CHASING JUSTICE

(Tom speaks only for himself in this blog and not for the Court.)

There is a medical update but it is at the bottom of this blog entry.

There is a new book out, “Chasing Gideon: The Elusive Quest for Poor People’s Justice” by Karen Houppert, The New Press, 2013.  It celebrates the 50th anniversary of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the landmark opinion of the United States Supreme Court guaranteeing the right to counsel for poor people in state criminal cases.  The book discusses how and why the promise of Gideon is sometimes more fiction than fact.  The book showcases one of my opinions of which I am most proud, State v. A.N.J., 168 Wn.2d 91, 225 P.3d 956 (2010) (the court uses initials instead of names to protect minors).

When A.N.J. was 12 years old, he pleaded guilty to first-degree child molestation for allegedly participating in a game of “Icky Poke -U” where children put their hands inside or outside the pants of others.  Almost immediately, he moved to withdraw his plea once he (and his parents) realized his juvenile sex offense would remain on his record for the rest of his life, and that he might have to register as a sex offender for the rest of his life.

The vast majority of public defenders do sterling and impressive work, and I have great admiration for those lawyers who dedicate their lives to help those in poverty.  However, in some places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than truth, more illusion than substance. Public funds for appointed counsel are sometimes woefully inadequate, and public contracts have imposed statistically impossible case loads on public defenders and require that the costs of experts, investigators, and conflict counsel must come out of the defenders’ own already inadequate compensation.  Such a system places a bounty on every guilty plea delivered to the prosecuting attorney.

A.N.J.’s appointed public defender was paid a flat fee of $162,000 per year from which he was required to pay all office expenses and pay for “expert witnesses, investigators, and other costs of the defense.  Additionally, if conflict counsel was required, it was the defender’s responsibility to pay for that counsel out of his flat fee.  Under this contract, A.N.J.’s public defender handled 263 clients; in addition he carried about 240 other cases under other contracts.  The record reflected that A.N.J.’s public defender never hired investigators, experts, conflict counsel, or other services.  He did not talk to witnesses and spent precious little time with his 12-year-old client before advising him to plea to a sex offense, which would require him to report as a sex offender the rest of his life.

Writing for the majority, I adopted the term “meet ‘em, greet ‘em, and plead ‘em” justice (from a fine article by Deborah L. Rhode, Access to Justice, 69 Fordham L. Rev, 1785 (2001)) to describe this contract system.  We placed the first nails in the coffin of the meet ‘em, greet ‘em, and plead ‘em system in Washington.  We put the burden on the lawyer, not the State or the county.  But we held that for a defender to discharge his obligation to inform his client of the consequences of his plea, at the very least, counsel must reasonably evaluate the evidence against the accused client and the likelihood of a conviction; requiring more than just reading the police report, it requires some actual investigation.  We held meet ‘em, greet ‘em, and plead ‘em contracts may be admitted and considered by judges on the issue of ineffective assistance of counsel.  We held the court could consider caseload standards established by the Washington State Bar Association and the Washington Defenders Association for public defenders.  We held A.N.J.’s counsel was ineffective, and there was no evidence on the record before us that A.N.J. had played the game out of a desire for sexual gratification, part of the very definition of child molestation. We ordered that A.N.J. be permitted to withdraw his plea and proceed to trial.  In further proceedings, with new counsel, the county dropped all charges against A.N.J.

The A.N.J. opinion has revolutionized public defense in some Washington counties. Professor Bob Boruchowitz, Seattle University School of Law, has told me that if I wrote but one opinion in my career as a judge, this one would make my career worthwhile.

Now to the medical update.

I have just completed another five weeks of chemotherapy and although I am currently pain free, the therapy has made me sick and I have spent way too much time in bed.  But I learned on July 3, scans show my tumors have again been beat back so I am taking another six weeks off of chemo.  I have a pilot friend who will take me on a flying trip to the Great Lakes and maybe (if I can get a little strength back) I will be able to squeeze in a Harley ride along the Washington and Oregon coast.

Judy got some very good news.  The tumor on her lung is gone.  The bone density in her right hip is still improving.  She will soon have a MRI of the brain to see if that tumor is also gone.  For now she is schedule for 10 minutes of chemotherapy every 3 weeks – hopefully for the rest of her very long life or until something better is developed.

We both are indeed fortunate.