Pleading the Sixth: A class action lawsuit pending before a federal court in Seattle, Washington, alleges the cities of Mt. Vernon and Burlington systematically deprive defendants facing criminal prosecution in the cities’ municipal courts of the right to the effective assistance of counsel. While the judge presiding considers the merits of the allegations presented at trial, the U.S. Department of Justice has joined the case with a Statement of Interest calling for an “independent monitor” to ensure the cities’ compliance with any court order. Further, “should any remedies be warranted,” the United States’ express position is that the remedy should include workload controls for public defense providers “to ensure quality representation.” The 6AC examines the larger implications of DOJ’s recent efforts to enforce the constitutional right to counsel at the state and local levels.
“The United States has an interest in ensuring that all jurisdictions—federal, state, and local—are fulfilling their obligation under the Constitution to provide effective assistance of counsel to individuals facing criminal charges who cannot afford an attorney, as required by Gideon v. Wainwright, 372 U.S. 335 (1963),” announced a Statement of Interest submitted jointly by the U.S. Department of Justice, Civil Rights Division and Access to Justice Initiative on August 14, 2013, in explaining the United States’ interest in the federal lawsuit Wilbur v. City of Mount Vernon. This is the first such instance of the DOJ weighing in on indigent defense litigation and demonstrates the DOJ’s continued commitment to overcoming our national indigent defense crisis.
At the heart of the case is the issue of how excessive caseloads of public defense attorneys result in deficient representation under the Sixth Amendment to the U.S. Constitution. Pointing to the ABA’s Ten Principles of a Public Defense Delivery System, the DOJ urged the court to consider that “caseload limits alone cannot keep public defenders from being overworked into ineffectiveness; two additional protections are required. First, a public defender must have the authority to decline appointments over the caseload limit. Second, caseload limits are no replacement of a careful analysis of a public defender’s workload, a concept that takes into account all of the factors affecting a public defender’s ability to adequately represent clients, such as the complexity of cases on a defender’s docket, the defender’s skill and experience, the support services available to the defender, and the defender’s other duties.” (emphasis in original.)
Wilbur v. City of Mount Vernon
On June 9, 2011, private attorneys affiliated with the ACLU of Washington filed a class action lawsuit against two cities, Mt. Vernon and Burlington, alleging the system that the cities employed together for providing representation to indigent defendants in their municipal courts was and remains so deficient that it “regularly and systematically deprives indigent persons of the right to assistance of counsel.”
At the time of the original complaint’s filing in 2011, the cities of Mt. Vernon and Burlington jointly contracted with two private attorneys to represent indigent defendants in their municipal courts, as they had done “for nearly a decade.” Under the contract, the two attorneys served together as “the public defender” and were paid a flat annual fee out of which they had to provide all “investigative, paralegal, and clerical services” without any additional compensation. In other words, the more work and non-attorney support they dedicated to their clients’ cases, the less each attorney’s take-home pay. And each contracting attorney handled between 950 and 1,150 appointed cases each year, in addition to maintaining a healthy private practice on the side.
With such heavy caseloads, the contract defenders were alleged to “regularly fail to return calls” or “meet with” or “interview” their clients, and “rarely, if ever, investigate the charges made against” their clients. And the cities’ failure to adequately “monitor and oversee” the system it operated by way of the contract amounted to a “construct[ive] denial of the right to counsel” as guaranteed under Gideon.
In considering the grave allegations of the complaint, the federal trial judge denied the defendants’ motion to dismiss the case in February 2012 and the case proceeded to trial, which was conducted from June 3 to June 18, 2013. But, according to the plaintiff’s trial brief in the two years since the filing of the lawsuit, “the Cities have moved further in the wrong direction.”
The cities “repealed their public defense ordinances and redrafted their public defense contract” to eliminate any provisions in the original contract calling for minimum standards of performance by the contracting attorneys. Had the cities used those provisions and standards from the start as tools to supervise the performance of their contracting attorneys, the alleged constitutional violations of the indigent accused – and the class action lawsuit contending against such violations – could all have been avoided.
The DOJ Statement of Interest
On June 28, 2013, the trial judge ordered all parties to the case to respond to three questions as the court continued to weigh the merits of the plaintiff’s case. In answering some of the judge’s questions, the DOJ was careful not to weigh in on the factual merits of the case. But in its Statement, the DOJ iterated the government’s position that, if the judge determines any remedy is warranted at all, then the remedy should include workload controls for public defense providers “to ensure quality representation.”
Additionally, “an independent monitor would provide the Court with indispensible support in ensuring that the remedial purpose of workload controls is achieved.” In other words, workload maximums are not some arbitrary number to be chased after by policymakers in budget debates. They are a mechanism to ensure that the minimum obligations owed by the attorney to the accused can be met in equal measure for each of his clients. And if the addition of one more case will mean he can no longer provide effective services to each of his clients, then the attorney must not take that next case.
Pointing to an earlier class action right to counsel case in Grant County, Washington, in which an independent monitor was used to ensure the implementing of the court’s order, but for only for a term of six years, the DOJ cautioned against strict time limits in any monitoring arrangement. After all, a lawyer’s competency alone – the time, skill, and know-how – is no guarantee that he will actually fulfill the duties owed to his clients. “The monitor can also assess whether, regardless of workload, defenders are carrying out other hallmarks of minimally effective representation, such as visiting clients, conducting investigations, performing legal research, and pursuing discovery . . . These kinds of detailed inquiries, carried out over sufficient time to ensure meaningful and long-lasting reform, are critical to assessing whether the Cities are truly honoring misdemeanor defendants’ right to counsel, and they can be made most efficiently and reliably by an independent monitor.”
There can be little doubt that more has been done to advance the right to counsel by this Department of Justice than by any previous administration. Perhaps it is because the work of the Sixth Amendment Center (6AC) affords us the privilege of working in jurisdictions all across the country that we more readily see the impact of this and other DOJ initiatives. When the Department of Justice states unequivocally, as they do in the Statement of Interest, that “Washington’s move to implement workload controls is a welcome recognition of its obligation under Gideon,” there can be little doubt that such statements will not only impact the specific Washington litigation, but all of the jurisdictions facing excessive caseloads like Florida, Missouri, Kentucky and Rhode Island, just to name a few.
Systemic reform of the right to counsel is complex and multifaceted even in the best of economic times. It is simply unreasonable to expect change to occur overnight. The pace of change at the state level can be excruciatingly slow and undoubtedly for those children and adults who do not receive the quality of representation envisioned in the Sixth Amendment the wait is devastating. But there is no denying that things are better today than five years ago in places as diverse as New York, Texas, and Maryland. It is simply a fact that many more states have taken steps forward than backward during the Attorney General’s tenure. As Dr. King said, “the arc of the moral universe is long, but it bends toward justice.”
 The plaintiff’s complaint was filed originally in state court on June 10, 2011. The defendants (the cities of Mt. Vernon and Burlington) removed the case to federal court the following day, under 28 U.S.C. §§ 1441 and 1446, where it proceeding in federal court with the same complaint as was originally filed.
 1. Have any federal courts taken over supervision of a public defense agency, either directly or through appointment of a supervisor/monitor, anywhere in the United States? 2. Have any state or federal courts held a municipality liable under Monell for constitutional defects in its public defense system? 3. Has any state or municipality adopted “hard” caseload standards like those that Washington is contemplating?