Whatcom public defender’s office reaches unmanageable caseloads and it will cost taxpayers
The Whatcom County Public Defender’s Office has reached unmanageable caseloads due to the growing backlog of court cases stalled by the COVID-19 pandemic.
The rising caseloads have led the office to have to return cases, required the court administrator to seek attorneys from outside the county and additional funding, and has resulted in the county’s budget for contracted indigent defense being overshot — ultimately costing Whatcom County taxpayers more.
“Towards the end of 2020 we began farming some cases out to the street. We had nowhere to put them in the office anymore,” Starck Follis, Executive Director of the Whatcom County Public Defender’s Office, said during a Whatcom County Council presentation in August.
Caseload limits
Even though jury trials reopened in March 2021 after a nearly year-long hiatus due to the pandemic, jury trials have been halted again until October, adding to the growing backlog of unresolved cases facing the Whatcom County court system.
While the overall number of cases filed in Superior Court in 2020 was down about 25% from 2019, felony criminal case filings were up by nearly 4%, according to data from the Washington State Administrative Office of the Courts previously analyzed by The Bellingham Herald. At the same time, case resolutions and trials decreased by nearly a third compared to the previous year, the data shows.
When jury trials came to a halt last year, the number of cases that would normally resolve at trial, by dismissal or plea bargain began to decrease. Across all case types, there was a nearly 29% decrease in case resolutions in Superior Court in 2020 compared to 2019. And for criminal cases, roughly 36% fewer cases were resolved last year than the previous year, The Herald previously reported.
This means higher caseloads for prosecuting attorneys and public defenders.
The Whatcom County Public Defender’s Office was constitutionally mandated in 1982 to provide indigent legal defense to people in Whatcom County Superior and District courts. The Washington State Supreme Court set caseload limits for how many cases public defense attorneys are allowed to accept in a year. Full-time public defenders are not allowed to exceed 150 felony cases a year, or 400 misdemeanors, the standards show.
While there are limits to the number of cases a public defender can be assigned in a year, there are no limits to the number of current pending or open cases an attorney can handle, Follis said. Though the office has always been close to reaching its state-mandated limit, it has been able to manage it, he said.
“What we were seeing was pending caseloads getting to the point where the lawyers have too many cases to deal with in front of them, regardless of how many they’d been assigned to, because the cases weren’t resolving, they weren’t going anywhere,” Follis told The Herald. “So I started getting lawyers with pending caseloads of over 100 cases, even though they were within standards as far as the court rules provide.”
Rethinking standards
The rising caseloads across the state is what led the Washington State Bar Association Council on Public Defense to first issue an advisory notice in September 2020 for public defense attorneys, urging cities and counties to address the workloads and allowing attorneys to determine their ability to handle their caseloads.
The caseload standards are there to ensure that public defenders provide effective assistance to defendants, said Jason Schwarz, Director of the Snohomish County Office of Public Defense and Vice-Chair of state bar’s Council on Public Defense. Standards require public defense attorneys be diligent in their work on their cases and to continue to communicate with their clients, Schwarz said.
With jury trials suspended, cases continuing to be filed, but not nearly as many resolved, and this meant that workloads were increasing for public defenders throughout the pandemic, Schwarz said. The precautions aimed at slowing the pandemic, such as in-person meetings, also limited the kinds of work attorneys could do on their cases, he said.
Schwarz said the council on public defense acknowledged in the advisory that caseloads were not equivalent to workloads for attorneys during the coronavirus pandemic, and ultimately deferred to the public defenders who were handling cases in each locality to manage their workloads.
“What we want in the end is for defendants who are in the system to have competent lawyers who can respond to their needs,” Schwarz said. “And the way to do that is to be candid about the work that public defenders are facing.
“What COVID has highlighted for us is that the metric that we have been using to evaluate a caseload, which is the number of cases, is not reflective of the workload that public defenders are facing when the circumstances surrounding their work changes, like the inability to take cases to trial. So hence the advisory opinion, and hence sort of the need to sort of rethink how we treat public defense caseload standards during COVID.”
