A Brief History of Public Defense Standards in Washington Presentation to Regional Law, Safety and Justice Committee 24818831.2 Marc Boman, Perkins Coie LLP Jackie McMurtrie, University of Washington School of Law George Yeannakis, Team Child February 26, 2014
Overview A Brief History of Washington's Experience with Indigent Defense Standards The Supreme Court's amendments to CrR 3.1, CrRLJ 3.1 and JuCR 9.2 2
A Brief History of Washington's Experience with Indigent Defense Standards 3 1984 WDA develops Standards for Public Defense Services 1985, 1990, 2007, 2011 Washington State Bar Association (WSBA) endorses WDA Standards (and amended Standards) 1989 Washington legislature enacts RCW 10.101.030 requiring counties and cities to adopt standards for the delivery of public defense services and stating, "[t]he standards endorsed by the Washington state bar association for the provision of public defense services may serve as guidelines" 1996 Legislature creates Washington State Office of Public Defense 2003 WSBA Board of Governors appoints Blue Ribbon Panel on Criminal Defense to address problems in delivery of public defense services.
10.101.030. Standards Each county or city under this chapter shall adopt standards for the delivery of public defense services, whether those services are provided by contract, assigned counsel, or a public defender office. Standards shall include the following: Compensation of counsel, duties and responsibilities of counsel, case load limits and types of cases, responsibility for expert witness fees and other costs associated with representation, administrative expenses, support services, reports of attorney activity and vouchers, training, supervision, monitoring and evaluation of attorneys, substitution of attorneys or assignment of contracts, limitations on private practice of contract attorneys, qualifications of attorneys, disposition of client complaints, cause for termination of contract or removal of attorney and nondiscrimination. The standards endorsed by the Washington state bar association for the provision of public defense services should [formerly may ] serve as guidelines to local legislative authorities in adopting standards. [2005 c 157 2, eff. July 24, 2005; 1989 c 409 4.] 4
A Brief History of Washington's Experience with Indigent Defense Standards March 2004 ACLU of Washington report, "The Unfulfilled Promise of Gideon: Washington's Flawed System of Defense for the Poor," stating, in part, "The lack of meaningful standards and the failure of the State to monitor indigent defense services has resulted in a checkered system of legal defense with no guarantee that a person who is both poor and accused will get a fair trial." April 2004 Seattle Times publishes 3-part investigative series, "An Unequal Defense: The failed promise of justice for the poor" describing public defense failures in Washington April 2004 Best v. Grant County. Civil rights class action lawsuit "to prevent further violations and to protect the constitutional rights of all indigent persons charged with felony crimes in Grant County." May 2004 Blue Ribbon Panel Report finds, among other things, "The mandate of RCW 10.101.030, 'Standards for public defense services,' is being ignored in many jurisdictions and there is no effective state enforcement program." July 2005 Washington legislature amends RCW 10.101.030 to provide, "[t]he standards adopted by the Washington state bar association for the provision of public defense services should serve as guidelines" 5
WSBA Blue Ribbon Panel Report (May 2004) : CONCLUSIONS The mandate of RCW 10.101.030, "Standards for public defense services," is being ignored in many jurisdictions and there is no effective enforcement program. This may lead to violations of the constitutional right to effective assistance of counsel. The lack of enforceable standards, especially caseload standards, jeopardizes the ability of even the most dedicated defenders to provide adequate representation Inadequate funding is a significant cause of failures in the quality of indigent defense services in Washington Poor contracting practices, especially fixed-rate defense contracts, invite abuses Effective oversight and accountability do not exist in some jurisdictions. 6
WSBA Blue Ribbon Panel Report (May 2004): Recommendations 7 A WSBA Standing Committee on Public Defense Services should be established. Its charter should include: Adoption of specific measures to require compliance with RCW 10.101.030, including appropriate liaison activities with the Washington Supreme Court and Washington Legislature. These efforts should include proposing legislation and a Court Rule (or Rules) implementing the Standards for Public Defense Services...... Updating the Standards for Public Defense Services to (a) specifically address contracting practices that create potential conflicts of interest, such as fee arrangements that contain disincentives for appointed counsel to thoroughly investigate and prepare defenses, file motions or bring appropriate cases to trial and (b) review the caseload limits in light of experience....
