HomeMy WebLinkAboutDISCUSSION re Indigetn Defense Attorneys Walking in Their Shoes COVER
STORY
'4
•
WALKING
IN
THEIR
SHOES .
Life in the public defense machine amid
newly recommended caseload standards
BY COLIN RIGLEY
24 Washington State Bar News I JUNE 2024
,ice -";
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hen the WSBA Board load study published in late 20232—a study
of Governors adopted that prompted the court to officially ask the
new caseload stan- CPD to recommend changes to the current
dards for indigent standards. Washington's recommended
defense services, as new standards drop the caseload limit for
recommended by the felony cases from 150 to 47 and for misde-
Council on Public Defense(CPD),'it was a meanor cases from 400 to 120. The new
key step toward mending a collapsing pub- standards are recommended to be phased
lic defense system in Washington, but it's in beginning in 2025, with the maximum
no panacea. felony caseload recommended to drop to
On March 7, the CPD took its recom- 110 and misdemeanor cases to 280,with full
mendations to the WSBA Board of Gover- implementation scheduled for 2027.
nors,which adopted them on a 12-1 vote.By In a WSBA news release, CPD Chair
Washington statute,the WSBA's standards Jason Schwarz called the passage of new
serve as guidelines to cities and counties standards"a watershed moment for public
as they adopt their own standards for de- defense in Washington."3 He further stated,
livery of public defense services. Next up, "`These changes will provide public defend-
er the Washington Supreme Court will re- ers with workable caseloads that allow them
v
g view for possible adoption corresponding to effectively represent the accused....They
changes to its own Standards for Indigent are critical for upholding our[c]onstitution-
Defense,which require attorneys to certify al obligations to the accused and critical to
0 compliance.The CPD developed these re- assuring litigants have access to a fair trial.'"
vised standards over more than two years of Yet, implementation presents a variety
study,an effort that was recently boosted by
a landmark national public defense work- CONTINUED >
JUNE 2024 Washington State Bar News 25
Walking in Their Shoes Public Defense Attorney Vacancy Rates
CONTINUED = Combination of Agency Staff and Contractor Positions,Dec.2023
San Juan: Whatcom:3%
{� Pend
of challenges that vary from city to city, 25/a Okanogan, Ferry+Stevens: Oreille:
0%
p/,
county to county.To do so will require more Island: .,_ y` 33%
0%
money, more attorneys, and more coordi- Ctaltam:9% Snohomish:
nation across local public defense agencies 29%
that, as of now,remain largely siloed from Jefferson:0% Kitsap: �,� ,,.�r:�. Chelan:0%
each other. In a statement about the new 14% douglas J`
King:10% f otn: Spokane:
standards, the Association of Washington Mason: .p`2O% 13%
Grays 36/o
Cities said"the proposed standards are not Harbor: Kittitas:
43% i Grant:11%
financially feasible for local governments. Thurston: Pierce:9% 27% uuan
Regardless of whether a city contracts with 0%
their county or provides their own public
Lewis:56% Garfield:
defenders,the financial implications of the ; Franklin: 0%
WSBA ado ted standards are drastic and : Yakima:22% 14%
P Columbia:
Wahkiakumc
untenable."4 0% 26% Skamania: 0%
O% Walla Walla: As n:
As the WSBA was just beginning to share 0% 67%
information about the new standards, I
Clark: Klickitat:0%
20% Source:Washington State Office of Public
was on the road to Eastern Washington to
Defense,Attorney Recruitment and
spend a couple days shadowing two public No data 0% 1-10 11-20 ■21-30 ■30+ Retention Challenges(January 18,2024)
defenders.First,I tagged along with a long-
time contract public defender who current-
ly works in Kennewick, then with a full- tation.The problem with this belief is that confused with the state OPD—makes her
time staff public defender who has been it's probably wrong. way row by row to get folks' information
on the job for five years in Spokane.What I Later, when I share this with Shelley and start processing them.Their names are
learned can be summarized neatly like this: Ajax,a contract public defense attorney I'm called one by one.They approach a podium,
Policy changes already in the works and still following for the day,she scoffs.Public de- things are read into the record, and Judge
to come are both welcomed and feared,and fense shortage or not,charges are still being Kathren tells them to come back next week
there's nothing about the state of public de- filed and dismissals are rare,Ajax says.It's and,essentially,try again.It's all punctuat-
fense that can be summarized neatly. more likely that those people in line will ed by the whirring sound of a printer spit-
keep coming back until someone is avail- ting out documents that tell them in writing
able to represent them,and others will wait to come back next week.It goes on like this,
THE GREAT HUMAN-PROCESSING in jail until then. over and over: new defendant, new court
CONTRAPTION "People on the west side, what they're date,the printer whirs back to life.
