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HomeMy WebLinkAbout09/17/2024 09.D. Proposed changes to Criminal Rules for Courts of Limited Jurisdiction, CrRLJ 3.1, Standards for Indigent Defense < `y 1ljlt :4 ii! 'I!I/ s . BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 9.D. For Meeting of: September 17, 2024 ITEM TITLE: Proposed changes to Criminal Rules for Courts of Limited Jurisdiction, CrRLJ 3.1, Standards for Indigent Defense SUBMITTED BY: Sara Watkins, City Attorney *Cynthia Martinez, Senior Assistant City Attorney SUMMARY EXPLANATION: On March 8, 2024, the Washington State Bar Association (WSBA) adopted new misdemeanor indigent defense (public defenders) case load limits and is recommending that the Washington State Supreme Court do the same.[1] See link for full text of proposed rule and information on the comment period. Case load limits provide a cap on the number of cases a public defenders may handle in a year. This recommendation is the result of a process that began when the Supreme Court asked the WSBA to look at the issue of indigent defense case load standards. In response to this request the WSBA sent its adopted case load standards to the Supreme Court with a recommendation that the Supreme Court adopt the standards. These new standards, if adopted by the Supreme Court, would ultimately reduce the caseload limit for each Municipal Court public defender from the current 400 cases a year to 120 case credits a year in 2027[2]. The proposed misdemeanor public defense case load limits have the potential to devastate public safety and quality of life in the City of Yakima. Under the current caseload limits, which were adopted by the Washington State Supreme Court in 2012, the City of Yakima contracts for 9.35 public defenders at a cost of approximately $1,694,220 in 2023[3]. Under the current case load limits our public defense capacity is 3,200 criminal cases and 540 fail to comply petitions (probation violations) for a total of 3,740 cases a year. Using data from last year we filed approximately 3,123 cases (with an additional 540 probation violations assumed for this analysis). If the proposed case load limits are adopted and no new attorneys were budgeted for and/or hired, our public defender capacity would be 1,122 case credits[4] a year. This represents more than 69% decrease in public defense capacity. This reduced capacity would allow the City to prosecute only a portion of our most serious offenses (DUI and Crimes of Domestic Violence) and no other crimes. In order to provide the same level of prosecutions, many more attorneys will be needed. The rule also requires a social worker and investigator for every three indigent defense attorneys, and a paralegal for every four indigent defense attorneys. This rule is an unfunded mandate to all jurisdictions across the state and will impact the already tight City of Yakima budget. The Legal Department has a short presentation planned to discuss these changes and initial thoughts on how to approach the changes. We have also prepared a comment which includes an analysis of the 291 "Study," the Bar Association relied upon to make the proposed indigent defense caseload standard recommendations. The Legal Department is seeking approval from the Yakima City Council to submit these comments to the Washington Supreme Court on behalf of the City of Yakima. [1] https://www.wsba.org/news-events/media-center/media-releases/state-bar-adopts-new-public- defense-standards [2] The WSBA standards have a phased implementation. Phase 1, beginning July 2, 2025, would reduce to 280 case credits. Phase 2, beginning July 2, 2026, would reduce to 225 case credits. Phase 3, beginning July 2, 2027, would reduce to 120 case credits. [3] The City also contracts with various other attorneys for smaller numbers of cases where there are conflicts which prohibit the originally appointed attorney from engaging in representation. [4] The new indigent defense standards assign a value (credit) to each type of case. Many of the cases we prosecute will actually count as more than a case under the new standards. ITEM BUDGETED: No STRATEGIC PRIORITY 24-25: A Safe and Healthy Yakima RECOMMENDATION: Authorize the Legal Department to submit these comments to the Washington Supreme Court on behalf of the City of Yakima. ATTACHMENTS: Memorandum_Caseload Limits Strategies.pdf Ltr_WA Supreme Court Chief Justice &Justices_Proposed Changes to CrRLJ3.1-Indigent Defense Standards.pdf Attachment A Study Analysis.pdf Presentation_Public Defense Caseload Limits & Charging_Council.pdf 292 lt,� („.. 'Ni Office of the City Attorney City of Yakima MEMORANDUM September 17, 2024 TO: Vicki Baker, City Manager Sara Watkins, City Attorney FROM: Cynthia Martinez, Senior Assistant City Attorney SUBJECT: Strategies for Dealing with Proposed Indigent Defense Caseload Limits The first phase of misdemeanor indigent defense caseload reductions will be effective on July 2, 2025. On that date, misdemeanor public defense services providers will be limited to 280 case credits a year. Notice the use of the term, "credits". Under the new court rule, if implemented, each case will be assigned a value (credit). The current total caseload credit value is approximately 4,077 credits (3,200 cases - 2023 numbers). If the public defense budget remains static, funding 9.35 defense attorneys, the chart below illustrates how the cities charging power will decline over time. Phase Current June 2025 June 2026 June 2027 Credits per n/a (400 cases) 280 225 120 defense attorney Credits 3,740 2,618 2,104 1,122 Reduction of n/a 1,122 credits 1,636 Credits 2,618 Credits *These numbers do not take case weighting into account, based on one case/one credit. Unless something changes, the City will have to adopt a case credit policy modeled after the Washington State Bar Association Indigent Defense Standards. Use of case credits will have to be carefully monitored by the Prosecution Division so we can adapt to the charging trends and stay under the number of credits the City allotted resources provides. Keep in mind that the 200 South Third Street,2nd Fl. I Yakima,WA 98901 P:509.575.6030 I F:509.575.6160 293 Vicki Baker, City Manager Sara Watkins, City Attorney September 17, 2024 Page 2 County will be engaged in this same exercise and officers may seek to file declined felonies in the Municipal Court. Staff suggests addressing this issue on multiple fronts: 1. Hire more defense attorneys. For each attorney hired, the number of credits the City may utilize is increased. To remain at our current caseload levels, the City would have to hire 24.62 more public defenders and add the additional support staff. Even if the City had the money to hire, at a living wage, these additional attorneys and service providers, the City will be limited by the available pool of attorneys. Other strategies need to be considered. 