Chasing Gideon (5 page)

For her part, Huneke was skeptical that the “sequence establishing proximate cause” was an unbroken one. For now, in her rush to file a motion to dismiss, she did not investigate Sean's alleged speed or confirm the cause of Mr. Stack's death, but she did argue, in her October 2, 2003, motion to dismiss, that “Mr. Replogle's speed was not the proximate cause of the accident, because Mr. Stack's failure to yield the right-of-way at the stop sign was an intervening cause and thus the proximate cause of the accident.” She cited appropriate case law and reiterated in plain language: “It is not reasonable to anticipate that someone with a clear view will fail to yield the right-of-way and pull directly in front of an oncoming car. The law recognizes that Mr. Replogle may assume that other cars will follow traffic rules, and mere speed does not change that assumption.” Further, she insisted the undisputed facts failed to show that Sean drove recklessly. “He was sober, and he was not racing or performing dangerous maneuvers. His attention was on the road,” she wrote.

A few years back, Huneke stood a good chance of having the case dismissed—or at least, if her client pleaded guilty, getting a good
deal for him. (Indeed, at one point, Huneke thought the prosecutor was offering Sean a deal, probation instead of jail time, and Sean was on the verge of accepting this, but it turned out he was offering Sean a year of prison; Sean opted to go to trial even though he could serve up to four years if convicted.) But then, over the course of a few years, prosecutors in Spokane stopped offering reasonable pleas, according to Huneke.

Just about the time Sean arrived in her office as a client, Huneke had simultaneously been investigating why public defenders in her office were now being offered such crummy plea deals for defendants. She did some detective work, crunching numbers, and discovered that in the felonies department, at least, the balance had shifted so that there were thirty-eight prosecuting attorneys and only seventeen public defenders. Admittedly, some clients hired their own private attorneys, but 80 percent of them relied on public defenders, which meant more than twice as many prosecutors as defenders. Indeed, based on 2004 Open Cases reports that she examined, she discovered that prosecuting attorneys carried caseloads ranging from 16 to 36 cases, while public defenders like herself at that time typically had 101 open felonies. “Prosecutors simply stopped making as good offers,” she says. In the game of “trial chicken,” when prosecutors threaten to go to trial, they actually have the time and resources behind them to do so. For example, a simple drug possession case for a client with no prior convictions typically took a predictable course. “It used to be a no-brainer to reduce that to a misdemeanor,” she says. “Say you get caught with some crack in your car but you've never been in trouble before. Most people get a break on their first time. It's reduced to a misdemeanor so the person isn't guilty of a felony [on their record]. Or they do a diversion program or something.” A while ago, that would have been an obvious reduction—and the prosecutor would have gone for that. “Then I began to have to fight for a year to get that deal. What would have been two hours of work grew into thirty.”

As Huneke was processing Sean's case—and the other one hundred on her plate—she was growing increasingly steamed at what was going on around her in the Spokane courts. Was she alone in feeling overwhelmed? She didn't think so. Many of her colleagues,
she says, were similarly distressed. But it was hard to speak out. Sometimes, Huneke says, it was easier, more
efficient
to deal with the huge caseload by persuading more clients to accept bad pleas.

“There is so much subtlety involved in criminal practice,” she says. “I can look at a lot of cases and say, ‘That's not a good deal.' And it's really easy to sell a bad plea bargain to someone. And maybe you don't even know that's a bad one [because you haven't had time to investigate the case]. You overemphasize the risks a little bit, say, ‘This is the best we can get' and you settle a case in two hours instead of in a hundred hours at a trial. And people are afraid. Trials are scary. But if you don't have anything to lose [because the prosecutor is offering such a high sentence in exchange for a guilty plea], there's actually no reason not to do a trial once in a while.” Huneke laughs, but it is bitter, devoid of amusement. “The problem is you have to push, and if that isn't valued in your office . . . I think a lot of ills are hidden by bad plea bargains.”

