Chasing Gideon
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Officer Raleigh asked about insurance and Sean admitted he had none. Raleigh went to speak with Officer Grenon about the folks in the other car. “Officer Grenon stated that all three motorists were going to be transported to Providence Holy Family Hospital Emergency to be treated for their injuries. Grenon stated none of the parties in the vehicle had sustained life-threatening injuries, but did need to be viewed by the medical staff at the hospital to be treated.” Another cop measured skid marks from both vehicles and took photographs of the scene.
Sean was “pretty freaked out” but remembers a cop comforting him, assuring him that the family in the Toyota was okay. He went home thinking the others would be all right, that he himself was “stupid for speeding,” and that cops would be ticketing the Toyota’s driver “for blowing a stop sign.” Sean found out the Stack family’s address and sent a Hallmark card, telling them how sorry he was.
Later that evening, at 9:30 P.M., Officer Raleigh noted in his written report that the cop measuring skid marks had done his calculations and determined the speed; Sean had been going 45 mph prior to impact, he said. The speed limit was 30 mph.
The next day, Officer Raleigh went by the Replogles’ house and gave Sean a ticket for reckless driving and issued a Notice of Infraction for Liability Insurance Required. “I released Sean on his signature promising to contact the court within 15 days,” Officer Raleigh noted.
On Monday, Sean went to school but felt terrible. Judy Rodeen, the woman in the backseat of the car, turned out to be the office manager at his high school. “She was the main office lady, so the office people all hated me after that,” Sean said. Everyone at school knew what had happened. He walked down the halls. People stared. Pointed. He was a monster.
Doctors put fifteen staples in Judy Rodeen’s left ear and head, five stitches near her left eye, and treated her for pain in the left side of her body.7 Judy’s mother, Frances Stack, suffered cervical injuries, contusions, and lacerations. After examining Lowell Stack and running some tests and x-rays, an emergency room doctor decided he needed surgery to treat his wounds. He hospitalized the elderly man and operated immediately.
Then, seven days after the accident, Lowell Stack took a turn for the worse. He rapidly deteriorated. At 6 P.M. on October 28, eight days after the accident, Lowell Stack died in the hospital. The preliminary cause of death was “from complications arising out of the injuries sustained in the crash,” a police report noted.8
Sean would learn about the death in a roundabout way. A friend of his who worked as a student assistant in the high school office overheard a conversation among staffers and slipped out to find Sean. Sean was sitting in class when his friend motioned him out into the hall. “The guy died, dude,” his friend said. “They’re all talking about it in the office.”
Horrified, Sean turned, walked out of school, and went home. “Oh, my God!” he recalls thinking. “What the heck? Oh, my God!”
Two days later, the police showed up at the door to the Replogles’ home. “I was in my bedroom playing video games with my friend,” Sean says. “Dad came in my room and said there are a couple police officers here that need to talk to you.”
Corporal Tom Sahlberg broke the news. “I . . . advised him that the #2 driver had passed away, and now he was involved in much more serious charges that included Veh[icular] Homicide and Assault,” Sahlberg wrote in his official report.9 “He was fully cooperative and asked how the Stack family was doing, and that he had sent them a card. In addition, he had set up a court date for the Reckless Driving citation, which I advised him had been dismissed because of the more serious charges now pending. . . . I told him to be careful answering any official questions until he had an attorney, but that he was free to contact me with any questions he had.”
Sean didn’t know what to say. “I’m so sad that this person had to die,” he thought. “But this was an accident.” It was hard for Sean to comprehend that he was being charged with murder. As his father stood beside him, Sean listened, trying to make sense of what the cops were saying. Sahlberg told Sean that he would be back to formally arrest and book him in a few days.
Then, two days later, police arrived at the house with a minivan, put cuffs on Sean, and took him downtown to book him. He was released on his own recognizance—but he was terrified. How would he survive prison? he wondered. What would they do to him—a skinny kid who had no idea how to defend himself? Who played video games and cried when he was in a car accident? What would happen to him? How could he mentally or physically prepare for life behind bars?
Like many Americans, neither Sean nor his family had given much thought to “public defenders” or “indigent defense” prior to his car accident. Likely the terms were entirely unfamiliar to them. Legal services for the poor and the working class was not an issue for them. Why would it be? They had never been in trouble with the law.
But they were about to get a lesson, via immersion in the criminal justice system. Sean was assigned an attorney, Carol Dee Huneke. This was a small stroke of luck in a slew of bad news.
When Huneke first met Sean Replogle in October 2001, she had been working as a Spokane County public defender since 1998 (with earlier stints as a public defender in western Washington and then Idaho). At thirty-three, she was the mother of a one-year-old and the wife of a prominent federal public defender, Roger Peven.
She never intended to be a public defender—or even a lawyer for that matter. The way she describes it, she was a rolling stone who washed up on the shores of a public defender’s office in western Washington and discovered that “these were her people” and she loved the work. Born and raised in Texas, she went to the University of Texas School of Law because she couldn’t think of anything better to do after college.
