|
|
|
 |  |
 |
 |
WSBA Info | |
|
For Lawyers | |
|
For the Public |  |
 |
For the Media |  |
|
CLE |  |
| | Bench Bar Guidelines | News Releases | Publications | |
|
|
February 2007Right to Counsel Remains Threatened in Washington
Defenders Often Are Overwhelmed As recently as last year, a defender in Thurston County could expect to be assigned 800 misdemeanor cases per year. That is approximately four cases per work day. It means that a lawyer would have about two hours per case to meet with the client and the client's family, research the law, read the police report, do investigation, negotiate with the prosecutor, conduct preliminary motion hearings, do a trial, and, if necessary, prepare for and conduct a sentencing hearing. That kind of caseload is simply absurd, and no competent lawyer in private practice would ever contemplate undertaking it. Yet defenders around the state and the nation often are expected to do it. In 2006, Cowlitz County issued a request for proposals for an attorney to do misdemeanor cases. It described the work as a "part-time position," noting that, in 2005, the contract attorney received 1,144 appointments. Cowlitz County is now developing a public defender office. In 2005, the county paid the indigent defense contractor $126,802 for the district court work. Under the Standards for Public Defense endorsed by the Washington State Bar, 1,144 cases require 3.81 attorneys handling 300 cases per year each. That would yield $33,252 gross income per attorney, had the contractor followed the standards. Another way of thinking about it is that the attorney was paid $110.84 per case. How many hours of attorney time does that buy? The State Supreme Court in 1993 found that $125 per hour was a reasonable attorney fee. In re Estate of Mathwig, 68 Wn. App. 472 (1993). The federal courts today pay $90 per hour for routine criminal matters, and $163 for capital cases. Even in King County, which has provided great resources for public defense, defenders in juvenile court each have 330 cases per year, meaning that they have approximately five hours per child. Imagine how you would feel if your child or your friend's child were charged with a crime — facing years in juvenile prison and the possibility of a record that would follow her for life — and were to be represented by an attorney who had only five hours to work on the case. If you were to hire an attorney to represent your child, would you say you would pay for only five hours of work? When does a lawyer with that kind of caseload consult with expert witnesses on mental-health or substance-abuse issues? When does that lawyer prepare a trial memorandum, or go to the scene of an arrest, or prepare a cross-examination? The answer in King County is that those lawyers have to work far beyond any normal expectation of a "billable year," and are forced to implement a triage system that constantly threatens to produce ineffective assistance of counsel. Some Judges Still Routinely Deny the Right to Counsel Despite several judges having been disciplined for violating the right to counsel,1 it is not uncommon for judges in courts of limited jurisdiction to take guilty pleas from defendants who either have not been advised of their rights or who have "waived" them in "colloquies" with the court that last less than a minute and that do not meet the requirement that there be a knowing and intelligent waiver. These practices violate constitutional rights and court rules as well as the basic integrity of our judicial process. The United States Supreme Court has written that: The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. Carnley v. Cochran, 369 U.S. 506, 514-515 (U.S. 1962), citing Johnson v. Zerbst, 304 U.S. 458, 465 (U.S. 1938). The Washington State Supreme Court has held: An accused should not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the accused's comprehension of the offer and capacity to make the choice intelligently and understandably has been made. And court rules require that a lawyer needs to be provided. CrRLJ 3.1 states: (2) A lawyer shall be provided at every critical stage of the proceedings. CrRLJ 4.1(a)(2) provides: The defendant shall not be required to plead to the complaint or the citation and notice until he or she shall have had a reasonable time to examine it and to consult with a lawyer, if requested. The implications of that language, as well as the following paragraph (3) of CrRLJ 4.1, require the availability and appointment of counsel: (3) Advisement. At arraignment, unless the defendant appears with a lawyer, the court shall advise the defendant on the record: (ii) of the right to be represented by a lawyer at arraignment and to have an appointed lawyer for arraignment if the defendant cannot afford one. Defense Lawyers Can Seek Relief by Citing Ethical Opinions There is no question that defenders working in under-funded government offices and contract defenders working for small cities and less affluent counties are faced with difficult choices — continue to work under impossible caseloads or stand up to protest and risk losing their jobs. One contract defender in Island County recently lost his job after he based his proposal for renewal of his contract on implementing the WSBA-endorsed caseload standards. But there have been positive developments that defenders can cite to their funding authority, and that they must consider when faced with these difficult choices. The American Bar Association, this past summer, issued ethics opinion 06-441, "Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere with Competent and Diligent Representation." The opinion, reaffirming existing ethical obligations, states: "If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients." [available at www.abanet.org/cpr/pubs/ethicopinions.html] The American Council of Chief Defenders issued an ethics opinion in 2003 that requires chief defenders to decline new cases when they would affect their ability to provide competent representation: A chief executive of an agency providing public defense services is ethically prohibited from accepting a number of cases which exceeds the capacity of the agency's attorneys to provide competent, quality representation in every case …. At some point, defender attorneys will face ethical complaints because they have too many cases. One lawyer recently was disbarred after a disciplinary proceeding in which he was charged among other things with "voluntarily maintaining an excessive caseload while one of the lawyers under contract to provide indigent criminal defense." See, http://pro.wsba.org/PublicView-Discipline.asp?Usr_-Discipline_ID=594. Prosecutors Have Ethical Responsibilities as Well Every day in some courts, some prosecutors are negotiating plea deals with incarcerated and unrepresented defendants, sometimes with the defendant in handcuffs. Although the judges in these courts sanction this behavior, it is of questionable ethics. RPC 3.8, Special Responsibilities of a Prosecutor, provides in part: The prosecutor in a criminal case shall: Prosecutors could make an enormous difference in protecting the rights of accused persons if they would simply speak up to the court and say: "Judge, Mr./Ms. ______ does not have an attorney and we should provide one to advise them on their rights before they enter a plea today." Prosecutors should not try to take a plea from unrepresented people who have not consulted with an attorney and who have not exercised a knowing, voluntary, and intelligent waiver of counsel. Prosecutors should work with defenders and judges to persuade local funding authorities to provide counsel at all hearings. What Needs to Be Done As result of the work of a coalition of lawyers, judges, bar leaders, and government officials called "Justice in Jeopardy," state funding has been obtained and is beginning to be distributed by the state Office of Public Defense to local governments to improve public-defense services and to move toward implementing the WSBA-endorsed standards. The WSBA has a Committee on Public Defense, which plans to make a series of recommendations to the Board of Governors in March. The Legislature will be asked to continue and to expand its funding for public defense. There is a long way to go to make real the promise of Gideon v. Wainwright, that in American courts there will be a lawyer to help an accused person to defend against the government's accusation and the resources of the state. In 1987, I wrote an article for Bar News called "Funding Crisis Threatens Right to Counsel." Three years ago, I wrote an article called "The Right to Counsel: Every Accused Person's Right." Many of the issues are the same as I described in those two articles — excessive caseload, lack of resources, judges who ignore the Constitution. We need to require judges, prosecutors, and defense lawyers to meet their ethical obligations and to provide the individual consideration and dignity to which each person is entitled. And governments need to provide adequate resources for defenders to make sure that their courts are dispensing justice.
NOTES
|