Follis said some attorneys in his office made the determination that their caseloads were too high and that they could no longer accept more cases until some got resolved. There have also been a number of attorneys who have left the county public defender’s office, forcing those caseloads to be reassigned, he said.
These issues, coupled with the backlog, has led the public defender’s office to return cases to the county’s Office of Assigned Counsel due to an overload of cases, Follis said. It’s the first time the office has had to send cases back due to an overflow, he said.
Locally, people who are indigent, or can’t afford an attorney, are screened by the county’s Office of Assigned Counsel, and if they qualify, the cases are sent to the public defender’s office to be assigned to attorneys, according to Dave Reynolds, Whatcom County Superior Court Administrator.
If there is a conflict or the public defender’s office has reached its caseload limits, the case is returned to the Office of Assigned Counsel and is contracted out to an outside attorney to provide indigent defense.
From January 2020 through July of this year, the public defender’s office sent back 609 felony cases and 115 District Court cases, according to data provided by Reynolds. That’s a marked increase from years prior, where in 2018, 34 cases total were returned, and 2019, 118 cases total were returned, the data shows.
As of early September, the county had 11 attorneys on contract to provide outside indigent defense. Reynolds said the county has never had this many contract attorneys before, and until the pandemic, had never had to bring in attorneys from outside Whatcom County.
For the first time, county court officials had to reach out to attorneys in Skagit and Island counties to help handle the overflow, Reynolds said. Normally four or five local contract attorneys handle all of the conflicted cases, he said
“The reality is, just like every other county, we have more cases right now than we can handle, irrespective of whether we’re within caseload standards,” Follis said. “Until late 2020, we had never sent a single case back to assigned counsel for overflow or overload reasons. It was only for conflicts. ...We’ve basically blown up their budget by sending cases back this year.”
For the people served by the public defenders’ office, Follis said having contract attorneys handle the cases makes things different.
“We’re there to serve our clients. And when we’re not there to serve our clients, it’s just different. It doesn’t necessarily mean it’s worse, but it’s definitely different,” he said.
Schwarz said Snohomish County is seeing similar issues. Prior to the pandemic, cases had never been returned to his office, and they have also had to seek contract attorneys from outside the county. Conflict attorneys also are reaching max capacity, causing an issue statewide, he said.
“It’s been an interesting challenge for the public defense function to find lawyers to take all these cases that otherwise our staffing model could have tolerated,” Schwarz said.
Costing Whatcom taxpayers
Having to use more outside attorneys for conflicted cases means it will cost Whatcom County taxpayers more, Reynolds said.
The Office of Assigned Counsel’s 2021 budget for contracted indigent criminal defense is $242,000, Reynolds said. The county pays one half of the case up front, and the second half once the case has been completed.
As of mid-August, the county had spent $220,524 — most of which was spent on the first half of cases, Reynolds said.
“We will clearly go over budget, however, exactly how much is unpredictable as we can’t control the case filings or how long cases will take to resolve,” he said. “It has really been a moving target, and very difficult to predict what this will look like as we near the end of the calendar year. We will continue to closely monitor.”
While the county has gone over budget before for contracted indigent defense, Reynolds said this is the first time he has ever been in a position where he has to seek additional funding to address the issue. In the past, he has had the ability to transfer savings from other areas to cover the expenses, he said.
Reynolds said he plans to meet with the county executive’s office and the judiciary to determine where there may be savings in other areas and to develop a solution.
While the Whatcom County Council approved using $1.6 million of the American Rescue Plan Act funds given to the county at its Tuesday night meeting to address the court backlog, none of those funds will specifically address the funding needs for contracted indigent counsel, Reynolds said. The portion of the rescue plan funds that goes to the public defender’s office is focused on increasing staffing levels in an attempt to get a handle on the backlog, he said.
Since there are a limited number of funds available, the funds had to be prioritized, Reynolds said. The judges and Reynolds are hoping to meet with the county executive’s office this month to determine the funding source for the contract attorneys, he said.
“I’m sure we will be looking at all available options,” Reynolds said.
This story was originally published September 19, 2021 at 5:00 AM.
