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Tuesday, April 6, 2004 - Page updated at 12:00 AM

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The Empty Promise of an Equal Defense

Part 3: Frustrated attorney: 'You just can't help people'

Seattle Times staff reporters

Lisa Tabbut is a public defender in Cowlitz County. This was the workload she juggled in 2002:

Dependency cases: 276.

One lawyer pitted against the combined forces of two state agencies, Tabbut defended parents fighting to keep their children in the face of neglect or abuse allegations. She scrambled to interview doctors, teachers and relatives in proceedings that can consume more time than defending an accused felon.

Juvenile-offender cases: 295.

Defending children and teenagers threatened with being locked up, Tabbut needed to grasp the evidence and appreciate her clients' backgrounds and needs. She was, in the words of one report on Juvenile Court, "society's link to children who might otherwise be lost."

Criminal appeals: 16.

Tabbut read trial transcripts hundreds of pages long, hunting for questions, arguments or rulings that violated the boundaries of a fair trial. Then she researched legal issues, wrote briefs and sometimes appeared for oral argument.

What is too much?

Caseload limits endorsed by the Washington State Bar Association help draw that line. The guidelines amount to accepted standards of practice — the way things should be, if justice is to be served.

In 2002, Lisa Tabbut's caseload was 6½ times the accepted standard.

The dependency cases alone demanded more than she could give.

"It is so much," Tabbut says. "Frankly, it's malpractice per se. It's insane. You just can't help people when you're dealing with numbers like that."

Tabbut's dilemma is repeated again and again, in courts throughout Washington — and America — as public defenders labor to keep up with stunning caseloads.

"It's a huge concern, all over the state," says Cowlitz County Superior Court Judge Stephen Warning. "This is an ongoing, great big problem."

In March of last year, Tabbut dropped her Juvenile Court contract — a fixed-fee contract that placed no cap on the number of dependency and juvenile-offender cases assigned to her.

"Enough is enough," she says.

Her job had become legal triage: "You decide who you can help and who's not going to get help. That's a terrible admission."

Tabbut's Juvenile Court contract paid her approximately $86,000 a year. That may sound like good money, but in King County, where public-defense caseloads are controlled, the same amount of work would have been shouldered by two to three full-time attorneys.

Looked at another way, Tabbut received the equivalent of $150 per case.

UNPOPULAR CAUSE
Funding for indigent defense a tough sell with lawmakers

Four decades ago, U.S. Attorney General Robert Kennedy said: "The poor man charged with crime has no lobby. Ensuring fairness and equal treatment in criminal trials is the responsibility of us all."

But ensuring equal treatment — often for accused drug dealers, rapists, murderers and abusive parents — is costly and not always popular.

"It's tough to go into the Legislature and say people who are accused of crimes, or people who are alleged to have done awful things to their children, need your help," Warning says. "We can't exactly do a telethon for them."

Since the 1970s, legislative committees and bar groups have decried caseloads so excessive they undermine public defense. Those warnings have resulted in little more than one impotent state law, passed 15 years ago, which most counties have simply ignored.

And because the state doesn't help pay for indigent defense at the trial level, except in a handful of cases, counties and cities must foot the bill alone. Many have embraced the type of fixed-fee contract at the root of Tabbut's struggles.

Court records and other documents reveal that, across Washington, hundreds of public defenders carry caseloads that eclipse recommended limits.

The same year Tabbut labored under a crushing caseload in southwestern Washington's Cowlitz County, a public defender in coastal Grays Harbor County carried this workload: 450 misdemeanor cases (50 percent above the recommended ceiling); 266 juvenile-offender cases; 21 adult felonies — and a private practice.

"I haven't had a day off in probably three or four years now, quite honestly," the attorney, Kyle Imler, says. "Every day I'm in court somewhere. Then I meet with clients on the weekends, or in the evenings, or at the jail — whenever I get the chance."

LAWYER ... OR JUDGE?
Dual roles leave attorney confused, clients poorly served

In the 1963 ruling Gideon v. Wainwright, the U.S. Supreme Court said every defendant facing the threat of prison is entitled to an attorney, regardless of means. Ever since, states have struggled to uphold that promise.

In Texas, judges repeatedly appointed an attorney infamous for falling asleep in court.

In Georgia, a lawyer with public-defense contracts in five counties was fired after saying he assumes his clients are guilty ("It would be a grave error to assume innocence"); that defense attorneys should work as a team with judges and prosecutors ("It's time we put the maverick concept of counsel to rest"); and that he regretted missing family time while interviewing clients "sorry as the day is long."

In Illinois, disciplinary officials suspended an attorney for nine months, citing incompetence and dishonesty. Ten days after his license was reinstated, the attorney was appointed to defend a man's life. His client was convicted and sentenced to death.

Washington state can add its own bizarre tale.

