The Empty Promise of an Equal Defense
Part 2: Attorney profited, but his clients lost
Seattle Times staff reporters
The "single biggest predictor" of the quality of a public defender's work, according to the Washington Defender Association, is the size of the attorney's caseload. When it comes to felonies, the limit should be 150 cases a year, bar groups say.
Last year, Grant County public defender Thomas J. Earl handled 413 — a staggering figure that eviscerated the chances of a vigorous defense.
At that rate, Earl could devote an average of only four hours per case, according to a formula used by the defenders association.
Or, to use another measure: When Earl lost his job two months ago, judges drafted 49 lawyers in a desperate scramble to fill the vacuum.
But as daunting as his caseload was, Earl didn't complain. Indeed, he invited the work — and the money it paid.
As administrator of a public-defense contract for the past three years, Earl determined caseloads and compensation for public defenders in Grant County Superior Court. The more cases he kept for himself, the fewer he had to dole out. And the fewer he doled out, the more money he kept.
During 18 years as a public defender, Earl's annual pay for court-appointed work climbed from $40,000 to $80,000 to $120,000 to $156,000 to a large slice of $500,000 — the amount of his public-defense contract. How large a slice isn't public record, but two years ago Earl retained about $255,000 after paying other public defenders, according to financial figures provided by those attorneys.
That accounts only for his public-defense work. Earl also maintained a private practice.
And on top of that, according to allegations by the Washington State Bar Association, Earl solicited money from court-appointed clients he was supposed to represent for free.
At a disciplinary hearing last year, an attorney for the bar picked up a green marker and drew a dollar sign. "Mr. Earl," she said, "put a price tag on the administration of justice."
The bar described how Earl received a crush of court-appointed cases; how he got paid the same for those cases, no matter how hard he worked; and how he was allowed to keep a private practice on the side. The hearing officer concluded that Grant County's system invites conflict and abuse — and that Tom Earl accepted that invitation.
Similar systems can be found throughout Washington, where local governments have placed themselves — and countless indigent defendants — at the mercy of attorneys working under fixed-fee contracts, hoping personal integrity prevails where financial motivation fails.
A CASE STUDY IN PUBLIC DEFENSE
With heavy caseload, attorney cuts corners
In 1996, John W. Jackson stood trial in Grant County Superior Court, accused of selling drugs.
Nicknamed "Cabbie" because he used to drive a taxicab, Jackson was 59, poor, and had a prior criminal record, including drug arrests.
The state's case hinged on two witnesses: a confidential informant who said he bought cocaine from Jackson, and an undercover cop who said he saw the deal go down.
To defend Jackson, an attorney would need to scrutinize the state's case and dig around to determine if the prosecution's witnesses were credible.
But when Tom Earl received the Jackson case in November 1995, his felony caseload for the year had already topped 300 — and was growing. The time he had to devote to any single case was minimal.
So was his financial incentive.
On Jan. 1, 1996, the law firm of Earl & Earl took over the public-defense contract for Grant County Superior Court. (The firm's members included Earl's relatives, but not Tom Earl himself.) The firm hired Tom Earl to handle 40 percent of the court-appointed cases, and paid him $156,000 a year, no matter how much time he spent on those cases.
Tom Earl's agreement also allowed him to keep a private practice. So the more time he spent on court-appointed clients, the less time he would have for paying ones. And at the time, he was facing extreme financial pressure: The Internal Revenue Service had recently ordered him to pay more than $100,000 in back taxes.
With so little time to spare, Earl's preparation in Jackson's case was so minimal that he went to trial without even interviewing the state's star witness, James Allen Anderson.
Police informant liberally mixes fact and fantasy
James Allen Anderson goes by many names.
Police in Grant County knew him as "The Plate." This was a clever play on words: Anderson has a steel plate concealed in his lower leg, but police used the name to conceal Anderson's identity as a confidential drug informant.
Others in Grant County knew Anderson by other names: "Crazy Jimmy." "Shaky Jimmy." "Jimmy the Weasel." The Anderson they knew couldn't differentiate fact from fantasy.
In an interview with The Seattle Times, Anderson said he solved the Oklahoma City bombing, the JonBenet Ramsey murder and countless other crimes — all before they happened. Asked how, he pointed to his head.
"This," he said. "You think with your mind, you put the cases together, and you put it down on paper."
Anderson said he received assignments directly from presidents John F. Kennedy and Jimmy Carter, that he had a Marine Corps command at Camp Pendleton and that he's worked as a government secret agent for 44 years.
