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Originally published Wednesday, December 4, 2013 at 9:35 PM

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Judge: Mt. Vernon, Burlington failing poor defendants

A Seattle federal judge stopped short of a takeover of the indigent defense in Mount Vernon and Burlington but issued an injunction that will require them to fix a system he says deprives the poor of their right to meaningful representation in court.


Seattle Times staff reporter

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DavidHag December 5, 2013 at 4:35 AM snarled: "the ACLU would have tax payers s... MORE
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A federal judge has found that the cities of Mount Vernon and Burlington have routinely violated the rights of poor defendants accused of misdemeanors by failing to ensure they have adequate legal representation.

U.S. District Judge Robert Lasnik issued an injunction Wednesday ordering the cities to hire an independent supervisor to monitor the city’s public-defense operations, saying he has “grave doubts regarding the cities’ ability and political will to make the necessary changes on their own.”

At the same time, Lasnik stopped short of imposing unprecedented federal-court oversight of a state’s public-defender system, which had been requested by the Department of Justice.

The federal court will retain jurisdiction over the case for the next three years and will intervene at the request of either the American Civil Liberties Union of Washington, which filed a lawsuit over the public defense two years ago, or the cities.

Lasnik said Mountain Law, the firm that has taken over indigent defense for those two Skagit County cities, is “trending in the right direction,” but that its efforts remain inadequate.

Richard Sybrandy, one of the two lawyers whose work was the focus of the lawsuit, responded to the ruling by insisting that he “worked very hard to provide zealous representation” to his defender clients, and said nothing in Lasnik’s decision indicates any of them “ever received an unfair result.”

He said the ruling places more importance on the “process of representation than it does on the result of representation.”

The case arose when the American Civil Liberties Union of Washington sued Mount Vernon and Burlington more than two years ago, alleging that misdemeanor defendants were subject to what amounted to a “meet and plead” justice system that comes nowhere near meeting the requirements of the Sixth Amendment. The ACLU claimed the cities had been indifferent to their responsibilities under the Constitution to provide a meaningful defense to thousands of defendants unable to hire their own attorneys.

During a two-week trial last year, evidence showed that two now-departed public defenders working on contract for the cities, Richard Sybrandy and Morgan Witt, carried yearly contract caseloads of over 1,000 clients each while also maintaining private practices.

The complaint and evidence presented at trial said Burlington’s assistant chief of police complained to prosecutors and city officials in 2008 that he’d repeatedly witnessed the public defenders playing crossword puzzles and other games while representing clients in court.

Court records showed the defenders visited the Skagit County Jail just six times in 2010, and in 2011, they participated in just two trials while closing 2,271 cases, most of them plea bargains.

The Washington State Bar last year adopted guidelines calling for maximum yearly misdemeanor caseloads of 400 clients.

In his ruling, Lasnik did not impose a caseload cap for the attorneys, something the ACLU had sought. However, he said the cities’ actions should be “informed” by the bar’s guidelines.

Lasnik said the time the two lawyers were defenders was marked by near “complete absence of opportunities for the accused to confer with appointed counsel in a confidential setting” and that there was “almost no evidence” they investigated or did legal analyses of cases.

Meantime, the judge said, the cities remained “willfully blind” to the issues, mostly because fixing the system would cost too much.

Now, under the court’s injunction, they’re going to have to fix it or face further litigation and the possibility — promoted by the Department of Justice — that the court will appoint a monitor and force the changes.

Sarah Dunne, the legal director at the Washington ACLU, said the city-hired supervisor “as a practical matter” will have the same impact as a court-appointed monitor. The main difference is that the supervisor will report to the cities, not the court, she said.

Through the injunction, Lasnik retained jurisdiction over the case for three years and made it clear that he will intervene again if progress isn’t made.

Andrew Cooley, a Seattle attorney representing the two cities, said Lasnik never pointed to any particular case “where anyone was unjustly convicted or railroaded.”

“What we have here is a philosophical difference about how we thought we should operate a public defense system, and what Judge Lasnik believes,” Cooley said.

The result was “well short” of the federal takeover of the systems that some believed was necessary, he said.

However, he said the cities are clearly going to have to hire the supervisor, collect the data and “rewrite the contracts to add more city oversight.”

Burlington City Attorney Scott Thomas said the city was “pretty disappointed” by the ruling. “We thought the services we were providing were constitutionally sufficient,” he said. “The City Council is going to have to decide where we go next.”

Mike Carter: 206-464-3706 or mcarter@seattletimes.com



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