The Sun Shines on Indigent Defense
“Publicity is justly commended as a remedy for social and industrial disease. Sunlight is said to be the best disinfectant and electric light the most efficient policeman.”
- Louis Brandeis
Following this month’s Bar Bulletin theme, I will use the sun, not as a symbol of summer and fun, but as a source of light to illuminate dark places, as a disinfectant, and, finally, as a symbol of favor and good fortune.
Indigent defense in Washington has many dark places that, with a bit of sun, cry out for reform. The disinfectant of defense funding reform could have the added benefit of bringing a degree of relief to the severely strapped budgets of our trial courts.
Dark Places Illuminated
A series of converging events has brought the patchwork system by which Washington meets its Constitutional duty to provide indigent defense to public scrutiny.
In March, the American Civil Liberties Union issued a detailed critique of indigent defense in Washington, The Unfulfilled Promise of Gideon: Washington’s Flawed System of Defense for the Poor.1
In April, the ACLU sued Grant County “seeking to reform the county’s shamefully inadequate public defense system.”2
Also in April, the Seattle Times reported in depth on a scandal in Grant County’s public defense system and, in lesser detail, on problems in other places.
In May, a blue ribbon panel reported the conclusions of a year-long study to the Board of Governors of the Washington State Bar Association.3 The board accepted the recommendations of the report and immediately undertook to carry them into effect. The bright light of the sun has now been focused on indigent defense.
Disinfectant
Washington relies on a variety of organizations for indigent defense--public defender agencies in 11 counties (both nonprofit organizations, as in King County, and government offices, in Whatcom County for example) and, in the remaining counties, contracts with individual attorneys or private firms or the appointment of individual attorneys.
Most of the contract counties use competitive bids, some have a flat fee for all cases, others an hourly rate, some use a cap on the total to be paid. Some contracts pay extra for experts, others require such costs to be taken out of the public defender’s fee.
The Washington Office of Public Defense (OPD) was created in 1996 to contract with and oversee local agencies and attorneys for appellate defense. The office has proved quite successful in administering its contracts and assuring high quality appellate representation. In 2000, OPD was given new authority to conduct pilot studies on state-funded dependency defense.
The quality of public defense ranges from excellent to awful. The public defenders in King County are exemplary, among the best in the nation. The other end of the range is, as we shall see, a scandal.
Grant County is at the scandalous end of the range. The following summary comes from the Seattle Times series, “An Unequal Defense: The Failed Promise of Justice for the Poor.”4 Grant County
contracted with a private firm to provide indigent defense for a fixed fee. No matter how many cases or how much work, the fee was the same. Grant County felony filings nearly quadrupled after 1990 but funding barely doubled, even though most defendants relied on the public defender.
The Times series focused on individual lawyers. One, Guillermo Romero, a constant over a decade of inadequate representation, was characterized as a shuffling incompetent who failed to take the most elemental steps in defense of his clients. For example, in the case of a teen-age murder suspect, he did not object when the police presented a transcript of tape-recorded confession that was subsequently revealed to have been re-recorded at home to fix up inaudible sections. The inaudible sections were replaced with a policeman’s words on the intentional nature of the act. Romero did not object because he had not listened to the tape.
In the same case, Romero did little to prepare for a hearing that determined whether his teenage client would be tried as a juvenile or adult. Neither did he advise his client that the consequences of a guilty plea to aggravated first-degree murder would be a mandatory life sentence without parole. Thus, the crucial strategy decision between possible release at 21 and mandatory life in prison was made with hardly a passing thought. (A federal court subsequently vacated the sentence when the judge concluded that Romero had not provided adequate representation.)
In another case, Romero allowed the prosecutor to compare his client to Hitler. This case was also overturned on appeal.
The first public defense contractor who hired Romero soon realized that he “didn’t seem to have a clue” about legal research. Romero’s clients routinely complained that he failed to interview defense witnesses. For those he did interview, little was accomplished. One of the witnesses in a teenage murder case even questioned whether Romero was a real lawyer.
A second public defense contract holder employed Romero. Despite contract provisions requiring training, supervision, monitoring, and evaluation, he admitted in a deposition, that he did no training or supervision. His subcontractors were on their own.
WSBA brought a disciplinary case against Romero on a variety of charges. The hearing officer recommended disbarment. The case is before the Supreme Court.
