State bar-association panel urges public-defense reforms

By Ken Armstrong
Seattle Times staff reporter

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The panel, whose 17 members include judges from the Washington Supreme Court on down, calls for new laws or court rules to address a litany of problems, including a lack of enforceable standards for public-defense lawyers, inadequate funding and the proliferation of fixed-fee public-defense contracts that invite abuse.

"Some individuals and private firms profit from public-defense contracts while providing minimal or substandard representation to their clients, and many in positions to know of these failures look away as defendants' constitutional rights to effective assistance of counsel are denied," the panel's report says.

The report will be presented Saturday to the bar's Board of Governors, whose members will decide what to do with the panel's recommendations.

The consequences of an inadequate defense, the panel wrote, "can be devastating for the individuals whose liberty is at stake, for the legal system, and for society as a whole." Those results include wrongful convictions, appeals and retrials at added taxpayer expense, civil-rights lawsuits and a loss of respect for the courts.

"Public trust and confidence in Washington's judges and court system suffer when the public perceives that individuals charged with crimes are treated unfairly," the report says.

The panel's call for reform is the latest in a long line of such reports, which go back three decades and include criticism of Washington's public-defense system from legislative committees, bar groups and legal-research organizations.

"It's been said over and over again in Washington — some attorneys providing public-

defense representation are inadequately paid, lack experience and other qualifications, and have such enormous caseloads that they literally don't have time to perform the tasks necessary for adequate representation," said Joanne Moore, a panel member and director of the Washington State Office of Public Defense.

Another panel member, state Supreme Court Justice Susan Owens, said many public defenders do good work. But in general, she said, "They are overworked. They are underpaid."

The Seattle Times published a series last month on the chronic failures of Washington's public-defense system, revealing such shortcomings as staggering caseloads that make it all but impossible for many defense attorneys to do their job effectively.
 
The workload of a Cowlitz County attorney, for example, was 6½ times what bar groups recommend. A Grant County attorney, whom the Washington Supreme Court has ordered disbarred, handled 413 felony cases last year — nearly triple the 150 recommended by the state bar.

"I think there are many Grant Counties out there," said panel member Jon Ostlund, head of the Whatcom County Public Defender's Office.

Although a 1989 state law requires counties and cities to pass standards on caseloads and other public-defense matters, most jurisdictions have ignored that mandate. The result, according to the state bar panel, is that "the system envisioned by the Washington Legislature for institutionalizing city and county defense programs meeting minimum constitutional standards does not currently exist."

The panel, created in May 2003, includes five judges, attorneys representing both the prosecution and defense, a Franklin County commissioner and others.

Among the problems highlighted in its report is the prevalence of fixed-fee contracts that financially discourage public-defense attorneys from investigating cases fully or taking them to trial. Such contracts typically pay attorneys the same amount of money regardless of the case's complexity or the hours spent working on it.

The panel recommended that the state bar create a permanent committee to push for legislation or new court rules that would address such shortcomings. In particular, the report says, local governments should be required to implement meaningful public-defense standards, and should be prohibited from renewing contracts with attorneys who have failed to provide an effective defense.

Another recommendation is for the state Office of Public Defense, which oversees the work of public defenders in appellate cases, to exercise similar monitoring at the trial level.

The report also calls for consideration of a proposal urged in Washington many times before — having the state help pay for trial-level indigent defense, with payment contingent upon counties and cities adopting such measures as limiting lawyer caseloads.

In Washington, unlike most states, counties and cities must pick up virtually all costs associated with indigent defense at the trial level.

Statewide, public-defense costs have been conservatively estimated at $75 million annually. In Washington's superior courts, where felonies are tried, about 85 to 90 percent of defendants are considered indigent and therefore entitled to court-appointed counsel, the report says.

In the past, calls for the state to pick up a large part of those costs have died in the Legislature.

Marty Brown, Gov. Gary Locke's budget director, said yesterday of such a proposal, "It's not out of the question, but we'd have to look at the report — and we haven't had any discussions on it yet."

Helen Sommers, Democratic chairwoman of the House Appropriations Committee, said the state is struggling financially, "so to be asked to take up any new program would be a challenge.

"Given our fiscal situation, it would be difficult."

Ken Armstrong: 206-464-3730 or karmstrong@seattletimes.com