Chasing Gideon (6 page)

Huneke sprang into action. She got co-workers to submit signed affidavits. One colleague, David Carter, explained in writing to the judge that public defenders in Spokane were completely swamped. “The demands on my time during regular Court hours covering arraignments, guilty pleas, case scheduling hearings, and answering docket calls prevent me from being able to do any significant trial preparation during the regular work week. As a result, it must be done in the evenings or weekends,” he said. “On nearly every Saturday, Sunday, or holiday that I have been working in the office since November 2003, I have seen Carol Huneke in the office working on preparing a case for trial. Although I am not totally familiar with her trial calendar, I know she has been required to prepare
several cases for trial during that time. More often than not, she is still in the office working when I typically leave on Saturday and Sunday afternoon.”
²⁰

Another colleague, John Stine, wrote in Huneke's support that he transferred out of their office in October 2003 “in response to overwhelming caseloads.” He said he had more than seventy open felony cases at a time, “which effectively made it impossible to fully prepare cases for trial without significant delays.” Worse, he said, “I understand the caseloads have continued to grow since then.”
²¹

A third public defender, Kathleen Moran, told the court that, after six years in the office and working weekends and nights to stay caught up on the work, she was officially resigning in three days due to “crushing caseloads.” Further, she said, “Because the Public Defender's Office is short on funds and staff, much of the work that needs to be done has to be done by the lawyer alone. Approximately 45 lawyers share five investigators and five paralegals. Due to shortages in staffing, it is difficult to schedule witness interviews at times when both the lawyer and the investigator are available.”
²²
Moran was persuaded that Huneke was similarly overworked. “It has come to my attention that Ms. Huneke has requested a continuance of a vehicular homicide trial because she is not prepared,” Moran noted. “From my experiences with Ms. Huneke as a colleague, I believe that she would not request a continuance unless she was truly not prepared to go forward.”

Huneke attached a list of how many open cases she had—101—and how many the prosecutor had—28. She also compared other public defender caseloads to prosecutor caseloads, pointing out in her written statement to the judge that “the prosecutor's office has more than twice the attorneys in its felony department, even though the public defender's office handles at least 90 percent of the adult felony cases in Spokane County.” She insisted that this disparity created an impossible situation “where the public defender's office is extremely outnumbered, and the prosecutors have little incentive to plea bargain.”
²³
(The
Spokesman-Review
newspaper also noted that the prosecutor's office was slated “to receive approximately $8 million in funding in 2004 [that same year] compared with $4 million for the public defender's office.”
²⁴
)

Huneke went on to explain the case's progression: “Up until October 2003, Mr. Replogle's case was pending a motion to dismiss. . . . After the dismissal motion was denied, I decided that my client may want to think about taking what I believed to be the state's plea offer of an exceptional sentence downward of no jail time. However, I discovered in early December that Mr. Francis did not intend to agree to no additional jail time. Thus, in late December, we decided to go to trial and began preparing for trial in earnest.”
²⁵
Since December, she'd had five trials and prepared for a sixth before the prosecutor offered an eleventh-hour plea that her client accepted. She estimated that she spent approximately ten hours preparing for a simple trial and a hundred hours for a complicated trial, with two of the previous trials being “complicated.”
²⁶
She also kept up with numerous court appearances for her other one hundred clients both in and out of jail, juggling motions, briefs, phone calls, interviews, and pleas. “Despite my best efforts, I am not ready to proceed to trial on Mr. Replogle's case on March 1, 2004,” she wrote to the judge. “I cannot provide adequate assistance of counsel. I have a duty to provide effective assistance of counsel, and thus refuse to conduct a trial for which I am unprepared. I take this position not in disrespect for the court, but to the higher calling of adequately, effectively, and zealously representing my client and the constitutional and ethical duty of effective assistance of counsel.”

Then, she climbed up on a soapbox to announce the severity of the public defender caseload crisis in Spokane. The local newspaper got wind of the story.

“We were in court with our attorneys, ready to get her out of jail Monday morning,” Huneke's boss, John Rodgers, director of the county public defender's office, told the
Spokesman-Review
that week, hoping she wouldn't be sent to jail for being in contempt of court. He also affirmed Huneke's skill as a lawyer. “She's incredibly aggressive and effective,” he told the paper.

It was a very risky strategy. One might even argue, a desperate gesture.

How did the crisis in the courts reach this impasse?

The last half century of indigent defense in Washington State reflects the experience of states across the nation. Like most states on the heels of the 1963
Gideon
decision, Washington made a mad dash to meet the broad requirements of the law, leaving the details up to individual counties. The larger cities tended to create public defender offices, hiring full-time staff. The smaller towns and counties were more likely to pay an hourly rate to lawyers typically appointed by judges from a rotating list hired to defend the poor on an as-needed basis. A few jurisdictions in the state—only six in the 1970s—signed a flat-fee contract with an attorney or firm for all indigent defense.
²⁷

Over the decades, however, the flat-fee system became an expedient way for local governments to control costs. Local politicians and administrators could organize their budgets by agreeing to costs in advance, rather than paying an hourly wage to lawyers for representing clients. Under an hourly system, by contrast, one big murder case with a lawyer zealously representing his client—and chalking up some serious hours in the process—could decimate a small local budget. Thus by 2004, in a development representative of national trends, twenty-six counties in Washington embraced the flat-fee arrangement. But while it may save small local governments money, flat-fee contracts create a disincentive for lawyers to do quality work. Because many flat-fee attorneys also continue in private practice, where they charge paying clients hourly fees, flat-fee defenders are also incentivized to serve their paying clients at the expense of the indigent clients. As long ago as 1984, Washington State officially recognized that clients got wildly disparate defense, depending on which county they happened to live in and how public defense was funded there. The newly formed Washington Defender Association developed a set of professional standards that all public defenders should adhere to (including caseload limits based on the American Bar Association's recommended limits) and began pushing the legislature to mandate compliance with the standards. By 1989, the Defender Association had made only incremental progress with its reform efforts. The state legislature passed a law requiring each county to adopt standards, but declined to specify
what
the standards should be. “The standards endorsed by the Washington
State Bar Association for the provision of public defense services
may
[emphasis added] serve as guidelines,” the law read.

