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County mulls public defense

Official proposes office to represent poor defendants

By Jake Thomas, Columbian political reporter
Published: July 22, 2017, 5:27pm

Clark County is considering significantly reorganizing how it carries out one of its constitutionally mandated functions.

Deputy County Manager Bob Stevens has proposed a measure that would create a new office in Clark County with two full-time attorneys to represent individuals accused of felonies who have been deemed too poor to afford private legal representation.

Under the state and federal constitutions, indigent defendants facing misdemeanor or felony charges are guaranteed an attorney at public expense. In Washington, most counties contract out services to private attorneys, but more counties are becoming increasingly involved in directly administering public defense.

Stevens’ proposal would put Clark County alongside 12 other counties in Washington that have offices of public defense. But the reorganization requires approval from the county council, which has twice delayed voting on the reorganization so councilors could question its potential costs and impacts.

The county currently has 57 contracts with 46 private law firms and attorneys to provide indigent defense. However, Stevens said that seven public defense attorneys who contracted with the county have recently retired. He said the county had the lowest-ever number of firms apply last year for contracts, partially because pay hasn’t increased in 10 years. The result, he said, is the county is projecting that 300 indigent defense cases this year that won’t be covered by currently contracted law firms.

“It’s difficult to put yourself at the mercy of the market all the time,” Stevens said. He added that providing county public defenders can make up for shortages of contract attorneys and the reorganization won’t affect the budget.

But council Chair Marc Boldt said councilors, wary of rising labor costs, are already reluctant about creating new staff positions. He said they’re carefully considering questions such as how the new office would function, which cases it would take on, as well as potential issues that could arise from the county employing both defense and prosecuting attorneys. He said a work session will be scheduled soon on the topic.

“I do not have a perspective on either the problem or the solution,” said Councilor Jeanne Stewart, who questioned the costs of the proposal at last Wednesday’s board time meeting. “That has not been provided here.”

During the meeting, Chris Horne, county chief civil deputy prosecuting attorney, called the reorganization a “significant change” and also questioned if it would be budget-neutral after employee benefits were factored in.

“Chris Horne was speculating without any facts, which upset me considerably,” Stevens later said.

Stevens said that his staff, including Budget Director Adriana Prata, have worked diligently to ensure that the proposed reorganization will be budget-neutral. He explained that under the reorganization, $402,796 would be diverted from funds currently dedicated for indigent defense contracts to the new public defenders office. According to a staff report, the shift covers 13 percent of the county’s felony caseload.

Reorganization

Currently, the Clark County Indigent Defense Office doesn’t provide lawyers for indigent defendants. Instead, it only oversees contracts with private law firms for indigent defense. Two other counties have this system.

The reorganization would fold the Indigent Defense Office and its two staff members into the new public defender’s office. It would be overseen by county General Services, which Stevens heads. The money would be used to hire two full-time attorneys and an assistant. Stevens said the attorneys will be paid “exactly on par” with prosecuting attorneys. A staff member with the Indigent Defense Office could take on some case work, he said.

Stevens said that contract attorneys are only allowed to handle 100 felony cases a year under Washington State Supreme Court public defense standards. He said full-time county defense attorneys could take 150 a year. He’s suggested that one of the defense attorneys be a more seasoned defense attorney to take more high-level and difficult cases.

The reorganization would include $67,000 in one-time funding from the county’s General Fund to revamp the county’s Dolle Building, which is vacant and would be used to house the new office.

“I think it’s an idea that should be thoroughly examined before a decision is made,” Clark County Prosecuting Attorney Tony Golik said. “I don’t think that’s been done as thoroughly as it could.”

Golik said public defenders in Clark County are effective. He said his office has an incentive to see that good public defenders are in place to ensure verdicts aren’t reversed because of ineffective counsel.

He also expressed concerns about potential costs and impact, as well as if the reorganization would provide better service.

Support, concerns

Boldt said the county is currently getting feedback from defense attorneys.

Ed Dunkerly, a longtime defense attorney, said he’s generally supportive of the idea, especially if it leads to parity between public defenders and prosecutors. He also said that the head of the public defender office could set policies, such as directing attorneys to push back against high bails. In a letter to the council, Heather Carroll, another defense attorney, wrote that she was also supportive but has concerns, such as how the office wouldn’t have the same independence as the prosecuting attorney’s office.

The city of Vancouver contracts with private attorneys for indigent defendants charged with misdemeanors in city limits, said Jan Bader, city program and policy development manager. She said most of those contracts are with a firm owned by Jeffrey Barrar.

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In an email, Barrar wrote that while he’s supportive of the move, he raised the issue of who decides which defendants get a better-compensated county defender over a contract attorney.

“If the real goal here is to create a fully-funded public defense office, then obviously this is a huge commitment that the county councilors are being asked to make…” he wrote. “For 40 years, the county has maintained that it’s too expensive to have a public defender’s office.”

Barrar wrote that he suspects the office would cost more than the current system, especially if it ends up taking more difficult cases. He pointed to a state report showing that counties with public defender offices spend more per capita than those without.

According to a county staff report, Clark County has had the contract model in place since the late 1970s. Stevens said the county has twice studied the idea of taking over public defense and found it too be too costly and inefficient.

“The best mix, (counties) are discovering, is some of both (public and private),” he said.

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Columbian political reporter