In this instance, as she studied Sean's case, she thought about the way she and other attorneys in her office managed their work. “At any one time, you'll be juggling all these cases, some ‘trial chicken' and maybe some serious cases, and a thousand phone calls to return,” she says. “You end up responding by putting out fires. Whose is the biggest fire today?” But, she says, if you just sell the client a deal and move things along, the situation becomes almost manageable. Judges and bosses are happy because cases get moved along and processed quickly without a lot of time, energy, or money—and “you've got to keep them happy if you want to survive and advance.”

She did some soul-searching and wondered if she wanted to be a part of this charade. “It's like due process theater,” she began to realize with dismay. “People are dressed up like lawyers and they're standing next to a client, but they are not really zealously advocating.”

Who had time to zealously advocate?

Huneke, in the midst of her personal coming-of-age story as a public defender, was trying to honor her ethical obligations to her client, to make the system work. “My client has a right to a trial,” she says, explaining the logic. “And the state wants them to give that up. If the state wants my client to give up this thing of value,
they have to give up something of value.” She shakes her head in disgust, thinking about Sean's plea deal and the hundreds of other lousy crumbs prosecutors have tossed to her clients over the years. “If you are going to give them the same thing they will get from a trial, then why bother with a plea? If they aren't going to significantly reduce things, then why not go to trial?”

But preparing for a trial is time-consuming. And most public defenders triage their cases. Sean's case wasn't a priority because until October 2003, it was pending a motion to dismiss. Then Sean considered what he thought was the state's plea offer of no jail time only to discover in December 2003 that the state did want him to serve time. Suddenly, Sean's case, which had inched along, was on the docket for March 2004.

Meanwhile, since December 15, 2003, Huneke had tried five cases and was prepared to try a sixth before the prosecutor accepted a counteroffer that she had made weeks previously in that particular case.
¹⁹
Half of them were fairly straightforward—possession of stolen property, drug possession, taking a car without permission—but the other half were more complex—robbery, burglary, drug distribution. She had been frantically working on those trials, juggling her other cases, and trying to prepare for Sean's trial at the same time. Her conscience was bothering her, nagging her with the slew of follow-up interviews and investigations she still needed to do on Sean's behalf. She woke up in the middle of the night four days before the trial and scrawled out a “To Do List for Replogle's Case.” It had fourteen bulleted tasks, including everything from obtaining a history of the intersection to interviewing Stack's family doctor to make sure he had no preexisting conditions to arranging an LCD projector to be available in the courtroom. A few days earlier, she had spoken to the doctor who did the autopsy on Lowell Stack, getting her to translate into plain language the medical jargon on the form. Turns out Stack had died from an infection after surgery. The surgery had been done to fix a hernia, which struck Huneke as curious. Does one get a hernia from the kind of blunt trauma injuries inflicted in a car crash? she wondered. She wanted to know more, to speak to Stack's family doctor and the physician who'd done the surgery. Something seemed amiss here. Also, she needed
the standard background for trying a vehicular homicide: Stack's ophthalmology records, his driving history from previous insurance claims, reports from the paramedics, an expert to examine the photos of the skid marks, and so forth. She realized, sitting up in bed in the middle of the night, transcribing her list onto a laptop, that she definitely needed more than three days to prepare properly for this trial.

Sean Replogle was waiting for the trial to begin. It was grueling. He was convinced that everyone was pointing to him as he walked the halls of his high school, calling him a murderer. Everyone knew, he insists today. Everyone despised him for what he'd done to Lowell Stack. “In the office at school, they'd be like, ‘Oh, there's the kid that killed him,'” he says. “On the intercom a month and a half after it happened they announced, ‘Judy Rodeen has returned from her tragic accident and everyone should say “hi” to her in the office.' And everyone in the class and the school turned and looked at me.”

