WSBA Board of Governors proposes new court rule and adopts new standards
BY ROBERT C. BORUCHOWITZ AND LARRY JEFFERSON
Two Pennsylvania public defenders were fired after they filed an amicus brief in the state supreme court in a case about how the state implements cash bail.11 See Radley Balko, “A Pennsylvania county fired its two top public defenders for doing their jobs,” Washington Post, March 2, 2020, at www.washingtonpost.com/opinions/2020/03/02/pennsylvania-county-fired-its-two-top-public-defenders-doing-their-jobs/. The first chief public defender in Birmingham, Alabama, a Black woman, was fired after, among other things, her office obtained dismissals in 20 percent of their cases and favorable verdicts or mistrials in 66 percent of the cases that went to trial.22 See Kent Faulk, “Jefferson County Public Defender departs: Did she resign or was she fired?”, March 7, 2019, Birmingham Real Time News, at www.al.com/news/birmingham/2016/07/jefferson_county_public_defend.html.
NOT IN OUR BACKYARD?
That kind of interference would never happen in Washington, right? Regrettably, in some Washington jurisdictions, local government officials or local courts have interfered with the independence of public defenders.
In Cowlitz County, the chief public defender was recently fired after her office filed public disclosure requests about prosecution practices. In addition to the public disclosure requests, the chief public defender had hired new staff, implemented procedural changes to comply with the WSBA Standards for Indigent Defense, and acquired new state funding resources for the office. A condition in the settlement offer by the county was that the defender withdraw all pending public disclosure requests she had made in her role as chief defender.33 Draft separation agreement offered to the chief defender, copy on file with authors. Although she did not accept that offer, her office withdrew one of the requests. The chief defender’s termination can have a chilling effect on her former colleagues and on others in other counties.
Also troubling is a recent example in Asotin County in which the county hired a lawyer to be a public defender when the lawyer was not admitted to practice in Washington.44 See Matter of Ayerst, 17 Wn. App. 2d 356, 358, 486 P.3d 943, 945 (2021). The Court of Appeals denied a personal relief petition because it found that there was insufficient proof of the alleged illegal activities by trial counsel and the judge. The Washington Supreme Court has accepted review of the case and it is set for oral argument on May 24, 2022. Supreme Court No. 99939-2 (consolidated with 99941-4). The lawyer stipulated to discipline from the WSBA. In re Robert Jerry Van Idour, Proceeding No. 19#00008, Disciplinary Board, Washington State Bar Association, July 28, 2021, available at https://mywsba.org/webfiles/cusdocs/000009701210-0/059.pdf. The Washington Supreme Court suspended him from practicing law or seeking admission in Washington for 18 months. In re Robert Jerry Van Idour, Order Imposing 18 Month Suspension, Supreme Court No. 202,021-6, September 7, 2021, available at https://mywsba.org/webfiles/cusdocs/000009701210-0/062.pdf.
In Grays Harbor County, the juvenile court in 2014 adopted a public defense “case weighting policy” that had several troubling elements. Under this policy, six hours of attorney time was assigned as “the average time expended in the completion of a juvenile offender case, which amount of time ensures effective representation in all cases.” If an attorney were assigned a “serious offense or complex case” the attorney could count the case as two cases “after the attorney has addressed his or her concerns with the Presiding Judge.” The policy further provided that for hearings for violations of sentencing conditions, an attorney would be awarded only .15 of a case credit and that the attorney on average could provide representation in 45-60 minutes.55 Grays Harbor County Juvenile Court Case Weighting Policy, September 16, 2014, copy on file with authors. This policy no longer is in place.
Court rules require that any case-weighting provisions must be filed with the state Office of Public Defense, must recognize that some cases require greater weight “based on a method that adequately assesses and documents the workload involved,” and must be consistent with the Standards for Indigent Defense and professional performance guidelines and ethics rules. See CrR 3.1, Standard 3.5.
Under the Grays Harbor County Juvenile Court’s case-weighting system, lawyers representing children in Grays Harbor were not encouraged to invest more than 12 hours in a “serious offense or complex case.” The idea that a lawyer representing a child on any kind of alleged violation could interview the client, review discovery, investigate and otherwise prepare the case, and conduct a hearing, all in less than an hour, disregards the importance of extra care in communicating with children and discounts the importance of preparation. It also assumes that the sentencing violation allegation is always correct and that there are no mitigating circumstances that can be documented and presented to the court. Although the Grays Harbor County Juvenile Court Case Weighting Policy stated that the system adopted “is consistent with the Standards, professional performance guidelines, and the Rules of Professional Conduct,” in these authors’ opinion, it was not.
