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Sunday, April 4, 2004 - Page updated at 12:00 AM

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The Empty Promise of an Equal Defense

Part 1: For some, free counsel comes at a high cost

Seattle Times staff reporters

Profile: Guillermo Romero


Born: Sept. 8, 1948

Law school: Graduated in 1984 from Gonzaga University. Admitted to the Washington State Bar on Nov. 7, 1988. He says he failed five bar exams, in Washington and Idaho, before passing.

Public-defense career: 1994-2003, Grant County Superior Court.

Trial-acquittal rate: 6 percent (statewide average: 15 percent)

Guilty-plea rate: 88 percent (statewide average: 76 percent)

State bar disciplinary actions:

1996, private admonition for assaulting a girlfriend

1996, private admonition for not cooperating with bar investigation

1998, one-month license suspension for failure to meet continuing legal education requirements

Findings of incompetence:

2001, Washington Court of Appeals ordered a new trial for a client convicted of drug charges.

2003, federal judge vacated the guilty plea of a teenage client convicted of murder.

Most notable public-defense case: Barry Loukaitis, a 14-year-old who shot to death a teacher and two students at his Moses Lake junior-high school in 1996. He was tried as an adult and sentenced to life in prison.

Pending disciplinary actions: The Washington Supreme Court is considering disbarment based on bar findings of misconduct. A hearing officer concluded that Romero committed theft and solicited money from relatives of court-appointed clients.

Status: Hired last month as a victim-witness coordinator for the Grant County prosecutor's office.

"Mr. Romero, how old are you?" "54, I believe."
(Lawyer disciplinary hearing, November 2002)

Some lawyers command a courtroom. Guillermo Romero shuffles around it, head down and voice low, shrinking as an unprepared student avoiding the professor's eye.

For more than eight years, he worked as a public defender in Central Washington's Grant County. To as many as 1,000 clients — poor, desperate, often despised — he was all that stood between an accusation and prison.

He was supposed to punch holes in weak cases, to intercept police and prosecutors when they ran afoul, to investigate and analyze and advocate.

But legal basics eluded him. In a rape case, he once filed a motion seeking "D and A testing." What he meant was DNA.

He gave lousy advice, according to disciplinary officials. You can't appeal, he told one client, when the client certainly could. You can leave the country before trial, he told another, when the client certainly could not.

He allowed the state to take liberties. He didn't object when a prosecutor compared his client to Hitler. He didn't object when the same prosecutor argued that everyone who goes to rock concerts uses drugs. He didn't object when police transcribed the tape-recorded statement of a teenage murder suspect and inserted damning words the boy never uttered.

Romero couldn't object, because he had never bothered to listen to his client's taped confession.

The last time Romero won a trial in Grant County Superior Court was in 1997, according to court documents. His record since then is zero and 23.

Twice, reviewing courts ruled that he was so incompetent, the adversarial system had collapsed.

Four decades ago, in the celebrated case of Gideon v. Wainwright, the U.S. Supreme Court promised to turn a noble ideal into more than just words. By ruling that defendants too poor to hire their own attorney must be provided one at public expense, the court reaffirmed that all people accused of crime must stand equal before the law.

Grant County is Gideon's lie.

It is a lie repeated across Washington and America, in systems that try to control costs — sometimes at the expense of justice.

Two-thirds of Washington counties, including Grant, pay for public defense through contracts that typically pay a fixed amount no matter how many cases come through their courts. That can leave public defenders less time per case, and lead to adversarial breakdowns.

Warnings about such contracts have been sounded for three decades, but the state has refused to enforce public-defense standards or to help fund indigent defense at the trial level except in extraordinary cases.

Last spring, Romero quit working as a public defender; he is waiting for the Washington Supreme Court to decide whether to strip him of his law license.

But how did he land such a crucial job in the first place? And how did he keep it for so long?

THE RIGHT TO COUNSEL
Landmark ruling stemmed from a petty crime

Winston Churchill once said there is no better test of a country's virtue than the respect it shows for the criminally accused.

By that measure, the United States has long counted itself virtuous.

"The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours," the U.S. Supreme Court wrote in 1963.

Those words come from the court's ruling in the case of Clarence Gideon, a man whose doggedness turned a small-time burglary into a mythic American story.

