Panel: Public defense must be fixed throughout state

Bar board chair cites Grant County as prime example of problems

Standards for public defense are ignored throughout Washington, and inadequate funding and fixed-rate contracts for public defenders own part of the blame, according to a recently released report from a state criminal-defense panel.

The Washington State Bar Board of Governors approved last weekend a 137-page report highlighting problems within the state's criminal-justice system, with special attention devoted to indigent defense.

And the co-chair of that committee, former state Supreme Court Justice Robert J. Utter, pinpointed Grant County as a prototype for what went wrong throughout the state.

"Grant County was a prime example of poisonous practices. It was as bad as any in the state, and perhaps an example of what should not be done," Utter said in an interview with the Herald Tuesday afternoon.

The panel recommended the creation of a state standing committee on public-defense services, which was approved at the board of governors meeting last weekend, Judy Berrett, spokeswoman for the state bar, said.

The panel's report released five conclusions on the state of indigent defense in Washington:

— Standards for public defense in many jurisdictions are being ignored, and some areas are not meeting minimal constitutional requirements.

— A lack of enforceable caseload standards strains the ability of even quality public defenders to provide adequate representation.

— Inadequate funding is a significant cause of many of the problems with the indigent-defense system throughout the state.

"It's an incredible burden that's placed on the counties and municipalities," Utter said.

— Fixed-rate contracts encourage to provide less-than-zealous representation of their clients and to take more cases than they can handle. Additionally, requiring defense attorneys to pay for expert witnesses and other defense service out of their fixed attorney's fee creates "an inherent conflict of interest," according to the report.

Grant County has signed fixed-rate contracts with six attorneys to replace Earl after his disbarment. The contracts have a separate clause allowing for additional payments for expert witnesses and expert services.

— Effective oversight and accountability do not exist in some court in the state.

In addition to the creation of the state committee, the panel recommended more state oversight of all criminal defense and greater cooperation between the Supreme Court and the Legislature.

Grant County Commissioner Deborah Moore said she is not willing to comment on the report until she has read it completely.

However, Moore said she does support more state involvement in one area of the criminal-justice system.

"I believe Grant County would be in favor of the state taking over financial control of indigent-defense costs," Moore said.

Grant County has been plagued with recent budgetary woes in trying to patch the holes caused by the recent suspension and disbarment of public defender Tom Earl. A recent estimate released by the commissioner's office showed a $1.4 million shortfall for 2004, caused primarily by an increase in indigent-defense spending.

Grant County Superior Court Judge Evan Sperline said he was not surprised to hear the panel's findings.

"It's old news. It's what folks have been saying for a long time," he said.

Sperline said Washington ranks last in the country in the percentage of state dollars devoted to criminal defense. And, as more laws are passed and more people charged with crimes, the burden increases on indigent defenders, he said.

Sperline supports creating a separate public defender's office, though he said a contract system could work. However, it would require county commissioners to micro-manage an attorney's time, including how soon the lawyer must see his or her clients, Sperline said.

Grant County Prosecutor John Knodell, however, disagreed with the conclusion of the panel that points to a need for greater funding for the legal system.

"This is like lawyer's welfare. This is just a way to see more money go to lawyers," Knodell said.

Despite all the attention brought by the disbarment of former public defender Tom Earl, Knodell said the contract system was working fine in Grant County. In his 13 years as a prosecutor, Knodell said he filed more than 10,000 cases and only four were overturned because of an ineffective assistance of counsel.

Knodell took exception to Utter's comments, saying the retired justice and other groups in the state have a separate agenda to reform the criminal-justice system.

"That's clear to me that former Justice Utter doesn't know anything about the system in Grant County," Knodell said.