WA PRIMA
Accessing Your Public Defense System:
Wilbur v. Mt. Vernon and Caseload Limitations
W. Scott Snyder
ssnyder@omwlaw.com
Gideon v. Wainright
1963
The Sixth Amendment guarantee of counsel is a fundamental right and
through the Due Process Clause of the 14th Amended is applicable to
states and local government.
Justice Black:
“…reason and reflection require us to recognize that in our adversary
system of criminal justice, any person hauled into court, who is too
poor to have a lawyer cannot be assured a fair trial unless counsel is
provided for him.”
The “noble ideal” of “fair trial before impartial tribunals in which the
defendant stands equal before the law…cannot be realized if the poor
man charged with the crime has to face his accusers without a lawyer to
assist.”
What does this right translate to in the setting of a high volume,
misdemeanor court such as a district or municipal court?
Wilbur v. Mt. Vernon and Burlington
Federal District Court, Western Washington
• Attack on so called “Meet and Plead” system
• Cities’ contract and system after cleanup was as good or better than
that in place in most cities.
• Timing: 50th anniversary of Gideon.
Judge Lasnik -- Found that the public defense system in place:
…systematically deprived [indigent defendants] of the
assistance of counsel…and that municipal policy makers have
made deliberate choices regarding the funding, contracting
and monitoring of public defense systems that directly and
predictably caused the deprivation.
What is required? Judge Lasnik:
Timely and confidential input from the client regarding such things as
possible defenses, the need for investigation, mental and physical
health issues, immigration status, client goals, and potential
depositions are essential to an informed representational relationship.
Public defenders are not required to accept their client’s statement at
face value or to follow every lead suggested, but they cannot simply
presume that police officers and the prosecutor have done their jobs
correctly or that investigation would be futile. The nature and scope of
the investigation, legal research, and pretrial motion practice in a
particular case should reflect counsel’s informed judgment based on
the
information
obtained
through
timely
and
confidential
communications with the client.
• Investigation
• Meaningful communication with client
• Research
• Motion practice
• Trials
• Infrastructure and resources
The Good Deal Defense
Judge Lasnik:
It is clear from the testimony of a former city attorney assigned to
prosecute misdemeanor cased for one of the municipalities that the
people of the City received even more ineffective representation than
the individuals charged with crimes. There is no constitutional right
regarding the quality of the peoples’ lawyer, however, the Court is not
in a position to address the negative impacts that budgetary constraints
have had on any part of the criminal justice system other than the
provision of indigent defense. While the city attorney’s willingness to
grant overly lenient plea agreements may explain Sybrandy and Witt’s
determination that investigation, research, and communication were
unnecessary impediments to the expeditious resolution of their cases, it
does not excuse their consistent failure to establish a meaningful
attorney/client relationship with the people they represented.
THE OUTCOME
• Memorandum Decision (December 4, 2013)
“It has been fifty years since the United States Supreme Court first
recognized that the accused has a right to the assistance of counsel
for his defense in all criminal prosecutions and that the state courts
must appoint counsel for indigent defendants who cannot afford to
retain their own lawyer. The notes of freedom and liberty that
emerged from Gideon’s trumpet a half a century ago cannot
survive if that trumpet is muted and dented by harsh fiscal
measures that reduce the promise to a hollow shell of a hallowed
right.”
• 2-3 year injunction, governed by “public defense monitor”
• $2.2 million fee order
CITY OBLIGATIONS
FUND SYSTEM
PROVIDE all services and infrastructures needed to meet Standards
MONITOR
A. Now
B. Annually - statistics
C. Periodic through review
ACT NOW
• Ounce of presentation worth a pound of cure
• Cities’ compliance efforts discounted
• ACLU taking this show on the road
• Advisory from ACLU letters to three cities and three counties
• Beware public records requests from the Defender Project
• Evolving area of the law; trend and direction, not black letter law.
• Review factors cited in Wilbur, by the Bar and the Supreme Court.
• No factor dispositive, but all worth of review.
• Don’t be low-hanging fruit.
RCW 10.101.030
STANDARDS
Each county or city under this chapter shall adopt standards for the
delivery of public defense services, whether those services are provided
by contract, assigned counsel, or a public defender office. Standards
shall include the following:
• Compensation of counsel
• Duties and responsibilities of counsel
• Case load limits and types of cases
• Responsibility for expert witness fees and other costs associated with
representation
• Administrative expenses, support services, reports of attorney activity
and vouchers
• Training, supervision, monitoring and evaluation of attorneys
• Substitution of attorneys or assignment of contracts
•
•
•
•
•
Limitations on private practice of contract attorneys
Qualifications of attorneys
Disposition of client complaints
Cause for termination of contract or removal of attorney
Nondiscrimination
The standards endorsed by the Washington State Bar Association for the
provision of public defense services should serve as guidelines to local
legislative authorities in adopting standards.
SOURCES AND OPTIONS
WSBA Guidelines (Referenced in RCW 10.101.030)
Washington State Supreme Court - Case Loads
Washington State Office of Public Defense - Case Weighting
Rules of Professional Conduct
IMPACTS ON THE SYSTEM
The criminal justice system is a four-legged stool:
•
•
•
•
Police
Prosecutor
Defender
Court
Changes in any one leg will impact stability of the system.