Sean started skipping school. “I didn't want to leave the house,” he says, “over fear that anything I did I could go to jail for. I felt like I was in danger of getting arrested for anything, if I was going to prison for speeding.” He dropped out of school and got his GED in March. In the fall, at his father's insistence, he took out a student loan and enrolled in Spokane Falls Community College. But he began having panic attacks. “I started breaking down,” he says. There were continuances, delays of all sorts, every thirty days or so for two years, he recalls, and each time he had to assume they would actually be going to trial. He couldn't shake his terror; the prospect of prison loomed over everything he did and said and thought. He couldn't focus. Finally, he told his dad, “I can't do it,” and his dad relented—“If it's that hard, don't do it,” he said—and Sean dropped out of college.

He stayed in the house. “I was really depressed,” he says. “I detached from everyone. I didn't do anything for two years.” His luck was so bad, he was certain it would continue that way; he'd be found guilty and be sent to prison. “At the time,” he says, “I was just this little eighteen-year-old who had been in maybe two fights
in my life. I tried to mentally prepare for spending three-and-a-half years in prison. I wasn't mean or anything, but I tried to toughen up.” He started lifting weights and watched a lot of HBO's
Oz
. “I tried to picture these tough, crazy people staring at me and wanting to fight all the time,” he says. “I stopped playing video games and worked out all the time.” He told himself: “This is going to be the most crazy environment, and I have to figure out how to survive it for three years.” His family grew worried. He never smiled anymore.

Sean and his father talked about the accident every night. At first, Chuck Replogle wanted his son to admit he was speeding. He didn't know the exact numbers the cops were coming up with, but he suspected Sean was lying, Sean says. “At first, Dad said, ‘something bad happened, you have to admit your guilt.'” He, too, was terrified that Sean would go to jail. Maybe if Sean simply admitted he was speeding, if he was sorry, he'd be forgiven and things would go their way. “He didn't 100 percent believe me because police were saying something different [about the speed],” Sean says. “I was an eighteen-year-old boy and I'm sure I had lied to him a couple of times before, so he had his suspicions when he heard what the cops said about the speed. But I was like, ‘I'm not lying, I swear. I don't know what else to tell you.'”

Sean says the only person who believed he was not going 58 mph was his public defender, Huneke. (Huneke says she's not sure she
did
believe him about the speed, but she did believe that he should not be sent to prison for this accident; there were so many unanswered questions about the case.) When Sean first met Huneke at her office, she had a stack of papers on her desk and was in the middle of a murder trial. “I have a good feeling about this,” she told him when he and his father came in. “You're going to be okay.”

This was the first time Sean had some hope. In the midst of what he calls “dark days,” Huneke assured him that she believed in him. “If we've got a jury in their right mind, I think it will work out,” she told him.

Sean recalls: “She never guaranteed me because she couldn't, but she felt like this was a winnable case.”

Still, this glimmer of optimism was regularly overshadowed. “Just because I was innocent, I was starting to realize, didn't mean anything. They could still find me guilty. I didn't trust the system. She was the only person fighting for me.”

And she was fighting hard.

When Carol Dee Huneke went into Spokane County Superior Court on Friday, February 27, 2004, the day set for a hearing prior to the onset of Sean's trial, she asked Judge Michael Price for a continuance. The judge, brand new to the bench, denied it. Huneke persisted. She only had the weekend to prepare for the trial, she said, explaining that she had had five back-to-back trials on her calendar. She desperately needed more time, she said, and then played what she thought was her trump card, the magic words that she knew no judge could properly ignore, insisting this would be “ineffective assistance of counsel.”

Price, who'd been on the bench fewer than two months, held fast. The trial would not be further delayed, he insisted. It would start on Monday or she'd be held in contempt of court.

Frantic, Huneke spent the weekend agonizing. She knew she was completely unprepared to go to trial—and that to do so now jeopardized Sean's case. She talked to her boss and an attorney at a statewide criminal defense organization, who gave her legal advice about what would happen if she was held in contempt, agreed to show up in court to represent her, and advised her to prepare a written statement about her workload.