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Reporter Ken Armstrong answered your questions about The Times' three-day series examining the acute failing of public defense in one Washington county — and how that failing is echoed throughout the system. Thanks to all who participated!

The article on public defense is great but there was no mention of public defense in civil cases, such as in the child welfare system, where people do not go to jail but instead lose their children due to extremely poor and inadequate representation by publicly funded attorneys. — Ronnie Childs, Seattle

Ken Armstrong: Today's story focused, in part, on this very issue. Some of the most egregious problems with underfunded or inadequate public defense occur in this very area. Some of the highest caseloads we found applied to public-defense attorneys who were defending parents against charges of neglecting or abusing their children, and were being threatened with having their parental rights terminated.

The potential consequences in these cases are substantial. The resources put toward the defense in these cases should be just as substantial.

The state bar recommends that no defense attorney have more than 60 dependency cases a year. But a Cowlitz County public defender had 276 such cases in one year, and in King County, the public-defense contracts allow for attorneys to have 180 such cases a year.

Ken Armstrong: The bar's role in the Romero case is somewhat complicated. It can be argued that the bar took too long to get rolling on this investigation. As long ago as 1996, the bar was notified of allegations that Romero and Tom Earl were asking court-appointed clients to pay for services that were supposed to be free. But the bar chose not to investigate, because a lawsuit raising similar allegations was in the courts.

That may seem a rather dubious basis for not investigating allegations of such a serious nature. But the bar does indeed have a policy that provides it with the discretion to table an investigation under such circumstances — and that policy exists to this day.

At the same time, when the bar did begin investigating, it pursued the allegations vigorously, interviewing dozens of potential witnesses, pulling all kinds of court files, ordering the release of various financial documents, etc.

The bar accumulated a wealth of information about both Romero and Earl — so much, in fact, that the fact-finding hearings in each attorney's case ran on for more than a week.

Also, and I hope this doesn't sound naive, but the DOC has no interest in housing innocent inmates. The DOC's role in what happens at trial is also minimal — if not non-existent. Prison officials don't decide who will be convicted or acquitted.

As for the point about the poorer the defendant, the harsher the sentence, there is a study that was done years ago that supports your point. It found that defendants who could afford their own attorney tended to fare better in terms of sentence — although not necessarily in terms of whether they were convicted or not.

Ken Armstrong: Proving collusion is tough, because let's face it, the system is sort of designed to produce pleas. Prosecutors are often willing to settle for lesser charges or lighter sentences in exchange for a guilty plea. If every case was tried, the system would shut down.

But can this go too far? Certainly. If a defense attorney isn't doing anything to prepare for trial — if he isn't investigating the state's case, or interviewing potential defense witnesses, or pursuing possible pre-trial motions — then the system isn't working. A guilty plea is supposed to be based upon a fair evaluation of the state's evidence and the legal issues involved in any trial. If both sides don't have that understanding, then a guilty plea isn't as reliable as it should be.

As for contact between a public defender and the accused, a defense attorney is supposed to go over the case with each client — sharing discovery with them, briefing them on the issues, letting them know about the consequences of the various approaches. But I don't know of any hard-and-fast rules that reduce those expectations into number of meetings, or minutes spent, or any such measure.

Ken Armstrong: If a person is convicted — and his or her trial attorney did a lousy job — the defendant does have recourse on appeal. That's the good news.

The bad news is that a defendant must jump an awfully high hurdle to be granted a new trial on the basis of ineffective assistance of counsel. The defendant must show two things: 1) that the trial attorney was incompetent, and 2) that the incompetence was so egregious that it likely resulted in the conviction. That's a tough test to pass.

One attorney who specializes in issues of incompetent counsel argues that under this analysis, all the state need show to doom an ineffective-assistance claim is that the attorney was breathing. He calls it the mirror test. Put a mirror under an attorney's nose, and if it fogs up, the attorney is competent.

Ken Armstrong: We'll continue to keep track of what is going on in Grant County. For one thing, there is a lawsuit that was filed yesterday that we will want to monitor. The allegations in that lawsuit dovetail with many of the problems we wrote about in our series.

We'll also make sure that we report on developments involving individual attorneys we wrote about in the series. For Guillermo Romero and Thomas Earl, for example, the Washington Supreme Court must still decide whether it will disbar them.

Indigent defense gets little attention as it is, and again I appreciate the injustice being done in counties around the state, but it seems a little hypocritical to write an entire special section on indigent defense and equal representation and not add more than one line about those who make this their life work. — Mandy, Seattle

Ken Armstrong: Fair point. We recognize that many public defenders do good work, and do it for minimal pay. Society owes those people a huge debt.

But this is something newspapers encounter regularly. Whenever we highlight the failings of a certain group of people (for example, coaches who have sexually molested players) we hear from people who belong to the same general group, but haven't committed the kind of misconduct we're writing about.

We try, at times, to highlight good work — but let's face it, in certain series we are highlighting a problem, not celebrating the other occasions when the system works like it should. If we didn't do this, we would be failing to let society know about the breakdowns.

Ken Armstrong: This is one of the toughest and most frequent questions we get.

