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King County: Throwing its public defense baby out with the bathwater?

Seattle University Law Professor, Bob Boruchowitz Credit: Photo: King County TV

King County government has a brand-new Department of Public Defense and a county charter amendment authorizing creation of the new department will probably go to the voters in August. Some people, though, see the new department as a step in the wrong direction.

The county's old system of public defense — in which a county Office of Public Defense channeled cases to four independent non-profit defender associations — has won accolades. "If not the best in the country, [it's] one of the very best," says Bob Boruchowitz, who directed one of the four non-profits for 28 years and now directs the Defender Initiative at the Seattle University School of Law. Replacing that system, Boruchowitz says, is "tragic."

The devil will, of course, be in the details. "The [eventual] structure is up in the air," says Dave Chapman, who directed the Office of Public Defense and has become the new department's interim head.

But to start with, will anything really change? "From my perspective, no," Chapman said at the end of last week. "From Friday to Monday, I don't expect a lot." He says only two of the 355 lawyers working for the defender associations decided not to become county employees. Over time, he hopes to provide better equipment, a better case management system and a stronger voice for the clients. "The details of the implementing ordinance are going to be really important."

In 1963, the United States Supreme Court ruled, in Gideon v. Wainwright, that counsel must be provided for criminal defendants in non-federal courts who couldn't afford lawyers. 

By and large, the states — and the local governments that actually provide or pay for most of the public defense — seem to have been doing a lousy job. "While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases," Lincoln Caplan wrote in The New York Times. "This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers. . . . Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts. Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm."

Nobody says that about King County. Boruchowitz and others think the reason the county's public defense system has become a national good example is because all four of the defender associations were independent, able to hire their own staffs, develop their own cultures, work out their own strategies. But they didn't provide county pensions.

In 2006, defender Kevin Dolan filed what became a class-action suit against King County. The suit argued that defenders were basically working for the county and should therefore be included in the public Public Employees Retirement System (PERS). In 2011, the state supreme court agreed, which led to a settlement late last year under which all employees of the defender associations would become King County employees, starting July 1st. On March 18 — right around the 50th anniversary of Gideonthe county council voted to create the new county department.

Not everyone was pleased. "After he announced the potential dissolution of the four public-defense agencies to the heads of the four agencies on Wednesday and Thursday, Chapman said he was met with 'mixed reactions,'" Jennifer Sullivan reported in The Seattle Times. "In a joint statement released Thursday, the four firms said . . . '[t]he decision to create a County Public defender agency was made without input or analysis from our offices, bar leaders or community leaders representing our clients.'"

The county figures that over time, by bringing four separate agencies in-house, it can save money. Boruchowitz is skeptical. "County bureaucracy does not always result in efficiencies or savings," he says. Still, he concedes that "a lot of progress has been made in the past couple of months."

The proposed charter amendment would explicitly shield the new department from political influence. And the council has said the new department will have a duty to “foster and promote . .. access to justice and equity in the criminal justice system.”

On the other hand, Boruchowitz insists there's a "risk [in] abandoning a program that has been locally and nationally recognized for more than 40 years." No one suggested the system itself was broken and he doesn't think we should be trying to fix it.

One can certainly infer a certain amount of wishful thinking all around. It isn't realistic for public defenders to think they can have county pensions without county bureaucracy. And it wasn't realistic for the county to figure it could have hundreds of de facto employees without paying their pensions.

Still, there are a lot of different models for public defense around the country. and Borochuowitz worries that the new King County model might cause conflicts of interest. Though it isn't clear yet how many separate divisions the new department will have, a February letter from County Executive Dow Constantine to Council chair Larry Gossett said two. Two divisions, Boruchowitz says, could lead to conflicts of interest.

What kinds of conflicts? Say Laurel and Hardy are accused of the same crime. Laurel says Hardy did it. Hardy says Laurel did it. Obviously, the same law firm can't represent them both. Two divisions would avoid any conflict. But what if the Three Stooges are accused of the same crime? Moe says Curley and Larry did it. Curley accuses Moe and Larry. Larry accuses Moe and Curley. Now, you need three separate law firms. Boruchowitz thinks the existing four agencies cover virtually all eventualities. A smaller number would not.

"[It's] highly likely that we'd have at least two if not three [divisions]" Chapman says. However, "It's pretty clear it doesn't need to be four."

Boruchowitz also worries about losing the reputations and identities of the individual non-profits. When he headed the Defender Association, "one of the advantages I had [was that] professors from good law schools around the country would send me their best students. If you lose that distinctiveness," he argues, "you'll lose those people."

Chapman doesn't think the separate divisions will lose their identities. "I'm very committed to [keeping] their culture," he says. "We are privileged to be able to keep [it]. The County Council's commitment . . . gives us as a department a foundation to enable that [collection of separate cultures] to continue and grow."

And, with a new base in county government, he wants to go beyond the role of the traditional public defender. "I would hope we could start doing a couple of things," Chapman says. "I keep talking about [taking] a holistic approach to a client." A lot of the people charged with crimes have other problems, too: drug or alcohol addiction, lack of housing, no job when they get out. Chapman suggests that social workers in the new department could help clients navigate the bureaucratic maze that stands between them and government programs that could help.

Of course, that would cost money. "Every time we think there's enough, we have an economic downturn," he says.

And then there's mental illness. Chapman says a growing part of the defenders' caseload consists of representing people at mental commitment hearings. While those people are being evaluated, they are mostly kept in hospitals. Virtually any other way of housing them would be cheaper, but complying with the state standards for the caseloads of lawyers who represent them would not.

Where to find the money, Boruchowitz says, is a statewide question. "Ultimately, this is a state problem and there should be greater state funding for local government. Years ago we proposed a plan that would provide state reimbursement for local governments if they met state standards. The Legislature passed state standards, but they didn't provide any money." There's some money now, he says, but not enough.

The costs will only go up and that's basically just too bad. As Boruchowitz says, under the federal constitution, "if it's important enough to prosecute, it's important enough to defend."

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