January 30, 2009 in City

Verdict rebuffs flat-fee defender contracts

By The Spokesman-Review
 

A $3 million jury verdict in Spokane is sending a message to Washington counties, ending their practice of flat-fee contracts for public defenders, legal experts said Friday.

Such contracts can short-circuit constitutionally guaranteed fair trials for indigent defendants when contract public defenders decide to pocket all the money for themselves and not use those funds for additional defense needs.

Felipe G. Vargas was awarded more than $3 million by a U.S. District Court jury in Spokane because he spent more than seven months in the Grant County jail, falsely accused of child molestation. While proclaiming his innocence, he lost his job and friends and is still recovering, the jury was told.

Three days after his arrest in November 2003, the alleged victim recanted. Police and prosecutors knew that but took no steps to free Vargas from jail. His public defender apparently was too busy with 500 other cases and didn’t adequately represent Vargas.

Grant County Public Defender Thomas Earl failed to adequately represent Vargas, the jury was told. Earl refused to hire an investigator or other experts, or pay for a polygraph, and he kept the $500,000 “flat fee” annual contract and singlehandedly represented more than 500 accused felons, witnesses told the jury.

Earl’s legal conduct led to his disbarment, while 17 other rural Washington counties began dumping their “flat fee” contracts with contractor public defenders.

The Washington State Supreme Court enacted a new rule in September, toughening conflict of interest rules that say attorneys can’t put their personal financial interests ahead of the fair trial rights of criminal defendants.

“There’s a movie called ‘Gideon’s Trumpet,’ about Clarence Gideon’s successful struggle to convince the U.S. Supreme Court there is a constitutional right to counsel,” said Seattle criminal appeals attorney Eric Broman.

“Unfortunately, some county judicial systems still haven’t fully funded attorneys to enforce and protect that right,” Broman said. “That’s what happened in Grant County. But a $3 million verdict is the kind of trumpet those folks should be able to hear.”

“The right to counsel protects all of us,” he said. “This verdict should send a loud and clear message to other counties that shortcuts cannot be taken to underfund public defense systems.”

Broman said Grant County, now making changes, “has earned a statewide reputation for systemically violating the constitutional right to counsel.”

Joanne Moore, the director of the Washington State Office of Public Defense, said the jury award is a message that “the public expects our criminal justice system to be fair and grounded in the basic constitutional precept that everyone has the right to an attorney in order to get a fair trial.”

“I think the jury sent a signal that abuse – this level of abuse by an officer of the court, a court-appointed attorney – cannot be tolerated,” she said when contacted in Olympia.

Grant County, also named defendant in Vargas’ 2006 civil rights suit, settled last month by paying him $250,000, based on his “ineffective assistance of counsel claim.”

Moses Lake attorneys Garth Dano and George Ahrend filed the civil rights suit. Dano said Earl, when he represented Vargas, lied to the court when he said he was ready for trial.

“The importance of this case is it said, ‘Stop lying to the judges and each other, and don’t put your financial interests ahead of your client’s,’” Dano said Friday.

John Strait, a legal ethic professor at Seattle University, testified as an expert. Flat-fee contracts, he said, “are all illegal and unethical for any attorney to enter into.”

“While that’s been true for a long time, the counties were trying to coerce lawyers into signing them anyway,” prompting the State Supreme Court to adopt the mandatory rule barring any Washington lawyer from signing such a contract, Strait said.

“If there really are 17 counties left, and I doubt it, the lawyers who signed those contracts are subject to immediate discipline,” Strait said. “If you can identify any for me, I will file those bar complaints.”

The case went to trial Monday before Senior Judge Justin Quackenbush, who refused Earl’s repeated requests to dismiss the suit. A civil rights case against an attorney for negligence can’t proceed unless the court is convinced there were overall administrative policies in place that resulted in civil rights violations.

The jury awarded the 45-year-old Columbia Basin factory worker $762,000 in compensatory damages and $2.25 million in punitive damages.

There is a question, however, whether Vargas will ever see any of the money. Earl had cancelled his malpractice insurance and is seeking protection from creditors in U.S. Bankruptcy Court.


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