State’s highest court to determine who is responsible for protecting juveniles’ right to counsel

News Release: 
Tuesday, November 12, 2019
Office of Public Defense must answer for inadequate public defense in Grays Harbor County, ACLU-WA asserts
The ACLU of Washington is asking the Washington state Supreme Court to declare that it is the duty of the State to protect the constitutional right to adequate legal defense for all people in Washington.

Today, the Court will hear oral arguments in Davison v. State of Washington, a class action lawsuit filed in April 2017 by the ACLU-WA and cooperating attorneys from the Stokes Lawrence law firm on behalf of juveniles in Grays Harbor County, Washington. The lawsuit asserts that public defense for children in Grays Harbor County falls below constitutional standards and the State and the Office of Public Defense (OPD) know of this failure but have done nothing to remedy it. The court will decide if the State is responsible for correcting this situation, which is both unfair and harms juveniles.

In December 2018, a Thurston County Superior Court judge ruled that the State must remedy known systemic constitutional deficiencies in a county’s public defense system. Because the issue is of public importance, the decision was appealed in the middle of the case to the Washington state Supreme Court.

“That children in Grays Harbor County are deprived of their constitutional right to counsel is undisputed. We filed this case to clarify who is responsible for fixing this, and to hold them accountable,” said Mathew Harrington of Stokes Lawrence. “We’re hopeful the state’s highest court will make clear that Washington has a duty to ensure that all juveniles who need legal advocacy get it, regardless of which county they live in."

The U.S. Supreme Court, in Gideon v. Wainwright, guaranteed all people facing prosecution the right to a lawyer, regardless of their ability to pay. And more than 50 years ago, on May 15, 1967, the Supreme Court extended that right to children. Courts have since recognized that children may suffer greater harm from violations of the right to counsel, since generally it is harder for them to advocate for their own legal rights or make decisions about their legal rights without guidance.

Courts across the country have recognized that state governments bear responsibility for ensuring that each person facing prosecution who cannot afford a lawyer is provided one. OPD’s mission is to “implement the constitutional and statutory guarantees of counsel and to ensure the effective and efficient delivery of indigent defense services funded by the state,” according to its website.

OPD has also been aware of numerous ways Grays Harbor County’s juvenile public defense system fails to actually advocate for clients: 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.

Juveniles suffer serious and ongoing harm as a result of these and other violations of their constitutional right to counsel. Some served illegally long sentences without objection by the public defender or failed to receive a timely hearing to determine capacity to stand trial, as required for juveniles under 12. 

Plaintiffs in the case are K.B, an indigent juvenile who has been charged with an offense in Grays Harbor County Juvenile Court and was 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-WA attorneys John Midgley, Nancy Talner, Breanne Schuster and Jaime Hawk, and ACLU-WA cooperating attorneys Theresa Wang, Mathew Harrington, and Lance Pelletier of Stokes Lawrence.