The American Civil Liberties Union of Washington filed a class-action lawsuit last week against the state Office of Public Defense, saying the office has failed to enforce minimum standards of public defense when juveniles go through the court system in Grays Harbor County.
The lawsuit asks the court to declare that some public defense services juveniles in Grays Harbor County receive are constitutionally inadequate, and to declare that the Office of Public Defense has the authority to take the measures necessary to ensure the provision of constitutionally adequate services.
The lawsuit alleges that in Grays Harbor County there is rarely investigation, adequate communication with clients, motions, trials, or other advocacy of juveniles’ rights. The suit asserts that Office of Public Defense is aware of the practices.
Why the focus on Grays Harbor County? “We had heard of serious problems in Grays Harbor County’s juvenile defense system from a number of sources, and that led us to investigate it over a series of months,” said ACLU Washington spokesman Doug Honig. “And we believe there is inadequate representation in jurisdictions elsewhere in the state.”
Grays Harbor County Superior Court Judge Dave Edwards has been the juvenile court judge in the county for more than eight years and disagrees that juvenile defendants aren’t adequately represented. “I think the lawyers who work in this county provide a high quality of representation, including when it comes to indigent juveniles,” he said. “The juveniles in this county charged with crimes are provided high quality legal representation. In fact, the person under contract right now (to defend juvenile offenders) could right now, if she wanted to, be handling the most serious cases up here in adult court; Class A felonies, that’s how much experience she has and how qualified she is.”
Edwards said he scanned the “very lengthy lawsuit” Tuesday morning. He said he didn’t “recall anything in there alleging the court was denying juveniles their constitutional right to counsel or doing anything else to violate their constitutional rights.”
While the allegations that make up the basis for the lawsuit are centered in Grays Harbor County, the ACLU’s Honig stressed that “Grays Harbor County is not being sued.” He added, “The suit is focused on the state Office of Public Defense,” saying that while Grays Harbor County is referenced, “it is not the target of reform in this case.”
“The Office of Public Defense is a highly competent agency dedicated to improving public defense in Washington,” said Emily Chiang, Legal Director of the ACLU of Washington. “But it has taken the position that it lacks the authority to provide meaningful supervision and oversight of county public defense systems.”
ACLU Washington claims that juveniles suffer serious and ongoing harm as a result of these and other violations of their constitutional rights to adequate legal defense and due process. For example, the ACLU says, a 15-year-old was kept incarcerated while serving a sentence for probation violations that was 120 days, four times the length allowed by statute, and an 11-year-old child has spent two months in the Grays Harbor Juvenile Detention Center without a hearing to determine whether the presumption of lacking capacity to commit a crime, based on her age, has been overcome.
“Each of those three things they cite are isolated incidents, and there isn’t a court in any county in any state you couldn’t find a case where you may question if something might have been done differently,” said Edwards. “This lawsuit is asserting that there is a pattern of inadequate representation, that those types of occasions are standard operating procedure here, and that is absolutely absurd.”
The suit also claims the Office of Public Defense is aware of “numerous unacceptable practices” in the county’s juvenile public defense system: “children are routinely held in detention on bail amounts that are not challenged by the public defender; receive inadequate confidential communication with their attorney; receive inadequate advisement of rights, options, and consequences from the public defender; fail to receive adequate investigation of the facts, release options, and sentencing options; fail to have their rights protected through motions and trials and the use of expert witnesses; fail to have their rights protected when interrogated by the court; and plead guilty when legal defenses are clearly present.”
When asked for comment the day after the suit was filed, Office of Public Defense Director Joanne Moore said the office “doesn’t really have a comment yet on this lawsuit.” The Office of Public Defense website describes it as an independent state agency of the judicial branch of government.
As far as the purpose of the Office of Public Defense, Edwards said it is a “state funded agency that provides a grant to Grays Harbor County every year, and it’s about the same amount each year, in the $77,000 range. That money is to be used for indigent criminal defense expenses other than attorney fees; so things like interpreters, expert witnesses, translators. Our expenses are far above that.”
The money for defense attorneys for juveniles comes almost exclusively from the county’s general fund. Attorneys are contracted for both adult and juvenile courts. Edwards says there are 10 to 15 public defenders in adult court, while juvenile court has one primary attorney and a second to take her place if she finds herself in a conflict of interest or some other factor keeps her from properly defending her client.
“Everyone in America has a right to an attorney, and when that right is violated, the state must take action,” said ACLU Washington cooperating attorney Theresa Wang. “The lawsuit asks the Court to make it clear that it is the responsibility of the Office of Public Defense to ensure that no one in Washington is denied their constitutional right to due process and independent legal counsel in court.”
The lawsuit focuses on the statutory authority of the Office of Public Defense, saying their purpose is to aggressively monitor public defenders and somehow regulate their effectiveness. Edwards says the office was established primarily to administer grants and offer workshops and other educational materials to make sure defense attorneys have all the necessary updated information available to do their jobs effectively.
“I will tell you that for the most part the provisions of services by attorneys, whether hired by contract or privately, is a very self-regulating process,” said Edwards. “The State Supreme Court adopted very specific rules attorneys must follow, especially in criminal defense. Those include how large your caseload can be, how much training you need each year, how many hours of that training must be specific to the types of work you’re doing. They are required to file reports at least quarterly to prove they are in compliance with the State Supreme Court standard. Because of these rules and self-regulation, the idea the Office of Public Defense should be monitoring these attorneys is not consistent with reality.”
Plaintiffs in the case are a juvenile identified by the initials K.B. and described as indigent and having been charged with an offense in Grays Harbor County Juvenile Court and assigned a public defender; Colleen Davison, legal guardian of K.B., and Gary Murrell, a longtime resident of Grays Harbor County who pays taxes to both the County and the State of Washington.
Representing the plaintiffs are ACLU Washington attorneys Nancy Talner and Breanne Schuster, and ACLU Washington cooperating attorneys Theresa Wang and Mathew Harrington of Stokes Lawrence.
