Wednesday, December 4, 2013

Gideon Lives

When last we dropped in on Richard Sybrandy and Morgan Witt who were the public defenders in the cities of Burlington and Mt. Vernon, Skagit County, Washington (here).  As it happens, that was also when we first dropped in on them.  At the time, they were explaining (or at least Sybrandy was) that they were each providing absolutely extraordinary (they meant it in a good way) representation to 1000 indigent misdemeanants and 1000 other alleged baddies every year.  That Oh, sure, they didn't go to the jail to see their clients and they didn't actually try the cases and they didn't hire investigators or do research or . . . . But they pled 'em out.  

And really, what more could you ask of your lawyer?

As it happens, Joseph Jerome Wilbur, et al., asked more.  And they asked it in a lawsuit brought by the ACLU of Washington, Wilbur v. City of Mt. Vernon, et al., which went to trial back in the Spring before the Honorable Robert S. Lasnik, U.S. District Judge for the Western District of Washington.  Long before the trial, back when the lawsuit was filed and I wrote about Sybrandy and Witt, right about that time, they gave up their PD gigs and the defendant cities hired Mountain Law to provide indigent defense to the alleged misdemeanants. 

Nothing significant changed other than the personnel.

And so, today, the good judge ruled.  The cities lost.
The point here is that the system is broken to such an extent that confidential attorney/client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned. Advising a client to take a fantastic plea deal in an obstruction of justice or domestic violence case may appear to be effective advocacy, but not if the client is innocent, the charge is defective, or the plea would have disastrous consequences for his or her immigration status. It is the lack of a representational relationship that would allow counsel to evaluate and protect the client’s interests that makes the situation in Mount Vernon and Burlington so troubling and gives rise to the Sixth Amendment violation in this case.
See, the problem wasn't Sybrandy and Witt.  Well, actually it was.  
[I]ndigent criminal defendants in Mount Vernon and Burlington are systematically deprived of the assistance of counsel at critical stages of the prosecution and that municipal policymakers have made deliberate choices regarding the funding, contracting, and monitoring of the public defense system that directly and predictably caused the deprivation. The period of time during which Richard Sybrandy and Morgan Witt (hereinafter, Sybrandy and Witt) provided public defense services for the Cities was marked by an almost complete absence of opportunities for the accused to confer with appointed counsel in a confidential setting. Most interactions occurred in the courtroom: discussions regarding possible defenses, the need for investigation, existing physical or mental health issues, immigration status, client goals, and potential dispositions were, if they occurred at all, perfunctory and/or public. There is almost no evidence that Sybrandy and Witt conducted investigations in any of their thousands of cases, nor is there any suggestion that they did legal analysis regarding the elements of the crime charged or possible defenses or that they discussed such issues with their clients. Substantive hearings and trials during that era were rare. In general, counsel presumed that the police officers had done their jobs correctly and negotiated a plea bargain based on that assumption.  The appointment of counsel was, for the most part, little more than a formality, a stepping stone on the way to a case closure or plea bargain having almost nothing to do with the individual indigent defendant. To the extent that “adequate representation” presumes a certain basic representational relationship, there was a systemic failure in the Sybrandy and Witt era. Adversarial testing of the government’s case was so infrequent that it was virtually a non-factor in the functioning of the Cities’ criminal justice system.
Still, Sybrandy and Witt were little more than henchmen, the willing but hapless participants in the cities' refusal to provide constitutionally mandated counsel to the people they charged with crimes.  They enabled the policy of violating the Constitution. Hell, they profited from the policy.  But they didn't cause it.  And when they were done, Mountain Law was there to pick up the mantle of spear-carrier for the oppressors prosecutors.  Because it was the policy.
Plaintiffs have shown that the constitutional deprivations at issue here were the direct and predictable result of the deliberate choices of City officials charged with the administration of the public defense system. Intentional choices made while negotiating the public defender contracts and allocating funds to the public defender system left the defenders compensated at such a paltry level that even a brief meeting at the outset of the representation would likely make the venture unprofitable. And the Cities knew it.
The words are Lasnik's, the italics are mine.

Of course, it's not done.  Judge Lasnik ordered remedies and put on plaintiff's counsel the duty of oversight.  Are the remedies adequate?  Will the cities comply?  Inquiring minds want to know.  One hint may be in a comment by Andrew Cooley who represented the cities.  According to Gene Johnson in the Bellingham Herald, Cooley said that
the cities have doubled their public-defense budget since the lawsuit was filed, and it remained unclear whether officials could stomach spending any more. Instead, Burlington and Mount Vernon might simply disband their municipal courts, leaving Skagit County District Court to handle those cases.

Read more here:
See, here's the thing.  If the government wants to prosecute people, it needs to come up with the money. Can't stomach the cost of providing for the constitutional rights of people you prosecute?  Then prosecute fewer people.  Or, if you're in Washington State, dump the cost on someone else.  You know, 
Let George do it. 
In the meantime, one win for Gideon.

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