In 1961, in a coastal town on Florida's panhandle, police tracked Gideon, a 50-year-old drifter with an eighth-grade education, to a bar and emptied his pockets. They found $25.28, all in change. To police, this confirmed a tipster's claim that Gideon had burglarized a pool hall, stealing coins from a jukebox and a cigarette machine.

Gideon said the change was evidence only of a good night at penny-ante cards. But with four prior felony convictions, mostly for stealing, he would need help convincing a jury of his innocence.

Too poor to hire a lawyer, he asked the court to provide him one. When a judge refused, Gideon was left to defend himself. He was found guilty of breaking and entering — a felony — and sentenced to five years in prison.

That's where he penciled a plea to the Supreme Court, demanding the right to an attorney, no matter his means.

In oral argument before the high court, appellate lawyers argued on Gideon's behalf that an adversarial system of justice demands adversaries: From the clash of skilled lawyers, truth emerges.

In 1963, a unanimous Supreme Court agreed, saying the Sixth Amendment guarantee of counsel applies to state courts and entitles indigent defendants to an attorney at public expense.

That same year, Gideon's retrial moved the principle beyond abstraction.

Gideon's court-appointed attorney, W. Fred Turner, spent three days investigating the crime and dug up evidence suggesting that the police tipster was the actual thief. This time, Gideon was acquitted.

While Clarence Gideon may not be a household name, his legacy can be recited by anyone who watches television: You have the right to an attorney. If you cannot afford an attorney, one will be provided to you. It became a core part of the 1966 Miranda ruling, which required police to inform suspects of their rights.

Affording counsel to the poor is intended to protect innocent defendants. But it reaches beyond individuals to protect the credibility of the justice system by insisting it be blind to wealth and influence, and to protect society itself by checking the power of police and prosecutors.

Turner stated it more simply: "There but for the grace of God go I," he said in an interview shortly before his death last November at age 81.

Stephen Bright, director of the Southern Center for Human Rights in Atlanta, calls Gideon "one of the most universally accepted Supreme Court decisions."

But Bright, who teaches law at Yale and Harvard universities, offers this caution: No constitutional right presents a greater divide between promise and reality.

"We wax poetically about justice for all, and on Law Day attorneys get together and reminisce about Fred Turner representing Clarence Gideon at his retrial and winning an acquittal," Bright says. "And yet you go into courthouses all over the country, and what you see is not at all what is being celebrated. What you see is people being processed like widgets on an assembly line."

ROMERO IS HIRED (ROUND 1)
Before long, his shortcomings would become apparent

That assembly-line justice can be linked, in part, to fixed-fee contract systems that limit what public-defense attorneys are paid, regardless of their caseload or time investment.

That financial disincentive, in turn, limits the number of lawyers willing to do that work.

In Grant County, Guillermo Romero was willing — and cheap — and was hired time and again despite an array of his own legal troubles, a demonstrated lack of skill in the courtroom and a chorus of complaints from clients.

He was first hired in Grant County in late 1994 by John Luke McKean, who then held a subcontract to handle half of the county's court-appointed felony cases. For that work, McKean received $120,000 a year.

In turn, McKean subcontracted with other lawyers, for substantially less money, to handle his cases. That left him free to take on private, or paying, clients.

Subcontractors were not easy to come by.

In 1991, McKean hired Eric Weston fresh out of law school to handle felony cases — something frowned upon by bar groups.

"It was pretty traumatic," says Weston, now a public defender in King County. McKean "told me the best way to learn was sink or swim."

In 1994, when McKean hired Romero, all he knew was that Romero had practiced law in Yakima and was Hispanic — a plus in a county with a large Hispanic population.

"I didn't know anything about him," McKean says. "And I should have been more careful."

McKean says he paid Romero $2,675 a month. A second subcontractor got $3,200 a month.

That means McKean would have cleared about $50,000 a year for public-defense work. He says he used that money to pay overhead for his subcontractors and his private practice.

"He was obviously making money off of me," Romero says. "I didn't care because I wanted to start a practice in Grant County, and that was a good way to do it."

