The Undersigned Attorney Hereby Certifies: Ensuring Reasonable Caseloads for Washington Defenders and Clients

• Publication year: 2021

THE UNDERSIGNED ATTORNEY HEREBY CERTIFIES: ENSURING REASONABLE CASELOADS FOR WASHINGTON DEFENDERS AND CLIENTS

Andrea Woods(fn*)

The point here is that the system is broken to such an extent that confidential attorney/client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned.

-Judge Robert S. Lasnik(fn1)

INTRODUCTION

Santos Rivas was appointed a defense attorney in Yakima County in August 1999.(fn2) About a month later, he appeared in court.(fn3) Upon arrival, Rivas discovered that his public defender, Steven Michels, was now presiding over his case as judge.(fn4) Then-Judge Michels persuaded Rivas not only to fire Michels as his attorney, but also to plead guilty to all charges.(fn5) Judge Michels did not inform Rivas of his right to appoint new counsel and pressured his former client to proceed without an attorney in his guilty plea.(fn6)

In 1997, Keith Roberts faced criminal charges in Grant County Superior Court.(fn7) Unable to afford his own attorney, he was appointed one.(fn8) His attorney, Guillermo Romero, failed to object when the prosecution compared Roberts to Hitler.(fn9) Romero misled Roberts' mother into paying hundreds of dollars.(fn10) Roberts is required to register as a level-III sex offender.(fn11) His appointed counsel, Guillermo Romero, has since been disbarred.(fn12)

Joseph Jerome Wilbur faced numerous criminal charges in Mount Vernon between 2006 and 2009.(fn13) His public defender, Richard Sybrandy, never spoke with Wilbur unless they were at a court hearing.(fn14) Sybrandy failed to respond to his client's notes and phone calls, presenting Wilbur with only one option: to plead guilty.(fn15) During that time, Mount Vernon and Burlington relied on two attorneys, Richard Sybrandy and Morgan Witt, for the cities' entire misdemeanor defense caseloads.(fn16) Sybrandy and Witt were responsible for approximately 2100 cases in 2010, while additionally maintaining private practices.(fn17)

Fifty years have passed since the Supreme Court decided Gideon v. Wainwright.(fn18) Gideon and its progeny established that indigent persons accused of crimes are entitled to the effective assistance of counsel under the Sixth Amendment.(fn19) Yet today, criminal defendants often face charges with little help from the attorneys appointed to defend them.(fn20) Roberts and Rivas are two examples of clients who received representation that fell short of the caliber of defense anticipated by the Gideon Court.(fn21) Across the nation, systemic factors-including but not limited to the limitations inherent in public funding, caseload management, and a lack of oversight-contribute to failures in delivering the poor person's right to a fair trial.(fn22)

Washington State is no exception. For example, a King County defendant facing felony charges receives appointed counsel whose caseload would enable her to spend, on average, 13.9 hours(fn23) devoted to his defense.(fn24) In contrast, defendants in Cowlitz County are appointed counsel who can devote only about 3.6 hours to their defense.(fn25) In other words, persons charged with crimes demanding a similarly nuanced defense, would be assisted to very different degrees by virtue of their geography: one person's attorney could assess, negotiate, and investigate the case against her client while another defendant would in all likelihood be rushed into a plea deal.(fn26) Lisa Tabbut, a former Cowlitz County public defender, described managing her annual caseload of 276 dependency cases, 295 juvenile cases, and 16 criminal appeals as "malpractice per se."(fn27) In Mount Vernon and Burlington, the excessive caseloads of defense attorneys "systemically deprived [defendants] of the assistance of counsel at critical stages of the prosecution," according to United States District Court Judge Robert Lasnik.(fn28) While some defendants face criminal charges without legal guidance at all,(fn29) this Comment is focused on those defendants who receive appointed counsel burdened by an excessive caseload. In order to ensure an effective defense, Washington defenders must have the time and resources to devote to adequate investigation, counseling, negotiation, and preparation-a feat not possible in the few hours available to public defenders in some counties.(fn30) Though the Gideon Court did not identify specific caseload caps, the evolution of public defense in Washington- and throughout the country-has made such restrictions necessary to prevent public defense from being compromised by either the inherent limitations on overworked attorneys or, even worse, by for-profit gamesmanship.(fn31)

