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Attorneys frustrated with Clark County’s stance on indigent defense

Defenders who provide services say pay's been late, concerns ignored

By , Columbian county government and small cities reporter
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Attorney Thomas Phelan has contracted with Clark County for indigent defense for most of the past 39 years, but says the system is not currently viable.
Attorney Thomas Phelan has contracted with Clark County for indigent defense for most of the past 39 years, but says the system is not currently viable. (Alisha Jucevic/The Columbian files) Photo Gallery

In June, when Clark County handed indigent defense attorneys their first rate increase in a decade, attorney Shon Bogar called it a good-faith showing toward enhancing a routinely overlooked obligation. But a few months later, Bogar’s view of the county has regressed.

“This county has clearly told us that they do not care about funding indigent defense. Period,” Bogar said. “The management of indigent defense is working against indigent defense.”

The Clark County Council unanimously voted June 4 to direct $179,275 for a 10 percent pay increase for all felony indigent defense contracts, which went into effect July 1 and was continued in the 2020 budget. But since then, issues such as late paychecks, impactful decisions made without contractor input and a perceived lack of responsiveness from the county appears to have tainted the good will, leading contractors to sharpen their questions about the validity of the county’s indigent defense program.

“The system is not viable now,” defense attorney Thomas Phelan said. “There’s going to be a lawsuit — it’s just a question of when — for somebody not being adequately supervised, for somebody not being adequately trained, for someone who did not render adequate services because they’re underpaid.”

Late checks and ‘chaos’

Counties in Washington are legally mandated to provide legal counsel for those who are accused of crimes and unable to afford a lawyer. Clark County contracts with local private attorneys to provide services. Other counties have in-house public defender offices or rely on large nonprofit groups of lawyers.

Clark County has dozens of contracts with attorneys, some of whom share contracts, to provide representation. Prior to the raise, felony defense contracts paid a flat rate ranging from $800 to $2,250, depending on the nature of the crime. A separate fee structure exists for homicides and “three-strikes” cases, in which those convicted three times of certain violent and sexual felonies receive mandatory life sentences without the possibility of release.

In 2018, a county work group comprised of local attorneys recommended increasing rates — more than the raise approved in June — for indigent defense lawyers as well as creating an in-house public defender office to partially replace the contractor model. The proposal recommended that the county spend $803,562 over two years to boost contractor pay and another $640,912 to open the public defender office.

With costs rising faster than revenue for the county, the proposal was eschewed. In May, more than a dozen attorneys commented at a county council meeting to ask for pay raises, which they received a couple of months later.

But a collection of emails obtained by The Columbian reveal that several attorneys have complained to the county about late paychecks in recent months.

“I would say, up until September, things ran rather smoothly, and then it’s just been, you know, incredibly inefficient and disorganized,” said Phelan, who has had a contract with the county for most of the last 39 years. “It’s been chaos.”

Lindsey Shafar, the council’s policy analyst, assumed the role of head of the indigent defense program in November following significant staff turnover. The program, which is budgeted for three full-time staff positions, currently has one filled. The county is recruiting for the other two positions and hopes to have them filled soon, Shafar said in a Dec. 23 email.

“The current staff member has been doing a phenomenal job, but is only one person and thus is limited,” Shafar wrote. “I assist however I can, but I also have other competing priorities for my time.”

Attorneys have also criticized the county for ignoring contractors’ suggestions or making unilateral decisions.

Bogar and Phelan mentioned a decision by the county — announced to contractors in a September email — to move the indigent defense office from the Public Service Center in downtown Vancouver to the Center for Community Health at 1601 E. Fourth Plain Blvd. The Center for Community Health is roughly two miles from the Clark County Courthouse, while the Public Service Center is across the street. The attorneys said the distance made printing and lugging hundreds of court documents between hearings more difficult, among other issues.

“It’s a clear problem that they’re not taking the time to learn what needs to be learned and asking the people that they need to ask how things should work,” Phelan said. “It was incredibly ill-advised, it was not well thought out as well, and it was, really, just a move made because people thought they knew better.”

The indigent defense program was incorporated into the Department of Community Services, located at the Fourth Plain building, in January. Shafar said the program returned downtown in November when she became its head.

Shafar said that staff has been responsive and that the unhappiness on the part of “a small number of vocal contractors” is a result of the larger structural changes they’ve been seeking.

“It appears that some of them feel that because all of their desires have not come to fruition that they are not being heard,” Shafar said. “To the contrary, I can assure you that they are being heard, but the council makes the policy and budget decisions and the current structure and budget is the direction we are going at this time.”

‘Significant costs’

At a Nov. 20 council time meeting, councilors discussed the possibility of establishing a public defenders office, continuing the contractor model or adopting a hybrid model. The two main conclusions of the meeting: reform would be costly, and it would require more research.

Clark County Manager Shawn Henessee recommended continuing with the contractor model for the foreseeable future.

“There are significant costs that potentially could be involved one way or another, so it’s something we’d have to plan for if the council made the decision to go with either the hybrid or the full public defender model,” Henessee said. “We certainly can continue to examine that, to look at it, but we’re going to need to make sure we budget for that appropriately.”

Some argued that the current model has already proven to work best, and some said that only the defense attorneys — as opposed to judges, for instance — have raised concerns.

“We have so much on our plate right now,” said Republican County Councilor Gary Medvigy, who was a prosecutor and Superior Court judge in California. “This kind of major reform, we need to draw it out with specific end goals and make sure we do the best we can.”

Phelan said that he has heard “next year” for years regarding changes to the indigent defense structure.

“That’s been a huge resistance,” Phelan said. “I’m assuming it’s monetary. I don’t know.”

Phelan and Bogar said that attorneys have declined to take contracts at an increasing rate. Earlier this year, the county held 37 contracts with 50 attorneys — compared with 57 contracts with 46 attorneys in 2017.

Despite the setbacks, the county has maintained that the current model is the most workable one.

“The county remains, as always, committed to providing robust and constitutionally sound defense services to indigent defendants in our community,” Shafar said.

Columbian county government and small cities reporter
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