2. Adopt comparable RCW's where feasible in place of Municipal City specific charges and reduce some offenses to infractions. City specific charges have a higher credit value than an RCW that may include the same conduct. An exhaustive search of our code will have to be conducted and ordinances drafted for Council's review. Infractions are civil offenses with no possibility of incarceration and do not require indigent representation. 3. Increase the use of the Pre-Filing and Community Diversion Programs. The Pre-Filing Diversion program is offered to first time offenders. The offender is sent a letter with a condition related to the conduct to be completed (community service hours, defensive driving school, alcohol information school, cost recovery class, pay restitution, etc.). If the person completes the condition, the charge is never filed. If they don't complete, the case may be filed. We have not allowed certain crimes to be included in the program, but it may make sense to expand the opportunity to use this program. The Community Diversion Program is for low level repeat offenders. Entry into a diversion program utilizes less credits and you have the added benefit of addressing the root cause of crime and curbing the criminal behavior. 4. Prioritize charging policies to reduce the number of cases filed. This means that certain types of cases would not be filed or in the alternative we could set a floor. For example, we could only charge: thefts over a certain dollar amount, Hit and Run when the offending person has no insurance, and assaults with objective injury. It may be necessary to no longer charge certain crimes. Camping and certain lower-level offenses (that are important to the community) could be impacted. If we lack resources, we must focus on crimes that pose a serious public safety risk. 5. Screen individuals before they are granted a public defender. Currently, the judges do screen for indigency. If an individual is on any type of public assistance, they qualify for an attorney at public expense. Occasionally, there is an individual who we believe should not have been granted a public defender. Those charged with crimes could be required to provide proof that they are on public assistance. This 294 Vicki Baker, City Manager Sara Watkins, City Attorney September 17, 2024 Page 3 would require an additional administrative staff member and since 90-95% of those charges qualify for public defenders it may not be worth the salary costs. 6. Adjust the court schedule to allow offers to be made early in the process. We currently begin court at 8:30 in the morning which does not allow time for an offer review of cases before court begins. Cases that resolve early may be assigned a lower credit value. There is no way to plan for a case to resolve early, but we will want to create the opportunity for early resolution by making offers early. These are some of the initial ideas being considered and we are constantly seeking new strategies that may be employed. The Legal Department will advise Council when the Washington Supreme Court acts. 295 I .' r LEGAL DEPARTMENT € 200 South Third Street r ,, Yakima, Washington 98901-2830 September 17, 2024 Washington Supreme Court PO Box 40929 Olympia, WA 98504-0929 Re: Proposed Changes to CrRLJ 3.1, Standards for Indigent Defense Dear Chief Justice Gonzalez and Washington Supreme Court Justices: This letter concerns the proposed changes to CrRLJ 3.1, Standards for Indigent Defense Services, which are currently open for official comment. Thank you for this opportunity to comment on the proposed changes. I assure you that providing competent legal representation for those charged with misdemeanor crimes in the City of Yakima Municipal Court is important to the City of Yakima. When the Washington Supreme Court adopted the current public defense standards in 2012,the City embraced the standards and implemented changes to ensure the City of Yakima met those caseload limits. Based on our review of the "study" purporting to support the proposed indigent defense standard changes, and the draft of the proposed rule, the City of Yakima has grave concerns regarding the conclusions of the "study" and the feasibility of complying with the proposed standards. We ask that you consider the following comments: e The"Study" on which the recommendation is based upon is essentially a survey completed by almost exclusively out-of-state attorneys, many or most of whom clearly have a professional self-interest in recommending lower caseload limits. Additionally, it is not clear how many of the survey participants have experience handling a misdemeanor caseload. The study started from the assumption that public defense attorneys are currently overworked, but there is no basis to assume that that is true of Washington misdemeanor attorneys. See Attachment A, for a detailed critique of the supporting study. • To continue to prosecute misdemeanor offenses at our current level of 3,200 cases a year', under the 120 case credits a year standard,the City would have to add at least 22 public defense attorney positions, 10 social workers, 10 investigators, and 8 paralegals. These numbers do not account for the conversion to case credits, which will count many of our cases, such as domestic violence and DUI cases, as more than one credit. ' This number has remained steady for the past few years. The City has made an effort to be judicious in its charging and to utilize strategies such as pre-filing diversion to keep the case load steady so that we can comply with the indigent defense standards currently in place. Yakima Civil Division (509) 575-6030 •Prosecution Division (509) 575-6033 •Fax (509) 575-6160 2 a 2g6 Washington Supreme Court September 17, 2024 Page 2 • Yakima County lacks the attorney pool to fill the number of positions that will be required for the City of Yakima and other jurisdictions in Yakima County to meet the new standards. Based on the WSBA legal directory, there are 78 attorneys listing Yakima County as their residence and criminal law as their area of practice; most of those attorneys are employed full time. A review of the list reveals a possible 12 attorneys remaining who may be available to fill the indigent defense attorney positions throughout the County. Yakima County has had issues recruiting from other areas of the state, and if the new standards are adopted, we will be competing with the rest of the state for attorneys. The bottom line, there are not enough attorneys to fill the positions that are required, even