Anderson is 51 years old.
VINDICATION — TOO LATE
Case unravels on appeal, but client had done his time
John Jackson's case went to trial on June 11, 1996.
On that same day, the Washington Court of Appeals ruled that Tom Earl had done such a lousy job defending a previous client that it vacated the man's rape conviction and ordered a new trial. Earl didn't conduct an adequate investigation, the court found. When potential witnesses tried to offer evidence that might help his client, Earl didn't even return their calls.
History was about to repeat itself.
In the opening moments of his trial, Jackson complained to the judge that his defense attorney had done nothing to prepare.
"What would you have Mr. Earl do?" the judge asked.
"I would have him at least talk to me," Jackson said.
The prosecution put three people on the stand, including the undercover police officer and Anderson, the confidential informant. Earl's cross-examination of Anderson failed to disclose any hint of mental illness.
The defense called no witnesses. Jackson was convicted of selling cocaine and sentenced to six years and four months in prison.
From his prison cell, Jackson appealed. Five years later, Anderson was back on the stand. This time he was questioned by Nancy Tenney, an assistant federal public defender who had investigated his background and who proceeded to shred the case against Jackson.
Tenney asked Anderson how he came to be a police informant.
Anderson replied that in 1993 or 1994, he had called Bryan Pratt, a Grant County sheriff's deputy, and offered to direct him to about seven ounces of white powder. The two met the next day.
What follows is the verbatim transcript of Anderson's testimony, with misspellings included:
Anderson: "And I told him that OJ, Jon Benet, Oklahoma City, Blackwell, Sonny Bono, Mike Kennedy, the Condine with Sharon Levy, and the Blackwall case over in Seattle — those cases I listed with Brian Pratte. He wrote them all down."
Tenney: "And just so we're clear, at that point this was in '93 or '94?"
Tenney: "So a lot of those cases had not happened yet?"
Anderson: "None of them had happened yet."
Anderson: "Oh, and the Green River case."
Tenney: "And the Green River killer?"
Tenney: "Why did you give this information to Mr. Pratte? Did you want him to follow up on it?"
Anderson: "I wanted him to list it so I had it completely documented and listed legally to where if those cases had happened that I wouldn't feel like guilty of any kind of crime at all, you know. I didn't want it to fall on me, whatever they came to, you know, and also the Oklahoma City case, I named two, Terry Nichols and Timothy McVey, both by name."
Anderson went on to bemoan that police failed to take advantage of his prescience. "(T)here is only so much you can do when the law states it's got to happen before you can charge a person," he said.
Tenney produced records showing Anderson had suffered from schizophrenia for more than 25 years and that he had previously lied to police, using money for drug stings to buy drugs for himself.
She also challenged the evidence from the undercover cop who had testified against Jackson. The officer said he was in Jackson's living room when he watched the drug deal take place in a bedroom doorway.
But Tenney produced pictures of the house showing that the officer would have needed to see around a hairpin turn and down a hallway. He would have needed to see through walls.
In November 2001, a federal judge threw out Jackson's conviction, citing two grounds: the prosecution's failure to disclose evidence undermining Anderson's credibility, and Earl's incompetence as a defense attorney.
Earl never visited the crime scene — "a fundamental task," the judge said. He didn't interview people Jackson said could corroborate his claim of innocence; didn't meet with Jackson to review the evidence; and didn't interview Jimmy Anderson, the prosecution's star witness.
Earl, the judge said, did virtually nothing in the face of damning facts against his client. "Yet those are the facts that you begin with, not the facts you end with," the judge said.
For Jackson, the ruling proved a hollow victory.
With good-time credit, he had already completed his sentence. He died one year later, on Nov. 16, 2002.
Earl, state bar differ on defense attorney's role
A defense attorney's role is easy to define: Investigate. Prepare. Attack. Defend.
Defend as zealously as the prosecutor prosecutes. Otherwise, the adversarial system collapses.
Yet when a defendant once complained to a judge about Earl, here's how Earl defined his job: "He believes my role is to find proof that he's innocent of this particular charge. I've explained to him the role, or my role, is to see his constitutional rights are protected."
Earl described himself as a referee, not an advocate — someone who whistles fouls, not someone who defends a person's liberty.
Last year, a bar hearing officer studied Earl's words and conduct, and concluded: "Mr. Earl had a fundamental misunderstanding of his role as an assigned counsel, to represent his client zealously."
