Civic Agenda: Whatcom County Public Defender's Office provides defense for those unable to pay

COURTESY TO THE BELLINGHAM HERALDMay 18, 2014 

In 1963, the United States Supreme Court held in Gideon v. Wainwright that, under the 6th and 14th Amendments to United States Constitution, states are required to appoint counsel for indigent individuals accused of committing crimes. In 1984, the United States Supreme Court held in Strickland v. Washington that the United States Constitution guarantees not just counsel, but also the effective assistance of counsel. These rights and safeguards are also guaranteed by the Washington State Constitution under Article I, Sections 3, 9 and 22.

Twenty-eight states provide full funding for indigent defense. Most states provide all or most funding. Washington is among 16 states that require local government to bear the majority of costs for indigent defense.

Before 1982 criminal defense was provided by a rotating group of attorneys in private practice. The quality of representation was uneven and the costs were unpredictable. In the summer of 1982, the Whatcom County Public Defender's Office was created pursuant to Whatcom County Code Chapter 2.09 and RCW 36.26. The Public Defender's Office is assigned to represent individuals following a determination of indigency by the Superior Court Department of Assigned Counsel. Indigency is determined by RCW 10.101. The director of the Public Defender's Office is a county department head, appointed by the county executive and approved by the County Council.

In addition to the office itself, an advisory committee was established consisting of one Superior Court judge appointed by the presiding Superior Court judge; one District Court judge appointed by the senior District Court judge; one appointee by the Whatcom County Bar Association from its membership who is not connected with the office of the prosecuting attorney, the office of the public defender, or with any conflict of interest cases from the assigned counsel office of Whatcom County; one non-lawyer appointed by the county executive; and one member of the County Council appointed by the council.

The advisory committee is tasked with advising the county executive and County Council on matters regarding the Whatcom County Public Defender's Office. It meets at least twice a year and submits its observations of the public defense system to the executive and council not less than annually. The enabling legislation also provides that the director of the Public Defender's Office may be terminated by the county executive for just cause. Prior to taking such action, the county executive is to refer the matter to the advisory committee, which conducts a review of issues or conduct involved and reports back to the county executive with its written recommendations. Said report is also to be provided to the council.

The office currently consists of the director, chief deputy, and 15 other attorneys. All attorneys in the office, including the director, carry a caseload. Additional staff includes an office manager, an administrative secretary, four full-time investigators, five legal assistants, a part-time receptionist and a part-time clerk.

Beginning Oct. 1, 2013, the State Supreme Court required that all public defense attorneys assigned to represent indigent defendants on felony and juvenile offender cases be required to certify their caseloads to the court or courts in which they practice. Felony caseloads should not exceed 150 cases per year and juvenile offender caseloads should not exceed 250 cases per year. As of Jan. 1, 2015, misdemeanor caseload certifications are required. Misdemeanor caseloads should not exceed 300 to 400 cases per year. In addition, all attorneys are required to meet the training and experience requirements as set by the Supreme Court to handle their respective caseloads. All attorneys, including the director, certify on a quarterly basis that they comply with these standards.

In 2013, the Whatcom County Public Defender's Office was appointed to provide representation in 1,329 adult felony cases, 55 fugitive cases, six felony probation cases, 1,560 adult misdemeanors cases, 368 adult misdemeanor probation cases, 432 juvenile offender cases, 459 juvenile probation cases, 113 truancy cases, 569 involuntary civil commitment cases and 88 involuntary alcohol commitment cases. The public defender also provides representation for those individuals participating in drug court. The office is currently involved in the creation of a mental health court.

The men and women of the Whatcom County Public Defender's Office are salaried employees whose salaries are in parity with those of the prosecuting attorney. When attorneys are in trial, they routinely work more than 40 hours in a week to include working at night and on weekends.

The degree of cooperation and communication between the public defender, the prosecuting attorney, the courts, jail, and law enforcement is unprecedented within the state. Rather than compromising the mission of the office, the exchange of non-privileged information and the mutual recognition of the legitimate roles each component part plays in the system enables us to better identify those cases where it is in the best interest of our clients to settle and those cases which should go to trial. As the prosecutor has observed, when a public defender goes to trial, they "fight like hell."

The overriding mission of the office is to provide competent and zealous representation on behalf of our clients. The office also recognizes and takes seriously its obligation to be responsible with county resources. In this regard, the office is proud of our demonstrated record of efficient representation and cost-saving management.

The office lobbies at the state level for additional funding from the state Office of Public Defense and has been successful in helping to obtain hundreds of thousands of dollars to help our office meet caseload standards and hundreds of thousands more to help obtain funding for the representation of parents in dependency cases. The office has a statewide presence in organizations including the Washington Defender Association. Working with our county executive, the office was successful in helping to lobby for flexibility in caseload standards.

The office participates in community outreach, including, but not limited to, serving on the Bellingham Whatcom County Commission Against Domestic Violence. More specifically, the director of the Public Defender's Office serves on the domestic violence commission's Law and Justice Committee, along with the prosecuting attorney, Bellingham police chief, and the sheriff, as well as others. The office communicates with and provides assistance when they can to the Re-Entry Coalition. The attorneys frequently present to high schools, colleges and other interested groups in an attempt to educate them about their rights and influence them to stay out of the criminal justice system.

The Whatcom County Public Defender's Office enjoys a well-deserved reputation, both locally and throughout the state, for providing high-quality criminal defense to individuals who could not otherwise afford counsel without substantial hardship to themselves. As Chief Justice Madsen once wrote, "The majority of people charged with crimes cannot afford to hire attorneys. These people are neighbors, parents, sons, daughters, spouses, partners and friends. In short, they are members of our communities."

ABOUT THE AUTHOR

Jon Komorowski is director of the Whatcom County Public Defender's Office. He can be reached at 360-676-6670. This is one of a series of monthly Civic Agenda reports The Bellingham Herald invited Whatcom County Executive Jack Louws to provide to share updates about Whatcom County issues and projects. He invites citizens to contact him at 360-676-6717 or jlouws@co.whatcom.wa.us.

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