A Brief History of Washington's Experience with Indigent Defense Standards 2007 WSBA's Council on Public Defense conducts thorough review of 1990 WDA/WSBA caseload limits in light of experience. January 2010 Landmark Washington Supreme Court case, State v. A.N.J. ( "While we do not adopt the WDA Standards for Public Defense Services, we hold they, and certainly the bar association's standards, may be considered with other evidence concerning the effective assistance of counsel.") July 2010 Washington Supreme Court adopts amendments to CrR 3.1, CrRLJ 3.1 and JuCR 9.2, requiring that, to be appointed to represent an indigent person, counsel must certify compliance with "applicable Standards for Indigent Defense Services to be approved by the Supreme Court." September 9, 2010 Washington Supreme Court requests comments from WSBA Council on Public Defense regarding which Standards should be approved September 2010 May 2011 Council on Public Defense conducts thorough review of existing WSBA Standards, proposes modest changes and makes recommendation to Board of Governors for CrR 3.1, CrRLJ 3.1 and JuCR 9.2 Standards June 2011 Wilbur v. City of Mount Vernon and City of Burlington. Civil rights class action seeking declaration that rights of indigent accused to assistance of counsel are being denied and an injunction to prevent future violations. June 1, 2011 WSBA Board of Governors adopts resolution recommending Standards March 2012 Jones v. State of Washington, Christine O. Gregoire, Grant County et al. Civil action by defendant in State v. A.N.J. case for relief, including money damages, for deprivation of constitutional right to counsel. 8
State v. A.N.J., 168 Wn.2d 91 (2010) Based on Anderson s testimony as a whole, it appears that he spent as little as 55 minutes with A.N.J. before the plea hearing, did no independent investigation, did not carefully review the plea agreement, and consulted with no experts. Based upon the testimony of A.N.J. s parents, Anderson spent between 35 and 40 minutes with their son before the plea, at 102. The year he represented A.N.J., (his attorney) represented 263 clients under his contract. Additionally, he carried an average of 30-40 active dependency cases at any one time, and about another 200 cases, at 100. 9 9
Examples of Excessive Caseloads Source: 2010 Status Report on Public Defense in Washington State Western Washington Contract Attorney: 2,800 Misdemeanor Cases for Two Attorneys Western Washington Contract Attorney: District Court Cases 375 Plus Felony Cases 100 Western Washington Contract Attorney: Muni Court - 1,700 Misdemeanor Cases/Year 10 Western Washington Contract Firm: 2,500 Misdemeanor Cases, One Firm- Three Attorneys = 800 Cases Each
Operative Language of Rules CrR 3.1(d)(4), CrRLJ 3.1(d)(4) and JuCR 9.2(d)(1) Before appointing a lawyer for an indigent person, or at the first appearance of the lawyer in the case, the court shall require the lawyer to certify to the court that he or she complies with the applicable Standards for Indigent Defense Services to be approved by the Supreme Court. 11 11
A Brief History of Washington's Experience with Indigent Defense Standards June 2012 Supreme Court adopted standards October 2012 Appointed counsel first certified, although certification did not require compliance with specific caseload limits, only that the caseload allows each lawyer to give each client the time and effort necessary to ensure effective representation. Counsel should not accept workloads that, by reason of their excessive size, interfere with quality representation. As use, quality representation describes the minimum level of attention, care and skill that Washington citizens would expect of their state criminal justice system. October 1, 2013 Certification for felony and juvenile caseloads. January 1, 2015 Certification for misdemeanor caseloads. 12
Filing the Attorney Certification Supreme Court language regarding certification: For criminal and juvenile offender cases, a signed certification of compliance with Applicable Standards must be filed by an appointed attorney by separate written certification on a quarterly basis in each court in which the attorney has been appointed as counsel. 13 13
Certification (Per Order of 8/20/13) 14 1. Approximately % of my total practice is devoted to indigent defense cases. 2. I am familiar with the applicable Standards adopted by the Supreme Court for attorneys appointed to represent indigent persons and that: a. Basic Qualifications: I meet the minimum professional qualifications in Standard 14.1. b. Office: I have access to an office that accommodates confidential meetings with clients, and I have a postal address and adquate telephone services to ensure prompt response to client contact, in compliance with Standard 2.2.
