by Chasing Gideon- The Elusive Quest for Poor People's Justice (retail) (epub)
That February, a five-year-old Moses Lake boy accused his twelve-year-old neighbor of playing “Icky-Poke-U” with him. The five-year-old said that he had climbed up onto the older boy’s lap on an easy chair. Then, he said, the twelve-year-old asked if he wanted to play Icky-Poke-U and stuck his hands down the little one’s pants. Several days later, the five-year-old told his parents about the game of Icky-Poke-U. Twenty-eight days later cops interviewed the five-year-old about the incident. Then the twelve-year-old was interviewed and, crying, denied the allegations. On July 2, 2004, cops arrested the twelve-year-old and the state charged him with child molestation in the first degree.
While the twelve year old’s current attorney agreed to speak with me, his family declined to, so much of the following is drawn from court records and interviews with the boy’s present lawyer. Because he is a minor, I’ll refer to the boy by his initials, A.N.J., as he is identified in court documents. Both children are white and live in a middle-class neighborhood.
A.N.J. was assigned a Grant County public defender. In addition to A.N.J.’s case, Douglas Anderson had 240 other child criminal defense cases and 200 or more dependency cases—typically abuse or neglect cases—that year. According to court records, Anderson had a staff of one (his wife) to assist him.
A.N.J. was charged in court, without Anderson’s presence, on July 19. Because Anderson was not there to advise A.N.J. as to how he should respond, the arraignment was continued until August 2. On September 14, the judge convened a pretrial conference and set a trial date of September 22. But on that day, on the advice of counsel, twelve-year-old A.N.J. pleaded guilty to child molestation.
A.N.J. and his parents barely met with the public defender. “Between the first appearance and the arraignment, Mr. Anderson met with A.N.J. and his father on one occasion,” according to a deposition. “According to A.N.J.’s father, this meeting lasted only five minutes. Mr. Anderson did not disagree with this estimate. About the substance of this first meeting, Mr. Anderson testified: ‘Initially, he [A.N.J.] was not agreeing with the information in the police reports.’”
Indeed, A.N.J. had told the police that the five-year-old neighbor had initiated the whole thing, that he had climbed onto A.N.J.’s lap and that the younger child had suggested the game of Icky-Poke-U. A.N.J. said he did not want to play, but the younger child took his hands and put them down his pants.
Anderson met with A.N.J. and his parents in court before the arraignment on August 2, 2004, for what his mother describes as a meeting “probably” lasting ten minutes. A.N.J.’s parents were “shocked” by the charges and worried about how they should proceed. Between August 2 and September 14, A.N.J.’s parents called their son’s lawyer several times, leaving messages for Anderson. Anderson did not return the calls. Then, on September 15, the prosecutor offered a plea bargain.
According to an appellate brief filed March 5, 2005, the following occurred:
“On September 17, 2004, Mr. Anderson met with A.N.J. and both of his parents. As for the substance of this meeting, Mr. Anderson initially testified that he spent ‘well over a half hour’ explaining the Statement on the Plea of Guilty. He testified at length about each and every paragraph of the form that he ostensibly explained to A.N.J. and his parents. However, he later admitted that this testimony was false, and that he did not even have the Statement on the Plea of Guilty form at the September 17, 2004, meeting.”
In fact, A.N.J.’s parents assert that they saw the guilty plea for the first time on September 22, 2004. In a five-minute conversation, Anderson explained that if the boy pleaded guilty, the charge would be reduced from a class A to a class B felony, and that while he could still serve up to nine months, he could likely agree instead to attend a special sex offender disposition alternative, a series of sex offender counseling workshops. “Then, I just briefly discussed with him the fact that he would be required to register as a sex offender and it was somewhere in that range that the question came up about having this matter removed from his record,” Anderson would testify about a year later.
Earlier, A.N.J.’s parents had asked if this would permanently be on their son’s record, if he would always be labeled a “sex offender.” According to A.N.J.’s parents, the public defender assured them that their son’s record would be expunged, though he wasn’t sure whether it was at age eighteen or twenty-one. He would check and get back to them.
