Legal crisis. Tri-Cities officials race to fix lawyer shortage before criminal cases are dropped

Franklin County is facing a crisis.

For two months, newly booked inmates haven’t been assigned a defense attorney, and if some of them don’t get one, they could soon be released from the jail. That includes suspects accused of violent crimes.

Last month, the county’s Office of Public Defense had a waiting list of about 80 felony cases. This will be the third month they won’t have any qualified attorneys to assign to new cases.

Legally, a suspect is constitutionally entitled to a trial two months after arraignment if they’re in jail and haven’t agreed to a delay. Or a trial must begin within three months if the person is out of custody.

Franklin County Administrator Mike Gonzalez doesn’t beat around the bush when it comes to the problem.

“It’s truly going to collapse,” he told the Herald. “We certainly are at crisis mode.”

Franklin County administrators are looking at adding $300,000 to its Office of Public Defense in a stop-gap attempt to get more lawyers to come onboard and to keep the ones they have.

If that doesn’t work, Tri-Cities judges have the power to assign attorneys from private law firms to a criminal case and the counties would have to pick up the tab.

Across the river in Benton County, commissioners recently added $1 million to their public defense office budget to pay for raises for their defense attorneys and to hire the third head of the Office of Public Defense in less than two years. The most recent two attorneys resigned from the post.

“We’re losing attorneys to other jurisdictions. We’re losing attorneys to state agencies. We’re losing attorneys to private practice,” Benton County Manager Jerrod MacPherson recently told the commissioners.

“This is a big issue, and we’re at a crisis stage,” he said.

Benton and Franklin counties aren’t alone in finding it difficult to attract attorneys willing to be public defenders. The shortage of defense lawyers is being felt nationwide.

While it’s hard to pin it on a single cause, Katrin Johnson with the state Office of Public Defense said she believes it’s a combination of increasing retirements and fewer law school graduates. And many recent graduates don’t want to go into lower paying county jobs because their college debts are so high.

The lack of attorneys has been exacerbated by rules set by the state Supreme Court that limit who can take what cases and how many can be handled at once.

Compounding the problem is a huge backlog of trials because the COVID pandemic put many cases on hold for a couple years.

“The court is taking this matter seriously and is dedicated to seeing it solved within its ability given constitutional, statutory and court rule limitations,” the Benton-Franklin Superior Court judges told the Tri-City Herald in a joint statement on the issue.

Defense attorney limits

When someone is charged with a crime, they are constitutionally guaranteed an attorney if they can’t afford one. That includes felonies, misdemeanors, child support and juvenile cases.

Those attorneys are pulled from a pool of lawyers who work directly for a county or who sign a contract to be public defense attorneys paid by a county.

While each county and city can set rules for public defense contracts, state court rules spell out the number and type of new cases each attorney can be assigned so that they are not so overloaded or inexperienced that they can’t defend someone properly.

For example one state rules says if an adult is charged with first-degree assault, the assigned defense attorney would need to have served two years as a prosecutor or as a defense attorney and taken at least three felony cases to trial.

Also, attorneys can take only a limited number of cases. Each defender is limited to 150 new felony cases a year. That’s an average of about 12 a month.

However, of the 20 public defenders on contract in Franklin County, only three are currently qualified to handle felony cases. That’s because several did not renew their contracts in recent months, said Larry Zeigler, manager of the Office of Public Defense.

The county is hoping to be able to quickly fill at least three of those spots, Gonzalez said.

But if defendants don’t get attorneys assigned, it’s only a matter of time before criminal charges start getting dismissed for violating suspects’ constitutional rights to a timely trial, Zeigler said.

“All we can do is the best that we can do,” he told the Herald. “It’s a shame. I was a public defender in Benton County for 35 years. We did just fine with the lawyers that we had.”

Attorneys and judges

With Franklin County facing an immediate problem, Zeigler is hoping to find a way to suspend the case limitations for a while until they catch up with the logjam of trials created by the COVID pandemic.

“I’ve always said the case caps, while well intentioned, they strike me as almost inherently capricious,” he said.

As a result, he’s reached out to the Washington Defender Association, Washington Association of Criminal Defense Lawyers and the state Office of Public Defense to put pressure on the state Supreme Court to temporarily ease the limits.

He said he isn’t looking for a permanent change, but something like a declaration of judicial emergency to get Franklin County through the current problem.

The Benton-Franklin Superior Court judges have been looking for solutions, as well.

The judges released a statement to the Herald about the issue that said they are talking with “key stakeholders” at the state and local level.

“The court previously notified the local bar (association) with the hope that some members would take some of the cases, and is exploring other options requiring the cooperation of other stakeholders,” said the statement.

The judges also have the option of appointing private attorneys to handle cases, but that comes at a higher cost.

It is something the judges are looking at,, but they need to be “mindful that private counsel have ethical obligations to their current clients and requirements for representing indigent persons charged with certain crimes,” said the judges’ statement.

The judges are hopeful that they’ll be able to address the shortage with those efforts since prosecutors don’t appear to be slowing down with filing charges.

“I’m really concerned about what is going on,” Benton County Prosecutor Eric Eisinger told the Herald. “The justice system only functions when you have all of the pieces in place.”

Franklin County Prosecutor Shawn Sant said he is concerned as well, pointing out that the state can’t just keep people in jail without an attorney.

“If we don’t have defense attorneys, that creates a challenge for the legal system. Defendants have a constitutional right to counsel, and they have a constitutional right to speedy trial.”

His office has been trying to divert lower level, non-violent crimes to Franklin County District Court or therapeutic courts to relieve some of the pressure, but the county still has about 400 active felony cases, Sant said.

County governments

With problems mounting in the courts, Benton and Franklin county administrations are stepping in to see what they can do in an attempt to fix the problem.

MacPherson said they are losing attorneys to other areas because of lower pay.

“This isn’t unique to Benton County or Franklin County. It’s not even unique to Washington. This is a big issue,” he told the commissioners. “We’ve been hearing from a lot of people that we need to do something.”

The commissioners approved a $1 million package of salary increases for public defenders.

Starting immediately, it will make the public defense manager salary about $172,00 a year, and the chief defender about $155,000 a year.

They hope the recent increase will give Benton County the competitive edge over Yakima County, in particular, by staying ahead of that neighboring county’s attorney rates.

Benton County Commissioner Jerome Delvin, a former state legislator, laid a lot of the blame on Washington state for not funding what they should fund.

“The system is broken. It’s not working. I don’t see leadership from the courts — state Supreme Court, AoC (administrative office of the courts), local courts,” he said.

Delvin said they’re going to be addressing this situation again if someone doesn’t step up and make changes.

In Franklin County, the interim county administrator, Duane Davidson, has been working on the issue as he helps with Mike Gonzalez’s transition into the administrator role.

One solution that was studied and rejected was returning to a jointly-operated defense attorney office with Benton County.

The counties went their separate ways several years ago and now there are too many differences to combine them again, said Davidson.

Davidson explained that the county has been working on the issue for while, but they unfortunately went down that path and it didn’t end up working out.

Now they are meeting with judges and other officials to figure out what can be done next.

“We do have to develop a short-term solution very, very, soon,” Davidson said. “The unfortunate thing is that our efforts up to this point just haven’t panned out.”