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February 2007Making Gideon Real: Washington Counties and the Duty to Provide Effective Assistance of Counselby David F. Taylor, Don Scaramastra, and Beth Colgan County governments in Washington state shoulder most of the responsibility for creating, funding, and operating public-defense systems.1 As a result, counties share the constitutional obligation to ensure that public-defense systems provide effective legal representation. A recent Washington court decision in Best v. Grant County highlights the constitutional duties of Washington counties and provides guidance to county governments and others who are interested in understanding — or enforcing — a county's constitutional and statutory obligations to provide effective public defense. This article summarizes the Best lawsuit, the court's decision, and the resulting settlement, and outlines the top 10 ways in which a county can fail to meet its constitutional obligations and open its public-defense system to legal challenge. Best v. Grant County Best v. Grant County2 arose from widespread and serious deficiencies in the felony public-defense system in Grant County, Washington. Those deficiencies resulted in some notable failures. Among other things, two Grant County public-defense attorneys — including the County's lead public-defense attorney — were disbarred in the year before the lawsuit began, and state and federal courts reversed convictions because Grant County public defenders failed to provide effective assistance of counsel. In April 2004, four plaintiffs, including three individuals who had been represented by Grant County public defenders and a taxpayer plaintiff, sued Grant County over its felony public-defense system. The plaintiffs alleged that the county had systematically deprived indigent felony defendants of effective assistance of counsel in violation of both the United States and Washington State Constitutions. The plaintiffs asked the court to certify a class of current and future indigent defendants under CR 23(b)(2) and sought injunctive and declaratory relief reforming the Grant County public-defense system. The superior court certified the proposed class in September 2004. It did so after permitting the county to conduct discovery into class-certification issues and over the county's objections. Especially noteworthy was the court's recognition, consistent with decisions from other jurisdictions, that the specific circumstances surrounding each individual felony prosecution and each public defender's performance did not pose a serious hurdle to class certification. Nor did the court accept the county's argument that problems with its system were solely the responsibility of a few bad (and now disbarred) lawyers. After more than a year of discovery regarding the merits, the court granted partial summary judgment in favor of the plaintiffs in October 2005 (and denied the county's cross-motion). In its summary judgment ruling, the court first acknowledged that poor people charged with felonies have a "clear legal and equitable right to effective assistance of counsel" under both the United States and Washington State Constitutions. The court then noted that almost all of the material facts concerning deficiencies in the design and operation of Grant County's public-defense system were uncontested. The court ruled that these deficiencies gave someone represented by a Grant County public defender "a well-grounded fear of immediate invasion of the right to effective assistance of counsel." The court concluded that changes the county had made in response to the lawsuit — changes the county claimed were significant improvements — were insufficient to dispel that fear. This was enough, the court agreed, to justify injunctive relief. Following decisions from a number of other jurisdictions, the court held that it was unnecessary for the plaintiffs to prove that the defense of specific individuals was prejudiced by ineffective assistance, as Strickland v. Washington3 would require to vacate a conviction. Plaintiffs seeking systemic reform of a public-defense system need only show a well-grounded fear that deficiencies in the system will deprive them of effective assistance of counsel. The import of this decision is clear: County governments have an obligation to see that their public-defense systems deliver effective assistance of counsel. Anything less can give rise to a well-grounded fear that the constitutional rights of indigent defendants will be violated, warranting injunctive relief. The Settlement Based on its ruling, the court ordered a trial focused on devising a system that would protect the rights of class members and "meet the constitutional obligation to provide effective assistance of counsel." Within a few weeks of the ruling and shortly before trial, the parties announced a settlement in which Grant County agreed to maintain and operate a public-defense system that provides effective assistance of counsel. The settlement allowed Grant County to continue to operate a contract public-defense system or to adopt a new form of system. Either way, Grant County