“I remember asking Mr. Anderson if he found out when it would be off his record, and he said he hadn’t had time to look into that,” A.N.J.’s parents would state a year later. “And then I said exactly, I remember, I said, ‘When does this come off his record?’ I didn’t say, ‘Does it?’ I said, ‘When?’ Because he’s a minor and I don’t know the law, I’m not a lawyer.”
A.N.J’s dad recalls the lawyer’s response: “Mr. Anderson’s reply was, ‘I’m not sure. The laws change all the time. I’ll have to check into it and get back to you.’”
Anderson never denied this, acknowledging that the charges could be removed between age eighteen and twenty-one, admitting he “did not know exactly what the law stated.” He never did get back to them with details. “Honestly, it may have just slipped my mind,” he told the court later.
In truth, the child molestation in the first-degree conviction would never come off A.N.J’s record.
Instead, Anderson would spend a total of at most an hour and a half with A.N.J. and his parents. “He filed no motions. He made no requests for discovery. In fact, he filed no pleadings or documents at all other than his initial notice of appearance,” court documents show. He did not interview any witnesses. He did not hire an investigator. (Money to pay for an investigator would come from the $162,000 flat fee he was paid by Grant County to represent indigent clients. According to a later appellant brief filed by A.N.J’s new attorneys: “In a moment of candor, Mr. Anderson admitted that this financial reality creates a disincentive for him to hire investigators. The strength of the disincentive is revealed by the fact that Mr. Anderson did not hire a single investigator for any one of his 240 juvenile offense cases in 2004. Reverting to a more defensive posture, Mr. Anderson then denied that there was a need to investigate any of those cases.”) Further, “[h]e received the names of two witnesses to contact who would testify that the alleged victim in this case was actually abused by another person rather than A.N.J. Mr. Anderson says that he tried to contact the witnesses by making a telephone call, but he concedes that he ‘was unsuccessful.’ He does not recall whether he even left a message.” And while cases like this, with a five-year-old making the accusation, typically require an expert to carefully conduct interviews without suggestively leading the accuser, ideally recorded for later court use, no expert interviewed the alleged child victim or alleged perpetrator. Anderson declined to consult or hire to testify a single expert. (Again, paying for such a person would come out of his own pocket, according to his flat-fee contract with the county.)
Instead, Anderson simply suggested that A.N.J. plead guilty. Anderson said in a 2005 deposition, “I do not remember many of the details of [A.N.J.’s] case due to the fact that I have a large caseload,” and further, “I never independently investigated the claims regarding the alleged victim nor did a background check on the family, I simply reviewed the police reports.” He also suggested A.N.J. fudge the truth with the judge. “I told [A.N.J.] that the judge would ask him if he had read [the guilty plea] or if I had explained it to him and to say yes. . . . I spent approximately five minutes with [A.N.J.] going over his statement just before we were called into court.” (Later he recanted, saying that he met with A.N.J.’s parents several times and that during one of the meetings the boy “began to admit to me that he had committed the conduct that was alleged in the police report.”)
After A.N.J. pleaded guilty before a judge, the boy and his parents learned that his record as a sex offender would never be expunged, that a monitor would likely be assigned to shadow him at school every day from now until he gr
aduated from high school, and he would have to regularly admit his guilt in a therapeutic setting as he attended sex offender group counseling.
A.N.J.’s parents were shocked. Within weeks they sought out a private attorney who advised them to try and withdraw A.N.J.’s guilty plea based on ineffective assistance of counsel.
Meanwhile, A.N.J. was sentenced to fifteen to thirty-six weeks in custody, forced to undergo HIV and DNA testing, and required to register as a sex offender.