if it were financially possible. • The cost of the additional attorneys, social workers, investigators, and paralegals, will very conservatively quadruple our current budget of 1.7 million. The City of Yakima is a diverse community with an average yearly income of$40,000. The City of Yakima budget is tight every year, especially with the 1% cap on property taxes at a time when inflation has been more than 3% for the past several years. The cost of implementing these new standards will impose extreme financial hardship on a community that is already struggling to meet the needs of many underserved populations. • If the City of Yakima is unable to hire the 22 attorneys needed to meet the final standard of 120 credits (which for the reasons set out above is a near certainty) the City would be able to prosecute only a portion of the Domestic Violence and Driving Under the Influence crimes, and would be unable to prosecute any other crimes. This would lead to a devastating reduction in public safety in the City of Yakima and across the state. • The proposed standards would also have an economic impact on the community. This impact would perhaps hit our underserved populations strongest. At the 120 case credits limit,the City would be likely unable to prosecute crimes such as shoplifting and non-domestic violence property crimes. Local businesses, small and large, would not be able to absorb the costs of rampant and unchecked theft,thus jeopardizing jobs that community members depend upon to support their families and better their lives. In conclusion, we strongly urge you to not adopt the proposed standards as they are currently drafted. These misguided standards will devastate our community and many others in the state. Instead, we would urge the Court to work collaboratively to increase law school admissions to grow the available pool of attorneys and seek state funding to assist jurisdictions with the financial impact of any future proposed changes to the indigent defense standards. We believe there are system changes that should be evaluated to encourage law students to enter into public service attorney work, both as prosecuting attorneys and public defenders in rural and underserved areas that should be addressed prior to changing the caseload standards. Addressing the fact that the state does not have enough attorneys seeking these positions, concurrently with a pause in changing the caseload standards to provide for more robust localized data collection and study, will benefit the entire criminal justice system and produce better and more accurate results for our state. 297 Washington Supreme Court September 17, 2024 Page 3 We remain committed to continuing to balance the need for public safety with the need for criminal defendants to have quality representation. The current proposed standards are not the solution and would have a tragic impact. Thank you for considering our comments. Sincerely, Sara Watkins Cynthia Martinez City Attorney City Prosecutor 298 Attachment A Analysis of Study In the CPD's February 23, 2024 memo to the WSBA Board of Governors on "Indigent Defense Standards" ("Memo"), which includes the recommendation that the Supreme Court adopt the revised WSBA Standards for Indigent Defense Services ("revised Standards"), the Memo states that "informed state-wide standards that reflect the current demands of public defense are necessary to meet the Constitutional and ethical requirements to provide competent defense to individuals eligible for public defense services."1 The City of Yakima fully agrees with this sentiment. Unfortunately, the bases for the CPD's recommended changes are not supported by localized, reliable, robust data. Thus, the state-wide caseload standards—particularly with respect to misdemeanors—proposed in the Memo are decidedly underinformed due to several significant issues with the Memo and its supporting materials. First, the Memo makes multiple references to excessive public defender caseloads, but fails to make any distinction between felony and misdemeanors and doesn't provide any citation to non-anecdotal sources. Instead, it is based on"listening sessions," surveys conducted by OPD and CPD (with no indication of whether the surveys were conducted using scientific methodology), and "open meetings [where] . . . [n]otes were taken."2 Not a single one of the several references to lawyers that the Committee "listened to," "heard from," or surveyed specifies whether the lawyers solely or primarily carried felony or misdemeanor caseloads.3 1 Memo, RE: Indigent Defense Standards,WSBA Board of Governors Meeting Materials, March 7-8,2024,244. https://www.wsba.org/docs/defau lt-source/about-wsba/governance/board-of-governors-2023-2024/march- 2024/board-of-governors-meeting-materials-march-7-8-2024.pdf?sfvrsn=e9ed 1ff1_3 2 Id. at 248. 3 Id. at 243-48. 299 Second, the revised Standards include highly questionable requirements regarding support staff for public defense agencies, which must be implemented by July 3, 2028: • One investigator for every three attorneys; • One social worker/mitigation specialist for every three attorneys; and • One paralegal for every four attorneys.4 The revised Standards also require that pubic defense attorneys provided by jurisdictions pursuant to contract or assigned counsel systems have "access to" such support staff"consistent with"the above requirements.5 The issue with these requirements becomes clear upon following the citations in the Memo to the original sources from which the above ratios were derived.6 The required ratios date from a time when the NAC standards provided the prevailing case load limits, e.g. 40o misdemeanors per attorney.?In other words, one investigator for every three attorneys was the suggested ratio when three attorneys would've collectively handled 1200 cases. There is no analysis that shows it is necessary to require the same ratio of one investigator for every three attorneys under the revised Standards, where each attorney would handle only 120 case credits. Instead, a better practice would be to determine the appropriate ratio of support staff based on the number of cases/case equivalents based on the point structure 4 Id. at 277-81. 5 Id. 6 For investigators: National Study Commission on Defense Services,Guidelines for Legal Defense Systems in the United States§4.1(1976) ("Defender offices should employ investigators with criminal investigation training and experience.A minimum of one investigator should be employed for every three staff attorneys in an office. Every defender office should employ at least one investigator."). For social workers/mitigation specialists and paralegals: Bureau of Justice Assistance, United States Department of Justice's Keeping Defender Workloads Manageable (2001), p.10,found at: https://www.ncjrs.gov/pdffilesl/bja/185632.pdf. National Advisory Commission on Criminal Justice Standards and Goals,Courts, 1973, p. 276. 