Misdemeanor Courts Fail to Provide Adequate Defense, Study Finds

Amy Radil
04/28/2009

The U.S. Supreme Court has ruled repeatedly that access to a lawyer is a constitutional right. Even for lower level offenses like misdemeanors. But a new report from Seattle University's law school says courts still aren't providing lawyers to many poor people. It says courts can save money and serve people better by taking on the issue.

In too many courts in western Washington and nationwide, defendants are facing the judge alone, or with an under prepared public defender. That's the conclusion of a new study released today by the National Association of Criminal Defense Lawyers. It says many defendants are ignorant, confused and pressured into pleading guilty.

Seattle University law school professor Bob Boruchowitz is the study's lead researcher. One of the cities he visited was the Seattle suburb of Lynnwood.

Boruchowitz: "In Lynnwood we saw three public defenders handling — I forget what the number was — but well over a hundred people in a morning."

Boruchowitz says the "mass nature" of the proceedings was disturbing. And while there were lawyers in the courtroom, he says they weren't standing up with the defendants before the judge.

Boruchowitz: "What would happen is one lawyer would be talking to someone in the audience while also having someone up in front of the judge, and it was just hard to see how effective representation was taking place."

The Lynnwood example is troubling because the city had received a state grant in 2007 to hire more defenders. Joanne Moore heads the state's Office of Public Defense. They gave Lynnwood $75,000 in 2007 to improve attorney contacts with defendants. The agency assumed the money would be used to give everyone a lawyer at arraignment, when they learn the charges against them and enter a plea.

Moore says when her staff members visited Lynnwood's courts, the lawyers still weren't following through.

Moore: "I'm not sure the attorneys understood that they, when they were physically at arraignments, they needed to be representing clients."

In fact, a memo submitted by Lynnwood public defender James Feldman to the city last year spells out the city's policy of leaving defendants to be arraigned on their own. Feldman warns the city that the state Supreme Court will likely require that lawyers be present in the near future, and that therefore his costs are going to go up, because he'll have to start attending those hearings.

King County Superior Court Judge Ronald Kessler says that would be a good thing. He's been advocating better representation for poor defendants for several years. He's bothered that the state court has moved so slowly on this issue.

Kessler: "The Supreme Court of Washington has been for too long considering a rule for all courts to provide counsel at arraignment to indigents. And I'm just stunned and disappointed that the court hasn't adopted the rule."

On a recent Friday, Judge Kessler presided over a hectic schedule of hearings in the county's family court building.

Kessler: "How long have you been in jail? "

Woman: "Since March 13."

Despite the quick pace, he makes time to ask each defendant an important question.

Kessler: "Do you want an attorney to represent you?"

Woman: "I do. Our phones don't work."

Kessler is talking to a woman wearing the red King County jail uniform.

Woman: "I pled guilty to a couple identity thefts."

Kessler is overseeing family court hearings to determine what happens to her children. Kessler says with misdemeanors, too many judges don't make clear the consequences of going without a lawyer. And high–pressure plea bargains tempt people to plead guilty, just to resolve their cases.

Kessler: "The prosecutor speaks to the client and says here's the deal, if you plead guilty today I'll recommend that you not get any jail time. Well, that sounds really good."

But that misdemeanor conviction can have severe consequences. It can mean deportation, loss of student loans, loss of child custody, and difficulty finding a job.

The debate has mostly concerned how to pay for public defenders if the state Supreme Court requires them.

But advocates for reform aren't just pleading for more money. They say counties and cities can save money by changing the way they handle low–level offenses. For example, a pilot project to fund more defenders and investigators in the city of Bellingham had some surprising results. The number of cases filed by prosecutors in the city actually declined.

Joanne Moore with the state Office of Public Defense says better investigations on behalf of defendants raised the bar for prosecutors. It may have deterred them from pursuing weaker cases.

Moore: "For the first time law enforcement knew from working on the cases that the witnesses would be interviewed, etc., so law enforcement considered the case in a different way and a more critical way before they filed charges."

The report from Seattle University also urges cities and counties to resolve certain offenses outside the courts. A Seattle program allowing people to renew suspended licenses makes money for the city, in paid tickets and reduced jail costs. Opponents of building a new jail in Seattle are pinning their hopes on these innovative programs.

Seattle City Council Member Nick Licata:

Licata: "I would say in less than a year we have gone from the inevitability of building a jail to the strong possibility that we may not need one."

Licata is hoping that new forecasts coming out this year will show a reduced need for jail space. And that King County will agree to keep housing Seattle's prisoners, as it currently does. He says the city has far better uses for the 110 million dollars that the new jail would cost to build. But Licata says diversion programs have to make lasting changes in people's lives; otherwise new jail beds will still be needed someday.

Amy Radil, KUOW News.

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