To address these issues, the Washington State Supreme Court issued a historic order on June 15, 2012.(fn32) The order requires appointed defense attorneys to certify that they comply with requirements set by the Court.(fn33) To comply with these requirements, attorneys must be specifically qualified to handle their cases, must have access to an office, and-most controversially-must limit their annual caseload.(fn34) The court rule creating mandatory Standards for Indigent Defense(fn35) (hereinafter "the Standards"), except for Standard 3.4 pertaining to caseload limits, originally became effective on January 1, 2013.(fn36) Many Washington trial courts have already conducted the attorney certification process.(fn37) As of October 1, 2013, attorneys must certify compliance with the Standards, save Standard 3.4 which will not take statewide effect until January of 2015.(fn38) Whether or not enforcement for noncompliance will prove effective is one of the potential weaknesses of the Standards.(fn39)

The Standards governing Washington's public defenders(fn40) represent a significant reform aimed at protecting an important constitutional right for our state's vulnerable citizens. This Comment provides the necessary introduction to the Standards and addresses skepticism on the part of current practitioners and elected officials. Cooperation among defense attorneys, local governments, and the courts could ensure the Standards' success and-in turn-a better system of public defense for attorneys and defendants alike.(fn41)

Part I of this Comment introduces the reader to the new Standards. Part II offers an overview of common critiques of the Washington State Supreme Court Standards that were voiced by practitioners prior to the Standards' issuance. Part III explains what has happened since the Standards have become effective-whether the critics' warnings or the believers' hopes have come to pass. Part IV identifies problems with the Standards. Finally, Part V suggests potential improvements in light of those problems: creating a meaningful enforcement mechanism, locating adequate funding for public defense, and weighting cases appropriately.

I. THE STANDARDS FOR INDIGENT DEFENSE

A. The Structure of Public Defense in Washington Is Decentralized

The first public defender offices in Washington date back to the 1960s.(fn42) Funding and oversight for Washington's public defense system is delegated to local jurisdictions, meaning that public defense is run primarily at the county level.(fn43) However, local control of public defense is not a gold standard: 22 states employ a state-implemented system with one office providing oversight.(fn44) State-based public defender programs appear on the whole to provide more resources, such as investigators, to their offices.(fn45)

There are three methods through which an attorney may find herself practicing public defense in Washington. First, an attorney might work in an organized office of public defense, a local government, or nonprofit organization.(fn46) Second, a private attorney may be assigned to a case by a trial court.(fn47) Third, a private attorney could have a contract with the local court system to represent a regular number of clients.(fn48) Depending on which category an attorney belongs to, the new Standards adopted by the Washington State Supreme Court may appear (at least from the individual attorney's perspective) to have more drastic implications.(fn49)

The majority(fn50) of Washington counties use a private contract system for their public defenders, thus falling into the second or third category mentioned above.(fn51) These public defenders share a number of characteristics. Most maintain a private practice while defending indigent clients.(fn52) Many have ignored caseload limit suggestions- despite a statute encouraging local jurisdictions to adopt caseload limits(fn53) for indigent defense attorneys, those limits were only guidelines and lacked a meaningful enforcement mechanism.(fn54) As of 2003, only King County had incorporated the caseload limits suggested-but not required-by state statute and the Washington State Bar Association (WSBA).(fn55)

The use of flat-fee contracts in Washington has engendered perverse incentives for some public defenders. For example, Grant County previously had a $500,000 contract for the total of its criminal defense representation.(fn56) This created conflicting motivations for public defender Thomas Earl, who administered the indigent defense contract: incentives to (1) handle as many of Grant County's cases as he could in order to retain as much of that $500,000 as possible, and (2) hire additional attorneys to handle overflow cases who would work for the least compensation rather than...