Earl declined to be interviewed for this story. But in correspondence with county commissioners, he has written that his "professional reputation" and his working relationship with judges, prosecutors and court personnel "are of the highest level."
"Let's put it this way," he told appellate attorneys representing one Grant County defendant. "I know this is hard for you people to grasp, but I was born and raised in this community, and I have a reputation for truthfulness, and workmanship, and whether you understand it or not, people understand who I am here, and my word is kind of gold."
Grant County judges defend Earl's work, despite criticism from reviewing courts.
"Tom is talented, and especially talented as a minimalist," says Superior Court Judge Evan Sperline. "Tom can take a case to trial, before a jury, make no opening statement, ask one question on cross-examination, call no witnesses, and prevail."
The Seattle Times analyzed Earl's felony trial record in Grant County Superior Court. From 1999 to 2003, he tried 34 cases.
He won two.
That's a 6 percent acquittal rate. Statewide, the average acquittal rate is 2-1/2 times higher at 15 percent.
Eighty-eight percent of Earl's felony defendants pleaded guilty. The statewide average is 76 percent.
But some of Earl's lawyering defies measure.
The law gives suspects the right to consult with an attorney before they are questioned by police. But Earl has stated, in a deposition, that he doesn't meet or talk with suspects.
"Heavens, no," he said.
Instead, he passes word to suspects by telephone — through the police — not to talk.
State's attempt at reform accomplished little
In 1989, the Washington Legislature required local governments to adopt public-defense standards. In response, Grant County formed an advisory committee, which recommended setting numerical caseload limits — capping, for example, an attorney's felony appointments at 150 a year.
But the county never adopted the limits. In separate resolutions passed in 1992 and 1997, commissioners instead said no attorney "should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation."
Sperline, who was a member of the advisory committee, says those resolutions amount to "an unenforceable, meaningless standard for caseload limits."
In an interview last year, commissioners expressed no alarm about Earl's caseload numbers, not even when asked about the approximately 360 cases that, according to court records, he handled in 1995.
"Three hundred and sixty may be way out of line for one attorney, and not at all out of line for another attorney," Commissioner LeRoy Allison says.
The county does not keep detailed caseload statistics. (The Times was able to determine Earl's caseload for 2003 by analyzing computer data and by reviewing more than 100 court files to fill in gaps left by computer records.)
Earl told the bar that from 1996 through 2001, he handled "about" 250 court-appointed cases a year, plus "maybe 20, maybe 25" private cases.
"I'm a very organized person," he said. "I do the very best that I can do on every case that I have."
But Robert Schiffner, another public defender in Grant County, says Earl's workload compromises quality. "That's a lot of crime scenes to visit, a lot of police officers to interview, a lot of people to visit in the jail," Schiffner says.
PUBLIC PAY, PRIVATE PAY
Debt may have contributed to alleged misconduct
In 1988, Tom Earl earned $132,000 — the most he had made to date.
The next year, he declared bankruptcy.
That pattern — high income, deep debt — has dominated Earl's life. Last year, a bar hearing officer examined Earl's history of financial pressures, including bankruptcy and tax liens, and concluded that it might have pushed Earl to cross the line and take money from court-appointed clients.
Earl, 49, belongs to one of Grant County's most prominent families. His father, three brothers and a son are lawyers. He lives in an exclusive lakeside subdivision that warns visitors of video surveillance.
When Earl sought protection from creditors in 1989, Bankruptcy Judge John Rossmeissl initially turned him away, saying he was being "less than forthcoming" about his financial situation.
In an oral ruling, Rossmeissl raised concerns about Earl's timing:
Two months before declaring bankruptcy, Earl took a family vacation in Mazatlan. He also put $160,000 in construction costs into a new home. Earl's creditors included people who helped build that home.
In another instance, the judge noted that Earl used his household goods as loan collateral in late 1987, placing their value at $60,000. When he filed for bankruptcy a little more than a year later, he valued them at just $4,000.
Testifying in the bankruptcy proceedings, Earl explained the difference as liquidation value versus purchase value.
The judge called his explanation "disingenuous."
Earl finally received bankruptcy protection in 1990. But new financial pressures were looming.
In 1995, the IRS said Earl owed $120,000 for back taxes. In 1996, the IRS upped that by $10,000.
Earl satisfied those tax debts in 2001, but only after borrowing about $290,000, mostly against his house, according to property records.
