It’s fitting that in this, the 50th anniversary year of Gideon v. Wainwright, a federal judge issues an opinion finally giving teeth to the noble ideal that the indigent must be given access to attorneys paid for by the State and that those attorneys must be competent and able to do an adequate job.
There has been a disheartening trend over the years of state and county systems buckling under the weight of cases, unsupported by the required funding. It is, after all, a rather unpopular thing to fund. The trope that public defenders are overworked isn’t an invention out of whole cloth. Public defenders and assigned counsel aren’t paid enough and are given far too many cases to handle.
Almost invariably, though, when push comes to lawsuit, the state or county loses, because it’s almost indisputable that they’re providing inadequate resources. The latest judge to find the same is Judge Robert Lasnik of the Western District of Washington.
In a lawsuit filed by the ACLU against two cities in Washington – Mount Vernon and Burlington – the judge sided with the plaintiffs finding that [PDF]:
[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.
This is pretty significant and somewhat outside the normal boundaries. This ruling doesn’t seek to avoid laying blame; instead it pretty squarely states that the indigent defense system is broken precisely because of the policies of the government.
The opinion recounts some of the abysmal representation of poor criminal defendants by the firm that was contracted to do the representing. This is absolutely ghastly, horrifying stuff:
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.
In other words, their lawyers acted as if they didn’t have lawyers at all. This is called a deprivation of counsel and is in absolute violation of the Constitution. Keep in mind these are attorneys who are doing public defense work part-time. The judge calculated that on average they had about one hour to devote to each case, resulting in nothing more than a “meet and plead” system.
The judge ordered the cities to hire a part-time public defense supervisor to oversee whether poor defendants are receiving adequate legal counsel, saying “the court has grave doubts regarding the cities’ ability and political will to make the necessary changes on their own.”
And as noted elsewhere, the DOJ filed a “statement of interest” asking the judge to appoint a Federal monitor:
If Lasnik appoints a federal monitor, this could give the DOJ leverage to pressure jurisdictions throughout the country to improve substandard public defender systems elsewhere, Jessica Eaglin of the Brennan Center for Justice told the newspaper.
It certainly would be uncharted territory, but given the reluctance of states to fix their broken indigent defense systems and their almost too-gleeful willingness to keep criminalizing and incarcerating greater proportions of their populations, federal intervention to ensure that the demands of the Constitution are being might be the only solution left to try.
As Judge Lasnik put it:
The notes of freedom and liberty that emerged from Gideon’s trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right.
Update: Gamso also writes about this opinion.
Image of trumpet via. License details there.