Washington, DC (June 2, 1998) -- At a press conference held today calling for federal investigations into the Wenatchee, WA, "sex ring" prosecutions, NACDL President Gerald B. Lefcourt issued a statement calling for adequate public defender funding across the nation. The 1992-1995 probe resulted in 43 arrests on an incredible 27,726 counts of child sexual abuse involving 60 children -- many of whom are now unwilling wards of the state -- in a town of only 17,000 residents. Virtually all of the defendants convicted were poor, uneducated and unsophisticated. "When the public defender is out-spent and out-gunned in the 'war on crime,' truth is the first caualty," Lefcourt said.
Remarks of Gerald B. Lefcourt, President,
National Association of Criminal Defense Lawyers
As President of the National Association of Criminal Defense Lawyers, I am deeply troubled by the wholesale violations of the civil rights of over 40 adults and 60 children that occurred in Wenatchee and East Wenatchee. You may well be asking yourself, 'Where were their defense lawyers? How could they let something like this happen?'
Imagine if your son or daughter, or brother, or sister, or a parent desperately needed a life-saving operation, but had no money and no health insurance. Would you help? What would you pay to save the life of a loved one?
Now imagine that one of them has been falsely accused of a horrible crime. Arrested, indicted, jailed pending trial. Facing life imprisonment, or even the death penalty.
Wouldn't you want the best defense you could afford? How much would you spend to help your loved one?
Would you empty your bank account to hire a lawyer and a bondsman? Take out a second or third mortgage? Wouldn't you want to hire a private investigator? Wouldn't you want the defense team to include experts? How much would you spend? Thousands, tens of thousands. You would mortgage your life.
Now imagine yourself wrongfully accused, but with no one to turn to. No relatives. No friends. You're penniless. To whom do you turn? You imagine you will have to ask the court to appoint a lawyer to represent you. It's in the Constitution.
In 1963, Justice Hugo Black wrote, in perhaps the most important decision of our time, Gideon v. Wainwright, of the right to counsel for persons accused of a crime, rich and poor alike: "That right . . . may not be deemed fundamental and essential to fair trials in some countries, but it is in ours," he said.
But 35 years later, as the Wenatchee prosecutions so painfully prove, Gideon's promise remains unfulfilled in many jurisdictions. Public defenders across the country are out-spent and out-gunned by well-trained, well-funded district attorney's offices. In Wenatchee, the vast majority of the defendants were poor, uneducated, and unsophisticated. Many could barely read and write. At least one defendant who supposedly provided a written "confession" could not read or write at all.
The public defenders -- some so inexperienced they had never tried a felony case -- were so underfunded they could not even afford necessary experts to help prepare and defend their clients. The police and prosecutors, in contrast, were awarded $141,000 in state funds to pay for what Governor Mike Lowry called "extraordinary prosecution costs" -- additional prosecutors and police, expert witnesses, sex abuse training, and counseling and foster care for some 60 children torn from their parents.
Take the case of Donna Hidalgo. Ms. Hidalgo was arrested on 614 counts of child molestation and booked into the county jail without bond. At her first hearing, she was ordered to enter her plea without a lawyer. When she pled not guilty, the judge gave her the telephone number of the local law firm that holds the public defender contract. She then spent a month in jail before she even saw her attorney, a few minutes before her formal arraignment. The judge denied her request for funds to hire an investigator to obtain background information on the child witnesses and a psychiatric expert who would testify about the suggestibility of child witnesses. Months later, her trial ended with a hung jury. Aware of the massive sentences being handed down in other cases, she accepted a plea offer in which she would enter an Alford plea to a single count of incest, which carries a sentence of 12 to 14 months, and for which she would receive credit for the seven months she had already been incarcerated. The "Alford plea" is essentially an admission that the state probably has enough evidence to convict you, but in which you do not admit guilt. To this day, Donna Hidalgo maintains her innocence but her faith in the system has been shattered.
I know what it is like to be the proverbial overworked and underpaid public defender. Even worse, I know that the entire criminal justice system is a sham when there is no money to pay for investigation and experts. When I first started out, at Legal Aid, I would appear in court with a stack of manila folders. I had not even had an opportunity to meet with my clients -- they were interviewed by an intake lawyer. All my supervisors insisted I needed to know was a checkmark on the court jacket. If the box "Defendant admits" was checked, I was to plead them guilty.
Much like many of the Wenatchee cases, there was no effort to suppress coerced confessions or illegally seized evidence, no defense interviews of witnesses, no legal research. If the defendant denied the charges, it might mean months in jail pending trial.
Things improved for a while, thanks to lawyers who care, but 35 years after Gideon, it is clear that the nation is backsliding in its commitment to providing competent defense services for the poor. This has become the single greatest moral dilemma facing the criminal justice system -- how can we, as Americans proud of our Constitution, in good conscience, allocate fewer and fewer resources for indigent defendants while providing ever-increasing budgets for police and prosecutors? It's unconscionable. We're not even giving lip-service to justice anymore. The system is failing because we are failing it.
The Sixth Amendment to the Constitution provides for effective assistance of counsel. A lawyer who is a lawyer in name only cannot provide the effective assistance the Constitution demands.
Some public defenders and court-appointed lawyers provide excellent representation, despite limited resources. But no matter how dedicated or idealistic, a public defender carrying a case load of as many as 700 cases a year, with no investigator, no secretary, no paralegal, no law library, no computer, none of the resources that police and prosecutors take for granted -- that lawyer cannot effectively represent his clients.
And the indigent defense funding scandal plagues the federal system as well. Not every jurisdiction has a federal public defender office, nor can the federal defender offices represent every defendant who cannot afford a lawyer. Compensation rates for private attorneys appointed under the federal Criminal Justice Act -- CJA lawyers -- are as low as $40 per hour for out of court work, such as trial preparation and appeals, when office overhead costs average $50 per hour. Several times this decade, the Congressional appropriation under the Criminal Justice Act was exhausted half-way through the fiscal year, resulting in total cessation of federal payments for services already rendered. Bar disciplinary rules forbid the CJA lawyers from withdrawing from cases to which they'd been appointed, and lawyers were expected -- sometimes even required -- to accept new appointments although they were not being paid, and no money was available to pay investigators, paralegals and experts.
Whenever federal, state or local budgets are tight, funding for indigent defense inevitably becomes a target. Justice Black wrote in Gideon that "any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him . . . This seems to be an obvious truth."
That "truth," however, appears to have become an abstraction in the numbers game played in our state and federal legislatures. In many cases, a poor defendant gets a lawyer who is his attorney in name only. Appointing a lawyer who is not given the resources and training to provide Constitutionally-effective assistance of counsel makes a cruel sham of our criminal justice system. And it is the innocent and their families who ultimately pay when we will not.
The families devastated by the witch-hunt in Wenatchee were not "let down" by the criminal justice system and the child protective agencies. They were destroyed by it. When we react and ask how this could happen, we must also ask how can we make sure it never happens again?
Kathy Lyon ends her book with a quote from Justice Louis Brandeis: "The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding."
I sincerely hope that Congress and the Justice Department take a long hard look at what zeal and good intentions did to the parents and children in Wenatchee. Because while we always seem to find money to pay for more police and more prosecutors, the constitutional rights of defendants who are without means are left begging on the doorstep. When the public defender is out-spent and out-gunned in the war on crime, truth is the first casualty.
As a criminal defense lawyer, I welcome a broad investigation of this travesty, in the hope that we can keep it from happening ever again.
Contacts
NACDL Communications Department
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.