Public Defenders Should Go On Strike

The situation with underfunded public defenders, and plea bargains being thrown around more often than not, with poor people caught in the mix, denied the rights given them legally, to fair and proper representation, needs to stop. Now. This is no longer a situation where public defenders can stand around and keep pointing fingers at those funding them, usually the state. At a certain point, public defenders become accomplices in these crimes against the poor of inadequate, insufficient, incomprehensible, defense for serious crimes in America's Criminal Justice System. Something must be done and I think what needs to be done is Public Defenders need to go on strike. Seriously. Or else they are now accomplices. In Washington State's Superior Courts, about 85 to 90 percent of defendants tried on felony charges are considered low-income, and therefore entitled to court-appointed counsel. So this affects almost every person charged with a felony in the criminal justice system. Public defenders take out their frustrations and anger about being overworked and underfunding on innocent clients who just want to understand what is going on with their cases. It is no longer acceptable for public defenders to keep pretending they are giving a service all agree they are not. It appears quite standard knowledge that if you use a public defender, you have a much, much greater chance of going to jail than if you use a private attorney. And looking at who is actually charged with felonies, one can only surmise that you have a greater chance of being *charged* with a felony *if* you are poor, as the prosecutor immediately sees he will be dealing with insufficient representation from public defenders, and sees that a plea bargain will be easy. None of these things are the fault of the poor who get entrapped in the criminal justice system. It is the duty of the courts to provide fair and equal representation to the poor. That goal has failed in America with flying colors.

In a recent article by Philip Dawdy in the Seattle Weekly (http://www.seattleweekly.com/features/0449/041208_news_defender.php), he says that the Metropolitan King County Council has approved a $1 million cut in the county's public-defense system for 2005. Dawdy calls the public defender system that just received these cuts "a traditionally underfunded program that provides court-appointed attorneys for low-income and indigent people accused of crimes." Dawdy says that one of the contracted non-profit public defense law firms that the county works with, Northwest Defenders, will be running at a deficit next year, due to the 2005 budget and may need to fold. And do not think that that stress remains within the locked boardrooms of the Northwest Defenders Association either. No, it comes spilling out onto the phone and into the hallways of the County's Courthouses as well. The clients are yelled at for wanting to understand their cases. The clients are barked at and told to be quiet and speak when spoken to, while in the middle of serious legal battles, as these public defenders yell at clients that they are overworked and they have more clients than they can handle. I have seen his behavior from employees and public defenders in King County with my own eyes.

When I worked at the Kent County Law Library, I had many mothers come in with swollen red eyes, asking me to explain the charges that just incarcerated their sons. I was given explicit instructions by the law library staff that I *may not* explain any charges to people who ask like that, as it was considered honing in on the legal field, as legal advice. So, the best I could do was lead these desperate women to books that explained the crimes in as close to plain English as possible. It broke my heart that women were losing their children, and public defenders did not even have the time to explain to the mothers what the actual charges meant or what was going on. These public defenders not only do a disservice to their clients by providing insufficient and incomprehensible legal representation, but they also yell at their clients if their clients dare try to demand more. This is not a healthy situation for anyone, and it certainly is not blind justice by any stretch.

Dawdy's article says that county officials approved the $1 million cut to public defense because they predict they will be handling less complex aggravated-murder cases in 2005, and they predict that prosecutors will be charging minor felonies as misdemeanors. And even if those were believable reasons to predict less need for funds in 2005, that does not take into account the glaring reality that the public defense agencies have been functioning below par for years now, and something must be done. If the need for services was reduced, and funding stayed the same, then maybe, just maybe, we could move one half step forward towards getting some equal representation in courtrooms in Washington's criminal injustice system. But it ain't happening anytime soon.

Dawdy's article quotes a City Council member saying, "Our system of justice is tremendously weakened when we fail to live up to our promise for a fair and competent defense for all who stand accused of a crime." So, apparently these people *get it.* They just do not want to actually do anything *about it.* The trail of complaints from clients and public defenders themselves about this terrible situation is long and public.

