Civil Litigation to Improve Public Defense Systems

National Juvenile Defender Center

10th Annual Summit

October 27-29, 2006

Patricia J. Arthur

National Center for Youth Law

Civil Litigation to Improve Public Defense Systems

Two Case Studies:

Lambert v. Blodgett and Best v. Grant County

The Donald Lambert Story 15 ½ years old when charged with 2 counts

aggravated first degree murder in Grant County, WA;

Donald’s public defender stipulates to waiver of juvenile jurisdiction and transfer to adult court;

Donald’s public defender works for the attorney representing Donald’s co-defendant;

Donald’s co-defendant agrees to testify against Donald in exchange for plea deal;

Donald’s Story

At age 16 Donald pleads guilty to one count of aggravated first degree murder and is sentenced to a mandatory life without the possibility of parole prison term, the worst possible sentence he could have received had he gone to trial and been convicted of both counts;

Donald’s Story Donald’s attorney never reviewed the tape

recording made of his client’s statement to the police, even though the tape had been re-recorded on a detective’s home stereo system;

The written transcript of Donald’s tape recorded statement contained words of pre-meditation not on the tape;

Donald’s Story Donald’s attorney did not hire an investigator

or investigate Donald’s background, including Donald’s alcohol exposure in utero, or the backgrounds of Donald’s co-defendants who were to testify against him;

Donald’s attorney said he planned to begin his investigation of the state’s witnesses after Donald’s trial began;

Donald’s Story Donald’s attorney met with him only 15 times. Each

meeting, save one, lasted no more than 20 minutes; After his trial began, Donald decided to enter a plea.

After a 13-minute recess during which Donald’s counsel failed to offer any advice, the court accepted Donald’s guilty plea to one count.

At the time he plead, Donald thought the “life” sentence he would get meant he would spend 20 years in prison “like in the movies.”

The Right to Counsel

“The Sixth Amendment of the United States Constitution guarantees a “right to counsel in order to protect the fundamental right to a fair trial.”

Strickland v. Washington, 466 U.S. 668, 684 (1984).

The Essence of Justice

“The right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is the essence of justice.”

Kent v. United States, 383 U.S. 541, 561 (1966).

Test for Post-conviction Claim of Ineffective Assistance of Counsel

Two-prong test:

1. Counsel’s performance falls outside the bounds of professional reasonableness considering all the circumstances, and

2. Counsel’s unprofessional errors were so serious that the defendant was deprived of a fair trial.

Strickland, 466 U.S. at 694.

State Post-Conviction Challenge Fails

Donald’s state post-conviction challenge denied by elected judges who decide Donald received constitutionally adequate representation.

In re Lambert, No. 18069-7-III (Wash.Ct.App., Nov. 17, 1999; In re Personal Restraint Pet. of Lambert, No. 68929-6 (Wash., Feb. 7, 2000).

Writ of Habeas Corpus Granted

Donald establishes that he received constitutionally inadequate representation under the Strickland standard after being afforded an evidentiary hearing during federal district court habeas proceedings.

Lambert v. Blodgett, 248 F. Supp. 2d 988 (E.D.Wash. 2003).

Ninth Circuit Reverses

The determination of the federal district court that Donald was denied the effective assistance of counsel is reversed by the Ninth Circuit based upon habeas review standards of the Antiterrorism and Effective Death Penalty Act (AEDPA), and petition for writ of certiorari is denied. Lambert v. Blodgett, 248 F. Supp. 2d 988, aff’d in part, rev’d in part, 393 F. 3d 943 (9th Cir. 2004), cert. denied 126 S. Ct. 484 (2005).

The Making of A Class Action

Individual post-conviction challenges to public defense representation in Grant County, including Donald’s, helped lay the groundwork for class action litigation to redress systemic deficiencies in public defense systems throughout Washington state.

Public Defense in Washington No single state-wide public defender

system No state funding (at that time) to

support county public defense systems

State law requires counties to adopt standards governing the provision of public defense services

Structure of Indigent Defense Structure of county systems differ

Non-profit agency Part of county government Contract attorneys Rotating appointments from

attorney roster

The Grant Co. System Grant County Indigent Defense

Single Contract System Exclusive 5-year contract awarded to single firm

responsible for all indigent defense services Prosecutor involvement in contract

negotiation and advice to Board of Commissioners

Task Force to Improve Public Defense in Grant County

Columbia Legal Services, The Federal Public Defender, The Washington Defender Association, The ACLU, private law firms and criminal law experts form group to develop strategies to improve the public defense system in Grant County.

Collaboration is Essential

“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever has.”

Margaret Mead

Task Force Goals Identify common themes in individual Grant County

post-conviction cases; Develop legislative and litigation strategies to

address the problems with the public defense system in Grant County;

Use Grant County as an example of the kind of systems deficiencies in other counties;

Develop strategies to improve public defense systems state-wide.

