by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
Even these vague standards were routinely ignored. In March 2004, the American Civil Liberties Union in Washington State issued a report warning that the “checkered system of legal defense” means there is “no guarantee that a person who is both poor and accused will get a fair trial.”
Then a month later, the Seattle Times published a three-part investigative series revealing exactly how this “checkered system of legal defense” played out in a solitary county in the state, digging deep into the finances, court records, and history of Grant County, Washington.28 In April 2004, three intrepid Times reporters discovered that about $500,000 was going to a Grant County public defender named Thomas J. Earl, who handled 413 felony cases himself in a single year as compared to the American Bar Association’s recommended 150. “At that rate, Earl could devote an average of only four hours per case,” the journalists observed. Earl retained about $255,000 himself and farmed out to subcontractors additional cases and the remaining funds. Needless to say, he hired those who would work cheap, and the work they produced for him was below par. Earl’s trial acquittal rate between 1999 and 2003 was 6 percent (compared to the state average of 15 percent), while his guilty plea rate was 88 percent (compared to the state average of 76 percent). Reporters discovered that there were two findings of “incompetence” against him, one in a rape case and one in a drug case, and that his license was suspended in February 2004 after the bar “found misconduct in eight cases, including three in which Earl solicited money from indigent clients or their relatives.”
The reporters also investigated another Grant County public defender, Guillermo Romero, who had represented more than a thousand clients over the previous seven years but had taken only twenty-three cases to trial, losing all of them. “Twice, reviewing courts ruled that he was so incompetent, the adversarial system had collapsed,” reporters noted. “He was supposed to punch holes in weak cases, to intercept police and prosecutors when they ran afoul, to investigate and analyze and advocate,” the Times noted. “But legal basics eluded him. In a rape case, he once filed a motion seeking ‘D and A testing.’ What he meant was DNA.” In addition to being convicted of assaulting his girlfriend, being sued by creditors, and going into drug rehab, Romero was found by the bar association to have “committed theft and solicited money from relatives of court-appointed clients.”
The Seattle Times also raised questions about systemic problems. How was there so little oversight that incompetent attorneys could continue landing lucrative contracts? How had they been assigned such staggeringly high caseloads? How common were flat-fee contracts?
In fact, like most states, Washington was plagued by sweeping problems that were jeopardizing equal justice for the poor. Reflecting a national trend, felony filings in the last fourteen years in Grant County had jumped from 278 in 1990 to 1,070 in 2003, the Seattle Times reported. Meanwhile, funding for public defense in the same period had gone only from $240,000 to $500,000—meaning the caseload had more than tripled while the spending for defense had only doubled. The impact was measurable. “Grant County leads the state in the percentage of Superior Court cases that are resolved with a guilty plea,” the Times reported, noting that 85 percent of clients accepted a guilty plea though “[i]ndigent defendants in Grant County have repeatedly complained of court-appointed attorneys failing to investigate their cases or claims of innocence, leaving defendants with little choice but to take whatever deal is offered.” Yet, despite the terrible outcomes, county governments continued to opt for the cost-effective flat-fee contracts.
The Seattle Times series shined a rare spotlight on indigent defense, and a shocked public—and legal community—finally insisted that something had to be done. On the heels of the exposé, the Washington State Bar Association appointed a Blue Ribbon Panel on Criminal Defense to investigate. The panel reported in May 2004 that the mandate for any kind of standards is “being ignored in many jurisdictions and there is no effective enforcement program.” Further, “[t]he lack of enforceable standards, especially caseload standards, jeopardizes the ability of even the most dedicated defenders to provide adequate representation.” The panel blamed inadequate funding, poor contracting practices (“especially fixed-rate defense contracts”), and inadequate oversight or accountability.