In an email entitled "Urban Politics #181," dated June 20, 2004, City Councilmember Nick Licata says that he authored, and his colleagues Councilmembers David Della, Jean Godden and Peter Steinbrueck co-sponsored, a *new law* that CREATES STANDARDS FOR PUBLIC DEFENSE SERVICES," acknowledging a problem clearly exists here that the poor, myself included, have paid for and continue to pay for daily in King County jails, and courts, as well as King County Collections offices. This email from Licata says, "Case load and standards for provision of services: In 1982 the King County Bar Indigent Defense Services Task Force developed a 300 case per attorney, per year guideline. Subsequently the Seattle City Council adopted Resolution 27696 in 1987, adopting a framework and schedule for implementing recommendations contained in the 1987 Public Defender Salary and Caseload Review conducted by City Council staff. This led to the Council passing a 1989 City Council Budget Intent Statement establishing a 380 case per-attorney, per-year limit. The standard set by the City in 1987 may not be the optimum standard established by the King County Bar Indigent Defense Services Task Force, but it's critical that in contracting for these services that we do not further erode this limit. This bill reaffirms the caseload standards established in the City Council's 1989 Budget Intent Statement. Specifically, this bill states that City agreements with indigent public defense service providers shall require caseloads no higher than 380 cases per-attorney per-year and it also affirms the Washington State Bar- endorsed supervision standard of one full-time supervisor for every ten staff lawyers." So as recently as June 2004, Seattle reaffirmed the 1989 Seattle City Council Resolution 27696.

I remember very clearly, and have written in that day's notes, an incident where an employee named Sam with SCRAP, a King County Public Defender agency, yelled at *me* because *she* said she had "64 people (we) represent and you will not see me until the hearing date. If you do not like it, hire an attorney." I remember this woman Sam pacing the floor outside the courtroom, taking out her angers and hostilities on clients, not the state or people who created that system, but instead on us, the indigent she was organizing the representation of. That day, I watched Sam play stupid games over and over due to her annoyance with her case load. When I first arrived, I asked Sam, whom I did not know or recognize, as she would not meet with me before my actual hearing (!), but she looked like authority and had files, so I asked her if she knew where the list of who was on that day's SCRAP roster was. She quipped I needed to go to the 12th floor. I asked if she was a SCRAP attorney. She said yes. I said they were representing me, so could she tell me if I was on that day's SCRAP representation roster. Her response was, "No, only the attorney can tell you that." As I said, I took notes in the courthouse of her actions. I told her I was never told who my attorney WAS, nor had I met them to my dismay, so I only knew SCRAP as my defenders that day. She said I would have to talk to my attorney! I repeated I did not know who that was, so if she worked for SCRAP, could she please tell me WHO my attorney was so I could ask HIM/HER if I was on the roster, since this is apparently some kind of needle in a haystack game. She said my attorney would call my name eventually if I was on the roster…Is this type of treatment of clients necessary? Would I continue to employ a private attorney who represented me in such a fashion? No way.

In a Seattle Times article from May 2004, by Ken Armstrong, entitled, "State Bar-Association Panel Urges Public-Defense Reforms," (http://seattletimes.nwsource.com/html/localnews/2001925320_defense11m.html) it cites indigent defendants who have been "poorly served, even victimized, by those entrusted with protecting their civil rights," according to a report just released by a Washington State Bar Association panel. The article goes on to say, "The panel, whose 17 members include judges from the Washington Supreme Court on down, calls for new laws or court rules to address a litany of problems, including a lack of enforceable standards for public-defense lawyers, inadequate funding and the proliferation of fixed-fee public-defense contracts that invite abuse…Some individuals and private firms profit from public-defense contracts while providing minimal or substandard representation to their clients, and many in positions to know of these failures look away as defendants' constitutional rights to effective assistance of counsel are denied," the panel's report says. That report was given to the Board of Governors in May 2004. So how is it that $1 million was just cut from that budget?

In Armstong's article, he says that this Wa. State Bar Association panel also wrote that the consequences of an inadequate defense "can be devastating for the individuals whose liberty is at stake, for the legal system, and for society as a whole." He cites problems with the public defender system showing up as "wrongful convictions, appeals and retrials at added taxpayer expense, civil-rights lawsuits and a loss of respect for the courts." The Bar Association report also says, "Public trust and confidence in Washington's judges and court system suffer when the public perceives that individuals charged with crimes are treated unfairly."

Armstrong's article says that "the panel's call for reform is the latest in a long line of such reports, which go back three decades and include criticism of Washington's public-defense system from legislative committees, bar groups and legal-research organizations." He quotes a member of the Washington State Office of Public Defense as saying, "It's been said over and over again in Washington - some attorneys providing public- defense representation are inadequately paid, lack experience and other qualifications, and have such enormous caseloads that they literally don't have time to perform the tasks necessary for adequate representation." The same article quotes Supreme Court Justice Susan Owens, as saying many public defenders do good work, but in general, "They are overworked. They are underpaid."

