Cowlitz County Increases Spending to Defend the Accused

December 30, 2007
The Daily News
By Stephanie Mathieu


A year ago, Cowlitz County’s justice system was on shaky ground.

The number of defendants had become overwhelming. Several contract defense lawyers quit, complaining about too much work and inadequate pay. Some criminal defendants served more time before trial than they were ultimately sentenced to.

A year later, the system has regained some stability through creation of an office of public defense to represent people who can’t afford to hire their own lawyer.

Since the office opened about 10 months ago, officials say it has made the justice system more efficient and fairer for people facing criminal charges, even if some challenges remain.

County Commissioner Axel Swanson said it was a move that had to be made because “our contract attorneys were heavily saddled with too-high caseloads.”

Other Washington counties were facing lawsuits from defendants claiming their attorneys were too overworked to adequately represent them, and Cowlitz risked the same type of legal action, Swanson said.

For years, the county hired private attorneys to represent indigent criminal defendants. It still keeps some of those lawyers under contract, but now a big share of the work is handled by a team of nine attorneys in the new public defenders office.

The new approach is costing the public extra. In 2008, the county will spend

$2.3 million defending those who can’t afford lawyers. In 2006, when the county relied entirely on freelance defense attorneys, it spent $1.5 million. (The comparison does not take inflation into account.)

“It’s not a popular place to spend money,” Superior Court Judge Stephen Warning said of the office of public defense, “but it’s required” under the U.S. Constitution.

Stability

The availability of public defenders has made it much easier for judges to assign attorneys to low-income defendants, Warning said.

In addition, the public defenders office takes homicide cases, which weren’t provided for in the private lawyers contracts. Warning sometimes had to flip through the phone book and “beg” other attorneys to take such cases, he said.

Sometimes, Warning said he even was forced to hire lawyers from outside of the county, which costs more money.

The new office of public defense manages all district court cases (unless there’s a conflict of interest), nearly half the criminal cases in juvenile court and about one-third of adult felony cases, said Terry Mulligan, director of the new office. Contract attorneys handle the rest.

Most counties in the state with a population as large as Cowlitz County already have offices of public defense, Mulligan said.

“At some point, just as a matter of size of the county, it makes sense to have a public defense office,” said Mulligan, who has spent about 20 years in other public defense offices throughout the state.

Mulligan said the new office gives the justice system more stability, because county officials don’t have to worry about freelance attorneys leaving.

The exodus of several contract attorneys late last year “put the county in a difficult position,” Mulligan said. Now, “if any remaining contract attorneys would terminate their contracts, we would simply hire additional staff” through the new office, Mulligan said.

Improving Fairness

Cowlitz County Deputy Prosecutor Michelle Shaffer said she is glad more defense attorneys are available to make the courts more fair, and she looks forward to watching the new office grow.

Warning and Cowlitz County Prosecutor Sue Baur say the new lawyers hired appear well-qualified.

“We are responsible that somebody does not get wrongly convicted,” Baur said.

Five of the lawyers in the public defenders office have more than 20 years’ experience, and the less experienced attorneys are in a setting where they can learn from their seasoned colleagues, Mulligan said

Warning also is pleased with Mulligan’s leadership. Since joining the office, Mulligan has become part of the Drug Court team while training some of the new attorneys, Warning said.

“The sentiment (among judges) is that we’re really pleased Terry was able to hire experienced lawyers,” Warning said.

Private attorney Sam Wardle, who has freelanced for the county for two decades, said the office’s creation has meant less work for contract attorneys. Prior to the office opening, Wardle said he took on as many as 18 cases a month, “which was too much for me.”

Since the office of public defense opened about six months ago, he said that number has been eight cases a month, sometimes fewer. That has shrunk pay for the lawyers, who are paid by the number of cases they take.

However, starting Jan. 1, the freelance lawyers will be paid for eight cases each month, even if they’re assigned fewer, Wardle said.

“We’re just going to have to see how it goes,” he said. “I just hope they have the money for it. I hope it works for the county.”

Defendants ‘Fast Tracked’

Another positive impact of the new office, justice system officials say, is the quicker representation received by many defendants.

Mulligan said the office has a policy to arrange lawyer meetings with in-custody defendants facing felony charges within 72 hours of when they are appointed an attorney.

“It was very common prior to the creation of our office that out-of-custody defendants would meet their attorneys for the first time at the pretrial hearing,” Mulligan said.

The prosecutor’s office said the new office is allowing for a large volume of defendants facing lower-level drug and property criminal charges to be “fast tracked,” meaning the courts, defense lawyers and prosecuting attorneys make an concerted effort to speed up the judicial process. Expediting lower-level cases means the courts can focus effort on more severe crimes, Shaffer said.

Before this effort began, a person charged with less serious felonies could sit in jail anywhere from three months to more than a year — sometimes longer than their sentence.

Getting defendants through the system faster helps the county save jail time, Swanson said. Housing a single inmate costs about $66 a day.

After using this system, Baur said her office had seen 2,000 fewer hearings as of July when compared to the same time period in 2006.

System Still ‘Overwhelmed’

Although some weight has been lifted for defense attorneys, other parts of the county’s justice system remain clogged, officials said.

Mulligan said he would like to see an improvement to the “flow of information” by increasing the amount of support staff throughout the justice system.

“There are still delays at times with us getting information regarding the cases,” Mulligan said. “That’s not really anybody’s fault. ... The prosecutors could certainly use more staff, as could the courts. Everybody in the system is overwhelmed.”

Commissioner Swanson said the county is well aware of staffing needs in the justice system. But the county received requests for more than 50 new hires this year from a number of departments, Swanson said, and commissioners will need to evaluate those requests on a quarterly basis to see which ones they can afford.

“We don’t know what’s going to happen financially this year,” he said Friday.

From a work-flow point of view, a public defender’s office was the best way to go, Superior Court Clerk Ronnie Booth said, adding that eventually everything likely will be handled faster. But she said her office has seen more paperwork since the change.

“There have been more continuances, more set-overs,” Booth said.

Still, she said, “I think it’s the way the county had to go,” especially when many private attorneys refused to renew their contracts. “In the last 20 years, I saw (case loads) do nothing but increase. ... I think they got to their breaking point.”


National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org