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Wilbur v. City of Mount Vernon

United States District Court, W.D. Washington

December 4, 2013

JOSEPH JEROME WILBUR, et al., Plaintiffs,
CITY OF MOUNT VERNON, et al., Defendants

For Joseph Jerome Wilbur, a Washington resident, Jeremiah Ray Moon, a Washington resident, Angela Marie Montegue, a Washington resident, individually and on behalf of all others similarly situated, Plaintiffs: Beth E Terrell, LEAD ATTORNEY, Jennifer Rust Murray, Toby James Marshall, TERRELL MARSHALL DAUDT & WILLIE PLLC, SEATTLE, WA; Darrell Scott, LEAD ATTORNEY, Matthew J. Zuchetto, SCOTT LAW GROUP, SPOKANE, WA; Breena Michelle Roos, J. Camille Fisher, James F Williams, PERKINS COIE (SEA), SEATTLE, WA; Nancy Lynn Talner, Sarah A Dunne, ACLU OF WASHINGTON, SEATTLE, WA.

For City of Mount Vernon, a Washington municipal corporation, Defendant: Andrew G Cooley, LEAD ATTORNEY, Adam Rosenberg, Brian Christopher Augenthaler, Jeremy W Culumber, KEATING BUCKLIN & MCCORMACK, SEATTLE, WA; Kevin Lee Rogerson, CITY OF MOUNT VERNON, MOUNT VERNON, WA.

For City of Burlington, a Washington municipal corporation, Defendant: Andrew G Cooley, LEAD ATTORNEY, Adam Rosenberg, Brian Christopher Augenthaler, Jeremy W Culumber, KEATING BUCKLIN & MCCORMACK, SEATTLE, WA; Scott Glen Thomas, OFFICE OF THE CITY ATTORNEY, BURLINGTON, WA.

For Mr. Morgan M. Witt, Interested Party: John W. Murphy, LEAD ATTORNEY, Brett Murphy Coats Knapp McCandlis & Brown, PLLC, MOUNT VERNON, WA.

Richard M Sybrandy, Interested Party, Pro se, Mount Vernon, WA.

For Daniel B Heid, Amicus: Daniel B Heid, AUBURN CITY ATTORNEY'S OFFICE, AUBURN, WA.


For Mountain Law, Party Objecting to Subpoena, Objector: Anthony David Gipe, SCHEER & ZEHNDER LLP, SEATTLE, WA.


Page 1123


Robert S. Lasnik, United States District Judge.

The Sixth Amendment to the United States Constitution provides that " [i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." Plaintiffs filed this lawsuit in Skagit County Superior Court in order to challenge the constitutional adequacy of the public defense system provided by the City of Mount Vernon and the City of Burlington. The defendant municipalities removed the case to federal court on July 5, 2011. Testimony on this matter was heard by the Court commencing on June 3, 2013, and concluding on June 18, 2013. Additional briefing closed in August of 2013.[1]

At trial, plaintiffs set out to prove that the Cities of Mount Vernon and Burlington are regularly and systematically failing to provide effective assistance of counsel to indigent persons charged with crimes, thereby violating both the federal and state constitutions and necessitating injunctive relief. Defendants took the position that, whatever defects may have existed in their public defense systems before 2012, they have taken significant steps to improve the representation provided, including contracting with a different law

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firm to provide defense services, hiring additional public defenders, and paying them more. The Court must determine whether a constitutional right has been violated, whether the Cities are responsible for the violation, and what the appropriate remedy is.


Plaintiffs have shown, by a preponderance of the evidence, that indigent criminal defendants in Mount Vernon and Burlington are systematically deprived of the assistance of counsel at critical stages of the prosecution and that municipal policymakers have made deliberate choices regarding the funding, contracting, and monitoring of the public defense system that directly and predictably caused the deprivation. The period of time during which Richard Sybrandy and Morgan Witt (hereinafter, Sybrandy and Witt) provided public defense services for the Cities was marked by an almost complete absence of opportunities for the accused to confer with appointed counsel in a confidential setting. Most interactions occurred in the courtroom: discussions regarding possible defenses, the need for investigation, existing physical or mental health issues, immigration status, client goals, and potential dispositions were, if they occurred at all, perfunctory and/or public. There is almost no evidence that Sybrandy and Witt conducted investigations in any of their thousands of cases, nor is there any suggestion that they did legal analysis regarding the elements of the crime charged or possible defenses or that they discussed such issues with their clients. Substantive hearings and trials during that era were rare. In general, counsel presumed that the police officers had done their jobs correctly and negotiated a plea bargain based on that assumption.[2] 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. To the extent that " adequate representation" presumes a certain basic representational relationship, there was a systemic failure in the Sybrandy and Witt era. Adversarial testing of the government's case was so infrequent that it was virtually a non-factor in the functioning of the Cities' criminal justice system.