300 proposed as opposed to attorneys. Considering that the combined number of support staff mandated by the Memo's ratios equals almost one support staff for every attorney, the Memo's failure to properly adjust the ratios to the revised Standards is a significant error, which would not only be hugely expensive if implemented,but also quite wasteful. Another issue with the revised Standards is the requirement for additional compensation "for cases that require an extraordinary amount of time and preparation," because the expansion (over the prior Standards) of the situations that the Standards specifically identify as qualifying for additional compensation, such as "interpreter cases," and "cases involving mental health competency," occur as a matter of routine and don't actually require an extraordinary amount of time and preparation. For example, in Yakima Municipal Court 25 -3o% of the cases involve interpreter services. The reality is that in some communities—such as Yakima—bilingual attorneys and support staff are common, and mental health evaluations are petitioned for to the court by using standard forms requiring little effort. The primary issue with the revised Standards endorsed by the Memo is that they explicitly rely on the report generated as a product of the National Public Defense Workload Study("NPDWS")8. The NPDWS, while well-intentioned and informative to a degree, is ill-suited to form the basis of significant changes to the caseload limits of defense attorneys in Washington state, due to the limitations of the study's methodology and lack of data associated specifically with Washington State, both felony and misdemeanor, public defenders. 8 Nicholas M. Pace, Malia N. Brink,Cynthia G. Lee,Stephen F. Hanlon,National Public Defense Workload Study,July 27,2023, https://www.rand.org/pubs/research_reports/RRA2559-1.html. 301 To generate its caseload recommendations, the NPDWS used what is known as the "Delphi method,"which is "a technique of social research that seeks to obtain a reliable group opinion from experts."9 The Delphi method can be summarized as an iterative, facilitated survey of experts designed to elicit consensus.1O Specifically, the expert panel in the NPDWS was asked to opine on how much time should be spent— assuming constitutionally adequate representation—on eight "activity types" associated with representing a criminal defendant, which were: 1. Client Communication and Care 2. Discovery and Investigation 3. Experts 4. Legal Research, Motions Practice, Other Writing 5. Negotiations 6. Court Preparation 7. Court Time 8. Sentencing and Mitigation and Postadjudicationh1 The time estimates per activity types were then added together to come up with a total number of hours that should be devoted for each of ii case types, e.g. Misdemeanor- High, Misdemeanor-Low, Probation and Parole Violations, etc.12 Those totals are then used in a calculation to derive suggested annual case load limits per attorney depending 9 Jon Landeta&Aitziber Lertxundi,Quality Indicators for Delphi Studies, Futures Foresight Sci.,John Wiley&Sons, vol.6(1), March 2024. 10 Dmitry Khodyakov,Sean Grant,Jack Kroger& Melissa Bauman,RAND Methodological Guidance for Conducting and Critically Appraising Delphi Panels, December 29,2023, https://www.rand.org/pubs/tools/TLA3082-1.html 11 NPDWS at 70. 12 Id. 302 on the number of hours assumed�3 that an attorney should devote to public defense per year. For any Delphi study the "degree of rigor" of its results is inherently limited, because Delphi studies are"qualitative in nature and based on the subjective opinion of a convenience sample of experts."14 For that reason, "its outcomes can only be as reliable as the available evidence and the participating experts," and "[w]hen interpreting the results of a Delphi study, it needs to be considered that consensus does not necessarily imply that the `correct' answer or judgement has been found."15 This is in contrast to the practice of the NPDWS to deliberately"drive members toward a narrower consensus."16 For the NPDWS, it "assembled an expert panel of 33 highly regarded attorneys with extensive experience in adult criminal defense."17 Only one of the experts currently practices in Washington State, and it is unclear from the study how many of the panel members have any experience handling a misdemeanor caseload.18 In other words, the recommended case load limits that resulted from the NPDWS were born out of the expert consensus of a panel of individuals of whom only one had experience practicing in Washington, and whose experience handling misdemeanors is unknown. 13 The Memo bases its revised Standards on 1,650 annual hours. It's worth observing that if an ambitious attorney wanted to work more hours and make more money, he or she is not allowed to make that choice. 14 Id. at 8. 'Ringer S, Payne SA, Brine J, Radbruch L, Brearley SG,Guidance on Conducting and REporting DElphi Studies (CREDES)in palliative care:Recommendations based on a methodological systematic review, Palliat Med. 2017 Sep;31(8):684-706,701,702, doi: 10.1177/0269216317690685, Epub 2017 Feb 13. PMID: 28190381. 16 NPDWS at 26. 17 NPDWS at xi. 18 Id. at 63.The study sought nominees to the panel with "significant experience in misdemeanor cases, in felony cases,or in a mix of both," but it does not break out the actual experience of the panel members that participated. 303 Additionally, the panel participants were "self-selected, not randomly chosen."19 As the NPDWS acknowledges, this introduced the very distinct possibility of selection bias: The use of a panel composed entirely of experienced criminal defense attorneys can also raise questions of potential bias . . . [S]uch attorneys might have an incentive to inflate their estimates of the amount of time required to represent clients because the attorneys would directly benefit from reduced caseloads and increased funding for public defense . . .2° After noting that the NPDWS used Gideon's Promise, the National Association for Public Defense (NAPD), the National Association of Criminal Defense Lawyers (NACDL), the National Criminal Defense College (NCDC), and the National Legal Aid & Defender Association (NLADA) to nominate the pool of experts, the NPDWS acknowledges that: a review of the mission statements of the referring organizations noted earlier suggests, these organizations are not disinterested observers of the criminal justice system; they are instead advocates for system improvement related to criminal defense specifically and the criminal justice system more broadly. This suggests at least the possibility that the nominations we received reflected certain organization biases that may have affected the final composition of the expert pane1.21 This issue is typical in Delphi studies generally, which are "highly vulnerable to selection bias."22 Thus, "understanding and appreciating the potential source of biases amongst experts is essential in interpreting the results of any Delphi study."23 19 NPDWS at 51("[T]he pool constituted the set of 105 attorneys recommended to us by five national organizations concerned with issues related to criminal defense in general and public defense in particular.The 33 panelists who participated in the Williamsburg conference. . .were self-selected, not randomly chosen."). 