I'm standing in line waiting to pass through not going to understand is our people don't During a break I overhear a couple be-
security at the Benton County District get out the next day,"Ajax says. hind me saying,"They don't care about us;
Court. It's a crisp Wednesday morning in On this day, which is typical for this we're just another number out here."From
Kennewick and a handful of people who are court, the morning docket is more of a what I can see,the court does care,but it's
waiting in line alongside me are chatting to human-processing machine that churns hard to argue with the latter point.Because
pass the time—trading notes and generally through defendants to get them filed into weekly reappearances are so routine, the
trying to make sense of a system that feels a system that's still trying to catch up from court can even serve as an unintentional
on the verge of collapse and that has aban- the last batch. It feels like waiting in the welfare check. Judge Kathren—who for
doned them to a Sisyphean loop of weekly DMV,except here there's the very real pos- most of the morning has been cheery and
court appearances. sibility of incarceration. avuncular—notices that one defendant has
They sound confused,a little scared,and A court staffer in Judge Dan Kathren's for the first time missed a court appearance.
somewhat pissed("Thanks,Inslee,"one of courtroom asks members of the public who "She's been coming every week,so I'm a
them mutters). They also sound strange- do not have an attorney to all sit on the left little concerned about her,"he says in a way
ly optimistic, but not because they expect side of the room and,after a bit of shuffling that sounds more familial than judicial. "I
to have an attorney assigned to represent and grumbling, more people make their hope everything's alright."
them and have their actual day in court. way to the left side until it outnumbers the Not long after,there's tension surround-
The scuttlebutt in line is that if they keep right by about four to one.A representative ing one of the in-custody defendants who
coming back every week,after 90 days their from the local Office of Public Defense— has been growing visibly frustrated with
case will be dismissed for lack of represen- going by the acronym OPD, and not to be the mounting confusion until he erupts.
26 Washington State Bar News I JUNE 2024
*'„s--:' x`" bear
t ,-
"I got kids,"he snaps."I'm the provider to Public Defense Manager Charlie Dow,
out there. I need to figure out how to get expect to have two additional in-house hires
back to my kids." by October)are paid on an hourly,per-case
Ajax tells me she predicted long ago that basis,the total of which is capped according
things would unravel as they are now.That's to Washington's current caseload standards.
part of what led her to transfer from superi- A Benton County public defense contractor,
or court to district court,where she believes for example,can still maintain a private prac-
the system is better equipped to handle the g 0 tice and generate additional income,as long
load,but still underequipped to address the as their total caseload doesn't exceed the
full need.And now it's why she's considering To me this standard. Ajax and other attorneys I spoke
leaving public defense altogether. with fear that reducing those caseloads will
"To me this is semi pro bono work,"Ajax reduce their income, and their livelihoods
says. "People have to be dedicated to the is semi pro will take a dramatic fall.Rural Washington
service or the system will collapse.Well,the is already struggling to recruit and retain
system's collapsing now for other reasons." bono i'vOr'1C• enough attorneys to serve the local popula-
For example, in nearby Franklin Coun- tion, and some fear reduced caseloads and
ty,Ajax had to go to court after the fact and People correspondingly lower public defender in-
argue why she should receive back pay in a come will accelerate the bleeding and make
prior case.In that instance,Ajax had reached have e to be it even harder to attract the attorneys need-
the end of her contract in the middle of an ed for a real fix.