Even these vague standards were routinely ignored. In March 2004, the American Civil Liberties Union in Washington State issued a report warning that the “checkered system of legal defense” means there is “no guarantee that a person who is both poor and accused will get a fair trial.”

Then a month later, the
Seattle Times
published a three-part investigative series revealing exactly how this “checkered system of legal defense” played out in a solitary county in the state, digging deep into the finances, court records, and history of Grant County, Washington.
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In April 2004, three intrepid
Times
reporters discovered that about $500,000 was going to a Grant County public defender named Thomas J. Earl, who handled 413 felony cases himself in a single year as compared to the American Bar Association's recommended 150. “At that rate, Earl could devote an average of only four hours per case,” the journalists observed. Earl retained about $255,000 himself and farmed out to subcontractors additional cases and the remaining funds. Needless to say, he hired those who would work cheap, and the work they produced for him was below par. Earl's trial acquittal rate between 1999 and 2003 was 6 percent (compared to the state average of 15 percent), while his guilty plea rate was 88 percent (compared to the state average of 76 percent). Reporters discovered that there were two findings of “incompetence” against him, one in a rape case and one in a drug case, and that his license was suspended in February 2004 after the bar “found misconduct in eight cases, including three in which Earl solicited money from indigent clients or their relatives.”

The reporters also investigated another Grant County public defender, Guillermo Romero, who had represented more than a thousand clients over the previous seven years but had taken only twenty-three cases to trial, losing all of them. “Twice, reviewing courts ruled that he was so incompetent, the adversarial system had collapsed,” reporters noted. “He was supposed to punch holes in weak cases, to intercept police and prosecutors when they ran afoul, to investigate and analyze and advocate,” the
Times
noted. “But legal basics eluded him. In a rape case, he once filed a motion seeking
‘D and A testing.' What he meant was DNA.” In addition to being convicted of assaulting his girlfriend, being sued by creditors, and going into drug rehab, Romero was found by the bar association to have “committed theft and solicited money from relatives of court-appointed clients.”

The
Seattle Times
also raised questions about systemic problems. How was there so little oversight that incompetent attorneys could continue landing lucrative contracts? How had they been assigned such staggeringly high caseloads? How common were flat-fee contracts?

In fact, like most states, Washington was plagued by sweeping problems that were jeopardizing equal justice for the poor. Reflecting a national trend, felony filings in the last fourteen years in Grant County had jumped from 278 in 1990 to 1,070 in 2003, the
Seattle Times
reported. Meanwhile, funding for public defense in the same period had gone only from $240,000 to $500,000—meaning the caseload had more than tripled while the spending for defense had only doubled. The impact was measurable. “Grant County leads the state in the percentage of Superior Court cases that are resolved with a guilty plea,” the
Times
reported, noting that 85 percent of clients accepted a guilty plea though “[i]ndigent defendants in Grant County have repeatedly complained of court-appointed attorneys failing to investigate their cases or claims of innocence, leaving defendants with little choice but to take whatever deal is offered.” Yet, despite the terrible outcomes, county governments continued to opt for the cost-effective flat-fee contracts.

The
Seattle Times
series shined a rare spotlight on indigent defense, and a shocked public—and legal community—finally insisted that something had to be done. On the heels of the exposé, the Washington State Bar Association appointed a Blue Ribbon Panel on Criminal Defense to investigate. The panel reported in May 2004 that the mandate for any kind of standards is “being ignored in many jurisdictions and there is no effective enforcement program.” Further, “[t]he lack of enforceable standards, especially caseload standards, jeopardizes the ability of even the most dedicated defenders to provide adequate representation.” The panel blamed inadequate funding, poor contracting practices (“especially
fixed-rate defense contracts”), and inadequate oversight or accountability.

At the same time, the American Civil Liberties Union in Washington State filed a class action suit,
Best, et al. v. Grant County
. “Despite knowing of the deficiencies in the Grant County public defense system, defendant Grant County has failed to take reasonable steps to protect the constitutional rights of indigent persons,” lawyers for the plaintiff stated in the complaint.
²⁹
“Indeed, even after the Washington State Bar Association recommended in June 2003 that Tom Earl be disbarred for misconduct as a public defender, defendant Grant County refused to terminate Earl as the public defender and refused to terminate his exclusive public defense contract with Grant County. Defendant Grant County allowed Earl to remain in this position until finally, in February 2004, the Washington Supreme Court suspended Earl from the practice of law pending the determination of the appeal of his disbarment.” According to the ACLU, problems mounted. “Even then, defendant Grant County failed to take reasonable action to protect the rights of indigent persons. Although Earl's suspension had long been a possibility, defendant Grant County failed to make reasonable preparations for the suspension. The Board has, instead, allowed the public defense system to descend into chaos. Things have become so bad that the judges of the Grant County Superior Court recently had to issue a plan that calls for the conscription of attorneys, some with no criminal defense experience, to represent indigent persons charged with felonies.”
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The need for a serious overhaul of the state's indigent defense practices had long been indisputable; now, for the first time, the public understood the scope of the problem—and the potentially devastating consequences.