At the same time, the American Civil Liberties Union in Washington State filed a class action suit, Best, et al. v. Grant County. “Despite knowing of the deficiencies in the Grant County public defense system, defendant Grant County has failed to take reasonable steps to protect the constitutional rights of indigent persons,” lawyers for the plaintiff stated in the complaint.29 “Indeed, even after the Washington State Bar Association recommended in June 2003 that Tom Earl be disbarred for misconduct as a public defender, defendant Grant County refused to terminate Earl as the public defender and refused to terminate his exclusive public defense contract with Grant County. Defendant Grant County allowed Earl to remain in this position until finally, in February 2004, the Washington Supreme Court suspended Earl from the practice of law pending the determination of the appeal of his disbarment.” According to the ACLU, problems mounted. “Even then, defendant Grant County failed to take reasonable action to protect the rights of indigent persons. Although Earl’s suspension had long been a possibility, defendant Grant County failed to make reasonable preparations for the suspension. The Board has, instead, allowed the public defense system to descend into chaos. Things have become so bad that the judges of the Grant County Superior Court recently had to issue a plan that calls for the conscription of attorneys, some with no criminal defense experience, to represent indigent persons charged with felonies.” 30
The need for a serious overhaul of the state’s indigent defense practices had long been indisputable; now, for the first time, the public understood the scope of the problem—and the potentially devastating consequences.
All along the way, public defenders make hard choices about how they will represent their clients. Carol Dee Huneke, faced with the possibly dire consequences of taking Sean Replogle’s case to trial before she was ready, had set aside her other hundred cases to focus on Sean’s. With the judge’s refusal to delay Sean’s trial hanging over her, Huneke spent the weekend worrying about her fate for publicly refusing to proceed with a trial when she was unprepared and overworked. Would she be reprimanded? Formally disciplined? Fired? Jailed? She hustled all weekend to collect the facts on the public defender system and the evidence needed to bolster her argument. When it came down to it, this was a fairly straightforward ethical matter: “It was just wrong to proceed,” she says.
Sean and his family have nothing but good things to say about Huneke. “She felt so much that I was innocent that she was prepared to go to jail and be held in contempt because she needed more time to prepare right,” said Sean. “And she had a three-year-old then. I thought, ‘Wow, if the mother of a three-year-old is ready to go to jail for me, if she is fighting that much, I have to fight twice as much.’” Sean recognized that his life was, to some extent, in Huneke’s hands, and that bond was powerful and important. “I think she believed in me as a person, too,” he said.
That thought sustained him.
When Huneke showed up before the judge on Monday morning and made her case—again—for delaying the start of the trial, she spoke persuasively. Someone had also tipped off a local reporter about the showdown in court; this time the judge granted Huneke a three-week extension. The trial would start in March.
Sean and his family sat through seven days of the trial. Sean wore khakis and a dress shirt and tie that his aunt, a teacher in Michigan, had sent him because the family had no money to buy proper clothes. (“I still have them hanging up in my closet,” he would tell me eight years later, “to wear to job interviews.”)
The way Sean saw it, the prosecution spent three days painting a picture of him as a “crazy street racer.” The prosecutor described his car as a gun, a deadly weapon that Sean kept “firing and missing until [he] h
it Mr. Stack.”
Huneke really wanted Sean to take the stand and tell his side of the story. She was certain he’d be a good witness. But when his time came, late in the afternoon as the trial was nearing its close, he couldn’t do it. “I broke down,” Sean says. “I was shaking and crying and I didn’t know why.” They stood in the hallway of the courthouse. Huneke did her best to calm him, telling him they would wait until tomorrow and begin fresh.
Sean, who’d never seen a trial before in his life—“except for Judge Judy or whatever”—had no idea what to expect. Huneke told him to come to her office at 5:30 the next morning to go over things. “She had one of her helpers in the office question me like he was the prosecutor—and he was actually ten times harder, asked more intense questions than the real prosecutor.” The preparation helped. When a shaking Sean climbed into the witness box later that same day, he managed to keep his panic attacks at bay and answer the brief questions he was asked. “The prosecutor didn’t ask me a single thing about what happened, but only if I was shifting gears really fast,” Sean says, explaining that he remembered being in third gear. (Right after the accident, he thought he had been in second, but during the trial, he said he was in third.) Sean says the prosecutor kept insisting that Sean was driving too fast to stop in case a car inadvertently pulled into the intersection in front of him. “But it’s not logical to drive like you think every car is going to pull out in front of you,” Sean says, still thinking through the accident, still reliving the trial, still evaluating his behavior, still worrying.