But it didn't take long for McKean to wonder about his new hire. Romero didn't prepare legal memos or trial briefs. He "didn't seem to have a clue" how to do legal research, McKean says. And he frequently missed appointments with clients, according to Susan Wicks, who worked as Romero's secretary at the time.

"You never knew his comings or goings," Wicks says. "I had secretaries from courts calling, saying, 'Where is Mr. Romero?' "

In a rape case that still haunts him, McKean says Romero ignored his entreaties to have a private investigator pursue leads that might have undermined the state's case. To this day, McKean wonders if the defendant, who is serving life in prison, is innocent.

Says McKean of Romero's work: "I was scared to death."

BOTH SIDES OF THE LAW
Romero's struggles mirrored those of his clients

Guillermo Romero keeps a small office tucked in the basement of a bank building — the rent is cheap, he says — about a block from the Grant County Courthouse in Ephrata. His walls hold pictures of Che Guevara, Martin Luther King Jr., Mahatma Gandhi.

His passion, he says, is to help people. He pulls a ledger from his desk and points to a donation he made: Red Cross. $100.

"And I saw another one in here that I was proud of," he says, riffling through the book. "Hold on. I've got to stroke my ego here."

He finds it: Food bank. $100.

"That's what I do," he says. "That is what I do, my friend."

For weeks, Romero balked at being interviewed, but when he talks, he talks for 5½ hours — about his history with drugs, his recovery, his assault conviction, his tax liens and debts, his love of football and kites, and how he's being picked on by the Washington State Bar Association because he's Hispanic and a bachelor.

He pulls out a letter — a bar complaint against him — and points to profane language that a client attributed to him. Does that sound like something I'd say? he asks.

Moments before, he had used the very same profanity.

Romero seems almost blind to his weaknesses. And for years, Grant County did nothing to make him see. He is an inept lawyer — the state bar says it; reviewing courts say it. But in Grant County, prosecutors and police praise him — and from this he takes comfort and confirmation.

Romero can be a personable man. At 55, he has a thick shock of graying hair that he wears past his collar. When he asks how you're doing, he seems to care about your answer, one friend says.

He once led a standard middle-class life with a wife, two sons, a house in Spokane, a 15-foot sailboat and a steady job with the state. He was a social worker but wanted more: "I wanted to be a lawyer — to advocate for people's rights and to protect people."

He earned a law degree from Gonzaga University while working for the state. It took him four years to pass the bar. Three times, he says, he failed Idaho's exam; twice, he failed Washington's.

"I have an anxiety testing thing," he says.

He was 40 years old when he was admitted to the Washington state bar in 1988.

Three years later, his life began to unravel: He separated from his wife, quit his job with the state and moved to Yakima to practice law with two friends.

Debts piled up. The sailboat and his wife's car were repossessed. His 20-year marriage ended in divorce. He was arrested for allegedly punching and kicking his girlfriend, a junkie who told police that Romero shared her habit. He denies the charge, but in March 1994, he was convicted of fourth-degree assault, a misdemeanor.

He was sentenced to a year in jail, with all but 10 days suspended. He was placed on probation (which he violated), fined $500 (which he failed to pay on time), and ordered into drug treatment.

Meanwhile, his law partnership dissolved, he faced collection notices and lawsuits from creditors, and the bar was investigating the assault conviction. Romero appeared for his own deposition more than four hours late.

When he moved to Grant County — in debt, on probation, under investigation and in drug rehabilitation — he fit the profile of many of the indigent clients he would soon defend.

'BURGER KING JUSTICE'
Fixed-fee contracts do not encourage good representation

Local government officials say fixed-fee public-defense contracts allow them to control costs. Critics say such contracts strip lawyers of any financial motivation to do a good job, and render indigent defense an empty promise.

"It produces tremendous economic disincentives, and it raises real questions about the quality of service provided to the accused," says former state Supreme Court Justice Phil Talmadge, who is running for governor.

A typical contract works like this:

A county pays a set fee to a private attorney or law firm to defend accused indigents in Superior, Juvenile or District court. The fee stays the same, no matter how many cases are filed or how complicated they are. So if a case goes to trial and takes 50 hours of work, the attorney is paid no more than for a case that is pleaded out after five hours.

And under such contracts, attorneys typically are allowed to continue private practice. So the more time they spend on court-appointed cases, the less time they have for cases in which they can earn hourly fees.