active case,but she feared that withdrawing dedicated t "If all the contractors leave the whole
would be an ethical violation,as she would system collapses," Ajax says. "It's already
be leaving that client in a worse position be- the service of collapsing,but if they leave then it's done."
cause no other public defender was available
to step in.In the end,she was able to convince the s 1's t em
the court to retroactively compensate her for MONEY PROBLEMS
the work,which came to about$35,000 for 1 t'ill collapse. Think of the crisis in public defense like
more than 90 hours of work—a number that a string of old holiday lights: if one light
doesn't account for the total hours she actu- 'Veil ell, the burns out, the whole string doesn't work.
ally put in or the other resources she had to Likewise, to implement new indigent ser-
devote to the case. '
system s vice caseload standards,more attorneys are
"I just did what I was told and I'm just needed to take on the extra work.More at-
in the middle of the crossfire,"Ajax tells me. collapsing torneys require more money,the sources of
"It's a disaster." which have yet to be identified.
In Benton County,the backlog of unrep- ` Between 2010 and 2022,expenditures on
resented defendants is exacerbated by strict nog 1'J or county-funded public defense increased by
new local ordinances, as well as a steady other 90 percent statewide,from a total of$104.5
flow of low-level offenses like property million to$198.7 million.s Nearly all of the
crime,driving violations,and drug charges, )/ funding, however, has come out of county
which haven't shown signs of slowing, ac- reasons. and city coffers.Over the same 12-year peri-
cording to Ajax and Heather Carlson, an- od,the state has paid for a small percentage
other contractor in Benton.Both share ex- SHELLEY AJAX,a contract of the total bill,an amount that has bounced
amples of relatively insignificant cases that public defense attorney between a high of$6.18 million and a low of
have gone to trial,such as a stolen bowl of $5.39 million.
pho, or restitution orders that have been This funding discrepancy was at the
entered for as little as$2.Meanwhile,Ajax heart of a lawsuit the Washington State As-
says she has motions for mental health eval- sociation of Counties filed against the state,
uations of clients who've been waiting for a in which it claimed"The State has failed to
year,and it's not uncommon for defendants ,. give counties the resources or funding nee-
to wait in jail for upward of 200 days. essary to furnish constitutionally adequate
"It's like rolling a snowball downhill," trial court indigent defense services ... "6
she says, meaning every case that gets On March 22, Thurston County Superior
jammed into the system adds to the backlog. p /tf \ Court Judge Allyson Zipp dismissed the
Ajax and the 18 other contract public de- III case.
fenders (the Benton County OPD also em- k- I ��j
four in-house attorneys and,accordingI� � _'
ploys Y {' CONTINUED >
4 t : . filif
'
1 DUNE 2024 I Washington State Bar News 27
..- y s,.' ...' -" --
,a
Walking in Their Shoes as well as the many other factors that con-
C O N T I N U E D tribute to a growing backlog.The state OPD
distributes state funds to local jurisdictions,
but to date there hasn't been a centralized
process of collecting and analyzing the many
In Olympia,several bills pertaining to in- data points that contribute to a functioning—
digent defense failed to gain traction in the or dysfunctional—indigent defense system.
state Legislature's most recent session,no- 01 "What I've always said and I continue to
tably SB 5773,which would have required believe...in many of our jurisdictions there
the state to cover half the cost by 2028.The T , is no structure for the attorneys to work un-
Legislature did, however, pass SB 5780,E = love the idea der,"Johnson said.
which creates a law student rural public of having Although public defense accounts for a
defense program to encourage more law narrow slice of the legal profession,a lack of
students to pursue public defense in rural public defenders in backlogged courts cre-
Washington and help fill the gaps in places fewer ewer ease ates further slowdowns across the board,in
where the demand for public defense ex- T • , civil as well as criminal matters, according
ceeds the supply of public defenders—and 1 think It S to a number of people I've spoken to for this
the gap is often wide. and previous coverage of the crisis in pub-
In a survey of public defense staff and necessary lic defense.Without an adequate supply of
contract attorneys, in which 32 of 39 coun- public defenders,Byrd McSherry said, "the
ties responded, the vacancy rate for public and court's dead in the water,they can't do their
defense attorneys fluctuated from as little as jobs.
