November 15, 2007

Judges air concerns about public defense

By Jennifer Larsen

News editor

The Board of Adams County Commissioners meeting room was filled to standing room only for a discussion about the current public defense contract last Monday afternoon.

Audience members included public defense attorneys Dennis Lewellen, Chris Bajalcaliev and Paul Szott, Jail Administrator Bill Banner, Sheriff Doug Barger, Ritzville Police Chief Dave McCormick, attorney Mike Felice, Adams County Prosecuting Attorney Randy Flyckt, Undersheriff John Hunt, Superior Court Judge Richard Miller and Othello District Court Judge Gary Brueher. Ritzville District Court Judge Adalia Hille was unable to attend.

Miller presented a letter to the commissioners that was dated Oct. 30. “With the end of the current Public Defender Contract at hand the Judges feel compelled to advise the board about the implementation of the current contract, any problems that have arisen during the course of the time frame covered and what changes need to be made to insure that the indigent defendants receive the type of legal representation required by the State and the US Constitution,” the letter stated in the opening sentence.

The contract was continued for another two years under the same terms and conditions, according to the termination clause of the existing contract.

The continuation was automatic unless either party to the contract had provided evidence of a significant change in the performance or number of cases at least 120 days prior to the contract termination date.

According to Miller, the judges developed the list of problems and required provisions listed in the letter with some discussion with jail staff.

“This is to alleviate some of the bigger problems we see,” Miller said. “Most of them have to do with contacting clients.”

He explained that the purpose of the discussion and letter were not to place blame, and in some respects the judges are at fault for not requiring these items in previous contracts.

Commissioner Rudy Plager asked Miller if the provisions requested by the judges “almost sets up higher standards than hiring your own lawyer.”

“Absolutely not,” Miller said. “If I showed you the standards set by the Washington State Office of Public Defense, you’d say these weren’t enough.”

Lewellen and Bajalcaliev refrained from making any comment. “I cannot comment now. I just got this five minutes ago,” Bajalcaliev said, referring to a copy of the judges’ letter to the commissioners.

Sheriff Barger agreed. “I haven’t really had a chance to digest it myself.”

In the judges’ letter, it lists four problems that have become apparent during the current contract:

• The inability of the defendants and the Public Defenders to make initial contact or to maintain contact prior to the pre-trial hearing.

• The number of defendants who have remained in jail an inordinate amount of time without contact or resolution of their cases.

• The large number of continuances granted and bench warrants issued over the course of this contract.

• The significant number of cases that have remained unresolved which exceed the time frames envisioned by the Court Standards adopted through the auspices of AOC and the Supreme Court.

The judges included a list of provisions they will require in the new contract:

• A notice of appearance must be filed within ten days of the defendant’s first appearance.

• A minimum of one public defender must be available Monday-Friday for first appearances in Ritzville Superior Court at 11 a.m., Ritzville District Court at 1:30 p.m. and Othello District Court on Tuesdays at 9 a.m.

Telephone appearances by public defender at the first appearance will occur only with prior court approval. Interpreters, as needed, will either be in person or by phone depending on availability.

• Prior to each defendant’s pretrial hearing his assigned public defender shall have initial contact with the defendant either in person, by phone or by letter.

• All public defenders shall comply with Standard 3 as adopted by the Office of Public Defense pertaining to case load limits. Public defenders shall not exceed caseload limits without permission of the court.

Case load limits shall include all Adams County cases and all other cases handled by the respective attorney in other jurisdictions including both contract cases and private hires.

• All public defenders appearing in Adams County courts will comply with Standard 14 Qualifications of Attorneys as adopted by Office of Public Defense and each attorney must be approved by the respective courts before they will be appointed.

• Public defenders shall maintain an office in Ritzville with posted hours and a phone number to assist the defendants in contacting their respective attorneys.

• Each public defender shall report on a quarterly basis to the courts and county commissioners. Each report shall include the number of new cases assigned that quarter; old cases pending and the length of time they have been pending; the number of cases resolved; and the yearly cumulative total to include all Adams County cases and all cases in other jurisdictions, both contract and private hires.

• On pre-trial days in Superior Court, each public defender with cases on the pre-trial docket shall be present at 8:30 a.m. to meet with their respective clients and complete the necessary paperwork prior to the pre-trial docket.

Interpreters will also be provided prior to the pre-trial docket as needed. Public defenders shall meet with their in-custody clients prior to their court appearance at the jail.

• On pre-trial days in Othello District Court, each public defender shall be present at 8 a.m. to meet with their clients and complete the necessary paperwork prior to the pre-trial docket. The public defender shall report to the court the names and status of all clients held in the Adams County Jail as of that date.

Judge Brueher noted that having a Spanish speaking person available one day per week should be included on the list.

“The idea of the whole deal is we have one specific time when someone is available,” Miller said. “The complaint that keeps coming back is a number of people can’t get a hold of their attorney.”

Bajalcaliev disagreed. “I return all my calls usually within 24 hours. We use Steve Muzik at least once a month for our Spanish-speaking clients.”

Plager asked Jail Administrator Banner for his opinion on the number and nature of complaints he’s heard in the jail.

“We’ve always had complaints, but I think that’s the nature of the business,” Banner said. “The biggest complaints I hear is that the attorney won’t accept collect calls… A lot of times the client doesn’t know the attorney until the pre-trial.

“We’ve gotten more complaints now than we’ve had in the past. I can’t tell you if it’s two or three times more, but it is more.”

Mike Felice, an attorney that worked in Adams County District Court a few years ago and currently working in Grant County, said that it’s very challenging to have a public defender presence in Grant County, but that it’s necessary.

“When they’re not there, it just compounds the problems,” he said. “There has to be that presence there. That’s what the clients want… Complaints are a lot less when you have that presence there.”

He advised the commissioners that they should listen to the judges and the prosecuting attorney in keeping with caseload standards and making sure indigent defense is accessible in a timely manner.

Ritzville Police Chief McCormick, speaking on behalf of city prosecuting attorney Mark DeWulf, said “the city has noticed an increase in costs in the last couple years because the public defenders are not available locally… I personally have, on two occasions, actually contacted the public defenders for them (defendants).

“Our prosecutor spends more time on cases that could’ve been resolved sooner,” McCormick added. “I can attest, (the public defenders) haven’t even seen their client until they walk in the door on court day.”

McCormick and DeWulf have received complaints from clients that the public defenders are very difficult to get a hold of and to get a call back from. It takes more time to get things resolved because the client can’t contact the public defenders, especially if the client doesn’t have long distance service.

Board Vice Chairman Jeff Stevens said that the provisions required by the judges appear to be court rules, more so than contractual items.

Flyckt and Miller expect that initial contact with a public defender prior to the pre-trial hearing will be forthcoming as a rule adoption, but additional funding from the state to implement the rule may not be forthcoming.

“I guess in general terms, I hope that in the process of working out this new contract, we can use this to improve the quality of indigent defense we provide,” Flyckt said.

“The district court case load is relatively high and there are a number of appointments,” he continued, referring to case load limits set by the Office of Public Defense. “Regardless of who it is I hope we can have uniform standards.”

According to the Standards for Public Defense Services, endorsed by the Washington State Bar Association, a full-time public defense attorney shall not exceed either/or per year: 150 felonies, 300 misdemeanors, 250 juvenile offender cases, 60 juvenile dependency clients, 250 civil commitment cases or 25 appeals to the appellate court hearing a case on the record and briefs.