As early as 1973 — 10 years after the Gideon ruling — the state bar launched a study that concluded the system should be eliminated: Contract attorneys were overworked and took fewer cases to trial, and their clients fared poorly compared with defendants in other systems.

When the bar released its report, six of Washington's 39 counties provided indigent defense through the contract system.

Today, 26 counties, including Grant, use such contracts — most of them with fixed fees. Most of the other 13 pay for a county public-defender's office — parallel to the county prosecutor's office — or contract with nonprofit law firms whose salaried attorneys do nothing but public defense.

Even as more counties adopted the contract system, the criticism continued, with legislative committees, bar groups and researchers condemning the approach in the 1970s, 1980s and 1990s. One judge, in a 1989 report, said the system results in "Burger King justice," in which lawyers "just have to keep the cases moving, moving, moving."

But many county commissioners say the state has left them little choice. Despite repeated calls for the state to subsidize the cost of indigent defense at the trial level, Washington has refused. The state pays for indigent appeals but helps pay defense costs only in a handful of extremely expensive trials.

So counties, with fewer taxing options than the state, are left to pay the mushrooming costs of providing court-appointed counsel, an annual tab conservatively estimated to be $75 million statewide.

ROMERO IS HIRED (ROUND 2)
Contractor denied being responsible for "knotheads"

Romero's work with McKean ended after a year, when the public-defense contract went to the Grant County law firm Earl & Earl.

And when Doug Earl became the contract administrator, he also took on Romero, who joined a group of subcontract lawyers dubbed "The Defenders," after a 1960s television show that featured a brilliant defense attorney and his idealistic son.

In a 2001 deposition, taken as part of a defendant's appeal alleging incompetent representation by Romero, Earl said he "did not really know" Romero when he hired him, had talked to him "only a couple of times," and "did not have a clue" whether he would even return clients' telephone calls.

But Romero was again available at bargain rates.

Earl & Earl held a five-year contract to handle court-appointed cases in Superior, Juvenile and District courts. The Superior Court contract alone paid $390,000 a year. Thomas Earl, Doug's brother, took 40 percent of the cases and was paid 40 percent of the contract price: $156,000. Romero took 20 percent of the cases. A proportional share of the contract would have been $78,000.

But Romero was paid only $54,000 — and $6,000 of that was deducted as a rental expense for his office at Earl & Earl.

Doug Earl kept Romero on through 2000, despite a growing litany of client complaints and the start of a bar investigation into alleged misconduct.

The Superior Court contract said Earl & Earl, as contract administrator, must provide training, supervision, monitoring and evaluation of its attorneys, and "shall remain responsible" for the competence of those attorneys.

But in the 2001 deposition, Earl dismissed those responsibilities.

"The county had no intention of me training and evaluating the attorneys," he said. "(T)he language is a bunch of stuff that didn't happen, and they didn't plan on it. ... I didn't do anything to train the attorneys, other than just tell them to be nice and to return their telephone calls."

Earl referred to his subcontractors as "knotheads" who worked independently: "They did whatever they did."

He said it was "up to the judges to tell us if these people are bozos or not."

DEFENSE BY DEAL-MAKING
Clients usually pleaded guilty, rarely faced juries

In the eight-plus years he contracted to do public-defense work in Grant County Superior Court, Romero represented approximately 1,000 defendants, according to a Seattle Times analysis of court data.

Eighty-eight percent of his clients pleaded guilty; statewide, the average is 76 percent.

Romero's trial record was two wins and 32 losses, with his last victory coming in 1997. So his trial-win rate is 6 percent; statewide, the average is 15 percent.

Romero says those statistics don't define his work as an attorney. Instead, he attributes his trial record and guilty-plea rate to good work by police and to overworked prosecutors eager to cut deals.

A guilty plea does not, by itself, offend justice. But a plea bargain is supposed to be made knowingly, with each side understanding the evidence and legal issues.

Time and again, Romero's clients complained that he failed them: He didn't interview defense witnesses, investigate the state's case or challenge the admissibility of the prosecution's evidence.

Consider the case of Donald Lambert.

