Skagit County suit claims public defenders too busy to defend

MOUNT VERNON, Skagit County — Approximately 1,000 misdemeanor cases cross the desk each year of public defender Richard Sybrandy, a volume that is more than double what the state bar says is a reasonable amount.

But as staggering as that caseload is, it is only about half of Sybrandy's total workload. In addition to being a contracted public defender for Mount Vernon and Burlington, he maintains a private practice of criminal cases.

His workload is so large, in fact, that an unusual class-action lawsuit filed last week in Skagit County accuses Mount Vernon and Burlington of violating defendants' constitutionally protected right to counsel.

If successful, the lawsuit could have broad implications for the state's jampacked municipal and district courts, and potentially force cities to boost public-defense spending just as they are squeezed by the slow economic recovery.

Sybrandy, an attorney for 15 years, admits his caseload is "too high."

"I've been frustrated to the point of tears" when faced with five trials in a single week, he said. But he vigorously disputed the lawsuit's allegations that he hasn't returned clients' phone calls or investigated their cases. "I've worked really hard for an outstanding reputation," he said.

Jaretta Osborne disagrees. Her son Ryan, 23, was charged in November with assaulting a police officer who responded to a fight at Ryan's apartment. Although Ryan is schizophrenic and has the developmental level of a 5-year-old, Sybrandy, who was assigned the case, did not tell the judge about Ryan's problems, Jaretta Osborne said.

Nor did Sybrandy speak up when Ryan was reprimanded by a judge for laughing inappropriately during a hearing, she said. "At no time did Mr. Sybrandy stand up and say, 'Ryan doesn't understand this.' I just felt Ryan wasn't being helped."

Sybrandy said in an email that he "obtained an extraordinarily good result" for Ryan — dismissal if he stays out of trouble for a year. And, he says, he later told the judge privately about Ryan's developmental disability.

"I did right by this guy," he said.

What is reasonable?

Nearly 300,000 misdemeanor cases were filed statewide in 2010, from drunken-driving and domestic-violence complaints to the simple driving-with-license-suspended citations that constitute about one-third of the total caseload.

The Washington State Bar Association has recommended that public defenders handle no more than 400 such cases a year, to ensure defendants receive the full attention of their assigned lawyers.

Those levels, however, are only recommendations. In June, the bar's governing board declined to set hard limits for misdemeanor caseloads when it asked the Supreme Court to set binding standards for public defense.

Seattle attorney Marc Boman, who led the effort for the bar association, said cities objected in part because of the "financial implications" for caseload limits. The bar association planned to revisit caseloads in misdemeanor cases, he said.

Seattle's municipal court limits public defenders to 380 cases, but most other cities don't. The caseload limits make sense, said Bob Boruchowitz, a Seattle University law professor and former director of a King County public-defense organization.

"There are 1,600 to 1,800 billable hours a year, so if you are doing 900 cases, you've got 2 hours per case. If you are doing 900 cases part time, you've got one hour" or less, he said. "When the bulk of your cases are resolved in a half-hour or hour you are not being able to do the work that needs to be done to represent someone."

Inadequate representation also can result in a case being overturned. The state Supreme Court last year allowed a 12-year-old in Moses Lake to withdraw a guilty plea in a child-molestation case because his public defender did such a poor job. Among factors cited by the court were "statistically impossible caseloads on public defenders" in some parts of the state.

Caseload limits in municipal courts, however, ignore the fact that many of those cases, such as suspended-license infractions, are simple and can be handled expeditiously, said Andrew Cooley, a Seattle attorney representing Mount Vernon and Burlington in the lawsuit.

"If this approach works with Mount Vernon and Burlington, I fear it will be replicated around the state in high-volume courts," said Cooley, who represents an insurance risk pool for cities. Because of that, the risk pool will challenge the suit vigorously, he said.

Big increase proposed

Toby Marshall, a Seattle lawyer whose firm filed the lawsuit, said based on the volume of criminal cases, Mount Vernon and Burlington need five attorneys, not two, and need to spend about $300,000, not the current $180,000.

"The Constitution does not say you get an attorney if the city can afford it. The Constitution says you have a right to counsel, period," he said.

Based on documents from the two cities, submitted with the lawsuit, Sybrandy and the other contracted public defender, Morgan Witt, document spending 30 minutes to one hour per case. Defendants have complained to the cities that the attorneys do not return phone calls, and Sybrandy and Witt combined visited the Skagit County jail only six times in 2010, seeing seven clients.

The county's public-defense referral office, which vets clients' ability to pay, has complained that a lack of communication with defendants is a "major complaint." Mount Vernon police also have complained they couldn't reach the public defenders during a drunken-driving case. "This is not an isolated case," a detective wrote.

Witt did not respond to a call, but Sybrandy said during an interview this week that he rarely visits the jail because his clients are rarely there. He said he has not hired an investigator to look into the facts of a case for at least two years but accused Marshall, the attorney pressing the class-action lawsuit, of being ignorant of criminal law.

"The question is, who is Richard Sybrandy," Sybrandy said. "Why don't we call 5,000 of Richard Sybrandy's past clients and see how many say, gosh, Richard Sybrandy saved my butt. ... For someone who doesn't know what he's talking about to say otherwise is really disgusting."

Jonathan Martin: 206-464-2605

or jmartin@seattletimes.com