February 2006
Public Defense Update
Improving Public Defense — Working Together to Fulfill Gideon’s Promise
by Mary Jane Ferguson
The WSBA’s Committee on Public Defense (CPD) is continuing its efforts to improve public defense in Washington state with renewed support for state funding for public defense in the 2006 legislative session. “House Bill 1542 was passed last session with overwhelming bipartisan support, and it was a major step forward,” noted CPD Co-chair Jon Ostlund. Ostlund is director of the Whatcom County Office of Public Defense. Under the provisions of the bill, counties either meeting, or working toward meeting, the public defense standards endorsed by the WSBA would qualify to receive partial state funding for public defense. However, the Legislature failed to fund the bill.
“The 2006 legislative session is our opportunity to make substantial progress to improve public defense by urging the Legislature to fund 1542,” Ostlund said. The Washington State Office of Public Defense (OPD) has asked the Legislature for nearly $16 million to implement the bill. Joanne Moore, OPD director, noted, “State funding under 1542 would assist cash-strapped counties, as well as build standards into the public defense services which the counties are providing.”
Moore noted that the Legislature provided important funding in last year’s budget to enable the OPD to start several new programs, including the creation of two new positions for public-defense services managers to serve as liaisons to counties and provide information on contracting for public-defense services. “We’re delighted to have Terry Mulligan and George Yeannakis, both long-time public defenders in Washington state, serving as our new public defense services managers,” Moore said. “They’ve already been able to meet with county officials who are making decisions about public defense services in their counties.”
Also funded by the Legislature last session were new pilot programs, training, and resources for trial-level public defenders. Working closely with local officials, OPD has established pilot programs in Bellingham Municipal Court, Thurston County District Court, and Grant County Juvenile Court. Based on data and information that will be gathered during these programs, OPD will make recommendations to the Legislature regarding the improvement of public defense in Washington state. In addition to the pilot programs, OPD will be conducting a series of regional trainings for public defenders in the next year and a half. OPD has also contracted with the Washington Defender Association to provide a half-time felony resource attorney and a half-time misdemeanor resource attorney to answer questions and develop materials for public defenders.
“This new funding is an important first step in state participation in trial-level public defense,” Moore said. “The Washington State Courts Board for Judicial Administration named the improvement of indigent defense services as one of its highest priorities. Now the Legislature needs to recognize that state funding is needed to support public defense in Washington state. Study after study in Washington state has found that the public defense provided by many counties is inadequate. A 2002 national study ranked Washington 44th in state funding for public defense.”
Other recent studies by the ACLU (“The Unfulfilled Promise of Gideon”) and the WSBA’s Blue Ribbon Panel Report published in 2004 pointed to the serious inadequacies of public defense in some counties in the state. The Blue Ribbon Panel noted that the quality of public defense varies widely across the state. While some indigent defendants receive high-quality representation, others “are poorly served, even victimized, by those entrusted with protecting their civil rights.” A series of articles published by the Seattle Times highlighted cases of innocent individuals who were convicted and spent years in state prison after their public-defense attorney failed to effectively represent them.
In November 2005, an ACLU lawsuit against Grant County was settled after the court found that it was “virtually uncontested” that the public defense system there “suffered from systemic deficiencies” and that defendants had a “well-grounded fear of immediate invasion of the right to effective assistance of counsel.”
“The lawsuit settlement sends a clear message to all the counties in Washington state that inadequate public defense will no longer be tolerated as business as usual,” Ostlund noted. In addition to the funding for indigent representation in criminal cases, OPD is also seeking $11 million to fund statewide coverage of OPD’s parents’ attorneys program for child-welfare cases. The program, which was tested in Pierce and Benton-Franklin juvenile courts, was expanded to about one-third of the counties by the Legislature last year. It provides improved representation to parents whose parental rights are at stake in child-welfare actions. “This program has been shown to allow more parents to access services to rehabilitate their lives, succeed in their cases, and safely raise their children,” Moore said. “More Washington children can safely grow up at home, instead of in paid care.”
The Legislature first provided additional funding for parents’ representation after a 1999 investigative report by OPD found that almost all parents in child-welfare cases were indigent, and many of them were inadequately represented by underpaid attorneys supplied by the counties. The report found that the state’s attorneys in these cases were funded at a level three times higher than the average level of funding for parents’ representation.
Moore noted, “Washington state prides itself on having a just legal system and one that protects innocence. It’s time for us to make sure our legal system upholds our values and respects our constitutional mandate for fair representation.”
Mary Jane Ferguson is deputy director of the Washington State Office of Public Defense and was formerly legal-services manager at the Washington State Lottery and an appellate defender.