In 1997, Romero represented Lambert, a 15-year-old accused of killing a husband and wife, ages 89 and 88, in their Quincy farmhouse. A written transcript of his tape-recorded confession has Lambert saying he went to the victims' house intending to shoot them — powerful evidence of premeditation.

As it turned out, Lambert said no such thing.

The damning language appeared in the transcript after a sheriff's detective, trying to enhance inaudible passages on the audiotape, took it home and re-recorded it on his stereo.

But Romero never listened to the recording. So he never caught that crucial mistake.

Lambert pleaded guilty to aggravated first-degree murder, buying the worst sentence he could get: mandatory life, without possibility of parole.

Last year, a U.S. District Court judge vacated Lambert's guilty plea, ruling that Romero had effectively abandoned his client: He conducted an insufficient investigation and failed to advise Lambert adequately about the consequence of his guilty plea.

Lambert thought a life sentence meant 20 years — "like in movies," he testified. He also thought he could face the death penalty. He could not, because he was only 15 when the crime occurred.

Further, the judge said, Romero barely prepared for the hearing that determined whether Lambert would be tried as a juvenile or an adult; he didn't interview Lambert's father, teachers or friends; he didn't obtain records about Lambert's school performance or suicide attempts; he didn't pursue the possibility that Lambert might suffer from fetal alcohol syndrome.

The judge found that Romero didn't even tell his client what the hearing was about; in the end, Lambert simply agreed to be tried as an adult.

The state has appealed the judge's ruling.

AN EXTRAORDINARY CASE
A troubled attorney defends a troubled teenager

On Feb. 2, 1996, a 14-year-old honor student entered Moses Lake's Frontier Junior High School with a hunting rifle, two handguns and two ammunition belts under his black trench coat. He walked into algebra class and opened fire, killing a teacher and two students, and wounding a third classmate.

His name was Barry Loukaitis. Stunning as his crime was, it proved a presage of school shootings in Littleton, Colo.; Jonesboro, Ark.; and Springfield, Ore.

That Loukaitis pulled the trigger was not in dispute. Yet trying him for murder would be a long, contentious and complicated process, delving into questions of age, accountability, mental illness, genetic predisposition and the very roots of evil.

But when Loukaitis claimed indigent status, Grant County considered it business as usual, and insisted that attorneys be assigned from the standard contract pool; that way, the county would already have paid for Loukaitis' defense.

"The county's goal in this process is to protect its coffers," chief deputy prosecutor Stephen Hallstrom wrote in a letter outlining the county's position.

The county also noted that its contract required all investigative costs incurred by the defense to be paid by the contract holder except in extraordinary cases.

"It would not appear that an extraordinary case exists," Hallstrom wrote.

Two contract lawyers were assigned to Loukaitis.

One, Kenneth Knox, was already on notice that he would be let go that spring. "I'm not even sure why I was appointed, because everybody knew I was going to be out in a few months," Knox says. "Somebody had to be appointed — that's all I can think of."

The other was Guillermo Romero.

Romero remained on the case for 17 months, until the eve of trial, despite Loukaitis' repeated pleas for a new lawyer. "I have no trust in the competence of Guillermo Romero," Loukaitis told one judge.

Romero remained despite a challenge from local attorney Garth Dano, who sought to defend Loukaitis at public expense. Dano reviewed more than 200 of Romero's cases and found little evidence of pre-trial preparation: no discovery motions, suppression motions, legal briefs or memoranda.

Romero remained even as his personal troubles mounted and spilled into the courts. In 1995, at least five creditors won judgments against him; in one case, a Yakima judge ordered him arrested for dodging efforts to collect a credit-card debt. Romero received the Loukaitis case three months after being arrested on one contempt-of-court warrant (he posted bail and was released), and two weeks after a second warrant was issued.

Doug Earl said Romero was qualified to handle the case, noting his master's degree in social work, his work with disturbed youth and his prior representation of juveniles accused of attempted murder and assault.

Over time, at least five attorneys were attached to Loukaitis' defense. Romero was the most constant. And in September 1996, seven months after the shootings, he was Loukaitis' sole attorney.

That month, he handled the crucial hearing to determine whether Loukaitis would be tried as a juvenile or as an adult.

Former prosecutor Robert Schiffner called it "the most critical phase of the entire prosecution."

