Federal trial over public defense begins

2 Washington cities sued for allegedly violating rights

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SEATTLE — Elia Bright, who has a long history of legal scrapes, sat in the Skagit County Jail in September 2010 and wrote her court-appointed lawyer a couple of urgent messages.

First, she said she wanted to know why her release date had been delayed by 10 days. Then, two days later, she sent him another missive.

“My uncle just passed away last night. Can you please contact me ASAP so I can see if I can get out for a couple hours for his funeral?” she wrote, signing it “XOXO, Elia.”

The lawyer, Morgan Witt, never responded to either note — an all-too-typical response from the public defenders representing poor people who are accused of crimes in the Skagit County cities of Burlington and Mount Vernon, according to a class-action lawsuit that heads to trial in federal court Monday. The trial, before U.S. District Judge Robert Lasnik, comes as Washington’s Supreme Court is taking steps to improve the representation of indigent defendants across the state.

The high court last year adopted new caseload limits for public defenders in an effort designed to make sure the lawyers have enough time to devote to their clients. The justices acknowledged the financial burden their decision would place on cash-strapped cities and counties, but said the move is essential in guaranteeing that everyone has adequate legal representation.

The American Civil Liberties Union of Washington sued Burlington and Mount Vernon two years ago, alleging a litany of shortcomings that systematically violated poor defendants’ constitutional rights to effective lawyering. From April 2005 to 2012, the organization noted, those services were provided by just two part-time lawyers, Witt and Richard Sybrandy, who combined handled more than 2,000 cases a year.

The lawyers virtually never visited with their clients in jail, investigated their cases or did much of anything besides urge them to plead guilty, the lawsuit claims. The plaintiffs are seeking a permanent injunction and the appointment of a part-time public defense supervisor to ensure basic legal standards are met.

The cities deny that they ever systematically violated the rights of defendants and say they’ve already made vast improvements, as Burlington and Mount Vernon judges, prosecutors and others will testify, Andrew Cooley, a lawyer for the cities, wrote in a trial brief.

“The cities will show a complete overhaul of their public defense system in compliance with new Washington Supreme Court standards,” Cooley wrote. “The cities now welcome the opportunity to present the real people doing the work on the ground level to make the cities’ public defense system a model of medium-sized municipal criminal justice.”

Among the changes the cities cite is that a new firm now holds the public defense contract for the city, with four lawyers handling the cases at double the pay rate. The lawyers also use an improved case-tracking system and are already certifying that they are abiding by the state Supreme Court’s new caseload limits, which take effect this fall, the cities say.

Cooley said an injunction would pose a severe burden on the cities — and, significantly, allow the plaintiffs to seek to have the cities pay their attorneys’ fees.

In declining to rule on the merits of the case before trial, Lasnik noted that the defendants had “taken significant steps to change their system of public defense, including hiring additional public defenders and paying them more for their services.” Nevertheless, he said, “the record contains evidence from which a reasonable jury could conclude that indigent defendants in Mount Vernon and Burlington are currently being deprived of counsel in violation of constitutional mandates.”

The ACLU says it believes the current public defenders continue to be greatly overworked and to handle more cases than allowed by the Supreme Court’s new standards — 400 misdemeanor cases per full-time lawyer per year.

The firm’s attorneys opened more than 2,000 cases during an eight-month period last year, and yet only hired a defense investigator four times and brought only seven cases to trial, the plaintiffs’ attorneys wrote in a trial brief.

“The public defenders in Mount Vernon and Burlington have had grossly excessive caseloads and spend too little time on each case, which makes it impossible for them to represent their clients. The cities are not meeting their duty to ensure that low-income individuals have a fair chance to defend themselves in court,” Sarah Dunne, legal director at the ACLU of Washington, said in a statement.

Opening statements are scheduled for Monday. The trial set to last up to 15 days, is being heard by the judge without a jury.