Earl has incurred such debt despite a substantial income. In addition to his public-defense work, he has had paying clients, although he has been less than forthcoming about that side of his practice.
In a 1995 letter to county commissioners, Earl wrote that in nine years doing public-defense work, he had devoted "100%" of his "time and energy to Superior Court indigent defense."
And in a 2001 deposition, he said that he had only "a handful of retained cases" between 1996 and 2000, and had spent "probably 99 percent of the time in indigent criminal defense."
But financial records obtained by the state bar show payments from scores of private clients to Earl, including two made on the very day he wrote the letter to the commissioners.
"If you're asking me if the hundred percent is correct, no, not a hundred percent," Earl told the bar when asked about his claim of undivided devotion to public defense.
The financial records obtained by the bar are incomplete, and provide only baseline figures for Earl's income from paying clients.
But, when tallied, the payments noted in those records show that in 1997, Earl made at least $52,000 from private clients.
In 1998, he made at least $43,000 from private clients, the records show.
Both years, he also was paid $156,000 for public-defense work.
The median salary in 2001 for a lawyer in rural Eastern Washington was $52,500.
State bar says Earl part of a system that invites abuse
Last May, a hearing was held in Grant County on the bar's charges that Earl had asked indigent defendants or their relatives to pay for services meant to be free.
A sister of one of Earl's court-appointed clients said she emptied her savings account and borrowed from an aunt to pay Earl $3,000. "You know, I have worked all my life, since I was 16," she testified.
Bar hearing officer Kenneth Fielding concluded that Earl accepted private fees in three court-appointed cases. Calling it "an act of corruption," Fielding recommended disbarment.
Earl committed misconduct in five other cases — for example, charging unreasonable fees to private clients — that warranted sanctions ranging from reprimands to disbarment, Fielding said.
But Fielding extended his criticism beyond Earl to the contract system he worked in. Grant County "has adopted a system in which the potential for conflict and abuse is higher than need be," Fielding wrote. Earl "helped to create that system, and has voluntarily undertaken to practice in that system."
By words and conduct, Earl conveyed the message that as a court-appointed lawyer he "did not provide the same sort of defense that a client might receive if they could retain counsel," Fielding wrote.
This conduct included his excessive caseload "and the minimal time spent with clients who were asserting their innocence on very serious charges."
Earl's clients, Fielding wrote, lost "confidence and faith in the public defender system."
COURT IN CRISIS
Earl's license suspended; attorneys pressed into service
In February, Grant County's elected prosecutor and all three Superior Court judges asked the Washington Supreme Court to let Earl keep his license while deciding whether to disbar him. Earl's continuing practice "would be greatly in the public interest," the judges wrote.
Earl wrote on his own behalf, saying he is an Eagle Scout and has served "the indigent community faithfully, earnestly and to the best of my ability."
The pleas were rebuffed. On Feb. 11, the Supreme Court suspended Earl's license pending a decision on disbarment. And on Feb. 18, Grant County terminated its public-defense contract with Earl.
Those actions precipitated a spectacular cascade of problems for Earl, other lawyers, the Grant County courts and, likely, more defendants.
Even as Earl was stripped of his income, the bar has asked him to pay $16,500 in restitution to five former clients, and $28,419.15 to the bar itself to cover the cost of proceedings against him.
A private investigator has filed a claim with Grant County saying Earl failed to pay him about $6,400 for work in a public-defender case.
At least two of Earl's subcontracting attorneys say Earl didn't pay them for the cases they handled in the first half of February.
Earl's suspension means his staggering load of court-appointed cases must be reassigned, and that he will no longer be available to take new cases.
Last month, the Superior Court judges adopted the equivalent of a military draft. In a March 12 memo, presiding judge Evan Sperline notified 49 Grant County attorneys that they would be tapped for public-defense work.
"(Y)our telling us to 'go fly a kite' would be within the expected reactions to this approach," Sperline wrote to the attorneys. "Unfortunately, we have found no reasonable alternative."
Some of the lawyers have experience in criminal defense. Others have none.
To compensate, the judges plan to give less-demanding cases to those attorneys with minimal experience, Sperline said.
What they will be paid is unclear. The judges are trying to determine an average hourly rate for Grant County attorneys. The pay for court-appointed work will likely be somewhat lower than that figure, Sperline said.
But for now, indigent defendants in Grant County could be assigned defense attorneys who lack experience in criminal law, don't want the work and don't know what they will be paid.
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