Speed became a central issue in the trial, as Huneke knew it would be. The state insisted that Sean had to be going between 51 and 54 mph in a 30 mph zone. This constituted the “conscious disregard of the danger to others” that was necessary to procure a guilty verdict for vehicular homicide. Not only did the state have the witness statement saying that Sean had been speeding, it had photographs of the accident scene and a diagram showing that Sean’s skid marks were approximately 175 feet long.31 Based on 175-foot skid marks and time-distance calculations, the state’s accident specialist testified that Sean was going more than 20 mph over the speed limit. (A second accident report would put the skid marks at 114 feet and calculate that Sean had to be exceeding the speed limit quite a bit at impact.)
Fortunately, in the gift of additional time that Huneke had been given by the judge, she hired a retired state trooper to investigate the accident in order to help her re-create it for the jury. He was troubled by the calculations and by the vast gulf between the speed Sean alleged he was going and what the cops alleged. And some of the calculations weren’t making sense. Unfortunately, because weeks had elapsed between the accident and the charge and Huneke’s assignment to the case, any evidence that existed at the site of the accident had long since been erased. Still, three years after the incident, Huneke’s investigator went down to the scene armed with photos the cops had taken of the skid marks that day. As he paced the sidewalk and examined the skid marks, based on cracks in the sidewalk, where the curb was eroded, how the tire marks aligned with other landmarks, he got a firm sense of scale. Shocked, he discovered that the state’s accident investigator had doubled the length of the skid marks to do his speed-distance calculations. It was easy to prove this. All he had to do was take a second set of photos, pacing off the actual distance of the tire marks and putting the state’s photos next to scale models.
Huneke didn’t know whether the state had erred or whether the cops had intentionally lied; either way, the state’s case was crumbling. She turned her attention to the coroner next. According to autopsy reports, Stack had died from “acute peritonitis,” basically an infection due to surgery—but the medical examiner said the surgery took place to repair a hernia. While Stack seemed okay when emergency room doctors examined him, they had suggested an x-ray to make sure all was well, Huneke discovered. In fact, the x-ray revealed that he had a hiatal hernia. This hernia, often symptom-free, is due to a weakening in the muscle that separates the chest from the abdominal cavity. As the tissue weakens, parts of the stomach creep through. The emergency room doctors operated, Huneke explained to the jury, and Mr. Stack got an infection and died.
When she put Lowell Stack’s family doctor on the stand, the case fell to pieces. He testified that, yes, the emergency room doctors had called him, per protocol, when his elderly patient Mr. Stack was admitted but, he said, they did not mention that they were planning emergency surgery. Had the ER doctors mentioned it, he would certainly have objected. After all, he told the jury, Mr. Stack had had that hernia for years. It didn’t bother him much and, given his advanced years and fragile state, the doctor thought operating would be too much for Mr. Stack.
“The jury deliberated for twelve minutes,” Huneke recalled. They came back with their unanimous decision and delivered it without fanfare. Not guilty.
Several months after Sean Replogle’s acquittal, A.N.J.’s parents were struggling to deal with the consequences of their twelve-year-old’s guilty plea. They turned to a private local attorney, Garth Dano, for help. He joined forces with a lawyer named George Ahrend—and together they fought to revoke the plea, arguing that the public defender Doug Anderson had not only failed to zealously represent the boy, but he had failed to go through the most basic steps with his client (including never once having an independent interview with A.N.J.).
