There are two reasons the Public Defender’s office can’t represent indigent clients and a private attorney is assigned: if they have a conflict of interest because more than one person is charged in the same case; or if attorneys’ caseloads surpass workload standards.

The workload standards were created years ago to ensure public defenders didn’t get so overloaded they couldn’t provide an adequate defense.

Liz Neely, executive director of the Nebraska Bar Association who helped create Lancaster County’s workload standards, said such standards are vital, and one of the principles the American Bar Association sets out for assessing high quality public defense work.

“I think everyone is facing budget pressure so everything is on the table," she said. “It is a good reminder that there’s a constitutional right to a defense. Counties don’t have the option of not paying for this. It’s a constitutional obligation. So it’s not whether to but what’s the most cost-effective way to provide the service.”

Public Defender Kristi Egger said the main way to reduce private attorney costs is to hire more public defenders who handle felony cases. 

While over the years, the office has opted out of at least half the felony cases either because of a conflict or case overload, it has been substantially less for misdemeanor cases.

And those percentages don't include juvenile or mental health cases, and when those are figured in, the percentage of cases the office opts out of is substantially lower, Egger said.

The level of experience of defense attorneys affects how many cases the office has to opt out of because inexperienced attorneys can't handle felony cases, leaving fewer attorneys available to handle the more serious cases, she said.

Other factors are at play as well.

Among those Egger thinks result in higher private attorney costs: The length of time it takes to prosecute felony cases; the time it takes for an evaluation of defendants whose mental competency is in question; prosecutors filing unwarranted drug possession cases; and too many defendants with serious mental illnesses that should be treated rather than criminalized.

A report by outside consultants on jail overcrowding came to a similar conclusion — that the main driver of overcrowding was people charged with felonies staying in jail longer while their cases made their way through the courts.

One reason for that, Egger said, is advances in technology, which has changed the type of evidence nearly all cases now produce. Video surveillance, cellphone records, doorbell or home security videos are common in many cases and take longer to review.

“Each cruiser has a video, each officer has a body cam,” she said. “If we’re going to effectively represent (defendants) we have to watch them. So everything takes a long time if you’re doing it right.”

Egger said drug possession cases based on drug residue being filed as felonies also contributes to those costs.

“If there weren’t so many useless felony cases filed we could devote more time and energy to the actual felony cases that really matter,” she said.

Nebraska Examiner, November 4, 2024

Attorneys disagree about how wide-ranging an impact will result from the decision on ‘good time’ calculations.

LINCOLN — A ruling Friday by the Nebraska Supreme Court is raising concerns that some criminal offenders might have to return to a county jail to serve out more days behind bars.

That, some officials said, would be an expensive endeavor for counties and one that could exacerbate overcrowding in local jails, though one prosecutor said the impact will be limited.

The state’s highest court, in a rare, 4-3 split decision, ruled Friday that county jail inmates must serve 15 days on every separate conviction before any “good-time” reductions can be applied to their confinement.

Several counties, including at least Lancaster and Hall Counties, now calculate good time (a reduction in a sentence for good behavior) contrary to Friday’s ruling. They read the state law to mean that inmates must serve 15 days on their entire jail sentence, which possibly covers several separate convictions. 

That results in a shorter stay in jail than if the 15 days of so-called “hard time” must be served on each conviction.

Lancaster County Public Defender Kristi Egger called the ruling “shortsighted” because it did not explain how county jails should respond to the decision. If it means some defendants have to return to jail for a few more days, Egger said that could lead to increased overcrowding in county jails, such as Lancaster County.

Egger cited a pointed dissenting opinion written by retiring Chief Justice Mike Heavican, who wrote that it took a “Sisyphean attempt” by the majority to conclude that state law required the 15 days behind bars for every separate offense before getting good time.

“If significant work must be done to discover whether a statute is unambiguous, that statute is probably ambiguous,” Heavican wrote. 

If a statute is ambiguous, the “rule of lenity” dictates that an issue be decided in favor of a defendant, he said.

‘Apples and oranges’

The attorney who argued the case before the Supreme Court said Monday he doubts whether Friday’s ruling will require anyone to be “hauled back to jail,” as happened a decade ago,when the state corrections department miscalculated the release date of dozens of inmates, requiring several to return to prison.

