October 2012 Bar Bulletin
 
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October 2012 Bar Bulletin

Public Defenders: Do You Color Us Friend or Foe?

By Karen Murray

 

In Gideon v. Wainwright,1 the U.S. Supreme Court unanimously ruled that state courts are required, under the Fourteenth Amendment, to provide counsel in criminal cases for defendants who are unable to pay for their own attorneys.

Those of us who championed this Supreme Court holding and then went on to enter the public defense arena never would have believed that we would be seen as anything but advocates protecting our clients' due process rights against extreme odds. Instead, we often find ourselves being broadly painted by the brush of incompetence due to horrific headlines of public defenders falling asleep at counsel table during a death penalty trial or taking on too many cases to effectively defend their clients, resulting in devastating sentences (i.e., death or long incarceration).

It is no wonder then that defendants often view their public defenders not as "friends" but as "foes." Truth be told, this writer probably would also hold the same opinion if not for her 20 years of experience as a public defender, witnessing firsthand the incredible work that the majority of these dedicated attorneys do on a daily basis, paired with their dedication to seeking collaborative justice for their clients, all while not forgetting the rights of the alleged victim.

After almost 50 years, Gideon still stands. Any person against whom criminal charges are filed must have the opportunity to be represented by counsel, regardless of ability to pay. I am taking this opportunity to discuss the public defenders I work alongside and the journey that we have been on together so you, the learned reader, can decide how to view us: friend or foe?

The Journey

In 1992, I started my dream job as a public defender at Associated Counsel for the Accused (ACA), representing indigent clients charged with misdemeanors. After several years, I spent a short time handling juvenile cases, later moving on to adult felonies. Eventually, I returned to misdemeanors and was promoted to Seattle Municipal Court supervisor.

During my years as a practicing attorney I observed not only my ACA colleagues at work in the courtroom but also attorneys with the other three public defense agencies: Northwest Defenders Association (NDA), Society of Counsel Representing Accused Persons (SCRAP) and The Defender Association (TDA). I noticed many things that we had in common as well as those that kept us different, unique and apart from one another. The differences, however, were not a bad thing; in fact, they make each agency hone in on what it does best and, in return, help each provide better representation to those we serve in both criminal and civil matters. For this, I am very proud.

What We Do

Our overall missions, after peeling away the layers, are quite similar: to provide quality services and legal representation to indigent clients - adults and juveniles facing felony or misdemeanor charges in Seattle Municipal Court, King County District Court and King County Superior Court. Attorneys also are assigned to represent parents and children in dependency and contempt proceedings.

Public defenders also practice in non-traditional courts, which are often referred to as therapeutic, problem-solving or collaborative courts (e.g., the drug, mental health, community and veterans' courts). These courts are non-adversarial, which simply means that all the parties in the criminal justice system work together to address the defendants' underlying issues of chemical dependency, alcohol/substance abuse or mental illness, while still holding them accountable. With the assistance of paralegals, investigators and social workers, the public defense agencies represent thousands of clients every year.

However, much more is done beyond the substantive aspect of the law. This is what makes our individual agencies distinct and further enhances the representation of the clients we serve. By discussing what we do, I hope to help you objectively determine whether it is fair to paint all public defenders with a broad, negative brush whenever one of our colleagues stumbles.

Partnerships and Collaborations

For pubic defense agencies to meet the true objective of Gideon, we have fostered ongoing, collaborative partnerships with various agencies, associations and councils. These relationships have achieved some noted results.

One occurred in 1982 when the National Association of Criminal Defense Lawyers, the American Bar Association, the local bars and government commissions, and the public defense agencies were instrumental in the Seattle-King County bar adopting public defense standards that included annual, per-attorney caseload ceilings. Years later, because of a grim economy and subsequent budget cuts, the King County Prosecuting Attorney's Office's decision to decline certain drug and assault cases would have an impact on misdemeanor practice in Seattle Municipal Court and King County District Court. Previous Class B or Class C felonies were now being classified as misdemeanors.

Already managing heavy caseloads, public defenders now had the additional burden of putting in more attorney hours and straining an already overloaded professional staff to work these cases. So, when the City Council Public Safety Committee proposed an ordinance to adopt a 380-caseload limit, we did not hesitate to join together as one voice to help improve the quality of legal representation to our clients.

By working together, we are able to share our accomplishments and ideas, and form a united front when common issues confront our clients or individual agencies. When one agency receives a grant and designs a project or program that advances its clients' positions and our individual missions, all firms celebrate, because all will benefit.