She didn’t love it. And, after interning one summer for Texaco’s legal department, she liked it even less. She decided to continue with law school since she’d already attended for a year. But since she had no intention of ever practicing law, she didn’t bother enrolling in any practical courses. Instead, she took an eclectic assortment of classes on topics that interested her, like Ethics, Women and the Law, and Maritime Law. (Huneke’s experience is fairly typical; a 2008 study by the Center for the Study of Applied Legal Education reported that only 2 percent of law schools require practical clinical training for students.)10
Then, in 1993, a year after she graduated from law school, she found herself unemployed, broke, and struggling after following a love interest to Washington State. “I needed money,” she recalls today, and a slight smile plays around her lips as she describes a newspaper ad that she answered for a public defender. She showed up for her interview and walked into the office’s chaotic reception area. One client snoozed on a chair; the receptionist was AWOL; a basket of condoms sat on the front desk where there might ordinarily be, say, a bowl of mints. Down the hall, a disturbed and disheveled client with his hair in Einstein-like disarray stormed around ranting at the top of his lungs: “Fuck those fucking fucks!”
Huneke took a seat in the lobby and watched, bemused, as drama unfolded all around her. Eventually, someone called her name and led her into a back office. Behind the desk waiting to interview her was the “disturbed” man—not a client at all, but the director of the agency.
He grilled Huneke, asking her everything from philosophical questions to hypotheticals about trial decisions, then offered her the job. Afterwards, he took her on a tour of the building, introducing her to her colleagues in the misdemeanors department where he told her she would start out. This was a Thursday and one of the attorneys, shaking her hand, joked that he had three trials all starting on Monday. Might she be persuaded to take one? She blithely agreed.
He wasn’t joking.
He came by her cubicle the next day with a folder that he plopped on her desk. He explained that this was a DUI case. But Huneke, fresh out of law school, had never tried a case before. “I had never even watched a trial,” she says, “unless you count T
V.” But they seriously expected to send her into court on Monday. So she went. “The first trial I ever watched was myself doing it,” she says.
Huneke spins a good yarn—a useful trait for a trial lawyer, and one she has clearly honed over the years as she built complex narratives to sell her clients’ perspectives in court. There are the facts, and then there are the facts-woven-into-story, and Huneke clearly understands the superior power of the latter. Her life, too, as she spins it, is a series of cautionary tales and comeuppances with herself as the hapless, accidental hero forced into serious reckoning by the end. Her first trial falls in this tradition.
“At the time, I thought what you read in a police report was true,” she begins. “I don’t think that now.” The police report said that her client, an elderly fisherman, had caused an accident by turning onto a road in front of an oncoming car. Her client admitted having several glasses of wine but said he wasn’t drunk. The officer on the scene made her client do three tests to see if he was intoxicated. He made the man walk a straight line and then turn. The man walked a crooked line. He made the man stand on one leg. The man could not perform this simple task; he listed to one side. He made the man use his right thumb to touch and count all the fingers on his left hand. The man got no higher than three. He refused a Breathalyzer test.
Huneke knew she had a lousy case and figured she would suggest to her client that he simply plead guilty. Then, the “funny, crusty old character” came into her office. She explained what the police report said and as she spoke, the guy struggled with his pant legs, trying to pull them up to show her something. He couldn’t manage to get his trouser legs high enough to show her what he wanted. Finally, right there in the office, he dropped his pants. The sight of his leg shocked her. It was bent at an odd angle and horribly disfigured, full of scars from multiple surgeries. He explained that he had fallen into the machinery of a conveyor belt on one of the fishing vessels he worked on and was disabled. When she questioned him about the finger test, he raised his hand for her to inspect. He’d lost two fingers in a fish guillotine. Later, when she asked him a final question in the courtroom—“Why had he refused the breath test?”—he referred to his past machinery-related accidents. “I don’t like machines,” he said. “I don’t trust ’em.”
The jury laughed. They loved him.
Huneke won the case, but she knows now she was simply lucky.
And she knows now that any system that would allow her to try a case like this is ridiculous. Back then, she had spent her weekend cramming, reading two books, one about the law in the state of Washington, one about how to try a DUI case. A colleague had to talk her through the basic structure of a trial by sketching out the standard sections on a legal pad—“first you have the prosecutor give his opening argument, then it is your turn for an opening argument,” etc.—and then she was thrown in a courtroom to sink or swim, defending clients for whom the stakes were much higher.
“I remember so specifically sitting next to this old fisherman as the jurors were coming in,” she says. “I was thinking, ‘Somebody has to stop this from happening. I don’t know what I’m doing.’” Huneke shakes her head. “You learn some basic rules at school and then you get this job being someone’s lawyer,” she says. “You understand, I’m supposed to do the best for this person. Court, the law, nothing was how I thought it would be.”
