It is the responsibility of the officials such as county commissioners in those counties to see that persons who are charged with serious offenses have the effective assistance of counsel. You have found responsibility on the part of Mr. Earl, but there is responsibility by others to see that the criminal justice system comports with our constitu- tional protections. Not only by this action, but by reason of the problems that have existed in these other counties coming to the fore, it is my belief that this case will serve as a catalyst for other counties, not only in the State of Washington, but probably throughout the country, to reevaluate their system of providing effective assistance of counsel. Comments of Judge Quackenbus in Vargas v. Earl , Case No. CV 06-146-JLQ, Spokane, Washington (Jan. 29, 2009). 154. See W ASH . R ULESOF P ROFESSIONAL C ONDUCT , Rule 1:8 Conflict of Interest: Current Client: Specific Rules (2008), available at http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=RPC (last visited Mar. 16, 2009). 155. Board of Governors, Washington State Bar Association, Suggested Amendment to Washington Rules of Professional Conduct, Rule 1:8 Conflict of Interest: Current Client: Specific Rules, available at http://www.courts.wa.gov/court_rules/?fa=court_rules.pro- posedRuleDisplay&ruleId=137 (last visited Mar. 16, 2009) (citing WSBA Informal Ethics Opinion No. 1647 (conflict of interest issues under RPC 1.7 and 1.9 exist in requiring public defender office to recognize a conflict and hire outside counsel out of its budget); ABA Standards for Criminal Justice, Std. 5-3.3(b)(vii) (3d ed. 1992) (elements of a contract for defense services should include “a policy for conflict of interest cases and the provision of funds outside of the contract to compensate conflict counsel for fees and expenses”); Peo- ple v. Barboza , 29 Cal.3d 375, 173 Cal. Rptr. 458, 627 P.2d 188 (Cal. 1981) (structuring public defense contract so that more money is available for operation of office if fewer outside attorneys are engaged creates “inherent and irreconcilable conflicts of interest”)). As noted above, the amendment was adopted and became effective on September 1, 2008. 156. Kim Taylor-Thompson, Tuning Up Gideon’s Trumpet , 71 F ORDHAM L. R EV . 1461, 1509 (2003). 157. Then-Chief Judge of the New York Court of Appeals, Judith Kaye, created The New York State Commission on the Future of Indigent Defense Services, which was charged with performing a top-to-bottom examination of the state’s criminal indigent defense system and developing a blueprint for reform. Chaired by Judge Burton Roberts and Professor William Hellerstein, the commission held statewide hearings beginning in 2005. The Commission also hired The Spangenberg Group, a research firm nationally recognized for its expertise in indigent defense, to study and report on the current operations of public defense in the state of New York. The compre- hensive report was submitted to the commission, and became an appendix to the commission’s recommendations for change published at the same time. 158. Spangenberg Group, Status of Indigent Defense in New York: A Study for Chief Judge Kaye’s Commission on the Future of Indigent Defense Services (June 16, 2006), at 45, available at http://www.courts.state.ny.us/ip/indigentdefense-commission/Spangen- bergGroupReport.pdf (last visited Mar. 10, 2009). 159. Adele Bernhard, Take Courage: What Courts Can Do to Improve the Delivery of Criminal Defense Services , 63 U. P ITT . L. R EV . 293, 346 (2002). 160. A Statement by Kaye Commission Member Professor Steven Zeidman, available at www.nyclu.org/node/1482 (last visited Mar. 16, 2009). 161. U.S. Department of Justice, Bureau of Justice Administration, Contracting for Indigent Defense Services (2000), at 1-2, avail- able at http://www.ncjrs.org/pdffiles1/bja/181160.pdf (last visited Mar. 16, 2009). 162. Id. 163. The California Commission on the Fair Administration of Justice reported that the fired associate subsequently filed a fed- eral lawsuit against the contract defender and received a settlement. The commission noted, “In a deposition for that lawsuit, the con- tract attorney boasted that he pled 70 percent of his clients guilty at the first court appearance, after spending 30 seconds explaining the prosecutor’s ‘offer’ to the client.” California Commission on the Fair Administration of Justice, Report and Recommendations on Fund- ing of Defense Services in California (Apr. 14, 2008), at 9, available at http://www.ccfaj.org/documents/reports/prosecutorial/offi- cial/OFFICIAL%20REPORT%20ON%20DEFENSE%20SERVICES.pdf (last visited Mar. 16, 2009). 164. Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining , 36 U. C HI . L. R EV . 50, 60-69 (1968) (offering anecdotal ev- idence that plea bargaining induces innocent defendants to plead guilty); see also Michael O. Finkelstein, A Statistical Analysis of Guilty Plea Practice in the Federal Courts, 89 H ARV . L. R EV . 293 (1975). 165. See, e.g., John L. Barkai, Accuracy Inquiries for All Felony and Misdemeanor Pleas: Voluntary Pleas but Innocent Defen- dants , 126 U. P A . L. R EV . 88 (1977). 166. Cf. id. at 96-97 (noting that an innocent defendant might plead guilty because of: “the disparity in punishment between con- viction by plea and conviction at trial; … a desire to protect family or friends from prosecution; … the conditions of pretrial incarcer- ation; … desire to expedite the proceedings, among other reasons”). 167. Joseph Bellacosa, In Defense of a Need to Remedy Public Defense, N EWSDAY (July 28, 2008). 168. Robert Guest (Feb. 27, 2008), blog available at http://www.dallascriminaldefenselawyerblog.com/kaufman_county/ (last visited Mar. 16, 2009).
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169. A Statement by Kaye Commission Member Professor Steven Zeidman, supra . n. 160. 170. See Misdemeanor Defense in Practice, supra. notes 156-166 and accompanying text.
171. In fact, these types of cases produce active motions and jury trial practice in many other jurisdictions. See, e.g ., Ted Vosk, DWI , T HE C HAMPION (May/June 2008), at 54 (about unreliable lab testing); Mimi Coffey, DWI , T HE C HAMPION (Jan./Feb. 2008), at 5 (arguing that field sobriety tests are not reliable). In King County District Court in Washington State, for example, in 2007, there were
Endnotes
The Terrible Toll of America’s Broken Misdemeanor Courts
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