One recourse, and I apologize if this sounds self-serving, is to let the media know. At The Seattle Times, for example, we tend to have reporters who cover various courthouses (federal court, King County courts, Snohomish County courts, etc.), and it can be a good idea to reach out to those folks. There's no guarantee they can help — there's never such a guarantee — but they might be able to, and that's something.

(But we tend to get a lot of letters and phone calls from people saying they were wrongfully convicted, and it can be awfully tough to wade through them and decide which are worth pursuing. But we do our best.)

If you believe an attorney has failed to provide the type of representation needed, you can file a complaint with the Washington State Bar Association. But a complaint which says little other than, I was convicted and I shouldn't have been, is unlikely to result in any kind of sanction. An attorney must have done something that amounts to misconduct.

Also, you can always complain to the people responsible for that system of public defense — county commissioners in some cases, municipal officials in some cases, state lawmakers if you're looking at the problem in its broadest sense.

The fact is, it can be difficult to get people to listen when you complain about inequities in the criminal justice system.

Ken Armstrong: It's hard to compare Guillermo Romero's salary to someone working in another system because of a whole host of variables. For one thing, Romero was paid very little at certain points in Grant County for public defense work ($2,675 a month) and considerably more at other times.

He also was, at times, carrying a caseload much greater than any attorney would have in King County. At times he had more than 200 felony cases a year — something that would be forbidden by the contracts used in King County, where attorneys are supposed to have no more than 150 felony cases a year.

Thomas Earl, another Grant County public defender, made so much more money than public defenders in King County. But look at how he did it. He carried enormous caseloads (413 felony cases in 2003) and cut corners in other ways — for example, by conducting a barebones investigation of the prosecution's case before trial.

The issue isn't salary so much as caseloads — the amount of time that an attorney has to devote to a case, and whether there are financial conflicts that might induce an attorney to spend more time on private work than public defense.

Ken Armstrong: Good question. Knowledge can be defined in lots of ways. People at the courthouse know of the difficulties that many public defenders face. But people outside the courthouse may not know. And those people need to know. That's one reason we devoted the time and resources to doing this story.

Some problems seem chronic, and every few years or so, some newspaper comes along to point a finger, once again, at them. That needs to be done — and should be done. The problems that are so deeply ingrained are the ones that are toughest to get at and root out. That can happen only through people knowing as much as they can about the problem — why it exists, who's responsible, and what are the consequences.

And while Grant County's breakdown has been well known to some people inside the Grant County courthouse — and at the state bar — its crisis is not common knowledge to most folks in Washington State. We thought that by focusing on Grant County, we could shed light on a much bigger systemic problem.

Ken Armstrong: The articles are about both. They highlight certain attorneys (for example, Guillermo Romero and Thomas Earl) and through their failings, show the dangers of these fixed-fee contracts as a whole.

By highlighting the breakdown of public defense in Grant County, we're able to illustrate what's happening in so many towns and counties in Washington. Grant County has lots of company. Two-thirds of the state's counties have adopted public-defense contracts, largely as a way to save money. But those cost-savings come with a different kind of cost — the threat that indigent defendants won't receive the kind of representation that the constitution requires.

I'm not sure where you read an apology for writing the series. The paper recognizes that some people have little desire to read about the criminally accused, but that awareness is far from an apology. We feel it's the newspaper's job to highlight problems even if there's little appetite for fixing them.

As for King County, it deserves credit for taking public-defense standards seriously — or at least far more seriously than most of its counterparts in Washington State.

Would I argue that King County's system is perfect? No. I don't know anyone who would. But compared to the fixed-fee contract systems highlighted in the series, King County's approach seems measurably better.

Ken Armstrong: Reform could come from a couple of different directions. One is from the Legislature. A constant demand from legislative committees, bar groups and others has been for the state to help fund indigent defense. If the state did pony up financially, it could attach conditions to whatever money it dispenses — saying, for example, that a county will continue to get X amount of money if, and only if, it abides by stated caseload limits.

The problem here is political. Few lawmakers see votes in spending money on indigent defense. It's been that way for a long time, and will likely continue to be that way.

Another way reform could be achieved is through the courts. A lawsuit was filed in Grant County yesterday that could lead to such changes. Sometimes (for example, with overcrowded jails, segregated schools, etc.), the only way to get changes is for a judge to order it.

Alternatively, county officials in these various jurisdictions could recognize the value of addressing this problem on their own. Not only is it deeply troublesome to have trials with underfunded, unqualified public defenders, but there can be financial costs as well. Having cases sent back by reviewing courts based upon findings of ineffective assistance of counsel can start to cost large sums of money, as prosecutors, judges, etc., have to spend the time and resources to retry cases.

Ken Armstrong: Largely, those issues are addressed on a case-by-case basis. For example, reviewing courts in each of the cases you cite above ordered a new trial while criticizing Knodell — or the prosecution in general — for using such tactics.

Beyond such reversals in individual cases, the state has disciplinary agencies for both judges and lawyers, and they can step in if they feel compelled.

The general point you make is a good one. The erosion of justice cannot be attributed exclusively to the defense attorneys we wrote about. Those attorneys were allowed to do such a poor job through the indifference of others in the system — including prosecutors, judges and county officials.

Copyright © 2004 The Seattle Times Company