Whatcom County takes steps to find public defenders for people, some who are still in jail

Whatcom County continues to struggle to find enough public defense attorneys to represent people accused of crimes, two months after the Bellingham Herald first reported on the problem.

In mid-May, roughly 43 people were waiting for public defense attorneys to be appointed to them. Nearly a dozen of those people were in the Whatcom County Jail, with some waiting for an attorney for more than a month.

All of the 43 people qualified for a public defender, but the Whatcom County Public Defender’s Office could not represent them because it was already handling other cases that created conflicts of interest.

Of the 43 unrepresented people in mid-May, 26 had cases in District Court, 12 were charged with felonies in Superior Court and five were facing charges in Juvenile Court.

Since that time, the county has hired an in-house conflict attorney, the public defender’s office has added to its staff and judges have begun talking about the rare step of assigning private attorneys to handle cases.

As of Thursday, there were still eight people waiting for an attorney to be found for them, according to Whatcom County Superior Court Administrator Dave Reynolds.

More than half of those eight are currently incarcerated, Reynolds said.

While the number of people waiting to have an attorney appointed to them has dropped, the issue remains one the county is grappling with.

A vital role

Both the U.S. Constitution and Washington State Constitution demand that if a person cannot afford an attorney, one will be provided for them.

That right begins as soon as a person is taken into custody, appears in front of a judge or court commissioner or is formally charged, whichever comes first, according to Washington state court rules.

Locally, people who are indigent, or can’t afford an attorney, are screened by Whatcom County’s Office of Assigned Counsel. If they qualify, their cases are sent to the public defender’s office to be assigned attorneys.

If the public defender’s office can’t accept the case due to a conflict or caseload limits, the case is returned to the Office of Assigned Counsel. The case is then sent to private attorneys who have contracts with Whatcom County and agree to take on cases the public defender’s office cannot.

This system is changing, though.

In June, the county’s Office of Assigned Counsel hired attorney Melissa Stone as a public defense conflict attorney. Stone will handle cases in which the county’s public defense office is prohibited from accepting due to conflicts of interest, or that the office has sent back due to staff attorneys hitting their caseload limits.

Stone is expected to provide direct representation for many of the people who were awaiting an attorney.

Stone’s hiring marks the first time the Office of Assigned Counsel has had an in-house attorney, Reynolds, the court administrator, said.

Earlier in the year, the four Superior Court judges met with Reynolds and Satpal Sidhu, the county executive, and encouraged them both to hire an attorney with public defense experience to manage and oversee public defense services in Whatcom County, according to a mid-June Whatcom County news release.

After receiving approval from the executive, Reynolds then hired Stone as the in-house attorney. She started June 12, according to the release.

Stone immediately began representing people who needed a public defense attorney and were awaiting trial and is expected to develop a plan “to assure that all defendants awaiting trial have qualified representation,” according to the release.

Stone has been a practicing attorney for more than 12 years and previously worked as a paralegal and court clerk in both the public and private sectors before attending law school. She’s spent the majority of her time as a practicing attorney in Whatcom County, Stone said in an email to the Herald.

Stone said she’s worked as an intern and attorney in the county’s public defense office, as a prosecutor and has law firm, non-profit and federal court experience. She most recently served as an assistant attorney general.

Stone’s position with the county’s Office of Assigned Counsel is currently funded through December 2024, she said.

She will handle overflow and conflict cases from the county’s public defense office. As of late June, Stone had around 65 cases across Superior, District and Juvenile courts. Several of her clients have more than one case, she said.

“This position is quite unique and is the result of the county recognizing the importance of representation for indigent people accused of crimes,” Stone said.

Initially, Stone’s caseload was front-loaded with a group of people awaiting attorneys, making her first few weeks on the job very busy, she said.

Since she can now facilitate moving cases toward some sort of resolution, she said she expects her caseload will remain manageable and within the limits set by the Washington State Supreme Court. Stone said she does expect her caseload to grow some though, because “there will always be conflicts necessitating conflict counsel.”

As time goes on, conflict or overflow cases will come to her first before being sent out to other contracted indigent defense attorneys, she said, marking a change in the way Whatcom County handles conflicted public defense cases.

Stone ultimately said she saw the position as “an opportunity to use my experience to fill an urgent need in my community. I love Whatcom County and feel fortunate to be back at the courthouse.”

