June 2004

CounterPoint

by Thomas A. Haven

In his article "The Right to Counsel: Every Accused Person's Right," featured in the January 2004 issue of Bar News (p. 22), Robert Boruchowitz raises important issues regarding indigent criminal defendants' right to counsel. However, at least some of the anecdotal information gathered to support his claim that "courts across the state violate the right to counsel" is inaccurate and misleading.

Mr. Boruchowitz states that he has "documented violations of the right to counsel in three of the largest counties in the state and in one rural one." I am interested in responding to Mr. Boruchowitz's claim that "[i]n a Kittitas County court, a judge routinely denies counsel for college students [in a manner] totally unsupported by the statute and … at odds with case law."

The case Mr. Boruchowitz refers to is City of Ellensburg v. Joseph R. Deutschman. I was the judge in that case. In presenting facts in support of his claim, Mr. Boruchowitz states, "in that case, the defendant had an annual income of $3,600, which is well below the federal poverty guidelines." Mr. Boruchowitz wrote this about the decision:

 In a Kittitas County court, a judge routinely denies counsel for college students, saying that "there is a limit to the definition of indigent contained in RCW 10.101.010(e); that limit is reached when an able-bodied, employable young person with no dependents and virtually no debt chooses to forgo available employment so that he can attain a college degree." That view of indigence is totally unsupported by the statute and is at odds with case law. In that case, the defendant had an annual income of $3,600, which is well below the federal poverty guidelines.

I respectfully disagree. On April 28, Mr. Deutschman filed a financial affidavit supporting his request for a public defender. He stated that he was single, with no dependants, and a student at Central Washington University. While he wrote he was supported by "parents, friends, me," he did not report receiving any income. He also stated that he worked during the summers for Swissport Cargo Services as a cargo handler. Based on the defendant's failure to state the amount of income he was receiving, his request for court-appointed counsel was denied by court on the ground of "insufficient information provided to allow a finding of indigency."

On May 12, 2003, the defendant filed a second financial affidavit in support of his request for court-appointed counsel. This request was reviewed by the court at a pretrial hearing on May 28, 2003. He was, on May 28, a full-time student at CWU. His school and living expenses were paid by parents and "the other half of his family."

The defendant, in answer to a question from the court, stated that if he was not going to school, he would have the ability to obtain employment.

The court, concluding that the defendant's lack of income was based solely on his decision to remain in school and not seek employment, concluded that the defendant did not qualify for a public defender.1 In addition, the defendant failed, in his second financial affidavit, to reveal the amount of income provided to him by his family.

After being told that he did not qualify for a public defender, the defendant stated that he would attempt to hire a lawyer. In order to give the defendant additional time to hire a lawyer, the June 20 jury trial was cancelled and a new jury trial date of July 11 was set.

At the pre-trial hearing held on July 2, the defendant again renewed his request for a public defender. He informed the court he was in his "summer break" from school and was working at Swissport Cargo Services. His earnings from Swissport (later confirmed by his employer) were approximately $1,160 per month. He reported his expenses increased; he had to pay for school "on his own" with the proceeds of his summer employment and by "taking out loans."

After considering this new information, the court informed the defendant that his income exceeded the federal poverty guidelines and he did not qualify for a lawyer.

After telling the defendant that he did not qualify for a public defender, the court inquired as to what efforts the defendant had made to hire a lawyer. The defendant informed the court that he had spoken to "his brother's lawyer," who wanted a $1,000 retainer.2 The court explained to the defendant that he needed to speak to more than one lawyer, since lawyers do not all charge the same fees or require the same amount of money "up front." Once again, the court offered the defendant additional time to earn money to hire a lawyer. Again, the defendant requested additional time and, in return, signed a "speedy trial waiver" until September 30, 2003. The court set another jury trial date for August 15, 2003, and a pre-trial hearing for July 30.

At the July 30 pre-trial hearing, the defendant again addressed the question of court-appointed counsel. The defendant provided a letter from his employer stating that his gross income for the year would be "in the range of $3,600." The defendant also read a prepared statement that, among other things, pointed out that his monthly costs were approximately $535, that he was $120 in debt, and that "I'm a college student and I work when I can. I believe that under the U.S and Washington Constitutions, the court rules, and RCW 10.101 I am entitled to appointed counsel."

In response to the information provided by the defendant's employer, the court asked the defendant if there was any particular reason he was working "part-time" rather that "full-time." In response, the defendant stated that "with all due respect, I have nothing more to add to my statement."

In findings of fact, the court determined the defendant was single, able-bodied, and able to secure and maintain full-time employment; that the defendant took no action to seek full-time employment from the date of the alleged offenses (April 23, 2003) until he was through with the spring term at Central Washington University. From April 23 until mid-June, the defendant was entirely supported by his parents. However, in none of the three financial affidavits filed by the defendant did he describe the amount of income provided by his parents and other family members.

While the defendant may have sought employment in Ellensburg between April 23 and the end of spring term, he only sought work that could fit around his school schedule. Instead of using his summer earnings to hire a lawyer, he was saving money for fall term at CWU.

The defendant's summer income exceeded federal poverty guidelines. While "annualizing" the defendant's summer income would yield an income of $3,600 (well below the federal poverty guidelines), that sum was only because of his decision to continue attending CWU in the fall. He also failed to take any meaningful steps to retain counsel, contacting only one lawyer, and that one was not in the Ellensburg area.

