Spokane County delays providing public defenders to defendants who can’t afford to hire attorneys

In an unprecedented move, the director of the Spokane County Public Defender’s Office suspended the handling of incoming felony cases for a week, saying his staff had reached and was in danger of exceeding caseload limits set by the state.

The decision means anyone booked into jail who couldn’t afford their own attorney after June 25 won’t have access to an attorney until at least Monday. Usually, defendants gain access to a public defender in a shorter time after being arrested.

In an email sent to felony defense attorneys on Monday, Thomas Krzyminski, who has led the office since 2013, said the backlog will be assigned after this weekend. But if they reach their caseload limit again, they will have to suspend incoming cases until the end of July and so on, if necessary.

“I know this is not good for our clients, but I do not have a choice at this point,” Krzyminski wrote in the email provided to The Spokesman-Review. “I know everyone is operating at maximum capacity and we cannot, and should not, go over.”

Scott Mason, director of the Counsel for Defense, which employs six attorneys including himself, said Wednesday his office also couldn’t accept any more cases until July, citing similar concerns. Counsel for Defense handles cases from the defender’s office when there’s a conflict of interest.

“I’m hoping that the numbers can come down and we can continue on,” he said. “If they don’t, I’m going to have to ask somebody for some sort of assistance. Whether that’s a new attorney, or watch the numbers and control it best I can.”

As a result of new cases not going to attorneys, dozens of defendants charged with felony crimes this week will not have a chance to speak to a court-appointed attorney – some for up to seven days while behind bars, something defense attorneys say is the worst-case scenario for clients. This does not affect those charged before June 25 and who were already assigned an attorney.

Richard Wall, a private defense attorney who worked at the prosecutor’s office for a few years before opening his own practice in the early 2000s, said defendants were left in “legal limbo” this week with “very little, if any, ability to do anything.”

“Of course, when you’re in jail, that means you could be spending time in jail you shouldn’t,” he said. “That could mean things are going to happen because you’re not going to be able to tend to them.”

Ashley Callan, court administrator for the county court system, said the full scope of the delay won’t be understood until the following two weeks, when defendants are arraigned. She said the court will probably need to continue those hearings until attorneys have had a chance to meet with their clients.

“At some point, it just continues to snowball,” said Callan, who’s worked for the court in differing roles since 2005, and who has yet to see the defender’s office delay new cases on account of caseload issues.

Krzyminski said for several months, felony attorneys have been close to exceeding limits. On average, he said it’s appropriate for each attorney to get 12 new cases a month. For the past few months, they’ve been receiving 13.

Felony filings have jumped 9 percent since 2007 in Spokane County, according to court data.

In looking at filings this year, Krzyminski said they were already about 150 up since last June. To get by, he theorizes he’ll need to add two additional felony attorneys to his roster.

County officials weren’t sure what was causing the uptick. Krzyminski said it could be increased hiring at the Spokane Police Department, which means more referrals. Also, he said, prosecutors are filing more cases as felonies that could be simple misdemeanors.

For example, he said his office took issue with what they deemed to be simple shoplifting cases, which would be handled in district court at a misdemeanor level. Instead, he said they’re being filed as felony cases as third-degree theft with special circumstances.

“The prosecutor likes to file those as a robbery,” he said. “Which, does it have to be?”

John Grasso, senior prosecuting attorney at the prosecutor’s office, said it wasn’t so much prosecutors being aggressive, only that they’re following the letter of the law.

“It’s kind of hard to really know what he’s getting at,” he said. “We file cases that meet prosecutorial standards. If the crime occurs, and we meet those standards, we file those cases.”

Spokane County CEO Gerry Gemmill said county commissioners have been meeting with Krzyminski for months on ways to alleviate the bind, such as looking at increased budget for staffing, or contracting cases to private attorneys as a short-term fix.

A recent head count shows the public defender’s office has 59 attorneys; of those, about 27 handle felony cases. Spokane County caseload standards, issued by the Washington state Supreme Court in 2012, dictate that a felony public defender not exceed 150 cases per year.

Attorneys would be subjected to losing their bar license if they exceed those limits, said Christie Hedman, executive director of the Washington Defender Association, which helped pioneer case standards in the 1980s.

For 29 years, Hedman has led the agency that helps public defenders in times of crisis through consultation. She said public defenders, unlike prosecutors, are in a volatile state where they’re constantly reacting to the criminal justice system. If there are more police on the streets or a new prosecutor in office who’s harder on crime, they’re forced to respond in kind with higher caseloads.

“It is frustrating for us,” she said. “Lots of time we hear that public defense costs are out of control. Public defense costs aren’t out of control. If you’re bringing 10 more police officers on board, you’re bringing more cases to the system.”

Gemmill said the current fix was not ideal.

“I think that will slow the court system down,” he said. “That would be the major impact. But the idea is they’re going to start reassigning on (Monday). The good news on that is that isn’t very far away.”

Gemmill pointed to the court directive on caseloads as a source of ire within the board of commissioners, saying that while the court had good intentions, it didn’t include any increased funding to pay for additional attorneys.

The Washington Supreme Court instituted the rule in response to different jurisdictions handling public defense in nonstandardized ways, with wildly different caseloads.

With an adopted budget of about $9 million – $4 million less than the prosecutor’s budget of $13 million, which is higher due to Family Court positions – Gemmill said head count at the defender’s office will be examined by county commissioners. But he was hesitant to say hiring was the ideal solution.

“Is this something that’s kind of a blip on the radar or is it long term?” he said. “We’re just trying to get our facts together to see the best way to address this.”