ACLU Report

“The Unfulfilled Promise of Gideon: Washington’s Flawed System of Defense for the Poor” (Washington ACLU, March 2004).

http://www.aclu-wa.org/library_files/Unfulfilled%20Promise%20of%20Gideon.pdf

Media Creates Climate for Change

An Unequal Defense: The Failed System of Justice for the Poor

http://seattletimes.nwsource.com/news/local/unequaldefense/

Bar Disciplinary Proceedings Donald’s public defender is disbarred.

See In re Disciplinary Proceeding Against Romero, 152 Wash.2d 124, 94 P.3d 939 (2004).

Thomas Earl also disbarred on May 13, 2004.

BAR ASSOCIATION BLUE RIBBON PANEL The Washington State Bar Association’s Blue

Ribbon Panel on Criminal Defense concludes that state standards for public defense services are being ignored in many jurisdictions and there is no effective state enforcement leading to violations of the constitutional right to effective assistance of counsel.

www.wsba.org/blueribbonreport.pdf

Developing the Class Action Forming the legal team Developing the facts Researching the claims Deciding who to sue Identifying the plaintiffs Choosing the forum Avoiding mootness

Identifying the Plaintiffs

Taxpayer Plaintiffs Demand to Washington State Attorney General

Individuals Charged in Grant Co. On-going prosecutions necessary to avoid

mootness problems Limitation on scope of interviews to avoid

interference with representation Facts that show systems deficiencies

Fact Development: The Themes

Failure to investigate/prepare Caseloads Supervision Prosecutorial interference with contract process Attorney qualifications Conflicts system

The Themes

Contract oversight Adequacy of funding Lack of representation at initial appearances Funding and salary parity with prosecutor’s office

Who to Sue Any basis for state liability? County liability

Municipality liability? Individual Board of Commissioners? Judicial responsibility and liability?

Choice of Forum and Venue

State v. federal court

Venue: State law provides venue is proper in any one of the two nearest judicial districts to defendant Grant County. R.C.W. 36.01.050

Relations with Grant County Public Defenders Efforts to maintain good relations and focus

on interests and goals in common sadly failed Threatened bar complaint against one of

plaintiffs’ counsel (contact with represented client) Use of ethics expert Interview questionnaire

Relations with Grant County Public Defenders

Declarations of public defenders submitted by prosecuting attorneys in support of county submissions on summary judgment

Public Defender Relations

DON’T EVER STOP TRYING TO BUILD COMMON GROUND

The Legal Claims Acting under color of state law Grant County

violated the plaintiffs’ rights to the effective assistance of counsel guaranteed by the 6th and 14th Amendment and are liable under 42 U.S.C. Section 1983

State constitutional claims Taxpayer claims under state law

Prevailing on the ClaimsThe standard for prospective relief in an indigent defense class action:

“[W]here the state imposes systemic barriers to effective representation, prospective injunctive relief without individualized proof of injury is necessary and appropriate.” Nicholson v. Williams, 203 F. Supp. 2d 153, 240 (E.D.N.Y.2002). See also Luckey v. Harris, 860 F.2d 1012, 1017 (11thCir.1988).

Professional Standards of Practice ABA Standards for Criminal Justice 4-4.1 to

4-8.6 State Bar Standards ABA Formal Opinion 06-441 (May 13, 2006)

“Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads

Standards

The Ten Principles of a Public Defense Delivery System, available at

http://www.abanet.org/legalservices/downloads/sclaid/10principles.pdf

NLADA Standards, available athttp://www.nlada.org/Defender/Defender_Standards/Defender_Standards_NLADA

Professional StandardsCourts rely on professional standards to determine the reasonableness of counsel’s representation.

Strickland v. Washington, 466 U.S. 668, 688 (1984); Williams v. Taylor, 529 U.S. 362, 396 (2000); Wiggins v. Smith, 539 U.S. 510, 524 (2003); Rompilla v. Beard, 125 S.Ct.2456, 2465 (2005).

Best Order on Summary Judgment

The Court in Grant County v. Best grants summary judgment in favor of Plaintiffs finding the deficiencies in the Grant County indigent defense system created a well-grounded fear of the immediate invasion of plaintiffs’ right to the effective representation of counsel.

Settlement Terms of the settlement

Qualification and training standards must be met Caseloads limited based on case weighting system Compensation increased Investigators mandated Expert witness compensation mandated Translation funds required Administrative support required New conflicts system developed Supervisory attorney required

The Settlement

Settlement Agreement provides for independent monitor to oversee implementation

The first year of implementation is resulting in major improvements in public defense

Collateral Reforms

Enhanced state funding for public defense services state-wide

Significant increases in funding and other improvements made in the public defender systems in other counties

Juvenile Indigent Defense Systems

Many juvenile indigent defense systems around the country are in dire need of additional resources and reform.

See: http://www.njdc.info/assessments.php