In Toppenish, a small town in Yakima County, Santos Rivas was charged in 1999 with a half-dozen misdemeanors, including disorderly conduct and possession of drug paraphernalia. Rivas wanted to talk to his court-appointed attorney before trial but couldn't reach him.

About a month after he was charged, Rivas went to court. There, he discovered that his public defender was now his judge.

The judge, Steve Michels, "essentially talked Rivas into firing him as his attorney and pleading guilty to all the charges," the Washington Supreme Court would later write.

Michels sentenced Rivas to 540 days in jail, with all but 12 days suspended, and fined him more than $2,000.

This wasn't the only time Michels served as both public defender and substitute judge in Toppenish Municipal Court.

Twelve times, from August 1998 until February 2001, Michels "deprived defendants of their constitutional rights by acting as both judge and defense counsel," the Washington Supreme Court wrote.

Last September, the Washington Supreme Court suspended Michels from the bench for 120 days and expressed dismay that the right to counsel could be so blatantly denied.

In a separate proceeding, Michels told the state bar that his confusion in these dual-role cases can be attributed, in part, to how many indigent defendants he represents.

In 2000, Michels was appointed to 797 misdemeanor cases in Toppenish, and to 511 in nearby Wapato. That's 1,308 cases — more than four times the recommended limit of 300 misdemeanors a year.

"Because of the number of cases involved, it is often difficult to remember each defendant," Michels wrote in a letter to the bar.

The bar's recommended misdemeanor caseload limit assumes an attorney is doing nothing else. (A gross misdemeanor can carry serious consequences for a defendant: up to a year in jail.)

But in the same year that he had 1,308 cases as a public defender in Toppenish and Wapato, Michels oversaw 3,963 cases as a Municipal Court judge in Sunnyside, according to state records. This was in addition to the cases he heard as a substitute judge in Toppenish. And this was in addition to his private practice.

Now, some math:

Assume an attorney has 1,650 hours a year to devote to his casework. (That's the number used by the Washington Defender Association, which provides training and support for public defenders statewide.) With 1,308 court-appointed clients, Michels would have had only 1.26 hours to devote to each case.

And that assumes he was doing nothing else — with Michels, a fanciful assumption.

Another way to look at it:

Toppenish used to pay Michels $75 per case for court-appointed work. But in the 1990s, it switched to a fixed-fee contract.

In 2000, Michels' contract with Toppenish paid $1,400 a month, according to the city's clerk-treasurer. With 797 court-appointed cases in Toppenish that year, Michels' pay comes out to $21.08 per case.

A person can spend more on a good haircut.

RUNAWAY JUVENILE CASELOADS
Public defenders overwhelmed, overmatched

The Juvenile Court caseload that finally proved too much for Lisa Tabbut is not an exception.

Statewide, court records and studies have consistently revealed especially burdensome public-defense caseloads in Juvenile Court, where dependency and juvenile-offender cases are handled. In dependency cases, the burden is compounded by a disparity in resources.

With felonies, misdemeanors and even juvenile-offender cases, a court-appointed defense attorney typically faces a prosecutor who also is paid by the county.

But in dependency cases, attorneys representing parents accused of abusing or neglecting their children face two vast state agencies: the Department of Social and Health Services (DSHS), which investigates complaints against parents, and the state Attorney General's Office, which argues DSHS claims.

A 1999 report by the Washington State Office of Public Defense found that the Attorney General's budget for such cases was twice what counties typically spend in defense of parents. The report also noted that DSHS has "massive" resources, with more than 1,200 employees who work on dependency cases statewide.

Opposite that place a public defender like Tabbut, trying to do justice in nearly 300 dependency cases while defending hundreds of other court-appointed clients.

"It is hugely overwhelming," Tabbut says.

To address the imbalance in dependency cases, the state is funding a pilot program in Pierce, Benton and Franklin counties that allows attorneys to limit caseloads to 90 a year and have greater access to investigators and experts. Court commissioners have praised the results, saying attorneys are better prepared and have more time to communicate with clients.

Runaway caseloads have also been a chronic problem in juvenile-offender cases.

In Snohomish County, for example, state data shows that one public-defense attorney averaged 723 cases a year from 1998 to 2002. That nearly triples the limit of 250 recommended by the state bar.

The American Bar Association Juvenile Justice Center, in collaboration with other groups, issued a report last October documenting Washington's struggles to provide adequate representation in juvenile-offender cases.

Researchers interviewed about 30 public defenders, in seven counties, who reported carrying 360 to 750 cases a year.

In Juvenile Court, the study found, some attorneys seem more concerned with fostering good relationships with judges and prosecutors than with defending their clients aggressively. Such "defenders do not set trials, bring motions, or push for investigation funds because they fear 'rocking the boat' and being ostracized by the juvenile-court community," the report said.

Some juveniles interviewed as part of the study described rushed meetings with attorneys, and little time to ask questions.

