SEATTLE — Lawyers working with the state chapter of the American Civil Liberties Union asked a federal judge this week to find the public defense systems in two northwest Washington cities inadequate, saying “a warm body with a law degree doesn’t cut it” when it comes to providing legal representation to poor defendants.
A ruling is expected later this summer.
But an attorney for the cities said there’s no evidence the cities routinely violated the constitutional right to counsel.
The ACLU of Washington sued Burlington and Mount Vernon two years ago, alleging a litany of shortcomings. From April 2005 to 2012, the organization noted, poor people charged with crimes in municipal court were represented by two part-time lawyers, Morgan Witt and Richard Sybrandy, who combined handled more than 2,000 cases a year. The lawyers virtually never visited with their clients in jail, investigated their cases or did much of anything besides urge them to plead guilty, the ACLU said.
The two-week trial, before U.S. District Judge Robert Lasnik, came as Washington’s Supreme Court is taking steps to improve the representation of indigent defendants across the state. The high court last year adopted new caseload limits for public defenders in an effort designed to make sure the lawyers have enough time to devote to their clients.
After a two-week trial, Toby Marshall, a lawyer working with the ACLU, asked Lasnik during closing arguments to find the public defense systems in the cities inadequate and to order them to hire a part-time supervisor, at a cost of no more than $50,000 a year, to ensure the public defense lawyers are meeting the needs of their clients.
Those needs include making sure the attorneys meet quickly with their clients, challenging the evidence presented by police and preparing adequately for court, Marshall said.
“You can’t simply take what the police have to say as the truth,” Marshall said.
The cities deny they ever had a practice of violating defendants’ rights, and say they’ve overhauled their systems to make them a model of public defense. Among the changes the cities cite is that a new firm now holds the public defense contract for the cities, with four lawyers handling the cases at double the pay rate. The lawyers also use an improved case-tracking system and are already certifying that they are abiding by the state Supreme Court’s new caseload limits, the cities say.
An attorney for the cities, Andrew Cooley, said that in the two years since the lawsuit was filed, the ACLU had been able to turn the files of the cities and their public defenders upside down — and found no smoking gun indicating the cities were violating the right to counsel. None of the judges and lawyers who work in the cities testified that rampant problems existed, he argued.
“Where’s the wrongfully convicted individual?” Cooley asked. “Where is the evidence that disappeared because they were too slow to run to the jail to interview somebody?”
Lasnik noted that there is some evidence that the cities were underfunding the entire criminal justice system, not just public defense. He said he found “shocking” the admission of the city prosecutor of Mount Vernon that for a time he didn’t schedule jury trials because of personal circumstances.
A result of that, the judge suggested, could be that public defenders can get good deals for their clients simply because the cities don’t want to pay for trials or for jail stints. Such good deals aren’t necessarily the equivalent of adequate legal representation, especially if people are pleading guilty to lesser charges they didn’t commit simply because it’s a good deal.
Marshall argued that the judges and lawyers who work in the cities gave self-serving testimony by insisting they did adequate work on their cases and would be too embarrassed to admit in federal court that they witnessed constitutional violations without acting to fix them.
The ACLU says it believes the current public defenders continue to be greatly overworked and to handle more cases than allowed by the Supreme Court’s new standards — 400 misdemeanor cases per full-time lawyer per year.
Lasnik said he planned to ask further questions of the lawyers in writing, and said he might not have a ruling until late summer.
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