This 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. While this resulted in a workload that was manageable for the public defenders, the indigent defendants had virtually no relationship with their assigned counsel and could not fairly be said to have been " represented" by them at all. The Cities, which were fully aware of the number of public defenders under contract, remained wilfully blind regarding their overall caseloads and their case processing techniques. The City officials who administered the public defense contracts did not feel it was necessary for them to know how many

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non-public defense cases Sybrandy and Witt were handling, the number of public defense cases they were assigned, or even whether the defenders were complying with the standards for defense counsel set forth in the Cities' own ordinances and contracts. Even when Sybrandy and Witt expressly declined to provide basic services requested by the Cities -- such as initiating contact with their clients and/or visiting in-custody defendants -- the Cities were not particularly concerned.[3] Eric Stendal, the contract administrator for the City of Mount Vernon, testified that as long as things were " quiet and good" and there was no significant increase in the costs the Cities incurred for their public defense system, defendants were happy with the arrangement and continued to contract with Sybrandy and Witt.

After this lawsuit was filed, Sybrandy and Witt were no longer willing to provide public defense services for the Cities. The Cities issued a request for proposals and ultimately hired Mountain Law to provide the necessary services. Mountain Law came on-line in April 2012 with two attorneys. The evidence regarding initial caseloads varies significantly: the Cities negotiated the new public defense contract on the assumption that over 1,700 cases would be transferred from Sybrandy and Witt during the transition period, but Mountain Law's caseload statistics show that it was assigned approximately 1,100 cases. Whatever the true numbers, it is clear that by the end of May each of the two public defenders was handling well over 400 cases. By the end of 2012, Mountain Law had added a third attorney and another 963 cases. The Cities were kept apprised of these numbers. They were also aware that, on June 15, 2012, the Supreme Court of Washington established 400 unweighted misdemeanor cases per year as " the maximum caseload[] for fully supported full-time defense attorneys for cases of average complexity and effort," assuming a " reasonably even distribution of cases throughout the year." Because the 400 caseload limit would not be effective until September 1, 2013, neither Mountain Law nor the Cities were particularly concerned that Michael Laws and Jesse Collins were each handling over 500 cases at any given time between April and August 2012. The mantra during that period and continuing through trial was that Mountain Law would continue to work toward the 400 annual caseload limit by adding attorneys as needed. As of the time of trial, Mountain Law had added two additional attorneys (one in August 2012 and another in March 2013), presumably reducing the per attorney caseload to some extent. The preponderance of the evidence shows, however, that Mountain Law continues to handle caseloads far in excess of the per attorney limits set forth in the Supreme Court's guidelines.[4]

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The Court does not presume to establish fixed numerical standards or a checklist by which the constitutional adequacy of counsel's representation can be judged. The experts, public defenders, and prosecutors who testified at trial made clear that there are myriad factors that must be considered when determining whether a system of public defense provides indigent criminal defendants the assistance required by the Sixth Amendment. Factors such as the mix and complexity of cases, counsel's experience, and the prosecutorial and judicial resources available were mentioned throughout trial. The Washington Supreme Court took many of the relevant factors into consideration when it imposed a hard cap on the number of cases a public defender can handle over the course of a year:[5] the 400 caseload limit applies as long as counsel handles only misdemeanor cases, is employed full-time in public defense, is handling cases of average complexity and effort, counts every matter to which he or she is assigned to provide representation,[6] is fully supported, and has relevant experience. Where counsel diverges from these assumptions, the caseload limit must be lowered in an attempt to protect the quality of the representation provided.

While a hard caseload limit will obviously have beneficial effects and the Washington Supreme Court's efforts in this area are laudable, the issue for this Court is whether the system of public defense provided by the defendant municipalities allows appointed counsel to give each case the time and effort necessary to ensure constitutionally adequate representation for the client and to retain the integrity of our adversarial criminal justice system. Mount Vernon and Burlington fail this test. Timely and confidential input from the client regarding such things as possible defenses, the need for investigation, mental and physical health issues, immigration status, client goals, and potential dispositions are essential to an informed representational relationship. Public defenders are ...

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