If tried as a juvenile, Loukaitis could be held only until his 21st birthday.

Tried as an adult, he faced a possible life sentence.

Romero says he was "totally prepared" for the hearing: "I was so damn prepared for that, I even amazed myself. You're talking about the Super Bowl here. You're talking about a national case. I kicked butt."

The judge ruled that Loukaitis should be tried as an adult.

A few weeks after the hearing, in another failed attempt to remove Romero from the case, several defense witnesses filed statements claiming he had failed to prepare them adequately, had asked confusing questions or had failed to capitalize on their expertise.

Social worker Kord Roosen-Runge: "In my many years of court work I have never been subjected to such inadequate lawyering, nor have I witnessed it."

Psychiatrist Julia Tybor Moore: "I have never been treated like this before in any forensic case I have done."

Corrections expert Dale Swenson: "I had a real question whether he was a real lawyer."

Swenson, a former administrator of the state Division of Juvenile Rehabilitation, had testified in dozens of cases and was accustomed to attorneys reviewing his credentials and testimony before trial. Sometimes that preparation could take a day or more.

Romero put him on the stand after they spoke outside the courtroom for only a few minutes, Swenson says.

Romero finally was removed from the case days before trial at the urging of Michael Frost, a top Seattle attorney who had been appointed co-counsel.

Loukaitis was convicted of aggravated first-degree murder and other charges, and sentenced to life without parole. In 1999, the state appeals court rejected his request for a new trial.

HAUNTED BY DOUBT
Poor defense work leaves judge with uneasy feeling

Despite questions about how well Loukaitis and Lambert were defended, there's no question each committed a horrific act.

But things were not that clear-cut with another of Romero's clients: Bladimir Analco Aquino.

Indeed, evidence of Aquino's guilt was tenuous enough that, to this day, the trial judge has doubts about the conviction.

Grant County Superior Court Judge Evan Sperline had observed Romero in court countless times before the Aquino case landed on his docket.

"Legal analysis was not a strong point for Mr. Romero," Sperline says. Further, "he has a difficult time standing in front of a jury and stating his ideas and arguments clearly."

In 1998, Aquino stood trial before a jury for attempted murder and several related charges. He and a friend, Oscar Barragan, were accused of robbing and brutally beating a department-store manager in the small town of Mattawa. Aquino was 17 when the crime occurred, Barragan 16.

The store owner reported $29,000 worth of stolen property, including one rifle, three video cameras, four TVs, six VCRs, 18 leather jackets, 96 pairs of jeans and 120 shirts.

But no physical evidence connected either teen to the crime. And none of the missing property was ever recovered, even though the two teens were arrested together within 10 hours of the robbery. Aquino was living with Barragan's family at the time.

"The property just sort of vanishes — and it's a lot of property," Sperline says.

Further, Aquino had an alibi: A married couple testified that he was at their house, interviewing for an orchard job, when the robbery occurred.

Before trial, Aquino says, Romero urged him to plead guilty and to implicate Barragan in exchange for leniency. Aquino refused: He was innocent, he said, and didn't know where Barragan was that night.

The prosecution's case hinged on the testimony of Ibrahim Said, the store manager who was attacked and who identified Barragan and Aquino as the robbers. Barragan had done some work at the store, bolstering Said's identification of him.

Because Said spoke English poorly, an interpreter fluent in Arabic and English was needed for trial. The prosecution produced a man who spoke Portuguese.

Sperline rejected the interpreter, and Said testified in his limited English, despite obvious gaps in understanding. A typical passage from Said's exchange with lawyers: "Clothing, what means?"

Despite the importance of Said's identification, Romero never asked how he first picked out Aquino. The two teens were not part of a standard police lineup or photo spread, according to the lead investigator in the case. Instead, Aquino says, Said stood in the police-station parking lot and looked through a window.

"He looked at us," Aquino said in an interview. "We were the only two in the room. We were handcuffed."

Both teens were convicted and are serving 16-plus years in prison.

Sperline says Romero's trial work was so lacking that he wanted to step off the bench and argue the case himself.

"I really had a strong feeling of conviction of the guilt for one, and nothing close to that for the other," Sperline says. "And I tell you, as a judge having to sentence a kid like that, when you have that kind of a haunting feeling, that is tough."

