necessary appellate background to lead the division, Sandy Keith, a former chief justice of the Minnesota Supreme Court and a member of the Board of Public Defense, said he does.

“He will have some learning to do, there’s no question about that, but he will be fine,” Keith said. “It’s not going to be easy. He’s certainly going to have to sit down and talk with some people [at the office].”

Keith said the controversy about Merchant’s hire is understandable.

“It’s a tight-knit group and the issue for those folks is whether we should have hired someone from the inside or someone from the outside,” he said. “I’m sorry they are upset about this.”

Board member David Stowman said Merchant was his second choice for the job, but he supports the hire nonetheless. He said the hiring process was fair and there was no favoritism. He said factors like supervisory work and management skills were also considered in addition to past appellate work.

“No one was trying to be underhanded,” he said of the board’s decision. “Our discussion was done in the open. Whether out of the candidates we had, if we chose the best one, we’ll know down the road, but I have confidence in the decision the group made.”

Stowman also said he takes the criticism leveled by the attorneys in the appellate offices seriously.

“I don’t like to see anyone dissatisfied; that doesn’t give me any pleasure,” he said. “I want to have people in our office have job satisfaction. We are going through some tough economic times and I know our employees are under a lot of strain because of that. They are living with some very difficult conditions.”

Public hearing

According to accounts of several people who were at the meeting, the board interviewed the four candidates for the job at an open meeting Feb. 11. The interviews lasted through the morning and into the afternoon. Then the board conducted a straw poll after the interviews. Merchant received four votes, and two other candidates each received one.

At some point a recess
was called and the board members discussed whether to close the meeting to the public, but opted to keep it open. The board returned and discussed the candidates for a few minutes and then a motion was made to appoint Merchant to the position. The motion passed unanimously.

The appellate division has roughly 28 attorneys and six support staff. Merchant’s salary range is approximately $101,000 to $125,000, according to Kevin Kajer, the chief administrator for the state public defender’s office.

The attorneys at the appellate office interviewed for this story said they will continue their work on behalf of their clients and do not fault Merchant for applying for the job. Their criticism is directed at the board members who, they say, passed over more qualified applicants.

“I can barely keep up with the cases I have. Last week I filed three briefs in seven days and I have two clients serving life without parole. Now I can’t go to the new boss and say ‘What do you think I should do with this case? What am I missing?’ Because [Merchant] admits he doesn’t know criminal law,” Atwal said. “It’s devastating.”