"(My attorney) said, 'You are going to plead guilty,' and I didn't want to," a 13-year-old boy said. "He was making me say something that wasn't true. He thought I was lying."

A 16-year-old boy said of his attorney: "I wish she would at least return my message(s) and get back to me."

NO CARROT, NO STICK
Counties have little incentive to adopt caseload standards

In 1989, Washington passed a law that requires each county to adopt public-defense standards on more than a dozen topics, from caseload limits to an attorney's duties and responsibilities. But the law doesn't dictate what those standards should say. It merely suggests using state-bar guidelines as a reference.

Most counties have snubbed even those minimal demands.

Based upon a statewide review of county ordinances, resolutions and Superior Court contracts, the American Civil Liberties Union (ACLU) of Washington recently concluded that many counties failed to honor their obligations.

Fourteen of Washington's 39 counties have adopted standards on some or all topics. Of those, only King County has comprehensive standards that include numerical limits on attorney caseloads, the report says.

Twenty-five counties have not adopted any standards at all, the study says.

For counties that violate the law, there's no punishment. For counties that follow the law, there's no reward.

That wasn't the original intent.

In early 1989, a legislative task force expressed alarm at excessive public-defense caseloads, an absence of standards and a dramatic shift among local governments toward contracts that paid as little as $12 a case.

The panel urged the state to subsidize indigent defense — paying as much as 50 percent of costs — and to attach conditions to that money. Only counties that adopted standards, including caseload limits, would get state funding.

What the Legislature passed was a law requiring standards — but without the financial inducement.

"It was purely finance," says Philip Thompson, a retired Washington Court of Appeals judge who was the task-force chairman.

Former Republican state Sen. Gary Nelson helped sponsor the law. At the time, he says, annual indigent-defense costs topped $30 million statewide. (That figure is now at least $75 million, by one estimate.) Some lawmakers wanted no part of that tab.

"After 22 years in the Legislature, there is one area of disappointment or regret — and you have found my Achilles heel," says Nelson, now a Snohomish County Council member. "This is the one area where I wasn't able to accomplish quite what I wanted to. And it keeps avoiding my grasp."

Another advisory group, chaired by then-Lt. Gov. Joel Pritchard, renewed the call for state funding in 1991.

"The time for study is over. The time for action has arrived," the group's report said.

That study landed on the same pile as its predecessors.

Nationally, Washington ranks with the bottom seven states in helping fund public defense, according to a study by The Spangenberg Group, a research and consulting firm. The average state funding level is 50 percent; in Washington it's 5.5 percent — and would be even lower, except the state pays for indigent appeals.

The state's standing drops if you include the cost of all judicial and legal services — not just indigent defense. The Bureau of Justice Statistics calculates the share of judicial and legal services paid for by states versus local governments.

By that criterion, Washington ranks 50th.

"We're last. We're dead last," says Mary McQueen, administrator of the state's Administrative Office of the Courts.

King County Superior Court Judge Deborah Fleck says the lack of state funding puts indigent defense at the mercy of a county's financial health.

"There should be equal access to capable counsel across the state," Fleck says. "It should not be dependent upon the fiscal vagaries of a particular county."

UP TO THE LAWYERS
Attorneys could force reform by setting their own limits

Nothing can measure quality of representation with precision, so comparing Washington with other states becomes somewhat subjective.

"Washington has some of the very best public defense in the country — some of the most dedicated people," says Bob Boruchowitz, director of The Defender Association, the largest public-

defense firm in King County. "And we have some of the worst situations that are on a par with some of the worst places."

Legal experts and indigent-defense studies have suggested a variety of alternatives for improving Washington's quality of representation. They include abolishing the use of fixed-fee contracts; creating a statewide public defender system; or finding some middle ground where states and local governments share the cost of trial-level indigent defense.

In its report issued in March, the ACLU of Washington urged the state to set specific, enforceable standards in such areas as caseload limits, and then monitor compliance.

Struggling public-defense systems in other states are becoming the subject of lawsuits.

The ACLU has sued Montana, saying inadequate state funding has deprived indigent defendants of effective counsel. The state's failure to respond to problems identified by multiple studies shows a "deliberate indifference" to constitutional rights, the ACLU alleges. That lawsuit is still pending.

The Mississippi Supreme Court has been asked to review a case in which a county has sued for state funding of indigent defense. Without financial help, the county alleges, it cannot provide the quality of counsel demanded by the Mississippi constitution.

"Depending on what happens in that case, it might give us a viable argument to pursue in Washington," says Sophia Byrd, a policy director with the Washington State Association of Counties.

Some experts say individual lawyers could help force government to keep its promise of equal defense.

"If lawyers around the state were willing to insist on reasonable compensation and reasonable caseload limits, then these practices would go away," Boruchowitz says. "But as long as local governments can find attorneys willing to take these unreasonable caseloads, they'll keep doing it."

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

Copyright © 2004 The Seattle Times Company

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