Indigent Defense
December 2005, Page 52

News Briefs
By Malia Brink

Washington Court Grants Partial Summary Judgment; Settlement Reached

In April 2004, the ACLU of Washington filed a class action lawsuit against Grant County, Washington alleging systemic denials of the right to counsel and seeking injunctive relief to ensure effective assistance is provided to future indigent defendants in the county. The case has been tentatively settled after a superior court judge granted partial summary judgment for the plaintiff class.1

The court ruled that, based on the uncontested evidence existing prior to trial, systemic deficiencies existed within the Grant County public defender system prior to the filing of the lawsuit in 2004. Moreover, the court held that these systemic deficiencies “created an atmosphere in which the plaintiff class developed a well-grounded fear of immediate invasion of their respective rights to effective assistance of counsel and is evidence of an ongoing concern.”

In coming to this conclusion, the court noted that, prior to the filing of the lawsuit, “the caseloads of the Grant County Public Defenders were excessively high and exceeded any advisory guidelines for caseload limits.” The court also noted that Grant County failed to supervise the public defender office appropriately and that the prosecutor’s office had inappropriate influence over whether public defenders received expert and investigator assistance on cases.

Two weeks after the issuance of the decision, the county agreed to settle. Under the settlement agreement, Grant County agrees to “operate a public defense system that provides effective assistance of counsel to all indigent persons charged with felony crimes in Grant County.” This includes the hiring of a supervising attorney, who shall establish policies and procedures for the public defenders, as well as set up a training and review process. It also provides for the establishment of a client complaint system.

The agreement further requires that Grant County hire “enough full-time public defenders to handle all felony case assignments in accordance with [established] caseload limitations,” and requires the county to similarly hire appropriate numbers of investigators for the public defender office. Compliance with the settlement agreement is to be monitored on a day to day basis by a special master, with further oversight to be provided by the court as necessary.

“We are very pleased with the settlement, which requires the County to comply with state and national standards, provides for a monitor and implements strong enforcement mechanisms,” said David Taylor, an ACLU attorney in the case. “Nobody should face felony charges without the assistance of an effective and qualified attorney. This settlement should ensure that poor people in Grant County receive that assistance.”

The plaintiff class is now being notified of the settlement, and will be given an opportunity to object. Barring such objections, the settlement is expected to be approved by the court in early 2006.

Alabama Court Orders Payment Of Overhead Costs

The dispute concerning overhead payments to court-appointed counsel in Alabama took another turn in late September when a circuit court judge in Montgomery County ordered that the comptroller resume issuing overhead payments throughout the state.2 

Prior to this recent dispute, court-appointed counsel in Alabama received a proscribed hourly rate plus “reasonably incurred expenses.” In 1993, the Alabama Court of Criminal Appeals interpreted reasonable expenses to include overhead expenses.3 

In 1999, the law governing court-appointed counsel fees was amended to say that the reimbursed expenses had to be incurred “in the defense of [the] client.”4 This change was not initially thought to effect the payment of overhead costs, and those payments continued. However, in March 2002, a minority of justices of the Alabama Supreme Court asserted in a footnote that the 1999 amendment was intended to eliminate the payment of office overhead expenses.5 

In response, the Alabama legislature passed a joint resolution declaring that the intent of the 1999 amendment was not to eliminate reimbursement of overhead expenses. Nevertheless, a couple of years later, the state comptroller requested that the attorney general issue a letter opinion on whether overhead expenses remained subject to reimbursement under Alabama law.

The attorney general issued Opinion 2005-063 and took the position that under the 1999 amendment overhead expenses were not subject to reimbursement. Following this opinion, in early 2005, the comptroller began to deny overhead payments.

The comptroller’s action was challenged by a single attorney who frequently accepts appointments to represent indigent defendants. The attorney asserted that the clear intent of the legislature, evidenced by the 2002 joint resolution, among other things, was that payment of overhead costs continue. The Montgomery County Circuit Court agreed and ordered the comptroller to make all overhead payments denied, dating back to the change of policy in early 2005.

Both sides have now appealed the decision — the comptroller, challenging the interpretation of the statute and history adopted by the court, and the attorney, challenging a denial of fees. The matter is likely to move to the legislature, where, this term, bills concerning the payment of overhead expenses and fee rates, as well as bills concerning statewide oversight of the indigent defense system are expected to be introduced.

Mississippi Dodges One Suit But Gets Hit With Another

In 2001, Quitman County sued the State of Mississippi alleging that Mississippi’s statutes requiring the counties to provide legal services for indigent criminal defendants were unconstitutional and that the state should bear the burden of providing effective assistance of counsel to indigent defendants. After a bench trial, the trial court ruled in November 2003, that the county had not met its burden of showing that the absence of state funding led to systemic ineffective assistance.6 In so ruling, the court held that the county had the burden of showing ineffectiveness beyond a reasonable doubt by showing, on a case-by-case basis, the omissions or actions of counsel that constituted ineffective assistance and showing that, under the circumstances, these acts or omissions fell below the objective standard of reasonableness. This test, established in Strickland v. Washington,7 governs ineffective assistance claims raised by defendants during post-conviction review. The court held that the county failed to meet its burden under the Strickland test because they did not present evidence of any Quitman County cases being overturned on ineffective assistance grounds.

The county appealed to the Mississippi Supreme Court contending that the trial court was erred in applying the Strickland standard and that, in a systemic case, the county met its burden by showing that the system fails to provide the tools of an adequate defense. The Mississippi Supreme Court disagreed and upheld the trial court’s decision.
Two justices filed a vigorous dissent noting that the use of the Strickland standard was inappropriate outside of the post-conviction context, and stating that the “distinction between the standards applicable to post-conviction proceedings and to systemic challenges rests on the very different policies applicable in the two kinds of cases. . . The concerns about certainty and finality of past criminal convictions do not arise in systemic cases.”

The dissent concluded that the appropriate standard in systemic cases is “whether the system provides the essential tools of an effective defense across the broad run of cases,” and that, in making this determination, the court should “look to objective criteria promulgated by the American Bar Association and other standard-setting bodies.” The dissent asserted that the case should have been remanded for the trial court to consider whether the Quitman County indigent defense system provided an adequate defense as measured by these standards.

“We are very disappointed in the ruling,” said Miriam Gohara of the NAACP Legal Defense and Education Fund, which participated in the suit as an amicus curiae. “But it is important to note that the Supreme Court left open the possibility that the state could be liable for a county’s inability to fund an adequate indigent defense system if the county could show that its system is deficient. This is particularly important now, as a number of counties are having even more economic problems as a result of the hurricanes.”

Although the majority opinion effectively ended the Quitman suit, the state of Mississippi is not free from indigent defense lawsuits. On the day the Quitman decision was issued, the NAACP and the Southern Center for Human Rights filed a lawsuit against the City of Gulfport charging that the city is routinely denying low level offenders their right to counsel and incarcerating them for failure to pay fines.

Notes

1. The decision and settlement agreement in Best v. Grant County are available on NACDL’s indigent defense website.

2. The order in Wright v. Childree, No. 05-1544 (Mont. Co. Cir. Ct. Sept. 28. 2005) is available at the NACDL indigent defense website for Alabama.

3. May v. State, 672 So.2d 1307 (Ala. Crim. App. 1993).

4. Ala. Stat. § 15-12-21(d).

5. Lyons v. Norris, 829 So.2d 748 (Ala. 2002).

6. The decisions in Quitman County v. Mississippi are available on the NACDL indigent defense website, on the Mississippi state page.

7. 466 U.S. 668 (1984).n


National Association of Criminal Defense Lawyers (NACDL)
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