Lawsuit Can Go Forward Challenging Shockingly Deficient Public Defense System

The U.S. District Court in Seattle today ruled that a lawsuit challenging the shockingly deficient public defense systems in the cities of Mount Vernon and Burlington can go forward. The court also granted the case class-action status. Litigating the suit are attorneys for the ACLU of Washington and the law firms Perkins Coie, Terrell Marshall Daudt & Willie PLLC, and The Scott Law Group, PS.

The suit was filed in June 2011 by three individuals with cases in the cities’ municipal courts over the cities’ failure to provide meaningful representation to indigent persons who face criminal charges in those courts. The suit says that the cities fail to impose reasonable caseload limits on attorneys, fail to monitor the public defense system, and fail to provide adequate resources to the system.

In his ruling, U.S. District Judge Robert Lasnik wrote, “At this early stage of the litigation, the evidence, including plaintiffs’ declarations regarding their own experiences within the system, could support a finding that indigent defendants in Mount Vernon and Burlington are deprived of counsel at critical stages of the prosecution and that the assignment of public defenders is little more than a sham.” 

“We are very pleased by the ruling. The judge recognized that plaintiffs do not have to wait until they go through a trial to raise the claim that their right to counsel has been violated systemically,” said ACLU of Washington Legal Director Sarah Dunne.

The judge did not grant the plaintiffs’ motion for a preliminary injunction, saying that there needs to be further development of facts in the case.

The suit (Wilbur v. City of Mount Vernon) says that excessive caseloads and inadequate monitoring by the cities have resulted in a public defense system that deprives indigent persons of their constitutional rights. Among other things, it is alleged that the attorneys:

• do not investigate the charges filed against indigent persons;
• do not respond to communications from indigent persons;
• do not meet with indigent persons in advance of court;
• and do not stand with or represent indigent persons during court hearings.

“The public defenders in Mount Vernon and Burlington have huge caseloads that make it impossible for them to represent their clients,” said the ACLU-WA’s Sarah Dunne.  Dunne added that, “The right to be represented by an attorney in a criminal matter if you cannot afford one is a basic right guaranteed by the constitutions of the United States and Washington. The cities are not meeting their duty to ensure that low-income individuals have a fair chance to defend themselves in court."

Mount Vernon and Burlington jointly contracted with two part-time attorneys to provide all of the public defense services in those jurisdictions. In 2010, these two attorneys were responsible for handling more than 2,100 indigent misdemeanor cases. Under the Standards for Indigent Defense Services adopted by the Washington State Bar Association, a full-time public defender should not have more than 400 such cases per year.

Mount Vernon and Burlington previously renewed their contract with the attorneys despite the fact that there are numerous complaints on file about these attorneys. In December 2008, for example, the Skagit County Office of Assigned Counsel e-mailed city officials to inform them that indigent persons in Mount Vernon and Burlington will "go to court, come to our office, and [go] again to court with no attorney there to represent them even though counsel has been appointed." One low-income person charged in Mount Vernon wrote: "I have not been fairly represented by either [attorney]. They have neglected to help my case at all. I would like a new public defender appointed to my cases please. Someone who will go over my case w/ me, discuss my options, meet w/ me before court, [etc.]."

City officials have even received e-mails from Mount Vernon police officers who complain about the difficulty they have in contacting the public defenders, noting "we are not getting the service that is their obligation to perform." Mount Vernon police officers, the chief of police, and the city attorney have all complained that police consistently were unable to contact the defenders after hours, forcing them to resort to contacting other attorneys through the phone book after making an arrest.

The suit is being handled by ACLU of Washington cooperating attorneys James Williams, Breena Roos and J. Camille Fisher of Perkins Coie, ACLU of Washington staff attorneys Sarah Dunne and Nancy Talner, Toby Marshall of Terrell Marshall Daudt & Willie PLLC, and Matt Zuchetto of The Scott Law Group, PS.

Previously, the ACLU-WA and Columbia Legal Services, with pro bono assistance from the law firms of Perkins Coie and Garvey Schubert Barer, pursued a lawsuit against Grant County over its public defense system. In settlement of that suit, Grant County in 2005 agreed to overhaul its system and undergo court-supervised monitoring in order to ensure compliance.