Travis Rodak, who argued the case for Box Butte County, said Friday’s case and what happened in the state prison system in 2014 were like comparing “apples and oranges.” 

“I don’t see this impacting a lot of current cases,” Rodak said.

For one thing, he said, there aren’t many offenders who are serving consecutive sentences for two totally different crimes. It’s more common for offenders to serve sentences concurrently — and such concurrent sentences are unaffected by Friday’s ruling.

In an email, Kearney County Attorney Melanie Bellamy, president of the state county attorneys association, said she was glad the Supreme Court had clarified the good time issue, adding that it would be up to each individual county, “working with local courts and law enforcement,” to comply with the Mullins v. Box Butte decision.

Longtime Hall County Public Defender Gerald Piccolo said he expects his county to explore returning some people back to jail to finish out the extra days they didn’t serve, based on the Supreme Court’s ruling. He added, however, he wouldn’t do that if he was running the jail because of the expense involved in tracking down those people and housing them.  

The case argued before the Supreme Court involved Samuel Mullins, now 35, who pleaded no contest to resisting arrest in December 2022 and then to domestic assault in January 2023. Those were two separate misdemeanor offenses. 

In Box Butte County, the state law was interpreted to mean that the two separate offenses required two separate stints of 15 days in jail before good time reductions could be applied.

County’s interpretation appealed

Bell Island, a defense attorney who represented Mullins, appealed the county’s interpretation as being wrong. The Nebraska Defense Attorneys Association, represented by Lincoln lawyer Spike Eickholt, joined the case, arguing that the 15-day wait should be applied to the “sum of all sentences” to be served. 

The unsigned majority opinion on Friday agreed with the arguments raised by Rodak, who argued that “common sense, legislative intent, and public policy would seem to dictate that convictions for separate offenses, unless ordered to be served concurrently by the Court, must have separate and independent sentencing calculations.”

The court majority concluded that it was unnecessary to “depend upon legislative materials such as committee reports or floor debates” and to “scour such legislative materials” to determine if state law concerning county jail good time calculation was ambiguous or not because the statutory language appeared clear.

That prompted disagreement from Heavican — who retired as of Oct. 31 — as well as a separate dissent written by Justice Jonathan Papik and signed by Justice Stephanie Stacy. 

Egger, the Lancaster County public defender, said the ruling did a “disservice” by not looking at legislative discussion and lawmakers’ attempt to standardize criminal sentences across the state.

 “At a time when the jails are full and the cost of housing people in custody is higher and higher, and when it is obvious that Legislature was trying to do something to give appropriate credit where credit was due by changing the good time statute, the majority opinion in Mullins misses the mark,” Egger said.

Flatwater Free Press, February 15, 2024

Nebraska confines some sex offenders years after their prison sentence

In 2012, researchers compared Nebraska’s committed offenders to other states’ and found that Nebraska “commits moderate- to low-risk sex offenders to inpatient settings at such a high rate” that it “merits consideration of whether this practice represents the most fiscally responsible use of the state’s limited correctional and mental health dollars.”

Lancaster County Public Defender Kristi Egger said that still rings true.

“We’re over-punishing, in my opinion,” she said. “It’s supposed to be rehabilitation, but we are incarcerating people, basically – over-incarcerating, just like we do in sending so many people to prison.”

Public defenders point to a lack of resources at multiple points.

Like in Shephard’s case, people can’t always complete treatment while in prison, which would reduce the likelihood of being civilly committed.

There’s also a shortage of qualified providers who can conduct independent evaluations – assessments that can influence the mental health board’s determination. And there’s a lack of outpatient providers and housing once offenders complete their sentences.

“If we did it the way it should be, and it was really fair and fairly administered, and we had enough people like caseworkers and treatment providers, it could work and be beneficial,” Riley said. “But, given the situation that we find ourselves in … we just warehouse them.”

Lincoln Journal Star, December 15, 2022

Two Lancaster County Board incumbents win reelection, along with one newcomer

“The public defender’s office will be headed by Democrat Kristi Egger, who bested Republican opponent Trevin Preble in Tuesday’s election, after beating her former boss and incumbent Joe Nigro in the primary.”

“Egger worked as a deputy public defender for 33 years before retiring in January to launch her campaign. Egger garnered 55,775 votes to 48,372 for Preble, a Republican attorney.”

