Protecting defendant's rights is No. 1 priority, Benton County defense coordinator says

By Paula Horton, Tri-City HeraldOctober 2, 2012 

KENNEWICK, Wash. -- Benton County's indigent defense coordinator says he is committed to ensuring the rights of felony defendants with court-appointed attorneys are protected, even as the contract dispute with one public defender heads to court.

"Even though we're going through this difficult transition period, we haven't forgotten about them," Eric Hsu said. "It's our highest priority."

County commissioners last week terminated the contracts of six defense attorneys who represent poor clients in Superior Court.

The attorneys had given notice to end their contracts, but four lawyers rescinded their resignations more than a week before the commissioners took action. It's not clear if the commissioners knew that the lawyers had taken back their resignations before voting.

Hsu declined to talk about the issue Monday because of pending legal action by attorney Scott Johnson.

Johnson filed a motion Friday in Benton County Superior Court for a temporary restraining order against the county, saying his termination was a breach of his contract.

Johnson, who has been a public defender for three years and previously was the county's chief criminal deputy prosecutor, was contracted with the county through 2013.

Dan Arnold, Kevin Holt and Gary Metro also rescinded their resignations, but are not part of Johnson's injunction. Still, Hsu wouldn't discuss their withdrawals because he said he didn't know if they would join Johnson's legal action.

Sal Mendoza Jr. and Larry Zeigler are the other two defense attorneys to resign because of a breakdown in negotiations with the county over compensation and new caseload restrictions.

The attorneys, who say they are "grossly underpaid," asked for more pay with the new contracts.

Hsu acknowledged "some increase in compensation," is appropriate, but said what the defenders have asked for "would virtually triple" the budget needed for Superior Court defense work, according to emails filed as part of Johnson's 87-page injunction.

Hsu proposed paying $580 per case point in 2013 and $610 a case point the next year. He said the current contract, which pays defenders $82,105 a year, gives attorneys $550 for each Class B or C felony and $1,100 for Class A felonies.

The attorneys were seeking $1,500 a case point, according to documents included with the injunction.

The defense attorneys said the new proposal outlined in the Sept. 5 "Request for Qualifications," amounted to a drop in pay.

They continued to try to "find middle ground" with the county, but Hsu said the proposal was all the county could afford given its "unfortunate financial reality," documents said.

"As such, while it is not intended to be an 'in your face' 'take it or leave it' proposition, it is what the county can afford at this time," Hsu wrote in an email.

Benton County is not alone in trying to come up with a new system to comply with the state Supreme Court's caseload mandate, which takes effect next September.

The high court's ruling that limits defense attorneys to 150 felony cases a year means public defenders who also have a private practice will have to set limits on how many public cases to take.

Hsu said he still is negotiating with the public defenders in Franklin County Superior Court and working with Franklin County commissioners to determine how to set up a new system to meet their needs.

Officials at the state Office of Public Defense said it's too soon to know how counties and cities across the state are planning to respond to the new rules.

"Nobody's really sure about what it's going to mean at this point," said Sophia Byrd McSherry. "Based on news stories, we're seeing a very different response in Benton County compared to what we've read about in Grays Harbor County. People are interpreting it differently based on their situation."

Grays Harbor County officials apparently are planning to double indigent defense costs to comply with the changes. The draft budget for 2013 includes a request of $1.8 million for indigent defense, compared to the $990,000 budgeted this year, according to The (Aberdeen) Daily World.

Byrd McSherry said her office has been asked to be available to answer questions and help county or city officials as they work through the changes. But each entity will have to find a system that works best for them, she said.

"The process is just getting going," Byrd McSherry said. "People are just kind of digesting it and interpreting it based on their local practices."

In Benton County, Hsu said he has received applications from attorneys based on the new "RFQ" sent out last month, and he's working to conduct interviews with the applicants.

The goal originally was to have them start at the beginning of the year, but with the recent developments Hsu said he hopes to get new attorneys started within the next month.

It's not clear yet how many attorneys will be needed to cover the anticipated 1,500 Superior Court cases next year, he said. Lawyers on contract can set a case-point limit from 75 to 140 points.

Meanwhile, Hsu said he had a teleconference on Friday with the Superior Court judges to ensure they are aware of the pending changes and that the transition will be smooth.

The resignations approved by the commissioners are effective Dec. 5. The defense attorneys can be appointed cases through Nov. 4 and will have until Jan. 4 to resolve their cases.

Hsu said he has no qualms working with the attorneys to start reassigning complex cases now that won't be resolved before the first of the year.

He said he also made sure the court understood that his office is willing to work with any defender who may need to stay on a case that will go past Jan. 4.

Hsu said defendants with concerns can contact his office, but he said the public defenders are "very professional attorneys" and he knows they will work together to ensure everyone is properly represented.

"I want to assure the clients and assure the public that we do have the clients' speedy trial and other rights in mind," Hsu said. "We always strive to protect the rights of clients."

-- Paula Horton: 509-582-1556; phorton@tricityherald.com

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