MISMATCHED ADVERSARIES
In the "jungle" of litigation, this prosecutor is king

Defense attorneys don't work in a vacuum. Justice presumes a balance — a battle between equal adversaries, with truth as the ultimate victor.

John Knodell has been Grant County's elected prosecutor for nearly 14 years. He works hard, knows the law and knows how to work a jury, charming them with just-folks talk and tales of his wife and grandfather.

But Knodell's stated goal is to keep cases away from juries. "Generally speaking, when you have two lawyers who are unable to resolve a case and have to go to trial, that to me reflects a failure of the system," he says.

By that measure, Knodell is a success. Grant County has the highest percentage of guilty pleas in the state, according to an analysis of Superior Court cases for the last five years. In Grant County, 85 percent of defendants plead guilty. The statewide average is 76 percent, while a few counties have plea percentages in the low 60s.

Knodell says he values the certainty of punishment over the severity, so he offers ample incentive to bargain, trading guilty pleas for reduced charges and lighter sentences.

He also discourages pre-trial motions that challenge the admissibility of the prosecution's evidence. If a defense attorney files such a motion — and Knodell considers it frivolous — he punishes the defendant by withdrawing or diluting his plea offer.

"Litigation is like a jungle," Knodell says. "You can't allow an unscrupulous defense attorney to file a lot of frivolous motions and fight a battle of attrition and not pay a penalty for it."

Pit that philosophy and power against a struggling public defender like Guillermo Romero.

A review of Romero's cases shows he is often blind to potential defenses. For example, he once testified that in "99 percent" of cases where a defendant confesses, there are no grounds to challenge those confessions. "Anything after being Mirandized is admissible," he said.

If that were true, a police officer could beat a confession out of a suspect — as long as he read him his Miranda rights first.

Romero has also testified about his reluctance to anger police and prosecutors with pre-trial motions, thereby jeopardizing plea negotiations.

And he has little financial incentive. With court-appointed cases, he gets paid no more for time-consuming trials or motions than for resolving a case with a quick plea.

That mismatch of legal might can leave defendants at risk.

Consider the case of Keith Roberts, convicted of kidnapping and rape. Knodell led the prosecution; Romero was Roberts' court-appointed defense attorney.

In 1999, the Washington Court of Appeals ordered a new trial for Roberts, finding that Knodell had committed "flagrant misconduct" in trying the case. The court dissected Knodell's closing argument and ticked off these grievances:

He misstated the law. He shifted the burden of proof from the prosecution to the defense. He compared Roberts with Adolf Hitler, in what the court called "an obvious and flagrant appeal to the jury's passion."

As Knodell made one objectionable argument after another, Romero was silent.

Such silence can doom a defendant on appeal, because a reviewing court may consider the objection to be forfeited. But here, the appeals court made an exception, saying the Hitler comparison was too egregious to let pass.

ROMERO IS HIRED (ROUND 3)
His deficiencies were known, but he worked cheap

In 2001, the Superior Court contract for public defense in Grant County was taken over by Thomas Earl, Doug Earl's brother, sometime colleague and sometime competitor.

By that time, Romero was under investigation by the state bar, and his track record was well-known. Tom Earl had witnessed Romero's clients' frustrations firsthand. "I'd be in court, and they'd come into court, and they'd be screaming at him, so it wasn't hard to figure out," Earl said in a later deposition.

And in 1998, Romero's law license had been suspended for a month because he failed to take required continuing legal education courses. Other lawyers, including Tom Earl, had to cover Romero's cases. This infuriated Earl, who blamed Romero's "inattention" and "lack of diligence."

He urged his brother to fire Romero, to no avail: "I wanted him canned."

Yet when Tom Earl landed the public-defense contract, he, too, hired Romero. His explanation: Romero's "work and work ethic" had "changed remarkably."

The new contract, which was to run through 2005, paid $500,000 a year. Romero proved, once again, a bargain.

Romero says Tom Earl paid him about $93,000 a year to handle 20 percent of the cases.

But in 2002, Romero received 29 percent of the appointments, according to figures that Earl provided to the county. And in the first quarter of 2003, Romero's share shot up to 32 percent, according to another report from Earl.