Armstrong's article said that "The Seattle Times published a series last month on the chronic failures of Washington's public-defense system, revealing such shortcomings as staggering caseloads that make it all but impossible for many defense attorneys to do their job effectively." Armstrong cites one of the caseload problems in King County is the "fixed-fee contracts" with public defense firms, as that discourages them from investing proper time as they get paid the same for cases whether they invest in a case's complexity or not. The report from the Bar Association in May 2004 said, according to Armstrong's article, that "local governments should be required to implement meaningful public-defense standards, and should be prohibited from renewing contracts with attorneys who have failed to provide an effective defense."

One of the most glaring and obvious inequity factors involved with public defense representation is that most prosecutors are paid approximately two times the salary of public defenders, and they also are given full reign of the state's resources such as the police dept.'s investigators, etc., which are things that public defenders need to do outside contracting for. As a matter of fact, in my little romp with inadequate representation by public defenders in Seattle, the "investigator" in my case was a woman with no prior investigative experience, who was using this "internship" with a public defenders group for a new life experience…ugh. I did work as a private investigator for years, and watching her bumble about, when my case was at stake, was unbelievable. In the end, not a thing she did was of use. In the end, the public defender in my King County case stood up in front of the judge and said, "Your honor, if Ms. Anderberg had had proper legal representation, she would not be here today." So hmmm, what was *he* again? Amazing stuff! So we have people who are just curious about the system like the "investigator" on my case, doing an investigative internship, with little to no supervision, from what I could tell, from professionals in the investigative field. And that is what public defenders are using as "investigators" to compete with police department's investigators who do that for a living…

There is a Washington State law that requires counties and cities to pass legal standards on case loads for their public defenders. The State Bar Association says the point of that enacted legislation was to institutionalize minimum *Constitutional* standards in public defense that currently did not exist across the state. Cowlitz County public defense attorneys, a neighboring county to King County, is cited as having a case load at 61/2 times what the state Bar Association has recommended. And as I have cited, "in 1982, the King County Bar Indigent Defense Services Task Force developed a 300 case per attorney, per year guideline. This led to the Council passing a 1989 City Council Budget Intent Statement establishing a 380 case per-attorney, per-year limit. This bill reaffirms the caseload standards established in the City Council's 1989 Budget Intent Statement. Specifically, this bill states that City agreements with indigent public defense service providers shall require caseloads no higher than 380 cases per-attorney per-year…" We have now the Bar Association, the Seattle City Council, the public defender organizations themselves, a Wa. Supreme Court judge, The Seattle Times, The Seattle Weekly, and more, echoing that these services the public defenders are providing are inadequate. Yet every day more poor folks are locked up, due to what we all acknowledge is inadequate representation. It is sickening.

There is legal precedent for public defenders to go on strike right now. First, they have Constitutional precedent. Most of the agencies involved echo that this erosion of public defense funding and services is an erosion of integrity to the entire judicial system. There is *indeed* a Constitutional right to fair representation and that right is being squelched currently due to inadequate public defender budgets. Secondly, in Seattle, the public defenders could go on strike right now due to the violation of the City Council's resolutions on maximum attorney caseloads per year, as they affect clients' Constitutional rights. It appears from where I sit, that these limits are violated in *every* county with a significant population, that contracts public defenders across the state. From Cowlitz to King Counties. It is time that the public defenders quit pretending they are giving a service they are not. And it is time they quit blaming others. If they cannot do their jobs, they need to admit it. Rather than doing half assed jobs where people go to jail as the payment for that half assed job. There are laws being violated by the state, city and county, from what I can tell, regarding these messes of public defender organizations used by the state.

I feel the only conscionable thing for public defenders to do is to go on strike, and to burst the myth of equal representation. Is it fair that the poor pay in jails for this mess? No, it is not. Seriously, public defenders need to go on strike. And demand a legitimate way to provide equitable legal services to the poor. But they should not continue to provide questionable legal services, yelling at clients under stress. They should stop now, and fight for the rights of the poor. Beginning with a right to fair and equal representation. Everyone from The Seattle Times to the Seattle City Council to the Washington State Bar Association publicly admits this problem exists. So how long are the poor going to be wrongly incarcerated for these crimes by attorneys and the state? How many families broken, how many criminals created, due to the lack of proper defense by public defenders? How long is this going to continue on? Public defenders have a DUTY to go on strike, is my take on this.

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Kirsten Anderberg. All rights reserved. For permission to reprint/publish, please contact Kirsten at kirstena@resist.ca.

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