COSTS
$125
$250
$400
$450
with
- 135 / Case
/ Case
/ Case
/ Case
2008
2012
Post Wilbur
WDA recommendation based on parity
King County prosecutor
A PROBLEMATIC BUSINESS MODEL
400 cases x $135 a case =
less 13% self-employment tax =
Less: Investigator
Rental - meeting space
Access to Professionals
(Translator, mental health, etc.)
Support Staff, Legal Research
$54,000
<7,020>
$46,980
Case Counts and Law Office Economics
400 cases = $150,000 +/
1. Hundreds of Cases
$700,000
$600,000
$500,000
$400,000
$300,000
$200,000
$100,000
$0-400
401-800
801-1200
1201-1600
Small City - 200-600 cases. Contract costs double at case #401.
Large City - (6,000 cases) - each additional 400 cases equals 6.66% of
total
ASSESSING YOUR SYSTEM
MULTI-STAGE REVIEW
NOW:
QUARTERLY:
ANNUALLY:
1.
2.
3.
4.
5.
Assess your system
Certifications to court of case counts
Review of:
Case counts and percentage of cases tried.
Comments and complaints
Meet within 72 hours of appointment
Use of investigator (bills or motions)
Peer review (court and staff, prosecutor)
Third party audit: Every three years (contract cycle) or if annual audit
reveals problems.
Case Counts and Case Management Systems
You should discuss with your Public Defender what case management
system is used and how the Public Defender tracks data
Your jurisdiction will require periodic reports
EVALUATING YOUR PUBLIC DEFENSE CASE ACTIVITY
Within the 400 Case Count Per Attorney:
•
•
•
•
Number
Number
Number
Number
of
of
of
of
trials
motions/negotiations
hours spent per case
dismissals vs. pleas vs. convictions
And then analyze data with municipal court, city attorney and
possibly outside consultant.
DOCUMENT YOUR FINDINGS
RED FLAGS
HOW MANY CASES IS THE PUBLIC DEFENDER TRYING?
The Public Defender should maintain statistics showing the number of
cases tried annually. National statistics coupled with the realities of a
misdemeanor, high volume system indicate that approximately two to
three percent of filings should result in trials.
Track no-shows: cases set for trial and defendant fails to appear.
MOTIONS PRACTICE
The Public Defender should maintain file records regarding motions
filed or direct negotiations with prosecutor that lead to a reduction of
charges or situations in which investigation led to negotiation or a
reduced charge.
Resources. While your contract may provide for these resources, it is
important that your Public Defender be able to document that he or she
utilizes these services on a regular, reasonable basis. The primary
resources the city must provide in the Public Defender contract and the
Public Defender needs to utilize include:
AN INVESTIGATOR
Does your Public Defender use an investigator? As Judge Lasnik’s
decision indicates, access to and the use of an investigator is an
essential part of the system. The Public Defender cannot rely on the
police report nor must the Defender accept the client’s version of the
facts.
MENTAL HEALTH PROFESSIONAL AND PHYSICAL ASSESSMENT
TRANSLATORS
IMMIGRATION ADVICE
WDA (Washington Defenders Association) resource:
The Public Defender should be able to establish that he or she has
access to, and uses as appropriate, the services of a mental health
professional and a translator, as well as obtains immigration advice
regarding the potential impact of charges. The Washington Defenders’
Association provides support for immigration questions. You should
ask your Public Defender whether he or she utilizes the WDA resource
or in the alternative, what resource he or she does use.
Is Your Public Defender:
Meeting with assigned clients within 72 hours of appointment?
Meeting with incarcerated clients on a regular basis?
(Felony charge and misdemeanor issue)
Trying cases?
Bringing motions?
Does Your Public Defender:
Maintain an office in your City or convenient to your court?
OR
Have access to a convenient and confident meeting room.
VIDEO ARRAIGNMENTS: Defendant Questions
CONFLICT COUNSEL:
CITY’S OBLIGATION, NOT PUBLIC DEFENDER’S
STANDARDS AND CONTRACTS MUST PROVIDE FOR CONFLICT COUNSEL
AT CITY EXPENSE.
CONTRACT INFRASTRUCTURE
Your contract should provide for the resources needed
to comply with your adopted standards.
AND
INDEMNITY AND INSURANCE
•Indemnity:
Only as good as assets of indemnitor
•Insurance and Bonding:
1. Can’t ensure contract obligations
2. Malpractice policy not a substitute
3. Bonding: Cost an issue
(1-2% of $2.0 million = $20,- 40,000)
• Evaluate Public Defender Performance
• Revise Contract or RFQ
• Document Needed Data
• Annual Statistical Review
• Periodic (3-4 year cycle) Review by OUTSIDE CONSULTANT (Judge or
Retired Public Defender)
THE FUTURE
Interlocal Agencies for Monitoring
Use of Nonprofit, county-wide Public Defenders
State funded, Statewide system
Court closure
PARTING THOUGHTS
Wilbur was a game-changer; hiring competent Public Defenders who
secure good results is no longer enough,
A modest investment now can avert a major problem down the road.
There is a sense or urgency.
w. Scott Snyder
ssnyder@omwlaw.com
OGDEN MURPHY WALLACE
OMWLAW.COM