The Naughty List and Other Stories

In an opinion issued last week, State v. A.N.J. (slip opinion no. 81236-5), the Washington Supreme Court allowed a juvenile to withdraw his guilty plea to a sex offense based on ineffective assistance of counsel because his court-appointed attorney's representation "fell below the objective standard guaranteed by the constitution and that A.N.J. was prejudiced." Id. at 31.

A.N.J. is noteworthy for public defenders and has national implications for a couple of reasons:

1) the Court acknowledged the Washington Defender Association (WDA) Standards for Public Defense Services (similar to many other state and national standards) as relevant in "evaluating things like effective assistance of counsel." Id. at 19.

2) the Court also acknowledged that antithetical incentives (in this case, monetary) can corrupt a public-defender system to the point that it is constitutionally inadequate.

When I read the opinion, I was elated that the Court was willing to condemn ineffective practices that make all public defenders look bad (and worse, devastate clients' lives).  I also found myself wincing sometimes, however, because as the Court detailed the litany of things the lawyer had failed to do, I thought once or twice, Hmmm, I might have spent only five minutes reviewing a plea form (on occasion); or, Good Lord, the un-returned phone calls that are a constant background guilt-trip (unfortunately, all the time);  or, What about (some other things I shouldn't put in writing)--does that mean I'm like IAC guy?





While the Court is appropriately harsh with the lawyer in A.N.J. (except for a final footnote (no. 18) where the court seems to say, We didn't mean to be mean!), the Court has confidence in most of us:

"While the vast majority of public defenders do sterling and impressive work, in some times and places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance." Id. at p. 4.

I think "vast majority" is probably too kind.  Some of us do great work under difficult conditions, but the only way we can do great work sometimes is by cutting corners other times.  While part of great work is being smart and knowing your shit, the bigger part of great work comes from spending a lot of time on a case rather than convincing a client to accept a crappy deal.

Great work comes from talking to clients, listening to them, and educating them about the system and their options; but it also comes from poking around and looking into stuff.  It's the poking around--whether investigating the facts and various defenses, or researching and brainstorming legal theories--that can make the difference.  But poking into stuff takes a lot of time--and that time has to come from somewhere, which is usually from everything else I'm supposed to be doing.

Also, one way I can sometimes achieve good results is by capitalizing on the volume of my cases and my experience with the system: that is, I play Trial Chicken. And while Trial Chicken isn't pretty--the Best Practices People would surely frown on it--I get more dismissals out of trial chicken than I do any other way.

My Point? While I am heartened by a court taking IAC seriously, I worry about the practice of law becoming a checklist of things to do, rather than the complicated art that it is.  Because a lawyer could be cutting corners by necessity, because this is the only way he can achieve fabulous results.  Or, the lawyer who is cutting corners may be doing nothing at all.  Or, it is also conceivable that a lawyer timely meets with each client, returns every phone call, files legal memoranda that are prompt but pedestrian, and still does a crappy job on his cases.

I'm not saying we shouldn't condemn IAC; I am just saying that we need to make sure we know what it is.  And I believe the best way to prevent IAC is to make sure the right incentives are in place, and that the system stops punishing lawyers who are advocates rather than plea salesmen.

Along those lines, one of the most significant aspects in A.N.J. is its acknowledgment that the "incentives" in a public-defender system matter:

"Such public contracts for public defenders discourage appropriate investigation, testing of evidence, research, and trial preparation, and literally reward the public defender financially for every guilty plea the defender delivers ... It is clear, if not calculated, that the prosecution benefits from a system that discourages vigorous defense and creates an economic incentive for indigent defense lawyers to plea bargain." Id. p. 5

Incentives matter for all lawyers, not just contract public defenders, and economics aren't the only incentive that can distract a lawyer from zealous advocacy.  As I mentioned, one of the problems with doing a "sterling job" is that it takes so much more time.  It takes me a good 15 hours to research and write a legal brief.  I keep telling myself that I can do it faster, and it never happens.  A guilty-as-charged-plea will take me maybe 2 hours.  Even if I know I won't win the suppression motion, I know I'll get a misdemeanor if I file the brief, because the prosecutor doesn't want to write his response brief.  So I spend 17 hours instead of 2, because I want a better deal.  But what if I want to go home early?  Or no one cares, even the client, whether I file the motion?  What if I have too many cases open, and I'm getting in trouble for this?

Another example: what if my client and I think it's ridiculous to plead to a prison sentence on a residue case, and so we file a motion to suppress and lose, conduct a jury trial which ends up hung; conduct the 2nd trial and it hangs too; and then we finally get our misdemeanor--which is a good result for my client, but about 100 hours for one case.  And I could have easily talked my client into pleading guilty, even if it meant going to prison, because, oh well, he'd been there before.

Time is the ultimate incentive, but I've never figured out how to tell my drug-possession clients that they should plead so that I have more time for my murder clients.  Trying a residue case over and over isn't just sheer stubbornness on my part, however--my future clients will benefit when the prosecutor remembers that she couldn't get 12 jurors to agree to convict on a simple possession case with a confession.  And she'll also know that I won't give in.

If we are fighting like we should, we have no choice but to cut corners, unless our caseloads were cut by half and our support staff multiplied by four.  I think this is less so at the Federal PDs, simply because they have fewer cases, and have the time and resources to do a great job on every case.  They have about 50 felonies per year, and work their asses off (just ask Little Crazy).  How is it that I have 150 cases a year and less support, but am still supposed to do great work with the same number of hours in a day?

The Supreme Court should note that one of the biggest disincentives to zealous advocacy is the epidemic of judges who have an agenda that values the rapid processing of cases above all else.  These judges don't abuse the pliant lawyers who come into court and plead their clients quickly; they abuse the lawyers who get in the way of their case-processing statistics. Until recently, each week our presiding judge emailed everyone a list of cases that were "past time standards" entitled, I am not making this up, "The Naughty List." Getting yelled at isn't fun, not even for me, and these judges' prioritization of case-processing statistics above things like, well, justice, is inconsistent with zealous advocacy. Is the Supreme Court going to condemn this?

The other major disincentive to zealous advocacy is chief public defenders who are selected by judges and/or the funding sources (i.e., county commissioners), and thus answer to the wrong people.  Some PD bosses are great (please take me, San Francisco), but many are compromised by the lack of independence in their appointment.   According to Justice Denied (Report of the National Right to Counsel Committee, 2009),

"We tell stories in Chapter 2 of county officials, responsible for providing funds for indigent defense, subjecting chief public defenders to political pressures because their lawyers challenged the prosecution and did exactly what they were required to do in representing their clients. We also point out that a lack of independence from the judiciary sometimes impacts the selection, appointment, and payment of counsel. Lawyers deemed to be too aggressive may be excluded from appointments, or favoritism may be shown to certain lawyers, who are appointed to a disproportionate share of the cases."

While you're at it, Washington Supreme Court, could you also condemn that lack of independence in most of the defender offices in this state?  Because when fighting for clients gets a public defender yelled at by judges and then in trouble with the boss, the only incentive to keep fighting is the residual stubbornness left in her bruised self.