Based on the income reported by the defendant and his employer ($1,160 per month), the defendant's statements regarding his total debt ($120 owed to his parents), his reported monthly expenses ($535), and the cost of hiring local counsel in his case, the court concluded that the defendant did have sufficient income to hire his own lawyer. If the defendant was without sufficient funds to hire his counsel of choice, it was due to his decision to continue pursuing his educational goals and not circumstances that allow the court to find the defendant "indigent" for purposes of qualifying for public-defender services. Consequently, the defendant did not qualify for appointment of counsel at public expense.

In his article, Mr. Boruchowitz cites the landmark case of Gideon v. Wainwright. As the reader will recall, Clarence Earl Gideon was a "penniless drifter" denied counsel because the State of Florida provided court-appointed counsel only in capital cases. Since Mr. Gideon was charged with a noncapital felony, he was denied court-appointed counsel. Mr. Gideon ultimately defended himself at his jury trial, was found guilty, and was sentenced to five years in prison. After serving two years in a Florida prison, the U.S. Supreme Court reversed Mr. Gideon's conviction. At his second trial, Mr. Gideon was represented by appointed counsel and found not guilty.

Happily, Mr. Deutschman's case was resolved in an altogether different manner. On August 11, six days after the court had filed its Findings of Fact and Conclusions of Law denying Mr. Deutschman public-defender services, Mr. John A. Walsh, a Seattle attorney, filed his notice of appearance on behalf of the defendant. On August 13, the prosecutor, Mr. Walsh, and the defendant entered into a 12-month stay of proceedings.

That Mr. Deutschman was ultimately able to retain Mr. Walsh to represent him does not, of course, necessarily establish that the court was correct in its decision denying Mr. Deutschman court-appointed counsel. On the contrary, the questions surrounding Mr. Deutschman's case and his request for a lawyer at public expense are far from simple. However, the blinders worn by Mr. Boruchowitz as he blithely (and unfairly) summarizes the court's ruling in Mr. Deutschman's case are unhelpful to the serious discussion these important questions deserve.  

The question raised by Mr. Deutschman's case is not, of course, whether an indigent defendant is entitled to appointed counsel. Clearly, indigent defendants are entitled to appointed counsel. The question instead is what it means to be indigent. This, it turns out, is not such a simple question. The Lower Kittitas County District Court routinely deals with student athletes who request a finding of indigency because they are involved in a sports program that requires their attendance at practice or games on a year-round basis. The court also routinely deals with students, like Mr. Deutschman, who desire to structure their lives around school. Questions surrounding the amount and source of a student/defendant's income, his or her ability to work, and the choices made by him or her in using available income for school expenses or retaining an attorney, provide the court in any college community with serious questions about what it means to be indigent.

The question of what "indigency" means must be answered on a case-by-case basis, after giving due consideration to the unique facts contained in each public-defender application. Such due consideration was given to Mr. Deutschman. Can Mr. Boruchowitz ask any more from the court?

_____________________

Thomas A. Haven is judge of Lower Kittitas County District Court in Ellensburg.
 
NOTES
1 At one point in the court hearings devoted to the defendant's request for public-defender services, the defendant claimed to have made numerous job applications in Ellensburg. In response to a question on this point from the court, the defendant indicated that he had only sought part-time employment that he could fit around his school schedule.
2 In the course of preparing these Findings of Fact and Conclusions of Law, the court received a letter from Robert C. Boruchowitz, president of the Washington Defender Association. While Mr. Boruchowitz has not appeared on behalf of the defendant, the court will respond to Mr. Boruchowitz's arguments. First, Mr. Boruchowitz argues that experienced Ellensburg attorneys would charge the defendant $10,000 to 15,000 to defend Mr. Deutschman. The court rejects this claim. $10,000 to $15,000 is not the "going rate" for representation by local counsel in a District Court criminal case in Ellensburg. While it may indeed be possible to find an Ellensburg attorney who would charge this fee, there are other experienced counsel who would not charge anything approaching $10,000 to $15,000. In contacting one local attorney, I was informed that the cost of representation would range between $1,500 and $2,000, if the case went to trial. If the case did not go to trial, she would charge $1,000. While she would, of course, rather have payment "up front," she would accept four payments of $250 over four months. While this information is merely anecdotal (like the information supplied by Mr. Boruchowitz in his letter), it is simply not true that Mr. Deutschman would need to pay $10,000 to $15,000 to hire local counsel in his case. But the important point is this: The defendant has no idea how much it would cost to hire a lawyer in Ellensburg because, as he stated at his hearing, he has not contacted any. Mr. Boruchowitz also argues that the defendant is entitled to a public defender pursuant to RCW 10.101.010, because he receives an annual income of 125 percent or less of the current federal poverty level. While it is true that the defendant's summer income "annualized" over 12 months is less than the federal poverty guidelines, the defendant has made it clear that he only earns money during the summer because "I'm a college student and I work when I can." The defendant stated at his May 28 hearing that he could obtain employment if he was not a student. It is equally clear that the defendant wants to use his summer earnings on his school expenses, and that he will be returning to college in the fall term. Thus, his annual income is low only because the defendant chooses not to work. The defendant chooses not to work so that he can pursue a college degree. While this is an admirable goal, it is not a goal that should have the effect of transferring the obligation of paying for counsel from Mr. Deutschman to the taxpayers of Kittitas County. There is a limit to the definition of "indigency" contained in RCW 10.101.010 (c); that limit is reached when an able-bodied, employable young person with no dependants and virtually no debt chooses to forgo available employment so that he can attain a college degree.

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