Certification (Per Order of 8/20, 2013) (Continued) 15 c. Investigators: I have investigators available to me and will use investigative services as appropriate, in compliance with Standard 6.1. d. Caseload: I will comply with Standard 3.2 during representation of the defendant in my cases. [Effective October 1, 2013 for felony and juvenile offender caseloads; effective January 1, 2015 for misdemeanor caseloads: I should not accept a greater number of cases (or a proportional mix of different case types) than specified in Standard 3.4, prorated if the amount of time spent for indigent defense is less than full time, and taking into account the case counting and weighting system applicable in my jurisdiction.]
Certification (Per Order of 8/20/2013) (Continued) e. Case Specific Qualifications: I am familiar with the specific case qualifications in Standard 14.2, Sections B- K and will not accept appointment in a case as lead counsel unless I meet the qualifications for that case. [Effective October 1, 2013} Signature, WSBA# Date 16
14.1 Certification: Minimum Professional Qualifications 17 A. Satisfy requirements set by Washington Supreme Court for practicing law in Washington B. Be familiar with statutes, court rules, constitutional provisions and case law relevant to their practice area C. Be familiar with the RPC D. Be familary with the Performance Guidelines for Criminal Defense Representation approved by the WSBA E. Be familiar with the consequences of a conviction or adjudication, including possible immigration consequences and the possibility of civil commitment proeccedings based on a criminal conviction F. Be familiar with mental health issues and be able to identify the need to obtain expert services and G. Complete 7 hours of CLE within each calendar year in courses relating to their public defense practice.
Certification: Office 2b. Office: I have access to an office that accommodates confidential meetings with clients, and I have a postal address and adequate telephone services to ensure prompt response to client contact, in compliance with Standard 5.2. (Standard 5(2)b states: Public defense attorneys shall have (1) access to an office that accommodates confidential meetings with clients and (2) a postal address, and adequate telephone services to ensure prompt response to client contact. ) 18 18
Certification: Investigators 2c. Investigators: I have investigators available to me and will use investigation services as appropriate, in compliance with Standard 6.1. (Standard 6.1 states: Public defense attorneys shall use investigation services as appropriate. ) 19 19
Certification: Caseload Effective: October 1, 2012 2d. Caseload: I will comply with Standard 3.2 during representation of the defendant in my cases. 20 Standard 3.2: The caseload of public defense attorneys shall allow each lawyer to give each client the time and effort necessary to ensure effective representation. Neither defender, organizations, county offices, contract attorneys nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation. As used in this Standard, quality representation is intended to describe the minimum level of attention, care, and skill that Washington citizens would expect of their state criminal justice system. 20
Certification Form Effective 10/1/13 for felony and juvenile caseloads Effective 1/1/15 for misdemeanor caseloads 2d. I should not accept a greater number of cases (or a proportional mix of different case types) than specified in Standard 3.4, prorated if the amount of time spent for indigent defense is less than full time, and taking into account the case counting and weighting system applicable in my jurisdiction. 21 21
Why Specific Caseload Limits? Why in 2013? The law, RCW 10.101.030, requires standards with caseload limits. WSBA's Standards for Indigent Defense Services establish specific case load limits Economic factors have in the past, and will in the future, invite excessive caseloads and unacceptable shortcuts Notwithstanding the best of intentions by dedicated lawyers, experience tells us that self-regulation does not adequately protect clients By deferring the imposition of specific limits until 2015, funding sources can plan and adjust budgets 22