Settlement Revamps Grant County, Washington Indigent Defense System; County Agrees to $1.1 Million in Attorney Fees
Prior to February 12, 2004, Grant County ?maintained a contract system of providing for the defense of indigent? felony defendants. The County ?contracted with one attorney or law firm to provide all indigent defense services,? including ?representation in connection with pre-charging activities, pre-trial hearings, plea negotiations, trial, post-trial motions, filing notices of appeal, probation revocation hearings, certain civil proceedings, and material witness proceedings.?
Between January 1996 and December 31, 2000, the County contracted with the firm of Earl & Earl, P.S., to provide all indigent defense in felony cases. The firm was permitted to delegate cases to other attorneys, and commonly did so. Beginning in December 2000, the County entered into an exclusive five-year felony indigent defense contract with attorney Thomas Earl.
Under that contract, Earl was paid ?a flat fee for representation of all indigent persons in connection with felony criminal matters? regardless of the number of cases, the complexity of the cases, or the actual costs incurred in the defense of the cases.? The flat fee covered ?attorney?s fees, expert witness fees, private investigator fees and all other? defense costs.
One of the attorneys Earl delegated cases to was Guillermo Romero. In two cases against Earl and two cases against Romero, state and federal courts found that both attorneys provided seriously deficient counsel. The County was aware of these findings but took no action.
Fifteen days apart, in 2001, the Washington State Bar Association (WSBA) initiated disciplinary proceedings against both Earl and Romero, related to unethical conduct committed as Grant County public defenders. On November 15, 2002, the WSBA recommended that Romero be disbarred for committing multiple ethical violations. On June 17, 2003, the WSBA recommended that Earl be disbarred for multiple ethical violations including charging indigent clients money. The County was aware of the WSBA decisions, but took no action.
Despite the WSBA findings, Earl?s contract was not terminated. On February 12, 2004, the Washington Supreme Court ordered Earl?s immediate suspension but he continued to appear in court as Grant County Public Defender until February 17, 2004.
Despite knowing of Earl?s disbarment for 2 and a half years, the County took no action to ensure that indigent defense services were not interrupted on the effective date of Earl?s suspension. The indigent defense system was thrown into chaos. Judges ?issued a plan to conscript attorneys ? including trusts and estates attorneys, business attorneys, and others with no criminal defense experience ? to represent indigent persons in felony matters. The only ?qualification? for this compulsory service? was ?that the attorney?s place of work not be located too far from the courthouse.?
Until February 12, 2004, Earl handled more than 300 cases per year; double the WSBA?s recommended cap of 150 cases per year. After Earl?s suspension there were no limits and attorneys were frequently assigned 28 new cases per month (336 per year), or more.
Under the 2000-2005 contract, the indigent defense budget was fixed at $500,000, to cover all defense costs. ?For many years prior to February 2004, costs for expert witnesses, investigators and similar expenses were required to be paid out of the same limited funds?.This created a conflict of interest for attorneys, required to choose between their own income and retaining an expert or investigator for a client.? Often indigent clients were deprived of essential services as a result of this arrangement.
In April 2004, the American Civil Liberties Union of Washington (ACLU), Columbia Legal Services and two private law firms brought suit in the Kittitas County Superior Court, alleging that the Grant County indigent defense system deprived indigent felony defendants of effective assistance of counsel, in violation of the Washington and United States Constitutions. On September 13, 2004, the court certified the case as a class action.
On October 14, 2005, the court denied the County?s motion for summary judgment, and granted the plaintiff class partial summary judgment. On November 2, 2005, the parties entered into a comprehensive settlement agreement which brought sweeping change?s to the indigent defense system. The County agreed to: a 150 case cap on attorney caseloads, the imposition increased funding for attorney fees, separate funding for investigators, expert witnesses and other defense costs. The Settlement also required the creation of a conflict of interest check system and a complaint system for indigent defendants.
The County paid the plaintiff class $500,000 as partial payment of attorneys? fees and costs. It agreed to additional payments of $100,000 per year, for up to six years. The litigation was stayed for six years, unless full compliance is found after five years (2010). See: Best v. Granty County, Kittitas County Superior Court No. 04-2-00189-0.
Similar problems with the Thurston County, Washington, misdemeanor indigent defense system have drawn the attention of the ACLU. But County officials are not moved. ?I think they?ll sue us,? says Thurston County Prosecutor Ed Holm. ?I don?t think we?ll settle.? Commissioner Bob Macleod agreed, stating ?I don?t anticipate we would add to the assigned counsel at this time.?
Additional sources: The Seattle Times, The Olympian
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Related legal case
Best v. Granty County
|Cite||Kittitas County Superior Court No. 04-2-00189-0|
|Level||State Trial Court|