A third Grant County public defender, Thomas Earl, hired Romero, despite a WSBA investigation and a pitiful performance record. Earl had his own problems. He kept about half the $500,000 public defense contract for himself--handling 413 cases last year, well above the 150 ceiling in recognized standards for public defenders.
The Times reported the conclusion of the hearing officer in Earl’s disciplinary case “É Grant County’s system invites conflict and abuse--and that Tom Earl accepted that invitation.”
Earl had little time to prepare cases. In one, Earl went to trial without interviewing the prosecution’s chief witness, a 51-year old man who claimed to have worked as a government secret agent for 44 years and who claimed to have solved crimes before they happened, including the bombing of the Oklahoma City federal building and the Green River case. Earl’s cross-examination failed to reveal the witness’s mental illness. Earl didn’t meet with or talk to his public defense clients. He did not return calls from people volunteering to be witnesses for the defense.
Earl was brought before a disciplinary proceeding on charges of soliciting additional payment from the indigent defendants he represented under the Grant County contract. He was disbarred in February.
Grant County is the current poster child for the problems in the public defense system. But other places have problems. One enterprising lawyer handled 797 cases in Toppenish (receiving an average of $21.08 per case), 511 cases in Wapato, and, at the same time, sat as municipal court judge in Sunnyside, all the while maintaining a private practice.
In Cowlitz County, a public defender carried 276 dependency cases, 295 juvenile-offender cases and 16 criminal appeals. Her caseload was six and a half times the state standard. She gave up the dependency and juvenile court contract: “Frankly, it’s malpractice per se. It’s insane. You just can’t help people when you’re dealing with numbers like that.”
The Sun Shines on Reform
The bar recognizes the problems in the indigent defense system. There have been repeated efforts over the last 15 years to improve the system. Yet, the May WSBA report concluded:
- The 1989 statute requiring local governments to adopt standards has been ignored.
- Lack of enforceable standards, especially caseload standards, jeopardizes the ability of defenders to provide adequate representation.
- Inadequate funding is a significant cause of unacceptably high caseloads.
- Poor contracting practices, especially fixed-rate contracts, invite abuse.
- Some jurisdictions lack effective oversight and accountability.
The Board of Governors created a WSBA Standing Committee to address, among other things, contract and fee practices that invite abuses and the absence of public defense standards. Further, the board voted to support an expanded the role for the OPD in trial-level defense and to support the efforts of other organizations to obtain increased state funding for indigent defense.
WSBA’s initiative fit neatly with the ongoing work of the Trial Court Funding Task Force. The Task Force had been established by the state courts to respond to continual cuts in trial court budgets brought on by declining county tax receipts. By the time of the report, the Task Force had already concluded that trial courts must assure adequate indigent defense in order to be confident that justice was done.
A committee of the Task Force collaborated with the WSBA panel to estimate that $120 million in addition to current funding of $78 million would be required to pay for adequate trial-level indigent representation.
One of the crucial elements in the reform of indigent defense is state funding. For nearly 20 years, experts have called for the state to assume a share of the cost. The need is even clearer today-- initiatives have cut county revenues to the point that counties have exhausted their financial capacity. Without adequate funding, there can be no assurance of adequate defense. Reform of indigent defense is gathering legislative momentum. Although it an uphill battle, key legislators, motivated by the publicity of the Times series, recognized the prospective financial impact on counties from litigation akin to the ACLU suit against Grant County, and supported by the conclusions and recommendations of the WSBA report, have begun to speculate about the feasibility of legislation.
There is a surprising collateral benefit to indigent defense reform--state assumption of indigent defense costs will benefit trial court budgets. Shifting costs from county budgets to the state budget will free up funds at the county level. Since counties pay around 85 percent of the costs of trial courts, any relief for their budgets will allow the redirection of money previously spent on indigent defense to restore budget cuts imposed on trial courts over the past three or four years.
Truly, the Sun shines on indigent defense and, unexpectedly, on trial courts.
- www.aclu-wa.org/pubs/pdf/Unfulfilled%20 Promise%20of%20Gideon.pdf .
- http://www.aclu-wa.org/ISSUES/criminal/ Grant%20Indigent%20Suit.html .
- http://wsba.org/blueribbonreport.pdf.
- The series is on the web at http://seattle times.nwsource.com/news/local/unequal defense/. I recommend reading the series.
John Cary is KCBA president. He can be reached at caryj@att.net.
