After 35 years, attorney ends tenure as public defender

Kath continuing to practice law

Posted 3/5/20

For Scott Kath, serving as a public defender could feel a bit like playing a Las Vegas slot machine.

He fought for indigent clients who promised to get back on the straight and narrow, but soon …

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After 35 years, attorney ends tenure as public defender

Kath continuing to practice law


For Scott Kath, serving as a public defender could feel a bit like playing a Las Vegas slot machine.

He fought for indigent clients who promised to get back on the straight and narrow, but soon fell back into the same criminal behaviors. Then there were clients who he felt deserved a break but received no leniency from prosecutors.

As a court-appointed defense attorney, not getting what you want “happens a lot,” Kath said, adding, “You’ll have so many disappointments and discouragements.”

Over the decades, he recalled being tempted to terminate his contract with the Office of the State Public Defender “many, many” times.

But every now and then — just like hitting a rare jackpot — “you get one case that just makes you feel good for the defendant and yourself, that you did everything you could and it turns out great,” Kath said. “And you keep doing it then.”

Those successes — the cases where people used their brushes with the court system to overcome addictions and cycles of crime — helped keep Kath going for more than 35 years.

It was back on Oct. 1, 1984, that the late Gov. Ed Herschler appointed Kath as a public defender for Park and Big Horn counties. Kath would go on to serve under four other governors, working literally thousands of cases for defendants unable to afford their own attorneys.

Jan. 31 was his last day in the role. While Kath is not retiring — and will continue to perform criminal defense and civil work as a private attorney at Copenhaver, Kath and Kitchen — he has ended his tenure as a public defender.

“I’ve given it my all,” he said.


Bonds and fees

The right of a government-funded defense stems from the Eighth Amendment to the U.S. Constitution, which says those accused of crimes have a right “to have the Assistance of Counsel.”

Kath sees the role of public defenders as “incredibly important” to the justice system.

“Our job is just to make sure that everyone is doing their job the way they’re supposed to,” he said, from judges to police to prosecutors. “We’re a check on the system.”

While TV dramas tend to portray defense attorneys as passionately persuading jurors to find their clients not guilty, Kath said most of his successes came at preliminary hearings, where he was able to reveal weaknesses in a prosecutor’s case early on. Charges were sometimes thrown out on the spot, and even if they moved forward, the issues Kath highlighted led to reduced charges, fewer charges and fines or just better deals for his clients.

“Your definition of success as a public defender and victory is different than a total victory and an acquittal,” Kath said, noting that the bulk of the job involves negotiating the best plea deal possible.

Prosecutors can get the upper hand when a defendant winds up being held in custody on a high cash bond they can’t afford; it was something that Kath — representing people without the means to hire their own attorney — saw often.

“I’m not saying they’re forced to plea because they didn’t do anything wrong, but they’re in a hurry to move forward and get out of jail,” Kath said of defendants, adding, “It really does put them in a situation of, am I going to sit around for months and wait for a trial or [ask], ‘please, public defender, try and work something out for me?’”

Kath believes that “too many get incarcerated too long because they can’t afford to bond out.” Across the country, he noted, lawmakers and judicial leaders are reexamining the fairness of setting cash bonds for non-violent offenses.

“There are some offenders — and sometimes the repeaters — that probably should have maybe higher bonds,” Kath said. But for first-time offenders who have shown no signs of fleeing or posing a continued threat to the community, they should be released on a signature bond, he said.

Most people, he added, want to accept responsibility for whatever poor decision they made and move on with their lives.

The majority of cases involve alcohol or drugs, Kath said, with offenders who are “alcohol-stupid [or] controlled substance-stupid until they beat that.”

It takes more than a 30-day program, Kath said, often requiring a whole new set of friends to break out of that cycle. Otherwise, “it’s just a revolving door,” he said.


Respect for the job

Kath — who abstained from matters involving Powell police because of his continuing role as a deputy City of Powell attorney — generally received around 20 new cases a month. Like other public defenders, he was paid a flat rate, regardless of how busy he got. Defendants generally are ordered to make some kind of reimbursement for the legal aid they receive, but that reimbursement goes back to the state.

Personally, Kath thinks too many Wyomingites are appointed public defenders. Some might be able to afford their own attorney, he believes, while those facing minor traffic offenses where “everyone knows they’re not going to go to jail” might not need a court-appointed attorney. (Only when jail time is on the table does a person qualify for one.)

Kath isn’t sure how to fix the issue, but thinks the Legislature could provide judges more guidance and tighten the eligibility criteria.

And as public defender offices around the state struggle with big caseloads, Kath hopes lawmakers see and fund the positions as providing a valuable service.

“I think the state Legislature just has to recognize that the public defender’s office is just as important as the prosecutor’s office or the AG’s office,” he said.

That goes for the general public, too.

“I wish there was more understanding and respect for public defenders,” he said, “Because it’s a hard job and it’s really a thankless job.”

Of course, there were exceptions — times when Kath hit a jackpot of goodwill.

He’s quick to tell the story of Charlotte “Bess” Webster. In 1986, at the age of 95, Webster drew a loaded revolver and used it to threaten a friend in Cody, according to reports at the time. She ultimately pleaded guilty to felony aggravated assault, Kath said, after the county attorney refused to reduce the charge.

However, a few years later, Kath helped arrange for Webster to receive a pardon from Gov. Mike Sullivan. The then-100-year-old was “cheered by the pardon and happy that she will be able to finish her proud life without a criminal record,” the Billings Gazette reported at the time.

“That was one of those that made me feel good,” Kath said, “because she was just delighted.”