zero percent to as much as 67 percent.State- something hing "The longer it takes the more you are
wide, the vacancy rate is 14.63 percent, on potentially losing evidence,losing witness-
average.e That average vacancy breaks down they should es,and I think there's a legitimate concern
further,to 9.23 percent among staffed public about the workload for the attorneys and
defense agencies and far worse among public do. I 1 us t their ability to provide quality due process."
defense contractors where,on average,25.04 1
percent of positions are unfilled.According don't know
to the survey, "[d]espite active recruitment REGARDING FOOTWEAR
attempts,there are simply fewer applicants h o ii t.h e'''re I'm in a small,mostly beige upstairs hearing
for staff and contract positions, and even room in Spokane when I find myself think-
fewer attorneys who meet mandatory quali- going to ing way too much about footwear.
fication requirements" I've started to develop a quick hack to
When I asked state OPD Deputy Direc- , identify public defenders in the wild by
tor for Government Relations Sophia Byrd come up with th paying attention to their shoes.At the table
McSherry about public defense funding the f u n d i I 1 eJ. of attorneys in front of me,the prosecutors
and, significantly, how Washington can on one side are wearing the expected for-
fund enough positions under reduced case- mal footwear, while the public defenders
load maximums,she said:"That's a crystal DUSTIN"DUSTY" HOWIE, on the other side tend toward something
ball question because we haven't been able an assistant public defender that strikes a better balance toward comfort
to do all of the analysis to do all of it—to re- for the city of Spokane than strict formality.
ally study that." It's about 1:30 p.m. and I've been shad-
State OPD Deputy Director for Opera- owing Dustin "Dusty" Howie, an assistant
tions Katrin Johnson added that funding public defender for the city of Spokane,for
is one aspect, but there are other issues, about five hours.More accurately,I've been
such as parts of the state where police file - power walking to keep up with Howie while
charges with the court without prosecutors -. _. he scurries between his office, courtrooms,
screening to check whether charges should + and the jail.Howie confirms to me that com-
be filed at all."So a lot of charges get filed -g— ,., fortable shoes are a must for this type of
that shouldn't." work and this type of pace.He used to wear
The administration of indigent defense a Fitbit step-counter, he says, but stopped
can vary widely from place to place, de- t because the notifications were getting out of
pending on whether the jurisdiction has a hand"and I would always hit above 10,000."
staffed public defense agency,a pool of con- Howie spends much of his time on his
tract public defenders,or a mixture of both, feet.In court,he usually stands in the back,
ikt
28 Washington State Bar News I JUNE 2024 \V \ J
/
Join Dellino Family Law
ready to confer with both newly assigned Group in welcoming three
clientsa and existinge a lones. Otherwise,a t o new attorneys this spring!
operates in the hallways,his desk a stripof
particle board bolted to the wall.
In a gray suit,with a brown leather bag Dellino Family Law Group welcomes attorneys Juliana Wong,Kathryn Felice
slung over his shoulder, neatly trimmed Peterson,and Marcia Cho.Now in our second decade of serving clients,we
goatee, and cushiony brown leather shoes, remain committed to being one of the best in family law in
Howie is chatty, personable, and comes the Pacific Northwest.
across with an almost suspiciously cheery
attitude toward exhaustion that I usually
associate with Ironman triathletes.
"Now,because I've got 40 minutes until
next appearance,I've got time to prepare for
first appearances,"Howie says as we're sit-
ting
in his office in between the early morn-
ing docket in district court and the slightly
later morning in-custody appearances.
His office—shared with his wife, Alex, 411
who was first hired on a grant to handle
Blake cases9 before coming in full-time—is
a testament to a highly kinetic work life.
What follows is a short list of items I spot
on a bookshelf in their office:
• Files in manilla folders
• Files in spiral binders
• Packets of madras lentils
• Cheetos
• Cans of chili
• Cans of soda DFLG handles all family law matters including:
• A dog leash and poop bags
High net worth divorce
In addition to parenting two young chil-
dren,the couple parents foster dogs,some Committed Intimate Relationships
of whom get adopted by their coworkers. Complex and high-conflict custody matters
Today Honey and Lily are wandering from
room to room in search of pets.Outside the Cases involving tech professionals,business owners,
office,Howie and Alex still have to squeeze and other professionals
work into the margins of home.
