Washington Indigent Defense System Knowingly Violated Sixth Amendment

by Mark Wilson

“The public defense system in Mount Vernon and Burlington has systemic flaws that deprive indigent criminal defendants of their Sixth Amendment right to the assistance of counsel,” a Washington federal court held on December 4, 2013. “The sheer number of cases has compelled the public defenders to adopt case management practices that result in most defendants going to court for the first time – and sometimes accepting a plea bargain – never having had the opportunity to meet with their attorneys in a confidential setting. The attorney represents the client in name only in these circumstances, having no idea what the client’s goals are, whether there are any defenses or mitigating circumstances that require investigation, or whether special considerations regarding immigration status, mental or physical conditions, or criminal history exist. Such perfunctory ‘representation’ does not satisfy the Sixth Amendment.”

For several years, attorneys Richard Sybrandy and Morgan Witt provided indigent defense services for Burlington and Mount Vernon, Washington. Both attorneys also maintained private practices and Witt spent just 40 percent of his time on public defense services.

Between 2009 and 2011, Sybrandy and Witt each closed approximately 1,000 public defense cases annually, often spending less than one hour on each case.

Both claimed “that they did not feel rushed or overworked,” but “it is clear that, in light of the sheer number of cases they handled, the services they offered to their indigent clients amounted to little more than a ‘meet and plead’ system,” the court found.

There was “an almost complete absence of opportunities for the accused to confer with appointed counsel in a confidential setting,” the Court noted. “Most interactions occurred in the courtroom.” Strategic discussions were perfunctory and public, when they occurred at all.

Sybrandy and Witt conducted no investigations or legal analysis in any of their thousands of cases, and substantive hearings and trials were rare. “In general, counsel presumed that the police officers had done their jobs correctly and negotiated a plea bargain based on that assumption. The appointment of counsel was, for the most part, little more than a formality, a stepping stone on the way to a case closure or plea bargain having almost nothing to do with the individual indigent defendant.” Due to the “systemic failure in the Sybrandy and Witt era,” there was no adversarial testing of the government’s case.

In response to this “systemic failure,” the ACLU of Washington joined two private law firms in bringing state court class action lawsuits against Burlington and Mount Vernon. They were joined later by the United States Department of Justice and the Washington Defender Association. Defendants removed to federal court on July 5, 2011.

Once the suit was filed, Sybrandy and Witt refused to continue providing public defense services. The Cities hired Mountain Law’s two lawyers to replace them, in April 2012.

The “Cities negotiated the new public defense contract on the assumption that over 1,700 cases would be transferred from Sybrandy and Witt.” In May 2012, “each of the two public defenders was handling well over 400 cases. By the end of 2012, Mountain Law had added a third attorney and another 963 cases.”

On June 15, 2012, the Washington state Supreme Court established an annual 400-case “maximum caseload” per attorney. Even so, “Michael Laws and Jesse Collins were each handling over 500 cases at any given time between April and August 2012,” the court found.

When Mountain Law took over, they received just “$10 per case for April 2012, with the per-case rate reduced in future months by each additional case assigned to Mountain Law.” The Court found that it is virtually impossible to provide effective assistance when “defending an indigent criminal defendant ... on $10 per month inclusive of staff, overhead, and routine investigation costs.”

So “it is not surprising that the Mountain Law attorneys had to adopt some of the same time-saving and ‘efficient’ case management practices that dominated the Sybrandy and Witt era,” the Court found. “The public defenders often meet their clients for the first time in the courtroom, sometimes with a plea offer already in hand.” Worse yet, “Mr. Laws apparently spoke to only three or four witnesses in the whole of 2012, (and) a review of fifty Mountain Law case files showed no documentation of any legal analysis or research, and there is evidence of only one pre-trial motion and five or six trials in 2012.”

The federal court held a bench trial between June 3 and June 18, 2013. Six months later, the court concluded that the Burlington and Mount Vernon public defense system violates the Sixth Amendment right to counsel. “The Cities are ... liable ... for the systemic Sixth Amendment violations,” the Court found, because those violations were directly caused by “the combination of contracting, funding, legislating, and monitoring decisions made by the policymaking authorities for the Cities.”

The court granted injunctive relief, requiring systemic changes to the public defense system, the appointment of a public defense supervisor and three years of court oversight.

“The notes of freedom and liberty that emerged from Gideon’s trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right,” the Court concluded.

“The right to be represented by an attorney is essential to ensuring that everyone – rich and poor alike – has a fair day in court,” said Sarah Dunne, Legal Director for the ACLU of Washington. “We’ve got a historic ruling enforcing that principle for towns in Washington.” See: Wilbur v. City of Mount Vernon, U.S.D.C. (W.D. Wash.), Case no. 2:11-cv-01100-RSL.

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