Who's the Boss of Your Boss?

You know how it was when you first become a pd--it was all so terrifying and kick-ass and exhausting and overwhelming and exhilarating--and you certainly didn't have time to see the big picture. Big picture? I usually couldn't see ahead to lunch, much less understand the systemic pressures that had landed me where I was.

I had no idea if I was doing a good job or not--I was trying my best, but how could I know if that was enough? Now I know I was doing some things well, and others not so much (to the kid I pled guilty to MJ possession for a pop can that tested negative, I am sorry. I should have known better.) It's hard to see how big the ocean is much less understand what is causing the waves if you are busy trying not to drown.

After a while, I noticed some curious things. One of these curious things came to my attention when I moved to a public defender office in another county on the other side of the state. (Ah, love.) At this point I had about 5 years experience, and had worked in 2 different PD offices, so I had a little perspective. My 5 years had involved a lot of trials and a chaotic schedule--working through weekends, but some days leaving early for drinks.

In my new county, the boss called a meeting of the misdemeanor attorneys (as a new hire, I had to start at the bottom in misdemeanors again), and at the meeting said that he wanted all of us to start marking if we left early or took a long lunch, and by how many minutes. (I now know this is against rules for exempt employees). He said that any minutes one of us was late or left early, would be counted as vacation time.

My fellow misdemeanor attorneys were all relatively new, and hadn't known anything different, and resignedly nodded assent. I thought the idea was crazy and unfair. I said, "So you mean if I work 20 hours on the weekend getting ready for a trial, and then the trial ends at 3:30, and I leave to go get some sleep, this will count as an hour and a half vacation time? Don't you think we need our vacation time?"

"Yes," he said, "I'm doing it myself, and I have to say that it hurts some."

"But, if it hurts you, and it hurts us, why are you making us do it?," I asked. "Is someone making you do it?"

"No," he said, "but the county commissioners are going to be reviewing our budget, and I want to show them that we are working hard."

"But shouldn't you be the judge of whether we are working hard? Or our clients?"

"They think we don't work that many hours, and I need to ask for additional funds for more laywers, so I need to prove to them that you are working appropriate hours."

Oh, if I could just go back in time and tell myself to shut up. That boss was a kind man with good intentions, and even if I disagreed with his methods, at least he was trying. Docking our vacation time never came to be, but the encounter planted a question in my brain. Why was the boss willing to sacrifice our vacation time and perhaps our sanity to look good to commissioners for something we were already doing? It wasn't our clients who were complaining. I remember thinking, Hmmm, because the county commissioners appoint him, part of his job becomes appeasing the county commisioners, when it really should be his job to lead us in battle. He should be fighting against anyone who tried to take away our vacation time, rather that offering it to appease the money gods.

Also, a few years later: There came a time in felonies when we were all dying. There were about 12 felony public defenders and 25 felony prosecutors (in a county where the vast majority of cases go to the defenders). We couln't keep up. Even the judges were telling our boss we needed more lawyers, and that they would support us in asking for funding for more lawyers. But our boss kept insisting we did not need any more lawyers, and that our "numbers were fine." By numbers, he meant caseload standards, which can be a double-edged sword. Numbers are fine, but the lawyers are dying.

That is when a little bell went off. Why wouldn't a boss ask for more lawyers? Even if he thought he might not get the lawyers, why not ask? I finally asked an older, respected lawyer, who said, simply, "Who do you think his boss is?"

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?