The authors of the Constitution Project’s 2009 report Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel back up their assertions about the crushing caseloads public defenders carry with a troubling collection of facts. For example, they noted, in 2008 the U.S. Supreme Court had to step in and order Nevada’s Clark County and Washoe County to cut caseloads. Public defenders in the former carried felony and gross misdemeanor caseloads of 364 (more than double the American Bar Association recommended standard of 150), while in the latter caseloads averaged 327. In Knox County, Tennessee, one attorney reported having 240 open cases, while another reported that between January and February of 2008, she had 151 clients (representing approximately 14 people per day). “In 2006, six misdemeanor attorneys [there] handled over 10,000 cases, averaging just less than one hour per case,” the authors observed. Miami was another problem region, where public defenders refused to accept more cases when their loads jumped, over the course of three years, from an average of 367 felonies per attorney to 500 and from 1,380 misdemeanors per attorney to 2,225. (See Chapter 2 for a detailed look at Miami’s situation.) In Missouri, the authors noted, public defender caseloads were so high that they were required “to dispose of a case every 6.6 hours of every working day.” The state’s public defender deputy director Dan Gralike said: “The present MASH-style operating procedure requires public defenders to divvy effective legal assistance to a narrowing group of clients,” in essence “choosing” which clients will receive effective assistance and which will not.16
The legal term for what happens when these overextended lawyers go into court and race through a case doing the bare minimum is “ineffective assistance of counsel.” More colloquially, unmanageable workloads mean that all across the country, public defenders cannot properly do their jobs. “Our adversarial system of criminal justice relies upon the effectiveness of counsel for both the prosecution and the defense in order to discover the truth concerning the guilt or innocence of the accused,” says one of the leading experts on the topic, California Western School of Law professor and managing director of the school’s criminal justice programs Laurence A. Benner. “A host of recent exonerations of the wrongfully convicted by innocence projects nationwide . . . have revealed there are serious flaws in our justice system,” he wrote in the summer 2011 issue of Criminal Justice.17 He worried that the presumption of innocence—something that was necessarily backed by “a well-prepared and experienced defense counsel supported by investigators, experts, and other resources needed to mount an effective defense”—had been abandoned. Instead, he insisted, “our system has broken faith with that basic premise and forgotten its primary mission, often operating under a presumption of guilt in which processing the ‘presumed guilty’ as cheaply as possible has been made a higher priority than concern for the possibility of innocence.”
Authors of the Justice Department report insisted that “[a]dequately supporting indigent defenders is critical to preserving the constitutional rights of individuals accused of crimes.” Others, horrified by the dire situation, eschew the cautious language of the Justice Department and describe the current indigent defense crisis more directly: “All in all, it is just massive lawlessness and indifference by the courts to a Constitutional mandate by the Supreme Court,” says Stephen Bright, executive director of the Southern Center for Human Rights in Atlanta, Georgia. “But it’s hard to get folks to do the right thing on this.”
There are all kinds of problems with the patchwork system of indigent defense in the United States, but by far the most critical is the crushing caseloads that, in essence, violate a defendant’s Sixth Amendment right to counsel by providing it, in many cases, in name only.
In Washington State, debates over caseload limits have dominated the reform efforts for more than a decade. The state has made great strides, but it was not there yet. Washington was neither the best nor the worst in the country—but fell somewhere in the middle. And within Washington, Spokane County was neither the best nor the worst. It was merely indicative of what typically transpires in courts around the country on any given day. In Washington State, approximately 250,000 indigent people are prosecuted by the government each year.18 In 2001, Sean Replogle was poised to become one of them.
As she looked at Sean Replogle, sitting in her office for the first time in the winter of 2001, Carol Dee Huneke, now a seasoned public defender, was struck by the fact that, though he was eighteen and being tried as an adult, “he was basically a kid.” He arrived with his father, Chuck Replogle, a gentle man with a long graying ponytail and a careworn face. His dad was at his side that first meeting and every single meeting and court date thereafter, doing his best to understand the case and support his son however he could.
Huneke worried that the facts in the case seemed to be lined up against Sean, but something in her gut told her he was innocent. “The kid had never been in trouble before,” she says. “He was super sweet.” She asked him about police reports and a witness statement that said he was speeding. Could he have been going as fast as 58 mph in the 30 mph zone, as the prosecutor alleged? (Throughout the investigation and trial, various cops, experts, and witnesses would throw out different estimates of Sean’s speed.)
Sean admitted that he was going “maybe a little fast.” But he assured her that he was going nowhere near that speed: “I know I wasn’t going that fast.”