In 2020, in a lawsuit filed by the American Civil Liberties Union of Washington, the Washington Supreme Court declined to find that the state had liability for the purported failing of Grays Harbor County to provide effective juvenile public defense representation, based on the evidence presented, but found that “the plaintiffs’ claims alleging systemic, structural deficiencies in the state system of public defense remain viable.” Davison v. State.66 Davison v. State, 196 Wn.2d 285, 289, 466 P.3d 231, 234 (2020), as amended on denial of reconsideration (Oct. 20, 2020). In his concurrence, Justice Steven González, referring to allegations that a juvenile had been held in solitary confinement for more than a week, noted that “[t]his instance of ineffective assistance is especially egregious.” He cited the report of an expert witness, Simmie Baer, who wrote:
The unfathomable imbalance between the sub-minimal representation provided to child clients by the juvenile public defender in Grays Harbor Juvenile Court and a minimal standard of advocacy employing state and federal supreme court decisions based on the vast wealth of research on adolescent brain development and the impact it has on juvenile decision-making is inexplicable, unjustifiable and unconstitutional. The dearth of advocacy provided to these youth is nothing more than a “meet them and plead them” format. … [T]he public defender in Grays Harbor Juvenile Court fails, on a daily basis, to provide even minimally effective representation to her child clients at every critical stage of the case.
Davison v. State, 196 Wn.2d 285, 307. Justice González added, “The State does not attempt to defend juvenile public defense in Grays Harbor County.”
Fundamentally, justice requires that every person accused of a crime receive competent and effective legal representation. This is to ensure that the bedrock principles of the “presumption of innocence” and the “right to trial by a jury” are preserved. These principles require that the defense function is independent of political or judicial influence. The examples just discussed can chill defenders’ willingness to provide truly zealous advocacy. The WSBA Board of Governors recently proposed a new court rule, and adopted new Standards for Indigent Defense, aimed at protecting public defenders’ independence.
STRENGTHENING WASHINGTON’S STANDARDS FOR INDIGENT DEFENSE
Based on a recommendation from the Council on Public Defense, the WSBA Board of Governors has proposed a new General Rule 42 “to prevent conflicts of interest that may arise if judges control the selection of public defense administrators or the attorneys who provide public defense services, the management and oversight of public defense services, and the assignment of attorneys in individual cases.”77 Comments on the rule were due by April 30, 2022, with a decision to be made after the deadline for this article.
The proposed rule provides: “Judges and judicial staff in superior courts and courts of limited jurisdiction shall not select public defense administrators or the attorneys who provide public defense services.” Judges and judicial staff would be prohibited from managing or overseeing public defense services. The proposed rule also states, “Judges should encourage local governments to have attorneys with public defense experience manage and oversee public defense services.”
The Board also approved new Standards for Indigent Defense, developed by the WSBA Council on Public Defense, through its Independence Committee, to further protect the independence of public defenders. The new Standards have been added, effective September 2021, to the long-standing Standards for Indigent Defense.88 Revised WSBA Standards for Indigent Defense Services, available at www.wsba.org/docs/default-source/legal-community/committees/council-on-public-defense/standards-for-indigent-defense-services-approved-by-bog-revised-september-2021.pdf?sfvrsn=b40d17f1_4.
The first addition is an amendment to Standard 18, Guidelines for Awarding Defense Contracts:
Judges, judicial staff, city attorneys, county prosecutors, and law enforcement officers shall not select the attorneys who will be included in a contract or an assigned counsel list.
This provision is intended to avoid conflicts of interest and to maintain the public defenders’ ability to advocate effectively for their clients without fear of losing their contract or assigned counsel work.
The Board also approved a new Standard Nineteen, Independence and Oversight of Public Defense Services, which begins:
Public defense providers should not be restrained from independently advocating for the resources and reforms necessary to provide defense related services for all clients. This includes efforts to foster system improvements, efficiencies, access to justice, and equity in the legal system.
PROTECTIONS AFFORDED BY THE STANDARDS
Based on publicly available information, had Cowlitz County followed the principles in new Standard Nineteen, Independence and Oversight of Public Defense Services, the chief public defender, who was fired after filing public disclosure requests, would have been protected. Standard Nineteen would also protect defenders who challenge racially biased practices and who advocate for increased funding for their offices. Defenders often are in a unique position to understand and document flaws in the criminal legal system.
New Standard Nineteen also provides that “Judges and judicial staff shall not manage and oversee public defense offices, public defense contracts, or assigned counsel lists.” It states that trial courts “shall not select public defense administrators or the attorneys who provide public defense services.” It continues: “Attorneys with public defense experience insulated from judicial and political influence should manage and oversee public defense services.”
The Council on Public Defense recognized that some smaller jurisdictions may not easily be able to have full-time attorneys to serve as public defense administrators. New Standard Nineteen addresses this:
Jurisdictions unable to employ attorneys with public defense experience to manage and oversee public defense services shall consult with established city, county, or state public defense offices, or engage experienced public defense providers as consultants regarding management and oversight duties.
This provision recognizes that cities and counties can consult with the Washington Office of Public Defense and with veteran attorneys concerning their public defense services. As an example, the City of Edmonds contracts with a former chief public defender to serve as its part-time Assessor for Public Defense Services.
New Standard Nineteen refers to the American Bar Association’s Ten Principles of a Public Defense Delivery System. Principle 1 recommends establishing a nonpartisan commission or advisory board to oversee the public defense function, “safeguarding against undue political pressure while also promoting efficiency and accountability for a publicly funded service.”