was required to comply with important safeguards and requirements derived from standards adopted or endorsed by the Washington State Legislature, the Washington State Bar Association, the American Bar Association, and other organizations devoted to the cause of public defense, such as the National Legal Aid and Defender Association.4 Most significantly, the county agreed to: • Limit public-defender caseloads to 150 felony cases or less (a limit derived from State Bar-endorsed standards), with some felony cases accorded extra weight to reflect the time typically needed to handle them and some other matters (such as probation-violation proceedings) also credited against the caseload limits; The settlement presumptively runs for six years. To ensure that the county meets its obligations, the parties selected defense attorney Jeffery Robinson to serve as the court-appointed monitor. Mr. Robinson has wide-ranging powers to investigate, oversee, and direct county compliance with the settlement agreement. The settlement also requires the county to pay $1,100,000 in attorneys' fees and court costs to the plaintiffs. As an incentive to compliance, $100,000 of this fee award to plaintiffs will be forgiven for each of the six years that the county fully complies with the settlement. The Top 10 Ways in Which a County Can Fail to Meet Its Constitutional Obligations 1. Don't Have (or Enforce) Standards for Public Defense The Washington State Legislature requires every county to adopt standards for the operation of its public-defense system.5 In doing so, the Legislature has instructed counties to use as guidelines the standards for public defense issued by the Washington Defender Association and endorsed by the Washington State Bar Association.6 Although the State Bar-endorsed standards are not mandatory, they provide a recognized and legislatively sanctioned way for courts, counties, and litigants to evaluate a public-defense system. The court did exactly that in Best, ruling that the standards endorsed by the WSBA and by the ABA should form the basis for reforming the Grant County system so as to protect class members' rights to effective assistance of counsel. As the court's ruling suggests, county governments that fail to adopt standards consistent with these standards — or that fail to live up to those standards — do so at their own risk. 2. Dispense With Caseload Limits Overloading public-defense attorneys with too many cases is one way to reduce the costs of public defense. It is also a near-certain way to ensure that poor defendants are denied effective legal assistance.7 Indeed, saddling public defenders with too many cases can lead a court to presume that the public defenders are providing ineffective assistance.8 Enforcing appropriate caseload limits is critical to ensuring effective public defense. 3. Disregard Qualification Standards Like caseload limits, hiring public defenders with adequate qualifications seems intuitive. Even the most diligent lawyer may be ineffective if he or she lacks experience. The State Bar-endorsed standards require public defenders to meet certain objective requirements before they may be assigned cases of a given seriousness or complexity. In Best, the county made virtually no effort to determine whether public-defense attorneys were qualified to handle the cases they would be assigned. Some of those attorneys did, in fact, lack the experience required by the State Bar-endorsed standards. Assigning too many cases to lawyers without sufficient experience is an especially effective way to ensure that defendants are deprived of effective assistance of counsel. 4. Create Financial Disincentives to the Proper Handling of Cases Financial disincentives can and do hamper effective representation. Grant County incorporated a number of such disincentives into the various iterations of its public-defense system. Under one iteration, the county simply paid a flat fee to a single lawyer and delegated to him the responsibility for defending (personally or by way of subcontract) all felony prosecutions in a given year. Subject only to exceptions that never seemed to apply, that fee was supposed to cover all costs associated with the representation, including expert and investigator fees. In other words, the lawyer was expected to fund experts, investigators, and other expenses out of his or her own salary. This created a conflict of interest between lawyer and client. A review of all felony case files for 2003 indicated that lawyers almost invariably succumbed to the conflict. Of the roughly 1,000 felony prosecutions that year, defenders hired experts in only a handful of cases. In 2004, the county changed its manner of compensating public-defense attorneys. Rather than pay an annual flat fee to a single defender, the county began paying each defender a flat fee of $550 per case. This was intended to reimburse the lawyer for all costs of doing business. But the effect of the county's flat-fee system was to discourage trials and other time-intensive defense activities. A lawyer who made the "mistake" of properly preparing and trying a reasonably complex felony case could find his or