ACLU claims county public defense not in compliance

Firm could seek $100,000

EPHRATA — The American Civil Liberties Union of Washington concluded Grant County's failure to appoint public defenders in a timely manner for 72 indigent clients constitutes non-compliance with a settlement agreement.

Failure to annually comply with the November 2005 settlement agreement requires the county to pay $100,000 for the year's lack of performance.

The ACLU and Columbia Legal Services filed a lawsuit against the county in April 2004, alleging an inadequate public defense system in Grant County Superior Court. The settlement agreement required the county to comply with state and national standards, provide for a monitor and implement enforcement mechanisms.

The plaintiffs in the lawsuit, through attorney Don Scaramastra in Seattle, notified the county of their position last week. Because Grant County contends it's in compliance, the two sides now begin a dispute resolution process to determine whether the county pays the $100,000 annual penalty.

Jeffrey Robinson, a Seattle attorney appointed to monitor the county's compliance with the settlement agreement, told the commissioners last month he supported their position of compliance.

Robinson said he'd recommend Kittitas County Superior Court Judge Michael E. Cooper, who makes the final decision on compliance, waive the penalty for this year.

One of the primary reasons for the ACLU's conclusion of non-compliance is the overflow of 72 indigent clients who didn't promptly get a public defender in December 2006 and January 2007.

The county's contracted public defenders reached their caseload limits in December and were not available to take more cases, leaving some defendants without a lawyer for up to two or three weeks.

A backlog of cases created a similar situation in January.

"I want to emphasize that the caseload issues at the end of the year were very serious and caused me to reconsider my views carefully before deciding that I would support the county's position as to compliance with the settlement agreement," Robinson wrote in a Feb. 3 e-mail to the commission.

"Having said that, the number of people who went without lawyers is completely unacceptable. The county is on clear notice that there must be a rapid response to caseload issues," Robinson wrote. "If a similar situation arises again I will have no choice but to view it as a real breach of the settlement agreement."

The ACLU appreciates improvements made by Grant County to its public defender system in 2006, said Doug Honig, an ACLU spokesman in Seattle.

"However, there are still some significant problems that need to be addressed for the county to be considered in compliance," Honig said.

Scaramastra said the county must first remedy the harm to those individuals who did not receive a lawyer in a timely fashion. They must ensure it doesn't happen again.

"Some defendants waited in jail, while the county delayed finding them lawyers," Honig said.

The supervisor for the county's public defenders, Alan White, said he assigned people in jail a lawyer first during the shortage. White said there are currently no indigent clients in superior court without an appointed lawyer.

"I am willing to say there is no backlog," White said Friday. "Everyone charged last week has a permanent attorney and everyone charged this week got assigned yesterday."

White said Robinson instructed the county to ensure lawyers are available at all costs, in the future.

The ACLU still plans to investigate the problems from December and January, requesting public records to understand the scope and seriousness of the problem.

They requested:

? The identity of the 72 individuals who did not promptly get a permanent lawyer assigned to their case

? A copy of charging documents for each individual

? A copy of the order appointing a public defender

? The dates the individuals were in jail, from date of charging to appointment of a lawyer

? Identity of the appointed lawyer

Scaramastra said last week he's yet to receive the requested information, which is now past due.

County officials claim the public records request is too burdensome.

"The attention the ACLU, through Mr. Scaramastra and Mr. (David) Taylor (an ACLU attorney), are focusing on our defense system is reducing our scarce resources and limiting our ability to provide appropriate defense," Grant County Commission Chairman LeRoy Allison said in an interview. "They're asking for records production that's taking valuable time away from defense investigators, lawyers and their staff, preventing them from doing the job they're contracted to do."

Scaramastra, in a letter to the county, said they're also concerned one public defender was allowed to exceed his caseload limits in direct violation of the settlement agreement.

Additionally, Scaramastra pointed to Robinson's fourth-quarter report on the public defense system, which raised potential concerns with the quality and quantity of defense investigative services.

Scaramastra asked for information to evaluate his concerns with the defense investigations, a core element of the county's compliance with the settlement agreement.

The request includes:

? All documents regarding Moses Lake-based Basin Investigations and its investigators, including their licensing, other credentials and experience

? Information on all other investigators retained by felony public defenders in 2006

? Disclosure of all felony cases to which an investigator was assigned in 2006, including the name of the public defender, the name of the defendant, a copy of charging documents and disposition of the case

? The number of hours billed by each investigator in connection with felony public defense in 2006

? Disclosure of all cases in which problems with an investigator were reported or experienced

Allison said the ACLU is relying too much on second-hand information about the county's system.

"They need to deal with facts, not assumptions," Allison said Monday.

Allison said the county budgeted more money for the system this year than in 2006, for continued improvement, including funding for additional lawyers.

Francis S. Floyd, a Seattle lawyer representing the county, did not return a message seeking comment.

Grant County Commissioner Cindy Carter said the county operates the premiere public defense system in Washington.

Honig said the ACLU hopes the problems can be resolved through negotiation with the county.

"By notifying the monitor and county about the ACLU's concerns, the ACLU has given the county the opportunity to remedy the problem," Honig said. "Hopefully, the county will take action to resolve it."