"It's not uncommon that we come home
and do work, and because we have kids it At Dellino Family Law Group,our attorneys provide comprehensive
has to wait until they go to bed,"Howie says. and personalized family law representation across Washington
"It is a lot,"Alex continues. "Your days State.We understand that when you come to us,it involves your
and afternoons are packed.I'm kind of rel- family,and nothing else is more important.
ishing today because I don't have court so I
can actually get some stuff done."
By noon Howie had appeared in mu-
nicipal court, closed cases for two clients Skyline Tower
about 10 6363 7th Ave S 5000 30th Ave NE
in district court, and represented
Suite 222 10900 NE 4th St Suite 105
first appearances. These first appearances Seattle,WA 98108 Suite 2300 Seattle,WA 98105
also highlight stark differences between Bellevue,WA 98004
the life of a public defender and everyone
else:The judge and prosecutor sit together
in the hearing room,while Dustin appears D E L L I N 0
over video from the jail.This setup creates a
dellinolaw.com 206-659-6839 : FAMILY LAW GROUP
CONTINUED >
JUNE 2024 I Washington State Bar News 29
4 ;Y
Walking in Their Shoes
� rw. CONTINUED >
% I • #` ‘ " host of difficulties: Imagine the frustrating
video-audio experience of a Zoom call with
a bad connection, while trying to provide
legal representation to a shackled person
you've whom likelynever met,with a line
behind you of other in-custody clients wait-
ing for their turn.Today there are also tech-
nical issues with the court's internal net-
NA M E D FELLOWS OF THE work—Howie tells me the system is great
when it's working,but court grinds to a halt
A M E R I C A N ACADEMY OF when it's not.The bailiffs have also decid-
ed to bring in one client who's shirtless and
MATRIMONIAL LAWYERS shackled to a wheelchair, and they don't
seem too concerned about taking him out of
the room when he starts interrupting oth-
er people ahead of him by frequently and
loudly saying things like"hurry up,bitch."
McKinley Irvin is proud to announce that our "Do you know what lunar phase we're
partners, Mark Arend and Brent Bohan, have in?"the judge says after sending away that
client for being disruptive."Feels like a full
been named AAML Fellows. moon."
Not long ago, Howie would have been
in the same room as the judge and prose-
This is a well-earned honor, as Mark and Brent cutor. Before becoming a public defender,
he worked for the Office of the Spokane
continuously demonstrate their commitment Prosecuting Attorney. He started there as
to the AAML's purpose to "provide leadership an intern, got hireddescribe, but jumpedu
ship because, as he describes, "the public
that promotes the highest degree of defenders came calling." Steven Clark, an-
other local attorney I meet when he whis-
professionalism and excellence in the practice pers in my ear about Howie,"he's wonder-
ful;make him look good,"took an opposite
of family law." route. Clark started in public defense and
stayed for about four years before shifting
into private practice where the pay was bet-
ter, the hours fewer, and the stress lower.
Unlike almost any other practice area,pub-
lic defense provides a new attorney with a
wealth of real-world experience but,Clark
says,"there's just so many cases,and every
time you think you've gotten to zero they
pile more on you."
Mc K I N L E Y I R V I N Howie says he usually has between 80
FAMILY LAW
Colin Rigley is a
communications specialist
with the WSBA.He has
SEATTLE I BELLEVUE I KIRKLAND I EVERETT I TACOMA nearly two decades of
(/
experience in journalism
VANCOUVER I PORTLAND I and communications.He
can be reached at colinr@wsba.org.