her take-home pay approaching the state's minimum wage. These disincentives were especially dangerous given the county's failure to supervise the public-defense system. Not surprisingly, trial rates in Grant County were low. 5. Discourage the Use of Investigators and Experts Investigators and experts are essential to effective public defense. Most lawyers are too busy to do the investigative legwork for all their cases. Without investigators, witnesses are not found and interviewed, crime scenes are not inspected, leads are not pursued, and documents or other evidence may go undiscovered. Likewise, even the best public defenders need expert consultants to guide their defensive strategy and expert testimony to establish or support many defenses. Psychiatrists can testify about a client's mental competence or capacity. Chemists can show that a white powder is not cocaine. And handwriting experts can corroborate a defendant's claim that someone else signed the forged check. State and national authorities and the courts all recognize the importance of investigators and experts to effective representation.9 The State Bar-endorsed standards, for instance, require at least one full-time investigator for every four public-defense attorneys. They also provide that experts should be paid from separate funds, and that requests for payment should come through an ex parte motion. Preventing or discouraging defenders from obtaining expert and investigative support can play a role in undermining effective representation. Grant County, for example, failed to comply with State Bar-endorsed standards that contemplated a minimum level of investigative and expert assistance. Rather, the county established financial and procedural hurdles to the use of investigators and experts. As a result, public-defense lawyers rarely employed investigators or experts. 6. Fail to Supervise the System Adequate supervision and monitoring are essential to any properly functioning public-defense system. Without supervision, there is simply no effective way for a county to make sure that its public-defense system passes muster. In Best, the court found it undisputed that Grant County failed to supervise its public-defender system. For years, the County had simply outsourced public defense to a single attorney. During that time, the county did not require meaningful reports from the attorney, failed to monitor the attorney's compliance with the county's standards, and assigned no one within county government the responsibility for supervising the public-defense system. The Best court put it best: "Grant County failed to provide meaningful supervision over the public defender system." Another way to ensure inadequate supervision is to look to the superior court judges to supervise the public-defense system. Supervising a public-defense system, however, is both inconsistent with judicial duties and beyond the authority of most judges. Judges cannot and should not monitor the private and privileged operations of counsel, and there is only so much they can infer from the conduct of the parties in open court. Nor do judges have any real control over public-defense funding. It is fair to expect an independent judiciary to do its best to foster effective defense and eliminate the most egregious abuses, but the judiciary is merely public defense's first bulwark, not its final redoubt. County government is ultimately responsible for ensuring effective public defense. This duty may not be off-loaded on private lawyers, judges, or anyone else. In the end, county officials must ensure that the public-defense system actually provides what the Constitution guarantees: effective legal representation. This requires a supervisor who can ensure that public defenders actively and appropriately communicate with and represent their clients. Complaints in the Best litigation included that public defenders rarely visited clients in jail (and often didn't visit until after the client had been incarcerated for weeks), refused to answer telephone calls, failed to use certified interpreters (sometimes using bilingual inmates for this purpose), did not adequately inform clients about the facts or legal aspects of their cases, or did not understand these facts themselves. To effectively identify and fix these types of problems, supervision must be centralized in the hands of a lawyer with sufficient expertise and qualifications. State Bar-endorsed standards require a supervisor who is qualified to try Class A felonies. 