20 Id. at 49. 21 NPDWS at 67. 22 Fayaz HC,Jupiter JB, The Zeitgeist of Challenging the Evidence.A Perspective on the International Consensus Meeting on Periprosthetic Joint Infection.Arch Bone Jt Surg. 2017 Jan;5(1):32-38, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5339353/#R19 23 Laura Devaney& Maeve Henchion, Who is a Delphi'expert'?Reflections on a bioeconomy expert selection procedure from Ireland, Futures, May 2018,at 11, https://www.scienced irect.co m/science/article/a bs/pi i/S0016328717302276 304 Although the input of experienced defense attorneys is undoubtedly important in evaluating and recommending new caseload standards, the risk that recommendations may be affected by self-interests is too obvious to ignore. Caseload standards based solely on the input of self-selected attorneys (the nominees for the panel had the option to participate or not) who were recommended by public defense advocacy groups for participation in a study that required travel to Virginia with full cognizance of the purpose behind the study should plainly be viewed with skepticism. Another issue with the NPWDS is its over-emphasis, while conducting the study, on select sections of the Criminal Justice Standards for the Defense Function�4 ("Defense Function Standards" or "DFS"), which it refers to as "authoritative guidance," and"the most relevant standards to reference in reaching a professional consensus about what a criminal defense lawyer should do to provide reasonably effective assistance of counsel."25 Specifically, the NPDWS claims: These ethics rules and practice standards impose substantial duties upon defenders when representing any client accused of violating the law. For example, authoritative guidance requires the attorney to meet with the client often in the early stages to establish ground rules; assess the possibility of pretrial release and take steps to obtain the least restrictive release; determine whether there is a sufficient factual basis for criminal charges; interview the client as many times as necessary; hold frank and comprehensive discussions with the client about the short- and long-term consequences of various strategies, decisions, and potential outcomes; and promptly commence and complete an investigation to explore all reasonable avenues that could lead to relevant information. The attorney must also seek and review all relevant materials in the possession of the prosecution, law enforcement, and other sources; retest the prosecution's physical, forensic, and expert evidence when needed; 24 Standards 4-1.1 to 4-9.6 (Chapter 4) in ABA,Criminal Justice Standards,4th ed.,2017. 25 NPDWS at 7,56. 305 evaluate the client's mental state at the time of the alleged offense and in regard to the client's participation in the adjudication process; analyze relevant law; and fully prepare for all court proceedings and anticipate any possible issues that might arise. Such responsibilities arise in every representation, no matter how it is resolved, and represent only foundational activities prior to disposition.26 Additionally, the NPDWS repeatedly references the DFS requirement to conduct an "appropriate investigation."27 In conducting the NPDWS, the facilitators made "sure that each panel member's familiarity with the ethics rules and professional standards applicable to criminal defense had been refreshed just prior to the group session so that their deliberations could reflect those principles."28 And then again: There was also a recap of the pertinent professional standards that should be considered during the day's deliberation, with a particular focus on Defense Function Standard 4-6.1(b)'s mandate: "Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including analysis of controlling law and the evidence likely to be introduced."29 While undeniably relevant in subject matter and a recognized source of some level of guidance, it is not at all clear that the DFS are very"authoritative." The DFS characterize themselves more modestly: These Standards are intended to provide guidance for the professional conduct and performance of defense counsel. They are not intended to modify a defense attorney's obligations under applicable rules, statutes or the constitution. They are aspirational or describe "best practices," and are not intended to serve as the basis for the imposition of professional discipline, to create substantive or procedural rights for clients, or to create a standard of care for civil liability.3° 26 NPWS at 7 (emphasis added). 27 Id. at 57,80. 28 Id. at 36. 29 Id. at 80. 30 DFS 4-1.1(emphasis added). 306 In contrast to this more modest characterization, the panelists were instructed during the NPDWS that when determining effective assistance of counsel under Strickland's "reasonable considering all the circumstances"31 standard: Finding Reasonable = Looking to Professional Standards 32 The Supreme Court has repeatedly rejected this simple equivocation and emphasized that ABA standards, including the DFS, "may" or"can"be guides for constitutionally acceptable reasonable assistance of counsel,but they are "only guides" as to what determines effective assistance of counsel, and "not its definition."33 The Washington Supreme Court has echoed this sentiment: "But the ABA Guidelines are not controlling; they are only a guide as to what reasonable means, not a definition."34 Despite the NPDWS' emphasis on the detailed requirements on the DFS, in the Supreme Court's view, "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant."35 Again, our State appellate courts agree: "Prevailing professional standards 31 Strickland v. Washington,466 U.S. 688, 1984. 32 National Public Defense Workload Standards Videoconference 1: Project Overview and Applicable Professional Standards; https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/Is- sclaid-videconfl-ppt.pdf. 33 Strickland,466 U.S. 688; Padilla v. Kentucky,559 U.S. 356,366-67,2010(citations omitted);Bobby v. Van Hook, 558 U.S.4,7, 130 S. Ct. 13, 16, 175 L. Ed. 2d 255(2009). 