30 Washington State Bar News I JUNE 2024
and 100 cases on his plate.It's a lot,but he from the scene in Kennewick,but when I
and Alex have found a balance, which is talk to Howie about the new caseload stan-
helped by working in the same office and dards, I hear something similar. There are
being able to tag team and help each other about 20 staff attorneys in Howie's office;
out both at work and at home. to fit within lower caseload standards they
Although no one is going to get rich would likely need two to three times that
in public defense, in Spokane Howie has staffing level.
found a job that pays the bills and,because "I love the idea of having fewer cas-
his office is represented by one of the city's es," Howie says when we discuss this at
largest unions,provides some perks almost the end of the day. "I think it's necessary
unheard of in other public defense offices, and something they should do.I just don't
such as consistent pay increases and even know how they're going to come up with
allowances for CLE courses. Some people the funding."IBNI
in the office have been working there 10 or
even 20 years. Spokane public defenders
have such a good deal that they refer to the NOTES
benefits as"golden handcuffs." 1. The WSBA Council on Public Defense"unites
"Almost nobody else leaves,"Howie says. Policy representatives of the bar,private and public
criminal defense attorneys,current and former
"I mean why would you? It's so good," �y prosecutors,the bench,elected officials and the
Alex adds. changes public to address new and recurring challenges
Howie works a hefty caseload, unsur- that impact the public defense system."www.
already in the wsba.org/Legal-Community/Committees-
prisingly,and his colleagues do a good job Boards-and-Other-Groups/council-public-
of sharing the load to ensure that the office defense.
can meet the substantial demand without %voly+kS and 2. Nicholas M.Pace,Malia N.Brink,Cynthia G.
burning out any one attorney.He and Alex Lee,and Stephen F.Hanlon,"National Public
also try to share their skills and knowledge still to come Defense Workload Study,"2023,www.rand.org/
where it's needed. Attorneys in the office pubs/research_reports/RRA2559-1.html.
have met with other offices in the state to are bo th 3. "State Bar Adopts New Public Defense
provide education on such topics as the are 11 Standards,"WSBA media release,www.wsba.
org/news-events/media-center/media-releases/
state toxicology lab, which has its own welcomeu state-bar-adopts-new-public-defense-
backlog of about 12 to 14 months, Howie standards.
says.In fact,following our interview,How- and feared 4. "Council on Public Defense proposed revised
ie and Alex are going to scoop up the kids l l� standards for indigent defense and caseload
and head to King County to give a presents- limits,"Association of Washington Cities,
tion.Howie says he and other Spokane pub- and th ere s https://wacities.org/advocacy/News/advocacy-
lic defenders also share their resources as news/2024/03/13/council-on-public defense-
much as possible with other public defense nothing proposed-revised-standards-for-indigent-
defense-a nd-caseload-limits.
contractors who don't have an office with about S. Trial Court Public Defense Dashboard,
support staff,for instance. Washington State Association of Counties,
My day with Howie showed me a Spo- https://wsac.org/trial-court-public-defense-
kane public defense system that appears the state dashboard/.
highly functional, but operates at a blis- 6. Colin Rigley,"Confronting a Crisis,"Washington
tering pace.If the public defense system in of public State Bar News,February 2024,https://
wabarnews.org/2024/02/08/confronting-a-
Kennewick is an assembly line,Spokane is crisis/.
speed dating. In just the afternoon, How- defense
7. https://app.leg.wa.gov/billsummary?Bill
ie confers with about a half-dozen clients, Number=5780&Near=2023&Initiative=false.
most of whom he meets in the hallways, hat can be 8. "Attorney Recruitment and Retention
leaning against those little wedge tables to Challenges,"Washington State Office of Public
handle everything from consoling a brother S U m m a it zed Defense,Jan.18,2024.
who says his non-English-speaking sister 9. In 2021,the Washington Supreme Court in State
was badgered and threatened by police,to n ea tl 1 v.Blake,197 Wn.2d 170,481 P.3d 521,struck
simple license suspensions, to a case that down RCW 69.50.4013,the strict liability statute
should've been a prosecutorial slam dunk that made possession of a controlled substance
but—in a move that even surprised Howie— a felony punishable by up to five years in prison.
The Legislature later recategorized possession
got thrown out due to police misconduct. crimes as misdemeanors with mandatory
What I saw in Spokane differed greatly diversion to services.
JUNE 2024 Washington State Bar News 31