Only later did Romero discover the gap between his pay and his workload.

"I was appalled, man," he said. "This is just outrageous."

THE BAR STEPS IN
Romero accused of taking money from indigent clients

The state bar, which polices lawyers, received a complaint concerning Romero's assault conviction in 1994. More than two years later, it issued a private admonition.

In 1996, McKean, Romero's first employer in Grant County, told the bar he believed that Romero and fellow public defender Tom Earl were hitting up indigent defendants for money. The bar tabled an investigation pending the resolution of a related lawsuit. In early 2000, after the lawsuit was thrown out, the bar said too much time had passed for it to pick up the investigation.

In spring 2000, new allegations surfaced that Romero was demanding money in exchange for public defense. This time, the bar investigated.

CASHING IN ON TROUBLE
Missing money weighs heavier than legal missteps

If Romero is eventually disbarred, it probably won't be due to accusations of legal ineptitude.

It could be over a $726 check.

In summer 2000, despite nearly six years of steady public-defense work as well as paying private clients, Romero's finances were a mess: His savings account had dwindled to 3 cents and his checking account was overdrawn, according to court records.

He later told the state bar that money was never his priority: "I guess my focus was on doing what I do best, and that is practice law."

That same summer, Romero represented a private defendant in a misdemeanor case. The defendant was ordered to pay $726 for court costs and fees, and wrote a check to Romero for that amount.

Instead of signing the check over to the court, Romero cashed it.

Three months later, a county clerk noticed the missing payment, and asked Romero for the money.

Day after day, Romero offered a different excuse, according to the clerk's notes and subsequent testimony before the bar: You don't take checks, he said. The check's on my desk, but I forgot it, he said. I'll bring it tomorrow, he said, adding, Scout's honor.

Eleven days after the clerk first asked for the money, Romero paid, in cash. But by then, the clerk had reported him to the bar.

In November 2002, in Moses Lake, the bar presented its evidence against Romero, alleging sweeping misconduct. Hearing officer James Danielson, a Wenatchee attorney, concluded that in three cases, Romero had improperly asked for, or received, money from court-appointed clients or their relatives.

In one case, Romero was accused of hustling an indigent defendant's mother. She said she borrowed between $300 and $800 from her sister to give to Romero. Romero denies the charges, but Danielson recommended that his law license be suspended.

Danielson also found that Romero failed to file timely federal income-tax returns for four straight years; an IRS lien filed two years ago shows he owes back taxes of about $140,000. "I just spaced it out, man," Romero said in an interview. Danielson again recommended suspension of his license.

And Danielson cited other misconduct — for example, neglecting clients or giving bad advice — that he said warranted reprimands or suspensions.

But when it came to the $726 check, Danielson said, Romero had committed theft.

The recommended sanction: disbarment.

AWAITING JUDGMENT DAY
Decision on disbarment rests with state Supreme Court

In Washington, only the state Supreme Court has the authority to remove a lawyer's license. When the state bar asked for Romero's license, the court received testimonials from 21 people defending him. Many were prosecutors and police from Grant County — Romero's adversaries in the justice system.

Romero is a man of "deep humanity and integrity," wrote Knodell, the Grant County prosecutor. "I can assure you, on the basis of my knowledge of the man, his continued practice of law will in no way be detrimental to the integrity of the standing of the bar and the administration of justice or contrary to the public interest."

Last May, the state Supreme Court ruled that Romero could keep his license pending its decision on disbarment.

But in Grant County, trial-court judges had already asked Tom Earl to start reassigning Romero's cases. Romero's last day as a public defender was May 19, 2003. For much of the next year, he worked as a domestic-violence counselor — despite his own past conviction for domestic violence — and continued to represent defendants as a private attorney.

Then last month, Romero was again hired into the county court system, this time by the prosecution. He now works for Knodell as a victim-witness coordinator.

In the meantime, Earl reassigned some of Romero's public-defense cases to himself — even though he, too, is facing possible disbarment.

Ken Armstrong: 464-3730 or karmstrong@seattletimes.com
Florangela Davila: 464-2916 or fdavila@seattletimes.com
Justin Mayo: 464-3669 or jmayo@seattletimes.com

Copyright © 2004 The Seattle Times Company

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