34 In re Cross, 180 Wn. 2d 664,698,327 P.3d 660,681(2014),abrogated on other grounds by State v. Gregory, 192 Wn. 2d 1,427 P.3d 621(2018). 35 Strickland at 688-89. 307 may serve as guides for determining what is reasonable but may not serve as a checklist for evaluating attorney performance."36 Also, "the fact that the ABA may have chosen to recognize a given practice as desirable or appropriate does not mean that that practice is required by the Constitution."37 Thus, "particular standards of professional conduct" should not be "constitutionalize[d]."38 Additionally, in contrast to the NPDWS' emphasis on the DFS requirement to conduct an"appropriate investigation," the Supreme Court sees it otherwise, "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."39 The commentary to the ABA Standards for Criminal Justice acknowledges as much: "an`appropriate'investigation may be quite limited . . ."40 This fact necessarily flows from the reality that the decision whether or not to plead guilty ultimately belongs solely to a defendant.41 Not only do the Defense Function Standards, on which the NPDWS again and again focused the expert panel's attention, lack the binding legal authority that the NPDWS suggests,but such"information input" can "potentially bias [] panelists' judgments."42,43 Had the panel instead been primed with reminders of those Defense Function Standards that emphasize that the ultimate decision of whether to accept a 36 State v. Flores, 197 Wn.App. 1, 14,386 P.3d 298,305(2016). 3'Jones v. Barnes,463 U.S. 745,753 n.6, 103 S. Ct. 3308,3313,77 L. Ed. 2d 987(1983). 33 Nix v. Whiteside,475 U.S. 157, 165, 106 S. Ct. 988,993,89 L. Ed. 2d 123(1986). 39 Cullen v. Pinholster,563 U.S. 170, 195-96, 131 S. Ct. 1388, 1406-07, 179 L. Ed. 2d 557(2011) (quoting Strickland at 691. 40 United States v.Jansen,884 F.3d 649,659(7th Cir. 2018) (quoting ABA,Criminal Justice Pleas of Guilty Standards,Commentary§14-3.2(b)), p. 123 41 Fla. v. Nixon,543 U.S. 175, 187, 125 S. Ct. 551,560, 160 L. Ed. 2d 565 (2004). 42 Ringer et al. at 703. 43 An additional information input received by the panel was "an overview of the methods and results of the 17 state-level public defense workload studies." NPDWS at xi.This also could have impacted the panelists'own Activity Type estimates,which was a deliberate choice: "the results of those studies would be used to inform our work."Id. at 36. 308 plea offer is the client's, or that "counsel should consider the client's desires and views, and may refer not only to law but also to other considerations such as moral, economic, social or political factors," or that "counsel may make a recommendation to the client regarding disposition proposals, but should not unduly pressure the client to make any particular decision," etc., it isn't difficult to imagine that the priming effects of such "information input"may have affected the panelists' time estimates for the activity types had they been focused on the frequency with which many defendants choose to quickly plead guilty—whether for "moral" reasons, such as the desire to accept responsibility, or for economic reasons, such as the desire to resolve a case quickly so that it doesn't interfere with their employment.44 The point isn't to suggest that the panel should have instead been primed with these latter-mentioned DFS,but rather to observe that the estimates may have varied depending on the emphasis placed on which particular DFS were highlighted to the panel during the NPDWS. Next, and in connection with the revised Standards recommended in the Memo, the Activity Type "Client Communication and Care," defined as "Time spent communicating with client or arranging care, support, or other personal and social services for the client," deserves discussion.45 The NPDWS states that it includes, "working with social services, treatment providers, or outside agencies on behalf of clients, as well as handling medical, family, or other issues affecting the client during a criminal case."46 While these sort of services are undoubtedly important, they more appropriately should be provided by social workers, not attorneys. 44 DFS 4-5.1 4s NPDWS at 61. 46 Id. 309 Thus, the time calculated for this Activity Type should not be used to calculate caseload limits. This is especially true given that the Memo's Revised standards already include the requirement that public defenders be provided access to social workers. Unfortunately, the NPDWS doesn't break out the time estimates for each Activity Type, and instead provides only the sum of the eight Activity Types. For that reason, it isn't possible to reduce the sum by the amount assigned to the client care and communication Activity. Conclusion and Recommendations In addition to the 17 state-level caseload studies (referenced in footnote 42 above) the NPDWS now adds a national perspective, which the Memo calls "groundbreaking." While laudable in its effort, the NPDWS should not be the basis for significant changes to Washington's misdemeanor caseload standards. For all the reasons outlined above, its far from clear that the caseload numbers the study generated are more reliable than any of the 17 state-level studies. The wide variety of estimates across all 17 studies should give pause in relying on any one study. For instance, the studies tell us that a non-traffic low-level misdemeanor should take an attorney anywhere from 2.3 hours to to times that amount at 22.3 hours.47 A probation violation should take between o.8 or 16.9 hours.48 The NPDWS now claims that the real number of hours for those case types are 13.8 and 13.5, respectively.49 That estimate of 13.5 hours for a probation violation for Washington State district courts speaks volumes. On average, probation violations are generally legally simple 47 NPDWS at 75. 48 Id. at 75-76. 49 Id. at 89. 