by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
As Huneke was processing Sean’s case—and the other one hundred on her plate—she was growing increasingly steamed at what was going on around her in the Spokane courts. Was she alone in feeling overwhelmed? She didn’t think so. Many of her colleagues, she says, were similarly distressed. But it was hard to speak out. Sometimes, Huneke says, it was easier, more efficient to deal with the huge caseload by persuading more clients to accept bad pleas.
“There is so much subtlety involved in criminal practice,” she says. “I can look at a lot of cases and say, ‘That’s not a good deal.’ And it’s really easy to sell a bad plea bargain to someone. And maybe you don’t even know that’s a bad one [because you haven’t had time to investigate the case]. You overemphasize the risks a little bit, say, ‘This is the best we can get’ and you settle a case in two hours instead of in a hundred hours at a trial. And people are afraid. Trials are scary. But if you don’t have anything to lose [because the prosecutor is offering such a high sentence in exchange for a guilty plea], there’s actually no reason not to do a trial once in a while.” Huneke laughs, but it is bitter, devoid of amusement. “The problem is you have to push, and if that isn’t valued in your office . . . I think a lot of ills are hidden by bad plea bargains.”
In this instance, as she studied Sean’s case, she thought about the way she and other attorneys in her office managed their work. “At any one time, you’ll be juggling all these cases, some ‘trial chicken’ and maybe some serious cases, and a thousand phone calls to return,” she says. “You end up responding by putting out fires. Whose is the biggest fire today?” But, she says, if you just sell the client a deal and move things along, the situation becomes almost manageable. Judges and bosses are happy because cases get moved along and processed quickly without a lot of time, energy, or money—and “you’ve got to keep them happy if you want to survive and advance.”
She did some soul-searching and wondered if she wanted to be a part of this charade. “It’s like due process theater,” she began to realize with dismay. “People are dressed up like lawyers and they’re standing next to a client, but they are not really zealously advocating.”
Who had time to zealously advocate?
Huneke, in the midst of her personal coming-of-age story as a public defender, was trying to honor her ethical obligations to her client, to make the system work. “My client has a right to a trial,” she says, explaining the logic. “And the state wants them to give that up. If the state wants my client to give up this thing of value, they have to give up something of value.” She shakes her head in disgust, thinking about Sean’s plea deal and the hundreds of other lousy crumbs prosecutors have tossed to her clients over the years. “If you are going to give them the same thing they will get from a trial, then why bother with a plea? If they aren’t going to significantly reduce things, then why not go to trial?”
But preparing for a trial is time-consuming. And most public defenders triage their cases. Sean’s case wasn’t a priority because until October 2003, it was pending a motion to dismiss. Then Sean considered what he thought was the state’s plea offer of no jail time only to discover in December 2003 that the state did want him to serve time. Suddenly, Sean’s case, which had inched along, was on the docket for March 2004.
Meanwhile, since December 15, 2003, Huneke had tried five cases and was prepared to try a sixth before the prosecutor accepted a counteroffer that she had made weeks previously in that particular case.19 Half of them were fairly straightforward—possession of stolen property, drug possession, taking a car without permission—but the other half were more complex—robbery, burglary, drug distribution. She had been frantically working on those trials, juggling her other cases, and trying to prepare for Sean’s trial at the same time. Her conscience was bothering her, nagging her with the slew of follow-up interviews and investigations she still needed to do on Sean’s behalf. She woke up in the middle of the night four days before the trial and scrawled out a “To Do List for Replogle’s Case.” It had fourteen bulleted tasks, including everything from obtaining a history of the intersection to interviewing Stack’s family doctor to make sure he had no preexisting conditions to arranging an LCD projector to be available in the courtroom. A few days earlier, she had spoken to the doctor who did the autopsy on Lowell Stack, getting her to translate into plain language the medical jargon on the form. Turns out Stack had died from an infection after surgery. The surgery had been done to fix a hernia, which struck Huneke as curious. Does one get a hernia from the kind of blunt trauma injuries inflicted in a car crash? she wondered. She wanted to know more, to speak to Stack’s family doctor and the physician who’d done the surgery. Something seemed amiss here. Also, she needed the standard background for trying a vehicular homicide: Stack’s ophthalmology records, his driving history from previous insurance claims, reports from the paramedics, an expert to examine the photos of the skid marks, and so forth. She realized, sitting up in bed in the middle of the night, transcribing her list onto a laptop, that she definitely needed more than three days to prepare properly for this trial.
Sean Replogle was waiting for the trial to begin. It was grueling. He was convinced that everyone was pointing to him as he walked the halls of his high school, calling him a murderer. Everyone knew, he insists today. Everyone despised him for what he’d done to Lowell Stack. “In the office at school, they’d be like, ‘Oh, there’s the kid that killed him,’” he says. “On the intercom a month and a half after it happened they announced, ‘Judy Rodeen has returned from her tragic accident and everyone should say “hi” to her in the office.’ And everyone in the class and the school turned and looked at me.”
