The High Cost of Free Defense

by C. C. Simmons, JD Correspondent

Justice:Denied magazine, Issue 26, page 12

In 1961 in a coastal town on Florida’s panhandle, police arrested Clarence Earl Gideon, a 50-year-old drifter, and found $25.28 in coins in his pockets. To the police, the coins confirmed a tipster’s earlier claim that Gideon had burglarized a pool hall and stolen coins from vending machines.

Too poor to hire a lawyer, Gideon asked the court to provide one. The judge refused. Gideon was left to defend himself at trial. He was found guilty and sentenced to 5 years in prison.

In a penciled plea from prison to the U.S. Supreme Court, Gideon demanded his right to an attorney, irrespective of his ability to pay. In a unanimous 1963 ruling, the Supreme Court agreed with Gideon, and the landmark ruling in the case of Gideon v Wainwright, 372 U.S. 355 (1963) became the law of the land.

On retrial, Gideon was provided with a lawyer. He was acquitted and set free. Gideon’s legacy lives on: The Sixth Amendment right to counsel entitles indigent defendants to an attorney at public expense.

Fixed-Fee Contracts

Today, in many jurisdictions, Gideon’s legacy is hollow. As the number of indigent defendants increases nationwide, and state budgets are pinched by declining revenues, most state governments have handed off the costly burden of indigent defense to the counties. In response, local government officials have turned to fixed-fee contracts to control rising indigent defense costs.

In practice, a fixed-fee contract works like this. A county solicits competitive bids from private attorneys and law firms. The selected (usually the low) bidder is paid a fixed fee to defend accused indigents. The fee stays the same no matter how many cases are filed or how complex they may be. If a case goes to trial and requires 100 hours of an attorney’s time, it pays the same as a case that is settled by a plea bargain that was arranged after only two hours negotiation. Most fixed-fee contracts are renegotiated annually.

Under the terms of most fixed-fee contracts, the attorneys are allowed to continue their private practice. This arrangement puts the indigent clients at a disadvantage because the more time attorneys spend with their indigent clients, the less time they have for their hourly-fee-producing private practice clients.

Critics say the fixed-fee indigent defense contracts carry no financial motivation for attorneys to provide zealous representation of their clients. Contract attorneys are usually overworked, take fewer cases to trial, and their clients fare less well than those who have retained and paid private counsel.

In 1973, ten years after Gideon, the Washington State Bar conducted a study of flat-fee contract public defender systems. The study concluded that such systems should be eliminated. When the bar issued its report, six of Washington’s 39 counties used the contract system, Today, 31 years later, 26 of the state’s counties use contract systems.

As more and more counties adopt the contract system, the criticism increases. Legislative committees, bar groups, and independent researchers have condemned the contract approach. One judge referred to the contract system as “Burger King justice,” where lawyers “just have to keep the cases moving, moving, moving.”

Indigent Defense in Grant County

Grant County in central Washington state covers an area of almost 2,700 square miles, about the same as the state of Delaware. The county boasts a population of about 80,000 citizens with 16,000 of them in Moses Lake, the county’s largest town. The indigent defense system in Grant County is not much different than the system in other towns and cities across the nation. What happens in Grant County likely happens in other counties in other states every day.

In the early 1990s, Thomas J. Earl worked as a fixed-fee contract attorney for indigent clients in Grant County. Tom was no paragon of virtue as the case of Patrick Hurley will attest.

In 1993, Hurley was arrested and charged with a sex crime. On the first day of his trial, Hurley sat at the defense table with Tom Earl, his court-appointed public defender.

There was nothing but a blank piece of paper at the table,” Hurley recalled. When he demanded an explanation for the seeming lack of pre-trial preparation, Tom took Hurley aside and told him he could avoid prison time if he could come up with $10,000.

Outraged, Hurley asked the court to appoint another attorney to defend him. The judge refused. Hurley pleaded not guilty, he was convicted and sentenced to 9-1/2 years in prison.

Three years later, Hurley’s new lawyer appealed. The victim admitted she had fabricated the allegations, the conviction was vacated, and Hurley was released. The high cost of Hurley’s free defense? Three years in prison.