Kristi Egger, who retired this month after 32 years as an attorney in the Lancaster County Public Defender’s Office, is running for the top spot. Egger, who filed Wednesday as a candidate for Lancaster County Public Defender, said she decided it was the right time to run.

Joe Nigro, who has served two terms as public defender, has not officially announced whether he plans to run for reelection, although he has a campaign kickoff event scheduled in February.

Both Egger and Nigro are Democrats.

Egger, who worked for a year in the Hall County Public Defender’s office before moving to Lancaster County, said she thinks it’s time a woman be considered for the office, and the county needs a public defender who's in the office and spends time in the courtroom.

She said she has worked on all kinds of cases during her career and has the abilities needed to run the office effectively.

“I would be someone who would go to court, take cases and handle cases,” she said. “I would be in the office and able to answer questions of staff and attorneys. I’d actually be there to supervise.”

She said it’s important for the public defender to be in court regularly to understand the issues that arise when defending cases and that’s not happening now.

Egger said she has a passion for mental health cases and that more needs to be done to find alternatives to incarceration for the mentally ill and substance dependent.

She said she also would review the system in place to decide how cases are assigned in the office to reduce the number that have to be handled by private attorneys, which would save taxpayers money. 

The Lancaster County Public Defender’s office was created in the early 1970s, and T. Clement Gaughan became the first elected public defender in 1974. He held the office until 1978, when Dennis Keefe was elected. When Keefe retired, Nigro was elected.

Egger said diversity is important, and it’s important to have more women in offices of power.

“We should have been there from the beginning — we’re more than 50% of the population,” she said. “So it seems to me I’m just as capable as any man who’s been a public defender, and we need to be getting ourselves into those positions of power.”

Egger is a lifelong Nebraskan who grew up between Firth and Hickman and graduated from Norris Public Schools, then from the University of Nebraska College of Law. She clerked at the Lancaster County Public Defender’s office while in law school, before going to Hall County for a year.

Lincoln Journal Star, June 27th, 2018

On a recent afternoon, Rebecca Meinders, the social worker, and Kristi Egger, the deputy public defender who handles the mental-health docket, sat down to talk about what they see on a daily basis.

Meinders pointed to a Medicaid policy that says patients have to fail at every other level of treatment before they're approved for in-patient care.

When people don't get the level of care they need, she said, it leads to more police calls, more family issues and more police citations.

"It's a tiny little pebble," Meinders said. "But those ripples get so big that eventually you're looking at law enforcement having 3,100 mental-health investigation calls in 2016.”

Egger called the number amazing.

"Just think of the time," she said.

Criminal charges

Police officers have to go out on all those calls and deal with the people on the street, then potentially testify if there's a mental health hearing.

The person taken into custody may end up facing charges, too -- felony offenses -- for things like assault on an officer or health care professional.

Egger said it doesn’t make sense to her that people with severe mental illness are charged criminally for what they did while in crisis if they have already gone before the Mental Health Board.

“It seems like it is penalizing people who suffer from a mental illness,” she said. “It doesn’t seem fair to me.”

Meinders said just because someone is sent to the regional center, it doesn't mean the criminal case goes away.

She and Egger said others accused of misdemeanors may end up languishing in jail or at the regional center waiting longer for competency evaluations than judges could have sentenced them to for their crime.

Egger said it means defense attorneys have to think twice before filing competency motions in misdemeanor cases "because the time they spend waiting is awful."

Meinders said it also leads to longer waits for regional center beds for those at the Crisis Center or area hospitals because competency cases take priority.

There are still others who are mentally ill who aren't dangerous like one man who got in trouble for calling 911 thousands of times, she said.

"There isn't enough evidence to (take him into emergency protective custody) but something has to be done," Meinders said.

He's gotten three tickets, but it hasn't stopped him from calling.

Meinders, who started full-time in the office in December 2016, said she meets with clients, their families and support system to try to present a more whole picture to the court.

Like explaining, in one case, how a man in front of the court 100 times experienced childhood trauma as a Lost Boy of Sudan, she said.

Meinders describes it all as a kind of bull's-eye. The middle is the legal charge that brought them to the office.

"And then everything outside of that legal charge is kind of on the table for me to deal with," she said.