New Grant County indigent-defense contract approved

For now, Superior Court must draft local attorneys to provide public defense

Grant County commissioners and attorneys have approved new contracts to provide indigent defense.

But those contracts won't take effect immediately, leaving attorneys with little or no criminal defense experience filling the gap until contracted attorneys take over indigent-defense cases.

Last week, Grant County commissioners finalized contracts with five local attorneys to provide public defense to people accused of crimes and appearing in Grant County Superior Court.

The attorneys are Ryan Earl, Randy Smith, Alan White, Ted Mahr and Brett Hill. Grant County Commissioner LeRoy Allison said two more attorneys may be added to the list.

The new contracts are necessary after the state bar suspended the license of attorney Tom Earl, who held the county's public defense contract since the mid 1990s.

Earl has been accused of taking improper payments from clients whom he should have defended for free. According to some accounts, Earl's case load had ballooned to more than 400 per year plus a private practice, giving him little incentive to devote time to cases for which he receives a flat-rate payment.

Earl's suspension, and possible disbarment, came on the heels of the case of public defender Guillermo Romero, who was recommended for disbarment by the bar in 2002.

Both disbarment cases are on appeal to the Washington State Supreme Court.

Allison said the county has a contract with each of the new public defenders individually. Under the previous arrangement, the county contracted only with Earl, allowing for no county supervision over the other four attorneys who sub-contracted for Earl.

The contracts, which are modeled on Benton County's system, allot $550 to each attorney per felony case appointment, with an additional $100 per hour approved for more complicated cases, such as murder or aggravated assault, to hire expert witnesses or investigators, Allison said.

Each attorney will average about 150 cases per year, Allison said, which is in line with standards set by the American Bar Association.

The system will be revisited twice a year to determine whether the county needs to hire another public defender, Allison said.

"We've addressed some of the issues of concern we've heard in the past," he said.

If a judge feels as though one of the contracted attorneys is performing poorly, the judge can move to terminate the attorney's contract in 10 days, Deputy Prosecutor Lyliane Sheetz, who helped hammer out the details of the contract, said.

Earl's contract cost the county about $500,000, Allison said. These new contracts will cost more than $700,000, but Allison added that too little money being devoted to public defense has been a concern of local attorneys.

In the interim, Grant County Superior Court cases are being divvied up among attorneys in the county through a system of conscription.

Attorneys have been divided into two groups: those with experience in criminal defense, and those with little or no experience. The court began assigning the 17 experienced attorneys to cases last month, with the hopes of making it through that list three times in a month before moving onto the attorneys with less experience in criminal matters, Evan Sperline, Grant County Superior Court presiding judge, said.

The experienced criminal defenders (called the A list) now take the most serious felonies, while the less experienced criminal defenders handle the less serious crimes, such as drug possession, Sperline said.

The court went through those 17 A-list attorneys three times in two weeks, meaning defendants needing a public defender now could be assigned an attorney who has not handled a criminal case in a decade.

"It's not working really well," Sperline said of the system, "and it's obviously the thing that's done in desperation."

Other systems were tried, Sperline said, such as having attorneys volunteer, but conscription became the most doable in the emergency situation.

Sperline said the superior court judges have imposed a limit of 17 cases per month upon each attorney to avoid the case overload that occurred with Earl.

"Our real concern is making sure people have adequate defense," Sperline said, adding, "We just are out of resources and out of choices."

The best way to assure adequate defense, Sperline said, may be with an in-house public defender. The option would cost the county more money, but Sperline said one of the biggest criticisms of the contract system is that too little money is devoted to indigent defense.

Grant County Prosecutor John Knodell said he feels the contract system was working before Earl's and Romero's legal problems.

Every accused criminal goes through a screening process, starting with a police investigation and ending with the prosecution's case, he said.

Knodell added that he has had no more than five convictions overturned during his tenure as prosecutor, meaning appellate courts did not find fault with those cases.

"We're trying to do what's just," he said.

Garth Dano, a Moses Lake attorney who was placed on the 'A' list of attorneys to be conscripted for emergency public defense, said in an interview with the Herald that the county needs a system where lawyers are reasonably compensated for what they do.

Most attorneys will charge between $100 and $200 per hour for criminal defense work, and a flat-rate contract system offers a "disincentive" for lawyers to spend a lot of time on cases, he said.

Dano added that Earl's troubles have been known for a long time, and county officials should have been better prepared than to offer a conscription system as a temporary fix.

"It's unfortunate that they have to have gone to the appointment (conscription) system," Dano said, adding, "They should have been addressing this a long time ago."

Still, Dano, who is currently taking three pro bono cases, said he and other attorneys will do what is necessary to help the court.

"It's unfortunate that this has all come to pass," he said.

Patrick Acres, a Moses Lake attorney who is also on the A list, said in an interview he does not think the conscription is the worst choice because defendants can be represented by an excellent attorney who might not otherwise work an indigent-defense case.

Acres has been conscripted three times, and one of his clients had been caught with drugs on him and admitted to it ~ leaving any attorney very little options to help him, Acres said.

Defense attorneys should receive court documents, such as charging documents and intent-to-file motion documents without having to travel to the prosecutor's office, Acres said.

Otherwise, the county is working its way through its indigent-defense problems, he said.

"The system is working its way out," Acres said.