“When I first met [A.N.J.], he was just over twelve,” Ahrend tells me, “and I could totally see one of my own kids facing this same situation—and it frightened me.” Ahrend paused. “Goodness, nobody wants to be condoning sex abuse in any form, but it made me worry that maybe we’re a little hyper-vigilant, hyper-zealous about this. It did seem pretty innocuous—if it even happened.”
Among other things, Ahrend was surprised to learn that the five-year-old had reportedly been abused by someone else. That does not mean he wasn’t abused a second time, but it could mean he had mixed things up or understood the explosive nature of an accusation. “I won’t say I know what the alleged victim has been through,” Ahrend says, explaining that the younger boy had exhibited some “sexually precocious behavior that is not common in a five year old,” but this is the kind of stuff that A.N.J.’s original attorney should have investigated on his client’s behalf. “I don’t want to say this kid was not abused,” Ahrend says, “but there wasn’t a lot that happened here, and [A.N.J.] spent, as a consequence, junior high and high school as a registered sex offender.”
Indeed, this hung over A.N.J. for the next six years, essentially his entire adolescence. “One of the things that surfaced was that the public defender had misinformed the family about the consequences of this,” Ahrend said. “Not telling them that someone would shadow this kid around school and that he would have this on his record for life.” Ahrend and Dano took the case to the Court of Appeals—and lost.
But they persisted. Above and beyond what they saw as the egregious specifics of this particular case, they recognized an opportunity here to make an argument about legal standards. In particular, they hoped to push the state supreme court to play an active role in limiting public defender caseloads, arguing that, indeed, it had a responsibility to do so. If the Washington Supreme Court decided in A.N.J.’s favor here, the ruling would send shock waves through the legal community. It would be a clarion call to local governments that adequately funding indigent defense was no longer optional; thousands of cases could no longer be piled on the backs of overworked public defenders.
First, though, Ahrend had to make the court see the connection between bad lawyering and crushing caseloads. He could not simply state that Douglas Anderson was a crummy lawyer. He had to prove that Douglas Anderson did a crummy job because he couldn’t possibly do a good job when he was carrying 460 other clients. For his part, Douglas Anderson declined to comment due to a pending lawsuit.
Finally, on Thursday, May 21, 2009, at 10 A.M., Ahrend had a chance to make his case in oral arguments before the Washington Supreme Court
. Interestingly, one of the state supreme court judges, Richard Sanders, had been championing indigent defense reform for years and may have been waiting for just such a case to come along.
“I felt like it was a friendly bench,” Ahrend said, but he tried not to get too hopeful, reminding himself that they had lost the first round. One of the biggest problems they faced was proving not only that A.N.J.’s original attorney was ineffective, but the requirement—based on a 1984 case called Stickland v. Washington—of proving that his unprofessional lawyering had actually swung the outcome of the case and that the bad counsel led to an incorrect verdict. “It’s a catch-22,” Ahrend says, explaining that if an attorney has not done his job by swiftly interviewing witnesses and others, that means there is no record of interviews with witnesses offering exculpatory evidence, and so forth. It makes a case like this very hard to win, says Ahrend.
But he had been working on this case for years—and hopefully, the Washington Supreme Court was ready to hand down a decision about caseload limits. “Good morning,” Ahrend began. “On behalf of [A.N.J.], what we’re asking this court to do today is to permit him to withdraw his guilty plea and to proceed to trial with the representation that we believe he is entitled to under the Sixth Amendment of the U.S. Constitution.” Ahrend, looking fresh-faced and guileless with his buzzed blond hair, tan jacket, and wire-frame glasses, was, in fact, wily, articulate, and on top of his game. He got right to the point: “Mr. Anderson spent somewhere between thirty minutes and one hour and thirty minutes to defend a twelve-year-old child against class A felony charges of First Degree Child Molestation. . . . Given the kind of caseload he had, it wasn’t possible to do what this court has held as required in counseling a defendant on a guilty plea: to render actual and substantial assistance to the accused in deciding whether or not to plead guilty.”