310 matters, such as a missed appointment with a probation officer. It's hard to imagine that such matters would require anything close to the study-proposed number of hours. This illustrates the concern that the NPWDS caseload estimates do not accurately reflect the amount of time these cases require. Instead, the numbers proposed skew high based on the study. Results based on the subjective opinions of almost exclusively out-of-state attorneys chosen by public defense advocacy organizations and most of whom are self- interested in the results of the study(most panelists currently work in public defense so the proposed standards affect their hours and indirectly their compensation), are unreliable as they relate to Washington State misdemeanor practice. The Memo and its recommendation for revised Standards starts from the assumption that the existing caseload standards "put public defenders in an unsustainable position where attorneys simply lack the time and resources necessary to provide Constitutionally adequate defense to their clients."The only support for this proposition consists of anecdotal evidence, which is true both of the Memo and the "evidence" cited in the NPDWS.5° Additionally, neither the Memo nor the NPDWS are careful to make a distinction between misdemeanor and felony public defense workloads. It may well be true that felony attorneys are overworked and require revised caseload standards. However, in another example of anecdotal evidence, based on conversations with some of the City of Yakima's present and (recent) past public defense attorneys, misdemeanor attorneys are typically underworked under the current caseload standards.51 50 Id. at 4-5. 51 Unfortunately,we do not have their permission to disclose their identities. 311 Before making substantial changes to the caseload standards, a serious research effort is needed that is Washington specific and separates felony and misdemeanor caseloads in its data collection and evaluation. While definitive recommendations are outside the purview of this comment, some possibilities may include: • A retrospective study of the hours billed by current public defense attorneys under contract for a full 40o caseload. If such attorneys are billing significant hours outside of that caseload, that could be suggestive that they are not overworked under the 400-caseload limit. • A study of how many hours on average private defense attorneys bill for the case categories of mid-and-high misdemeanors and probation violations in order to compare those hours against the revised Standards. If there is a discrepancy between the two, that could be suggestive that the revised Standards are too high or too low. • A scientific survey of all Washington state defense attorneys with respect to present caseload burdens and/or time estimates for various case type categories. • A time record study of present public defense attorneys across multiple jurisdictions statewide. 312 PUBLIC DEFENSE CASELOAD LIMITS AND CHARGING Recent Developments and the Potential Impacts to the City J. Schaap, Senior Assistant City Attorney C. Martinez, Senior Assistant City Attorney 313 Gideonv. Wamwright • It is well established law that all persons accused , have a right to an attorney when charged with a criminal offense. • Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, i. f 9 L. Ed. 2d 799 (1963) 1 I i - The petitioner brought habeas corpus proceedings against the Director of the Division of Corrections. The Florida Supreme Court, 135 So.2d 746, denied all relief, and the petitioner brought certiorari. The United States Supreme Court, Mr. Justice Black, 111 held that the Sixth Amendment to the ' federal Constitution providing that in all criminal prosecutions the accused shall enjoy right to assistance of counsel for his defense is made obligatory on the states by the Fourteenth Amendment, and that an indigent defendant in a criminal prosecution -.\ in a state court has the right to have counsel , appointed for him. Ai 314 Caseload Limits , Standard 3 . 4 adopted in 2015 ■ Standards for Indigent Defense, Standard 3.4 - Starting January 1, 2015 new caseload limits for misdemeanor cases were imposed. Under the 2015 standards public defenders are limited to 400 cases per attorney per year in jurisdictions that do not use case weighting. ■ Standard 3.4 as adopted in 2015 required the City to make changes in order to comply with the 400 case limit. The response from the City was a mix of additional public defense resources and modified charging standards. 315 Caseload Limits , Standard 3 . 4 cont. • What steps did the City take so as to comply with the 400 case limit. - Charging Unit: The City ended the practice of direct filing by officers and replaced it with the practice of filing criminal complaints in all cases filed. This ensured an attorney reviewed each case and only filed cases that met our charging standard and only filed cases whereby there were facts sufficient to prove beyond a reasonable doubt at trial. This saved the City having public defenders assigned to cases that were not viable. - Increased the number of public defenders. - Sought grants. - Created a Pre-Filing Diversion Program for low level first time offenders. - Generally stopped charging stand alone DWLS 3 cases (these made up approx. 20% of the caseload at the time of the rule change). 316 New Standards adopted by the WSBA • On March 8, 2024, the Washington State Bar Association (WSBA) adopted new misdemeanor public defense case load limits and is recommending that the Washington State Supreme Court do the same. Case load limits provide a cap on the number of cases public defenders can take. This recommendation is the result of a process that began when the Supreme Court asked the WSBA to look again at the issue of public defense case load standards. In response to this request the WSBA sent its adopted case load standards to the Supreme Court with a recommendation that the Supreme Court adopt its standards. These new standards, as part of a phased reduction, ultimately reduce the caseload limit for each public defender from the current 400 cases a year to 120 case credits as adopted by the WSBA a year in 2027. • The WSBA standards have a phased implementation. - Phase 1, beginning July 2, 2025, reduces to 280 case credits. - Phase 2, beginning July 2, 2026, reduces to 225 case credits. - Phase 3, beginning July 2, 2027, reduces to 120 case credits. 317 What effect will the new standards have? ■ Disclaimer: - These numbers represent estimates using numbers from 2023 filings. We have done our analysis using the 120 case credit limit. - This chart weights Tier 1 cases at 1.5 case credits and weights the probation cases (540 assumed) at .5 cases credits, assuming for the sake of argument that all probation cases are Tier 1 non-probation cases (1.5 case credits given 1/3 of a credit for a total of .5 case credits). Some other Tier 2 and Tier 3 cases are weighted as well, however, they represent much fewer numerically, thus in this analysis they are weighted at 1 case credit. Cases that resolve relatively quickly can be weighted less; however, the city has limited control over this and it is difficult to predict. - The majority of the cases weighted at 1.5 credits are not the type to resolve "relatively quickly. " - Factoring in private counsel cases, it is probable that the actual numbers could be slightly lower than estimated in this analysis. HOWEVER, these estimates show the effects will be drastic. - The vast majority of our cases are assigned to a public defender. 