Consider now the tattered career of Guillermo Romero, an unremarkable attorney in the Pacific Northwest. Born in 1948, Romero attended Gonzaga University in Spokane. After graduating in 1984, he sat for the state bar exams in Idaho and Washington but failed to pass either on five separate attempts. In November 1988, persistence paid off and he passed the Washington State Bar exam. At age 40, Romero became a licensed attorney.

In 1994, following an unsuccessful attempt at private practice, Romero accepted employment as a fixed-fee contract public defender in Grant County. There, for almost 10 years, he represented hundreds of indigent defendants. By any measure, his performance was dismal. The harm done to his indigent clients is incalculable.

Romero’s clients’ guilty plea rate is 88 percent. The last time Romero won a trial in Grant County was in 1997. Since then, his record is zero for 23. His understanding of the law is shallow. He once filed a motion in a rape case asking for “D and A testing” - when it should have asked for “DNA testing.” From his clients’ point of view, the cost of free defense in Grant County is very high. They pay with lengthy sentences in state prisons.

Grant County, Tom Earl, and Guillermo Romero are not exceptions, but rather all-too-common examples of the woeful state of indigent defense across the United States today. Although the Gideon ruling required the individual states to provide, at their expense, an attorney for indigent defendants facing time in state prison, Gideon did not provide the money to pay for those attorneys nor the means to raise it. As a consequence, indigent defendants are often provided with less-than-effective counsel who do a poor job of representing their clients.

By comparison, Dallas County, Texas, with a population of 2.3 million, uses a hybrid system. Indigent defense is handled by a combination of public defenders and private, court-appointed defense attorneys. The system is, however, far out of balance. While the county district attorney’s office has over 210 attorneys on staff, the county public defender’s office has only 65, and they must share only four secretaries and one administrative assistant among them. Moreover, salaries for the public defenders are markedly lower than those of their counterparts in the district attorney’s office according to a recent report by the Spangenberg Group.

Romero for the Defense

In 1994, John Luke McKean held a contract to handle half of Grant County’s indigent felony defense cases. For doing so, McKean was paid a flat annual fee of $120,000. That year, Romero arrived in town and McKean hired him. “I didn’t know anything about him,” McKean said, “And I should have been more careful.”

McKean paid Romero $2,675 per month and a second attorney received $3,200 per month. These two attorneys handled all of McKean’s indigent defense cases and left him about $50,000 per year as gross profit on the contract.

He was obviously making money off of me,” Romero said later. “I didn’t care because I wanted to start a practice in Grant County.”

Early on, McKean began to wonder about Romero’s work. He didn’t prepare memos or trial briefs. He “didn’t seem to have a clue” how to do legal research, McKean said. “I was scared to death.” Romero’s employment with McKean ended after a year when, in 1995, the Grant County public defender contract went to the law firm of Earl and Earl. Doug Earl, Tom’s brother, was the contract administrator and he hired Romero. The 5-year contract paid an annual fee of $390,000.

Tom Earl, the unscrupulous attorney from the Pat Hurley case, handled 40 percent of the cases and was paid $156,000 per year, 40 percent of the contract fee. Doug Earl assigned 20 percent of the cases to Romero but rather than receiving $78,000 per year, 20 percent of the annual contract fee, he was paid only $54,000. $6,000 of that was deducted as the annual rental charge for his office space at Earl and Earl, so his net pay was $48,000.

Doug Earl kept Romero on the payroll through 2000 despite a growing volume of complaints and a state bar investigation of misconduct. Doug referred to his contract attorneys as “knotheads” who worked independently. “They did whatever they did.” He said it was “up to the judges to tell us if these people are bozos or not.”

Romero’s clients’ complained incessantly and bitterly that he had failed them. He didn’t interview defense witnesses, investigate the state’s case, or challenge the admissibility of the prosecution’s evidence, they said.

Garth Dano, a local attorney, reviewed more than 200 of Romero’s cases. Dano found little evidence of pre-trial preparation, discovery motions, suppression motions, legal briefs, or memoranda. Last year, a U.S. District Court judge reviewed a 1997 case involving Donald Lambert, a 15-year-old boy accused of murder. Romero had been appointed to defend the boy.