To win its vehicular manslaughter case, the state had to prove that Sean’s driving was a “proximate cause” of Lowell Stack’s death and, as the prosecutor Clinton Francis put it in an October 2003 memorandum to the Court, “proximate Cause is one which in direct sequence, unbroken by any new, independent cause, produced the death and without which the death would not have occurred.” The state could easily present a “prima facie case that the defendant drove recklessly or with disregard for the safety of others” and, he insisted, proving a vehicular homicide occurred meant the state only had to prove that “(1) the defendant drove a motor vehicle, (2) that his driving proximately caused injury to another person, that (3) at the time of driving the defendant operated the motor vehicle either in a reckless manner, or with disregard for the safety of others (intoxication may also support a conviction for Vehicular Homicide but is not an issue in this case) and that (4) death ensued within 3 years of the collision.” Francis stated that Sean was exceeding the speed limit by 21 mph in a residential area and insisted this was not “mere oversight or inadvertence, but a conscious act from which a jury may find, after considering all the circumstances, to be a reckless act or at least an act of disregard for the safety of others.”
Francis went on to downplay the fact that Sean had the right-of-way when Lowell Stack pulled out in front of him. “One of the reasons for speed limits is to keep speeds at such a level that these foreseeable events are less likely to have the tragic consequences of this case,” he wrote in the memorandum, arguing against the motion to dismiss. “The arguably negligent act of the victim should not insulate the defendant from liability under the Vehicular Homicide statute.”
For her part, Huneke was skeptical that the “sequence establishing proximate cause” was an unbroken one. For now, in her rush to file a motion to dismiss, she did not investigate Sean’s alleged speed or confirm the cause of Mr. Stack’s death, but she did argue, in her October 2, 2003, motion to dismiss, that “Mr. Replogle’s speed was not the proximate cause of the accident, because Mr. Stack’s failure to yield the right-of-way at the stop sign was an intervening cause
and thus the proximate cause of the accident.” She cited appropriate case law and reiterated in plain language: “It is not reasonable to anticipate that someone with a clear view will fail to yield the right-of-way and pull directly in front of an oncoming car. The law recognizes that Mr. Replogle may assume that other cars will follow traffic rules, and mere speed does not change that assumption.” Further, she insisted the undisputed facts failed to show that Sean drove recklessly. “He was sober, and he was not racing or performing dangerous maneuvers. His attention was on the road,” she wrote.
A few years back, Huneke stood a good chance of having the case dismissed—or at least, if her client pleaded guilty, getting a good deal for him. (Indeed, at one point, Huneke thought the prosecutor was offering Sean a deal, probation instead of jail time, and Sean was on the verge of accepting this, but it turned out he was offering Sean a year of prison; Sean opted to go to trial even though he could serve up to four years if convicted.) But then, over the course of a few years, prosecutors in Spokane stopped offering reasonable pleas, according to Huneke.
Just about the time Sean arrived in her office as a client, Huneke had simultaneously been investigating why public defenders in her office were now being offered such crummy plea deals for defendants. She did some detective work, crunching numbers, and discovered that in the felonies department, at least, the balance had shifted so that there were thirty-eight prosecuting attorneys and only seventeen public defenders. Admittedly, some clients hired their own private attorneys, but 80 percent of them relied on public defenders, which meant more than twice as many prosecutors as defenders. Indeed, based on 2004 Open Cases reports that she examined, she discovered that prosecuting attorneys carried caseloads ranging from 16 to 36 cases, while public defenders like herself at that time typically had 101 open felonies. “Prosecutors simply stopped making as good offers,” she says. In the game of “trial chicken,” when prosecutors threaten to go to trial, they actually have the time and resources behind them to do so. For example, a simple drug possession case for a client with no prior convictions typically took a predictable course. “It used to be a no-brainer to reduce that to a misdemeanor,” she says. “Say you get caught with some crack in your car but you’ve never been in trouble before. Most people get a break on their first time. It’s reduced to a misdemeanor so the person isn’t guilty of a felony [on their record]. Or they do a diversion program or something.” A while ago, that would have been an obvious reduction—and the prosecutor would have gone for that. “Then I began to have to fight for a year to get that deal. What would have been two hours of work grew into thirty.”