318 Whatwillthenew standards have? • Tier 1 encompasses the most serious offenses: Driving Under the Influence/Physical Control, Domestic Violence Offenses, Non-Domestic Violence Serious Offenses Against Persons (Assault, Harassment, and Violations of Court Orders), and failure to comply petitions (Domestic Violence and DUI/Physical Control convictions make up the bulk of our probation case load). • Tier 2 encompasses the intermediate tier: Driving with License Suspended/Revoked in the First and Second Degree , Theft (this includes Shoplifting cases and others Theft charges), Serious Traffic Offenses (Hit and Run, Racing, Reckless Driving, Driving without Ignition Interlock Device, and Negligent Driving in the First Degree), Non-Domestic Violence Property Damage Offenses, and Weapon Offenses. • Tier 3 encompasses all other charges: Trespassing, Drug Offenses, Obstructing Law Enforcement, Animal Offenses, Lewd Conduct and Indecent Exposure, Other Traffic Offenses, etc. 319 Wheffectwillthen wstandardsh v ? at e a e If the proposed case load limits are adopted CHART 1: 2023 Combined Case Count View --Tier 1 Weighted Estimate and no new attorneys were budgeted for and/or hired,our public defender capacity The portion of our current caseload that exceeds our public defense capacity under the new case would be 1,122 cases credits a year(28%of loads if no new attorneys were added is 2,955(72%of our current caseload). our current caseload). 1 ---. m t I _____i I 29 CASES 721.5 1233 458 99 59 523 0 250 500 750 1000 1250 1500 1750 2000 2250 2500 2750 3000 3250 3500 3750 4000 4250 4500 •Probation •DUI/Physical Control ■DV Other Serious Person Crimes •Theft •Suspended License(1/2) •Serious traffic •Property Crimes Persons ■Weapons ■Other *This chart weights Tier I.non-probation cases at 1.5 case credits and weights the Tier 1 probation cases at_5 cases credits(assuming for the sake of argument that most probation cases are Tier 1 category cases: 1.5 case credits given 1/3 of a credit for a total of.5 case credits). Some other Tier 2 and Tier 3 cases are weighted as well,however,they represent much fewer numerically,thus in this analysis they are weighted at 1 case credit. 320 What effect will the new standards have? • Hire more attorneys? How many attorneys would be needed: - Tier 1 only: 20.25 attorneys (10.9 additional attorneys) - Tier 1 and Tier 2: 29.61 attorneys (20.26 additional attorneys) - Tier 1, 2, and 3: 33.97 attorneys (24.62 additional attorneys) • Additionally, 11 Social Workers (1 for every 3 attorneys), 11 Investigators (1 for every 3 attorneys), and 8 paralegals (1 for every 4 attorneys). • All jurisdictions in the State of Washington will need to add indigent defense attorneys. In Yakima County alone, 12 jurisdictions will be seeking defense attorneys. There are not enough attorneys practicing criminal law in Yakima County to cover the need and we will be competing with the rest of the state. 321 Whatwillthenew standards have? Attorney shortage, caseloads leading to shortage of court-appointed attorneys DONALD W.MEYERS Yakima Herald-Republic Oct 7,2022 5*1 Attorney shortage affecting some charging decisions in Yakima County, prosecuting attorney says DONALD W.MEYERS Yakima Herald-Republic Feb 27,2023 Si D WA's public defender system is breaking down, communities reeling Daniel Beekman from The Seattle Times Feb 2b,2024 Rt 0 Two-month wait for public defenders as Yakima County attorney shortage grows worse DONALD W. MEYERS Yakima Heraid-Repubiic 322 Apr 5, 2024 Where ae wenow ?r • The Washington Supreme Court is now considering the case load standards adopted by the WSBA. - Public comment is being accepted. The Legal Department is seeking approval for our comment. • Cases fi led: - 2021: approx. 3,000 - 2022: 3,144 - 2023: 3,121 - 2024: 1,608 (through June 30th) (this is just slightly over half of the allotted cases for the year) • Public defenders have informed us the numbers are high. 323 Why does this matter? • RCW 10.101.030 Standards. - Each county or city under this chapter shall adopt standards for the delivery of public defense services, whether those services are provided by contract, assigned counsel, or a public defender office. Standards shall include the following: Compensation of counsel, duties and responsibilities of counsel, case load limits and types of cases, responsibility for expert witness fees and other costs associated with representation, administrative expenses, support services, reports of attorney activity and vouchers, training, supervision, monitoring and evaluation of attorneys, substitution of attorneys or assignment of contracts, limitations on private practice of contract attorneys, qualifications of attorneys, disposition of client complaints, cause for termination of contract or removal of attorney, and nondiscrimination. The standards endorsed by the Washington state bar association for the provision of public defense services should serve as guidelines to local legislative authorities in adopting standards. 324 Why does this matter? • Wilbur v. City of Mount Vernon, 989 F. Su pp. 2d 1122 (W.D. Wash. 2013) Background: Indigent criminal defendants brought class action in state court against cities, alleging public defense system provided by cities violated their Sixth Amendment right to counsel. Holdings: Following removal, the District Court, Robert S. Lasnik, J., held that: 1 cities' public defense system deprived indigent criminal defendants of their Sixth Amendment right to counsel; 2 deprivation was caused by deliberate choices of city officials in charge of public defense system; and 3 cities were required to re-evaluate public defender contracts and hire public defense supervisor. • Facts: - The appointment of counsel was, for the most part, little more than a formality, a stepping stone on the way to a case closure or plea bargain having almost nothing to do with the individual indigent defendant. . . his situation was the natural, foreseeable, and expected result of the caseloads the attorneys handled. Sybrandy and Witt, both of whom also had private practices (Mr. Witt spent only 40% of his time providing public defense services), each closed approximately 1,000 public defense cases per year in 2009, 2010, and 2011 and often spent less than an hour on each case. Although both counsel testified that they did not feel rushed or overworked, it is clear that, in light of the sheer number of cases they handled, the services they offered to their indigent clients amounted to little more than a "meet and plead" system. 325 • fr \\\\\.\\.\\ • THANK YOU • 326