The judge found that Romero had conducted an insufficient investigation, failed to advise Lambert about the consequences of a guilty plea, and barely prepared the boy for a hearing that would determine if he would be tried as a juvenile or as an adult. The judge also found that: Romero didn’t interview Lambert’s father, teachers, or friends; he didn’t obtain records about the boy’s school performance or his suicide attempts; and he didn’t pursue the possibility that Lambert might suffer from fetal alcohol syndrome.

Unprepared, feckless Romero and his young client appeared at the 1997 hearing. There, the boy fatefully agreed to be tried as an adult, pled guilty, and was sentenced to life in prison without the possibility of parole.

Following his review of the case, the U.S. District Court judge vacated Lambert’s guilty plea. The state has appealed the judge’s ruling.

Romero’s Troubles Grow

As his personal troubles mounted, Romero continued to handle cases on the Earl’s indigent defense contract. Romero didn’t pay his bills. Five creditors won judgments against him. A Yakima, Washington judge ordered Romero arrested for dodging efforts to collect a debt. After he was arrested on a contempt-of-court warrant, he posted bail, was released, and two weeks later a second warrant was issued.

In 1998, Romero’s law license was suspended for a month because he failed to complete the required continuing legal education courses. In Romero’s defense, Doug Earl maintained that Romero was able to handle the indigent defense work. Later, however, Doug acknowledged that he had observed Romero’s clients’ frustrations firsthand. “I’d be in court, and they’d come into court, and they’d be screaming at him, so it wasn’t hard to figure out,” Doug said.

When the state bar again threatened to suspend Romero’s license, Grant County prosecutors and police - his adversaries in the criminal justice system - wrote testimonials defending him. And why not? With Romero for the defense, the prosecutors and police were all but assured of victory.

Grant County prosecutor John Knodell wrote of Romero, “I can assure you, on the basis of my knowledge of the man, his continued practice of law will in no way be detrimental to the integrity of the standing of the bar and the administration of justice or contrary to the public interest.” And so the feckless Romero remained on the job, an easy adversary for the police and prosecutors.

The Beginning of the End

In 2001, the Grant County indigent defense contract was awarded to Tom Earl. The new contract, which was to run through 2005, provided a $500,000 annual payment. Despite Romero’s checkered past, Tom Earl hired him.

Romero said that Tom Earl paid him $93,000 a year to handle 20 percent of the cases. By 2002, Romero was being assigned 29 percent of the appointments but still receiving less than 20 percent of the contract fee. By early 2003, Romero’s share had risen to 32 percent of the indigent felony cases. It wasn’t until later that Romero discovered the gap between his pay and his workload. ”I was appalled, man. This is outrageous,” he said.

Meanwhile, persistent rumors of wrongdoing swirled through the Grant County halls of justice. Those rumors accused Romero and Tom Earl of hitting up indigent defendants for money. The rumors brought a state bar investigation and, in November 2002, the state bar presented its case against Romero. The evidence showed that in at least three cases, Romero had improperly solicited money from court-appointed clients or their families. It also found that Romero had failed to file timely federal tax returns and owed back taxes and penalties of about $140,000. The recommended sanction: disbarment. In May 2003, the state Supreme Court ruled that Romero could keep his license pending their decision on disbarment. (In Washington, only the state Supreme Court has the authority to remove a lawyer’s license.)

In Grant County, oblivious to his own impending fate, Tom Earl was busily reassigning Romero’s cases. Romero’s last day as a public defender was May 19, 2003. In March 2004, Romero was hired by his former adversary, prosecutor John Knodell, as Grant County’s victim-witness coordinator.

In the meantime, the investigation of Romero’s former employer, Tom Earl, was continuing. After hearing evidence that Tom, too, was soliciting and accepting money from court-assigned indigent clients, Tom’s license was suspended in February 2004. On May 6, 2004, the Washington Supreme Court ordered Thomas J. Earl disbarred.

On July 22, 2004, the state Supreme Court upheld the bar disciplinary board’s ruling and ordered Guillermo Romero’s immediate disbarment. Following the high court’s order, Romero was unavailable for comment. He had nothing to say. There can be little doubt, however, that the hundreds of former clients whose lives were left in shambles by a “free defense” and Romero’s inept representation would have plenty to say. But that’s another story.

Sources: The Dallas Morning News,- Seattle Post-Intelligencer, The Seattle Times, The World Almanac.