One such effort has been TDA's Racial Disparity Project (RDP), which seeks to reduce racial bias in the criminal justice system through community organizing, public education and legal advocacy. Over the last 10 years, the RDP has brought attention to issues of racial disparity in policy decisions made by Wash­ing­ton law enforcement (drug arrests, traffic stops and criminal trespass).

In partnership with the University of Washington, the RDP worked with UW's Sociology Department to conduct a research study, the findings of which indicated that within the Washington law enforcement community, race affects the decision to arrest. This study was invaluable to our clients because it allowed us to use this data to mitigate their cases.

Currently, the RDP has developed and implemented a pre-booking diversion program for low-level drug dealers, addicts and prostitutes. The Law Enforce­ment Assisted Diversion (LEAD) program's goal is to provide an alternative to incarceration that ranges from in-patient drug treatment, housing assistance and educational opportunities to micro-loans for would-be business owners.

Such programs clearly show that the public defense community has benefited greatly from its advocacy efforts. It demonstrates what I have seen again and again over the years - generosity of time and sharing of knowledge to improve our profession is common. Public defenders go out of their way to bring their colleagues on board when issues affect clients' constitutional rights or the quality of their legal representation, or when defenders know of policies that may adversely affect their clients' ability to be successful after their cases are dismissed.

ACA has developed work in the non-traditional courts as one of its key practice areas. Since the early 1990s, when Drug Court was first created, these problem-solving courts' main function has been to treat the whole person and not just address the clients' legal issues.

Taking the stance that their clients' legal issues stem from making wrong choices due to personal circumstances that may date back to childhood traumas (physical/emotional abuse, drug/alcohol abuse, mental illness, etc.), ACA created the Community Engage­ment Com­mittee (CEC). Its mission is to formalize and coordinate its outreach efforts to deal with legal issues that affect clients, while also reaching out to the community to identify a specific need that isn't being addressed. ACA staff then volunteer their services to address that need, whether it be legal or not.

CEC volunteers include attorneys, social workers, investigators, office staff, and family and friends, who have dedicated themselves since 2010 to community outreach. CEC seeks to create opportunities at a level where volunteers feel most comfortable, whether it is serving dinner to the homeless or addressing a public forum. Volunteer efforts also include conducting legal workshops at area high schools, community centers and neighborhood legal clinics. CEC also volunteers bi-monthly at a drop-in homeless shelter that assists approximately 200 homeless men and women seeking shelter, preparing and serving meals for over 100 individuals.

Coming Together

Our collaborative community twice addressed the Washington Supreme Court after the preliminary "Report on Race and Washington's Criminal Justice System" was released in March 2011 and in response to an unfortunate remark of a sitting justice that "African Americans are overrepresented in the prison population because they commit a disproportionate number of crimes." One year later, the state task force presented its second set of findings to the justices on "Juvenile Justice and Racial Disproportionality."

Using the very significant findings of these two reports, the public defense agencies once again collaborated to educate the legal community on how this information affected our clients, giving presentations at legal conferences and other venues throughout the state and nationally.

By coming together, the public defense agencies were able to demonstrate that we don't have to do our jobs in the same way to be equally competent in representing our clients with our agencies' missions and goals as a backdrop. It reveals that we can effectively collaborate and partner with each other on issues that are important to our clients' representation and to ensure that they receive equal access to justice and fairness in the criminal justice system. We will continue to do so.

You Decide

Remember that there is another side to public defenders than the negative reports in the media. You must decide whether, in one stroke of a brush, all public defenders should be classified by random, outlying stories.

Most of us who do this type of work are qualified and very dedicated and we continue to make a difference for our clients because we care. Not everyone is capable of doing what we do, yet many still believe that those who decide to work as public defenders somehow end up doing so because they are something "less than" their colleagues and, therefore, should not be given necessary resources or receive comparable pay with their counterparts.

Yet, we stay. We continue to work hard, for our clients and for justice. We know we are not the public defender described as foe, but as friend.

In Gideon v. Wainwright, Justice Hugo Black remarked, "Lawyers in criminal courts are necessities, not luxuries. The right of one charged with a crime to counsel may not be deemed fundamental and essential to a fair trial in some countries, but it is in ours."

It is for you to decide how you will color your colleagues who choose to be public defenders: friend or foe?

1 372 U.S. 335 (1963).

 

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