Sean started skipping school. “I didn’t want to leave the house,” he says, “over fear that anything I did I could go to jail for. I felt like I was in danger of getting arrested for anything, if I was going to prison for speeding.” He dropped out of school and got his GED in March. In the fall, at his father’s insistence, he took out a student loan and enrolled in Spokane Falls Community College. But he began having panic attacks. “I started breaking down,” he says. There were continuances, delays of all sorts, every thirty days or so for two years, he recalls, and each time he had to assume they would actually be going to trial. He couldn’t shake his terror; the prospect of prison loomed over everything he did and said and thought. He couldn’t focus. Finally, he told his dad, “I can’t do it,” and his dad relented—“If it’s that hard, don’t do it,” he said—and Sean dropped out of college.
He stayed in the house. “I was really depressed,” he says. “I detached from everyone. I didn’t do anything for two years.” His luck was so bad, he was certain it would continue that way; he’d be found guilty and be sent to prison. “At the time,” he says, “I was just this little eighteen-year-old who had been in maybe two fights in my life. I tried to mentally prepare for spending three-and-a-half years in prison. I wasn’t mean or anything, but I tried to toughen up.” He started lifting weights and watched a lot of HBO’s Oz. “I tried to picture these tough, crazy people staring at me and wanting to fight all the time,” he says. “I stopped playing video games and worked out all the time.” He told himself: “This is going to be the most crazy environment, and I have to figure out how to survive it for three years.” His family grew worried. He never smiled anymore.
Sean and his father talked about the accident every night. At first, Chuck Replogle wanted his son to admit he was speeding. He didn’t know the exact numbers the cops were coming up with, but he suspected Sean was lying, Sean says. “At first, Dad said, ‘something bad happened, you have to admit your guilt.’” He, too, was terrified that Sean would go to jail. Maybe if Sean simply admitted he was speeding, if he was sorry, he’d be forgiven and things would go their way. “He didn’t 100 percent believe me because police were saying something different [about the speed],” Sean says. “I was an eighteen-year-old boy and I’m sure I had lied to him a couple of times before, so he had his suspici
ons when he heard what the cops said about the speed. But I was like, ‘I’m not lying, I swear. I don’t know what else to tell you.’”
Sean says the only person who believed he was not going 58 mph was his public defender, Huneke. (Huneke says she’s not sure she did believe him about the speed, but she did believe that he should not be sent to prison for this accident; there were so many unanswered questions about the case.) When Sean first met Huneke at her office, she had a stack of papers on her desk and was in the middle of a murder trial. “I have a good feeling about this,” she told him when he and his father came in. “You’re going to be okay.”
This was the first time Sean had some hope. In the midst of what he calls “dark days,” Huneke assured him that she believed in him. “If we’ve got a jury in their right mind, I think it will work out,” she told him.
Sean recalls: “She never guaranteed me because she couldn’t, but she felt like this was a winnable case.”
Still, this glimmer of optimism was regularly overshadowed. “Just because I was innocent, I was starting to realize, didn’t mean anything. They could still find me guilty. I didn’t trust the system. She was the only person fighting for me.”
And she was fighting hard.
When Carol Dee Huneke went into Spokane County Superior Court on Friday, February 27, 2004, the day set for a hearing prior to the onset of Sean’s trial, she asked Judge Michael Price for a continuance. The judge, brand new to the bench, denied it. Huneke persisted. She only had the weekend to prepare for the trial, she said, explaining that she had had five back-to-back trials on her calendar. She desperately needed more time, she said, and then played what she thought was her trump card, the magic words that she knew no judge could properly ignore, insisting this would be “ineffective assistance of counsel.”
Price, who’d been on the bench fewer than two months, held fast. The trial would not be further delayed, he insisted. It would start on Monday or she’d be held in contempt of court.
Frantic, Huneke spent the weekend agonizing. She knew she was completely unprepared to go to trial—and that to do so now jeopardized Sean’s case. She talked to her boss and an attorney at a statewide criminal defense organization, who gave her legal advice about what would happen if she was held in contempt, agreed to show up in court to represent her, and advised her to prepare a written statement about her workload.
Huneke sprang into action. She got co-workers to submit signed affidavits. One colleague, David Carter, explained in writing to the judge that public defenders in Spokane were completely swamped. “The demands on my time during regular Court hours covering arraignments, guilty pleas, case scheduling hearings, and answering docket calls prevent me from being able to do any significant trial preparation during the regular work week. As a result, it must be done in the evenings or weekends,” he said. “On nearly every Saturday, Sunday, or holiday that I have been working in the office since November 2003, I have seen Carol Huneke in the office working on preparing a case for trial. Although I am not totally familiar with her trial calendar, I know she has been required to prepare several cases for trial during that time. More often than not, she is still in the office working when I typically leave on Saturday and Sunday afternoon.”20
Another colleague, John Stine, wrote in Huneke’s support that he transferred out of their office in October 2003 “in response to overwhelming caseloads.” He said he had more than seventy open felony cases at a time, “which effectively made it impossible to fully prepare cases for trial without significant delays.” Worse, he said, “I understand the caseloads have continued to grow since then.” 21
A third public defender, Kathleen Moran, told the court that, after six years in the office and working weekends and nights to stay caught up on the work, she was officially resigning in three days due to “crushing caseloads.” Further, she said, “Because the Public Defender’s Office is short on funds and staff, much of the work that needs to be done has to be done by the lawyer alone. Approximately 45 lawyers share five investigators and five paralegals. Due to shortages in staffing, it is difficult to schedule witness interviews at times when both the lawyer and the investigator are available.”22 Moran was persuaded that Huneke was similarly overworked. “It has come to my attention that Ms. Huneke has requested a continuance of a vehicular homicide trial because she is not prepared,” Moran noted. “From my experiences with Ms. Huneke as a colleague, I believe that she would not request a continuance unless she was truly not prepared to go forward.”