Then Huneke got another client, and another and another until, like public defenders across the city, the state, the nation, she had hundreds of clients in a year and way more than she could reasonably handle. “It didn’t shock me, but it was more like, ‘How do I do this job that is so overwhelming and crazy and all these people are relying on me?’” She was profoundly aware that she was getting a legal education on the backs of clients who deserved better. “When you’re thrown into this, you’re just trying not to drown. You are just so incompetent on so many levels, you don’t even know this is too many cases.”
What Carol Dee Huneke was feeling, personally, was in fact a problem that public defenders struggled with all across the nation. Indeed, only ten months before she was assigned to represent Sean Replogle, the U.S. Justice Department had declared a “crisis” in the country’s courts. Issuing a scathing report, “Keeping Defender Workloads Manageable,” the Justice Department and others drew on reports pouring in from jurisdictions around the country that documented how overworked public defenders were handling anywhere from 200 to 2,225 felony and misdemeanor cases in a single year, compared to private attorneys who would consider 100 clients a crushing workload.11 The legal community—judges, state bar associations, court administrators, public defenders, and even some prosecutors—were throwing up a red flag; if public defenders can’t properly defend their clients, defendants’ constitutional rights are being violated on a daily basis. This runs counter to the intent of the U.S. Supreme Court’s 1963 decision in a case called Gideon v. Wainwright.
Back in 1961, when an itinerant man named Clarence Earl Gideon was accused of breaking into a pool hall in Florida and stealing some liquor and money from a jukebox and a cigarette machine, he asked the judge in his burglary trial for a lawyer to represent him. He was too poor to hire one himself, he said, but he needed one to help him try the case. The judge said the state was under no obligation to provide him with an attorney. So Gideon represented himself—badly—and landed in prison. Gideon fought his conviction, going all the way to the U.S. Supreme Court as he insisted that there was no such thing as a “fair trial” if both sides didn’t have attorneys.
Then, in March 1963, the U.S. Supreme Court agreed with him, ruling in the landmark case Gideon v. Wainwright that poor people charged with a crime that carries potential jail time have a right to an attorney to represent them in court. Complying with this decision was hugely complicated and expensive for the states, cities, and counties who took on the burden of providing these lawyers for the poor—but it was doable. At the time, the number of indigent folks accused of crimes was smaller and arguably more manageable. On the heels of Gideon, cities and counties did one of three things: they established public defender offices with a staff of salaried lawyers who were paid by the city, county, state, or some combination of these; they developed a roster of private attorneys that judges appointed on an as-needed basis, paying them an hourly rate; or they handed over the contract for all local public defense to a single attorney or law firm for an agreed-upon flat fee. It sort of worked. For a while. But today, on the heels of the War on Drugs, the Three Strikes Law, and the lock-’em-up mentality of politicians, indigent clients have flooded the courts. Indeed, the Justice Department reported in 2001 that public defenders represent 80 percent of all criminal cases and “[a]s caseloads have increased, many public defender offices have been unable to obtain corollary increases in staff” and too often “the quality of service suffers,” concluding, “[a] t some point, even the most well-intentioned advocates are overwhelmed, jeopardizing their clients’ constitutional right to effective counsel.” 12
Since that 2001 report, little has changed on the national scene.
In 2009, the Constitution Project, the National Legal Aid & Defender Association, and the National Right to Counsel Committee investigated the current state of public defense and came to the conclusion that the system of providing counsel for the poor in this country was broken, with defendants’ constitutional rights routinely violated. The group drew from news articles, law reviews, and the myriad panicked reports that cities, counties, and states had generated by culling data and creating task forces, blue ribbon commissions, and special councils. They pulled the information together in a comprehensive report titled Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel.13
The report began almost pathetically, arguing on the most basic level for the value of indigent defense. “It helps to define who we are as a free people and distinguishes this country from totalitarian regimes, where lawyers are not always independent of the state and
individuals can be imprisoned by an all powerful and repressive state,” the authors noted, insisting that “sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon decision and the Supreme Court’s soaring rhetoric.”14 It fails the poor, and underfunding indigent defense in the short run costs society money in the long run, insisted the authors, a group that included policy makers, victim advocates, scholars, judges, public defenders, district attorneys, and law enforcement. “State and local governments are faced with increased jail expenses, retrials of cases, lawsuits, and a lack of public confidence in our justice systems,” they wrote. “In the country’s current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent persons will be greater than ever.” 15
The same month that Sean Replogle’s case was slated for trial, in March 2004, another case began quietly making its way through the Washington State courts as a public defender in Grant County made very different decisions about zealously representing his client in court than the ones Carol Dee Huneke was making. His story would serve as a cautionary tale—an inadvertent foil to Huneke’s unfolding story with her client Sean Replogle. This incident, though the press did not cover it at all, was destined to alter the definition of “effective counsel” in the state of Washington.
Here, in a town called Moses Lake, less than an hour from Spokane, a public defender named Douglas Anderson decided to keep things moving with his client—one among more than 460 open cases he had on his desk—urged the youngster to plead guilty to a crime, regardless of whether this was a good choice or not.