Attorney profited, but his clients lost
Monday, April 5, 2004
Page 2 of 3
What follows is the verbatim transcript of Anderson's testimony, with misspellings included:
Anderson: "And I told him that OJ, Jon Benet, Oklahoma City, Blackwell, Sonny Bono, Mike Kennedy, the Condine with Sharon Levy, and the Blackwall case over in Seattle those cases I listed with Brian Pratte. He wrote them all down."
Tenney: "And just so we're clear, at that point this was in '93 or '94?"
Tenney: "So a lot of those cases had not happened yet?"
Anderson: "None of them had happened yet."
Anderson: "Oh, and the Green River case."
Tenney: "And the Green River killer?"
Tenney: "Why did you give this information to Mr. Pratte? Did you want him to follow up on it?"
Anderson: "I wanted him to list it so I had it completely documented and listed legally to where if those cases had happened that I wouldn't feel like guilty of any kind of crime at all, you know. I didn't want it to fall on me, whatever they came to, you know, and also the Oklahoma City case, I named two, Terry Nichols and Timothy McVey, both by name."
Tenney produced records showing Anderson had suffered from schizophrenia for more than 25 years and that he had previously lied to police, using money for drug stings to buy drugs for himself.
She also challenged the evidence from the undercover cop who had testified against Jackson. The officer said he was in Jackson's living room when he watched the drug deal take place in a bedroom doorway.
But Tenney produced pictures of the house showing that the officer would have needed to see around a hairpin turn and down a hallway. He would have needed to see through walls.
In November 2001, a federal judge threw out Jackson's conviction, citing two grounds: the prosecution's failure to disclose evidence undermining Anderson's credibility, and Earl's incompetence as a defense attorney.
Earl never visited the crime scene "a fundamental task," the judge said. He didn't interview people Jackson said could corroborate his claim of innocence; didn't meet with Jackson to review the evidence; and didn't interview Jimmy Anderson, the prosecution's star witness.
Earl, the judge said, did virtually nothing in the face of damning facts against his client. "Yet those are the facts that you begin with, not the facts you end with," the judge said.
For Jackson, the ruling proved a hollow victory.
With good-time credit, he had already completed his sentence. He died one year later, on Nov. 16, 2002.
A defense attorney's role is easy to define: Investigate. Prepare. Attack. Defend.
Defend as zealously as the prosecutor prosecutes. Otherwise, the adversarial system collapses.
Yet when a defendant once complained to a judge about Earl, here's how Earl defined his job: "He believes my role is to find proof that he's innocent of this particular charge. I've explained to him the role, or my role, is to see his constitutional rights are protected."
Earl described himself as a referee, not an advocate someone who whistles fouls, not someone who defends a person's liberty.
Last year, a bar hearing officer studied Earl's words and conduct, and concluded: "Mr. Earl had a fundamental misunderstanding of his role as an assigned counsel, to represent his client zealously."
Earl declined to be interviewed for this story. But in correspondence with county commissioners, he has written that his "professional reputation" and his working relationship with judges, prosecutors and court personnel "are of the highest level."
"Let's put it this way," he told appellate attorneys representing one Grant County defendant. "I know this is hard for you people to grasp, but I was born and raised in this community, and I have a reputation for truthfulness, and workmanship, and whether you understand it or not, people understand who I am here, and my word is kind of gold."
Grant County judges defend Earl's work, despite criticism from reviewing courts.
"Tom is talented, and especially talented as a minimalist," says Superior Court Judge Evan Sperline. "Tom can take a case to trial, before a jury, make no opening statement, ask one question on cross-examination, call no witnesses, and prevail."
The Seattle Times analyzed Earl's felony trial record in Grant County Superior Court. From 1999 to 2003, he tried 34 cases.
He won two.
That's a 6 percent acquittal rate. Statewide, the average acquittal rate is 2-1/2 times higher at 15 percent.
Eighty-eight percent of Earl's felony defendants pleaded guilty. The statewide average is 76 percent.
But some of Earl's lawyering defies measure.
The law gives suspects the right to consult with an attorney before they are questioned by police. But Earl has stated, in a deposition, that he doesn't meet or talk with suspects.
"Heavens, no," he said.
Instead, he passes word to suspects by telephone through the police not to talk.
In 1989, the Washington Legislature required local governments to adopt public-defense standards. In response, Grant County formed an advisory committee, which recommended setting numerical caseload limits capping, for example, an attorney's felony appointments at 150 a year.
But the county never adopted the limits. In separate resolutions passed in 1992 and 1997, commissioners instead said no attorney "should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation."
In an interview last year, commissioners expressed no alarm about Earl's caseload numbers, not even when asked about the approximately 360 cases that, according to court records, he handled in 1995.
"Three hundred and sixty may be way out of line for one attorney, and not at all out of line for another attorney," Commissioner LeRoy Allison says.
The county does not keep detailed caseload statistics. (The Times was able to determine Earl's caseload for 2003 by analyzing computer data and by reviewing more than 100 court files to fill in gaps left by computer records.)
Earl told the bar that from 1996 through 2001, he handled "about" 250 court-appointed cases a year, plus "maybe 20, maybe 25" private cases.
"I'm a very organized person," he said. "I do the very best that I can do on every case that I have."
But Robert Schiffner, another public defender in Grant County, says Earl's workload compromises quality. "That's a lot of crime scenes to visit, a lot of police officers to interview, a lot of people to visit in the jail," Schiffner says.
PUBLIC PAY, PRIVATE PAY
In 1988, Tom Earl earned $132,000 the most he had made to date.
The next year, he declared bankruptcy.
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