Huneke attached a list of how many open cases she had—101—and how many the prosecutor had—28. She also compared other public defender caseloads to prosecutor caseloads, pointing out in her written statement to the judge that “the prosecutor’s office has more than twice the attorneys in its felony department, even though the public defender’s office handles at least 90 percent of the adult felony cases in Spokane County.” She insisted that this disparity created an impossible situation “where the public defender’s office is extremely outnumbered, and the prosecutors have little incentive to plea bargain.”23 (The Spokesman-Review newspaper also noted that the prosecutor’s office was slated “to receive approximately $8 million in funding in 2004 [that same year] compared with $4 million for the public defender’s office.”24)
Huneke went on to explain the case’s progression: “Up until October 2003, Mr. Replogle’s case was pending a motion to dismiss. . . . After the dismissal motion was denied, I decided that my client may want to think about taking what I believed to be the state’s plea offer of an exceptional sentence downward of no jail time. However, I discovered in early December that Mr. Francis did not intend to agree to no additional jail time. Thus, in late December, we decided to go to trial and began preparing for trial in earnest.”25 Since December, she’d had five trials and prepared for a sixth before the prosecutor offered an eleventh-hour plea that her client accepted. She estimated that she spent approximately ten hours preparing for a simple trial and a hundred hours for a complicated trial, with two of the previous trials being “complicated.” 26 She also kept up with numerous court appearances for her other one hundred clients both in and out of jail, juggling motions, briefs, phone calls, interviews, and pleas. “Despite my best efforts, I am not ready to proceed to trial on Mr. Replogle’s case on March 1, 2004,” she wrote to the judge. “I cannot provide adequate assistance of counsel. I have a duty to provide effective assistance of counsel, and thus refuse to conduct a trial for which I am unprepared. I take this position not in disrespect for the court, but to the higher calling of adequately, effectively, and zealously representing my client and the constitutional and ethical duty of effective assistance of counsel.”
Then, she climbed up on a soapbox to announce the severity of the public defender caseload crisis in Spokane. The local newspaper got wind of the story.
“We were in court with our attorneys, ready to get her out of jail Monday morning,” Huneke’s boss, John Rodgers, director of the county public defender’s office, told the Spokesman-Review that week, hoping she wouldn’t be sent to jail for being in contempt of court. He also affirmed Huneke’s skill as a lawyer. “She’s incredibly aggressive and effective,” he told the paper.
It was a very risky strategy. One might even argue, a desperate gesture.
How did the crisis in the courts reach this impasse?
The last half century of indigent defense in Washington State reflects the experience of states across the nation. Like most states on the heels of the 1963 Gideon decision, Washington made a mad dash to meet the broad requirements of the law, leaving the details up to individual counties. The larger cities tended to create public defender offices, hiring full-time staff. The smaller towns and counties were more likely to pay an hourly rate to lawyers typically appointed by judges from a rotating list hired to defend the poor on an as-needed basis. A few jurisdictions in the state—only six in the 1970s—signed a flat-fee contract with an attorney or firm for all indigent
defense.27
Over the decades, however, the flat-fee system became an expedient way for local governments to control costs. Local politicians and administrators could organize their budgets by agreeing to costs in advance, rather than paying an hourly wage to lawyers for representing clients. Under an hourly system, by contrast, one big murder case with a lawyer zealously representing his client—and chalking up some serious hours in the process—could decimate a small local budget. Thus by 2004, in a development representative of national trends, twenty-six counties in Washington embraced the flat-fee arrangement. But while it may save small local governments money, flat-fee contracts create a disincentive for lawyers to do quality work. Because many flat-fee attorneys also continue in private practice, where they charge paying clients hourly fees, flat-fee defenders are also incentivized to serve their paying clients at the expense of the indigent clients. As long ago as 1984, Washington State officially recognized that clients got wildly disparate defense, depending on which county they happened to live in and how public defense was funded there. The newly formed Washington Defender Association developed a set of professional standards that all public defenders should adhere to (including caseload limits based on the American Bar Association’s recommended limits) and began pushing the legislature to mandate compliance with the standards. By 1989, the Defender Association had made only incremental progress with its reform efforts. The state legislature passed a law requiring each county to adopt standards, but declined to specify what the standards should be. “The standards endorsed by the Washington State Bar Association for the provision of public defense services may [emphasis added] serve as guidelines,” the law read.