7. Allow the Prosecutor a Voice in Public Defense Few people would argue that the prosecutor should have a role in the design or operation of the public-defense system, yet it is easy for a prosecutor who serves as counsel to county government to overstep appropriate bounds. This is precisely what happened in Grant County. There, prosecutors drafted public-defense contracts and public-defense standards, advised County commissioners on public-defense matters, helped select public defenders, and resisted the hiring of investigators and experts by public defenders. The Best court specifically pointed to the prosecuting attorney's interference with the hiring of investigators and expert witnesses to support the summary judgment ruling. The decision thus confirms that counties must be diligent in keeping prosecuting attorneys out of the public-defense process. This isn't just a good idea; to some extent, it is required by statute.10 8. Under-Fund Public Defense In fact, there are some relatively simple ways to evaluate whether there is rough parity between spending for criminal prosecution and spending for criminal defense. Look, for example, at salaries and benefits or other compensation. Do public defenders and prosecuting attorneys take home comparable paychecks? Do they receive similar levels of financial support for staff and expenses? Another measure may be relative spending levels over time. In Grant County, public-defense spending lagged behind both large increases in caseloads and spending on prosecution. For example, in 1993 Grant County spent roughly 46¢ on public defense for every dollar spent on the prosecuting attorney's office. By 2003, Grant County was spending just 30¢ on public defense for every dollar spent on the prosecuting attorney's office. Likewise, spending for public defense on a per-case basis fell sharply: Grant County paid an average of $825 for the defense of each felony case in 1991 but just $468 per case in 2003.11 If a lawyer wants to find out whether a county takes public defense seriously, one of the first things he or she will look at is how much a county pays for it. In the case of Washington counties, county budgets for public defense and prosecution are easy to obtain: one need only serve a request under the Public Disclosure Act and the cat's out of the bag. 9. Ignore Warning Signs A public-defense system in trouble will show symptoms. In Grant County's case, the warning signs included court findings of ineffective assistance of counsel and the disbarment of two public defenders. In addition, superior court judges pointed out problems, private attorneys complained, and criminal defendants described the mishandling of their cases. A county faced with those kinds of warning signs needs to act. If it does not, it invites a legal challenge to its public-defense system — and evidence that a county that has stuck its head in the sand simply makes the case for judicial intervention that much more compelling. 10. Assume No One Can Hold the County Accountable Another way to invite a challenge to a public-defense system is for the county to ignore the fact that one can be brought. As Best shows, it is possible to challenge a public-defense system. Indeed, in some respects it is easier to obtain systemic reform than to challenge an individual conviction. As previously mentioned, the Best court followed the unanimous teaching of other courts and held that plaintiffs in a civil suit for injunctive relief need not show that any specific individual was wrongly convicted. Instead, plaintiffs mounting a systemic challenge need only satisfy the traditional standard for an injunction. That contrasts with the requirement imposed on challenges to individual convictions by the Supreme Court in Strickland v. Washington, which requires a showing of actual prejudice. Due to the large numbers of public-defense clients and their constantly changing population, challenges to a public-defense system are peculiarly amenable to certification as class actions under CR 23(b)(2). While a class action is a very efficient approach to managing public-defense litigation once it starts, it is likely to be expensive to defend, indeed, probably more expensive than simply providing a good public-defense system and avoiding litigation in the first place. Also remember that plaintiffs, if they prevail, are entitled to recover their attorneys' fees and costs from the county. Together the defense costs and liability for plaintiffs' attorneys' fees will likely be more than enough to fund the difference between a public-defense system that passes constitutional muster and one that doesn't for many years to come. Thus, good public defense isn't just constitutionally required — it's fiscally responsible. Epilogue: Grant County One Year Later As the Best case illustrates, counties in Washington state have a constitutional duty to ensure that their public-defense systems provide effective representation in compliance with constitutional standards. Counties ignore those duties at their own peril.
NOTES 1. See generally Rep. Pat Lantz & Rep. Jay Rodne, "Making Good on Gideon's Promise," Wash. State Bar News, Sept. 2005, at 28-32 (describing the state of public defense in Washington State and discussing legislation designed to provide additional state funding for public defense). State law recognizes the obligation of counties to provide for public defense by, for example, requiring that counties adopt standards for the delivery of public-defense services. RCW 10.101.030. See also American Civil Liberties Union of Washington, "The Unfulfilled Promise of Gideon, Washington's Flawed System of Defense for the Poor" (Mar. 2004), available at www.aclu-wa.org/library_files/-Unfulfilled Promise of Gideon.pdf.
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