She said “getting to know the clients, their stories, their challenges, their goals, then seeking justice for them in what can be a daunting process” is what most attracted her to this type of work, adding that she wants her clients to know she’s here to help them.

Stone said regardless of someone’s financial situation, it’s important that people have representation so that they can be advocated for properly.

“Any attorney representing indigent clients is serving a vital role. It goes beyond providing legal advice – an attorney can be a lifeline for a client, especially when that person is in custody,” she said.

Qualifications

While Stone’s hiring has eased the number of people waiting for an attorney to be found for them, there still is a need for public defense attorneys who can handle the most serious felony adult cases.

Under rules set by the Washington state Supreme Court, attorneys who represent indigent clients must meet specific qualifications in order to be able to handle and accept specific types of cases.

Attorneys who wish to represent an indigent client must meet minimum requirements for practicing law, be familiar with state statutes, rules of professional conduct, mental health issues, and various sets of guidelines for criminal defense representation and indigent appeals, among others.

For the most serious adult felony cases, such as murder, first-degree rape or other violent offenses, attorneys must meet all the above qualifications, as well as have served two years as a prosecutor or two years as a public defender or two years in a private criminal practice, and must also have been trial counsel alone or with another attorney and handled a significant portion of the trial in three felony cases that have been sent to a jury, according to the qualification rules.

The qualifications set by the state Supreme Court that a public defense attorney must meet vary depending on the type of case, such as for adult sex offenses or lower level felonies.

Stone said she is not yet qualified to handle “some of the more serious adult felonies.” If those cases arise, Stone said she works with the county’s Office of Assigned Counsel to find an attorney who can handle that case.

A rare step

Even though the county’s Office of Assigned Counsel now has an in-house conflict attorney, some of Whatcom’s Superior Court judges have started talking about appointing attorneys directly from the bench.

After a new state rule went into effect in January regarding the independence of public defense services, the assignment of attorneys for indigent clients became a function of the Superior Court Clerk’s Office, and judges became less involved in helping find attorneys for people, Whatcom County Superior Court Presiding Judge Lee Grochmal said in an email to the Herald.

The new rule does not prohibit a judge from assigning a case to an attorney if no qualified public defense attorney is available or willing to take the case.

But it’s a rare step for a judge to take, Grochmal said.

“We don’t like to do this because it requires that we order an unwilling attorney to do work they are not under contract to do. Attorneys have an ethical obligation to take such cases when necessary, but it is not something we are eager to do on a regular basis,” she said.

Grochmal said she has not personally appointed an attorney who does not already have a contract to provide indigent public defense services, but said she was aware of at least one case in which that did occur.

The attorney that was selected to take the case had a conflict of interest and was unable to take the case. Ultimately, an attorney from the list of contracted attorneys was found and took the case, she said.

During a Thursday morning court hearing for a man accused of rape, voyeurism, burglary, theft and assault across three separate cases, Whatcom County Superior Court Judge Freeman said he would likely be appointing an attorney to represent the man because one could not be found for him and it was unclear whether Stone was legally allowed to handle his cases.

The man is currently incarcerated in the county jail. During the Thursday hearing, he said his rights were being violated and he needed an attorney so that he could address issues with his bail.

The man is expected to have a follow-up court hearing next week. He is one of the five people currently incarcerated who is awaiting an attorney in Whatcom County.

Whatcom County Public Defense Director Starck Follis previously told the Herald in May that there has always been enough private lawyers who accepted court-appointed cases, but due to state and national shortages of defense attorneys, “fewer and fewer” people are willing to take on those cases.

It’s not just Whatcom battling these issues either.

The Tri-Cities in Eastern Washington is facing a crisis after several months of not having any qualified attorneys to assign to new cases, the Tri-City Herald reported. Judges began cutting bail for people accused of crimes and were considering requiring private attorneys to take on public defense cases, according to the Tri-City Herald.

While counties across the state look at various ways to solve the shortage, Whatcom took the step of hiring Stone.

Grochmal, the presiding judge, said she was one of the judges who met with the court administrator and county executive earlier in the year and encouraged them to hire an in-house attorney to oversee public defense service in Whatcom County.

“I applaud the clerk and executive for working together to fill this new position expeditiously. I am hopeful that Ms. Stone can eventually transition into a role where she can take a more active part in managing and overseeing Assigned Counsel, including recruitment of additional attorneys to accept new cases,” Grochmal said.