King County, by charter, has built in considerable independence. The county public defender is appointed by the county executive for a term of years that coincides with that of the prosecutor, with removal only for cause.99 King County Charter Section 350.20.61, available at https://kingcounty.gov/council/legislation/kc_code/03_Charter.aspx. The defender is expected to “foster and promote system improvements, efficiencies, access to justice and equity in the criminal justice system.” And, “Elected officials shall not interfere with the exercise of these duties by the department …”1010 King County Charter Section 350.20.60. There is an advisory board to review the department of public defense and advise the County Executive.1111 King County Charter Section 350.20.65. The King County model could be followed elsewhere.
In 2010, the Washington Supreme Court wrote, in reversing a juvenile conviction:
While the vast majority of public defenders do sterling and impressive work, in some times and places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance. Public funds for appointed counsel are sometimes woefully inadequate, and public contracts have imposed statistically impossible case loads on public defenders and require that the costs of experts, investigators, and conflict counsel must come out of the defenders’ own, already inadequate, compensation.1212 State v. A.N.J., 168 Wn.2d 91, 225 P.3d 956 (2010).
That opinion led to the court’s establishment by court rule of Standards for Indigent Defense, CrR 3.1, based on the Standards recommended by the Council on Public Defense and the WSBA Board of Governors. Those standards have led to significant improvements in funding and in the quality of public defense in the state. But as the Asotin, Grays Harbor, and Cowlitz County examples indicate, significant challenges remain.
For many years, public defenders have too often been derided in popular culture.1313 “Just listen to any radio talk show and you can hear defenders denigrated, derided, and denounced.” Abbe Smith, “Can You Be a Good Person and a Good Prosecutor?”14 Geo. J. Legal Ethics 355-400 (2001). Because defenders often have far too many cases and are paid by the government, some clients lament having what they call a “public pretender.” But in Washington state, we have some well-organized and well-led local defender offices, top-notch federal defenders, a vibrant Washington Defender Association, a membership group of defenders, and a strong State Office of Public Defense that provides training and coordinates appellate and some specialized trial services.
The independence of the public defense function is more critical than ever. No lawyer providing public defense services should ever be fired for advocating for their clients or requesting the resources to do so. The Office of Public Defense stands ready and willing to assist any county to ensure quality legal representation that upholds the rights of all people facing the loss of liberty or family.
The adoption of the new WSBA Standards for Indigent Defense Services and the proposed GR 42 will help strengthen public defense so that we do not have unacceptable differences in quality based on geography.
NOTES
1. See Radley Balko, “A Pennsylvania county fired its two top public defenders for doing their jobs,” Washington Post, March 2, 2020, at www.washingtonpost.com/opinions/2020/03/02/pennsylvania-county-fired-its-two-top-public-defenders-doing-their-jobs/.
2. See Kent Faulk, “Jefferson County Public Defender departs: Did she resign or was she fired?”, March 7, 2019, Birmingham Real Time News, at www.al.com/news/birmingham/2016/07/jefferson_county_public_defend.html.
3. Draft separation agreement offered to the chief defender, copy on file with authors.
4. See Matter of Ayerst, 17 Wn. App. 2d 356, 358, 486 P.3d 943, 945 (2021). The Court of Appeals denied a personal relief petition because it found that there was insufficient proof of the alleged illegal activities by trial counsel and the judge. The Washington Supreme Court has accepted review of the case and it is set for oral argument on May 24, 2022. Supreme Court No. 99939-2 (consolidated with 99941-4). The lawyer stipulated to discipline from the WSBA. In re Robert Jerry Van Idour, Proceeding No. 19#00008, Disciplinary Board, Washington State Bar Association, July 28, 2021, available at https://mywsba.org/webfiles/cusdocs/000009701210-0/059.pdf. The Washington Supreme Court suspended him from practicing law or seeking admission in Washington for 18 months. In re Robert Jerry Van Idour, Order Imposing 18 Month Suspension, Supreme Court No. 202,021-6, September 7, 2021, available at https://mywsba.org/webfiles/cusdocs/000009701210-0/062.pdf.
5. Grays Harbor County Juvenile Court Case Weighting Policy, September 16, 2014, copy on file with authors.
6. Davison v. State, 196 Wn.2d 285, 289, 466 P.3d 231, 234 (2020), as amended on denial of reconsideration (Oct. 20, 2020).
7. Comments on the rule were due by April 30, 2022, with a decision to be made after the deadline for this article.
8. Revised WSBA Standards for Indigent Defense Services, available at www.wsba.org/docs/default-source/legal-community/committees/council-on-public-defense/standards-for-indigent-defense-services-approved-by-bog-revised-september-2021.pdf?sfvrsn=b40d17f1_4.
9. King County Charter Section 350.20.61, available at https://kingcounty.gov/council/legislation/kc_code/03_Charter.aspx.
10. King County Charter Section 350.20.60.
11. King County Charter Section 350.20.65.
12. State v. A.N.J., 168 Wn.2d 91, 225 P.3d 956 (2010).
13. “Just listen to any radio talk show and you can hear defenders denigrated, derided, and denounced.” Abbe Smith, “Can You Be a Good Person and a Good Prosecutor?”14 Geo. J. Legal Ethics 355-400 (2001).