As a public defender, Jane Boman is having some tough conversations with in-custody clients these days. 

For those who are denied or unable to afford bail, the continuing pandemic-related moratorium on Whatcom County jury trials until Nov. 1 means incarceration continues without knowing when their day in court will arrive. 

Jury trials, or the prospect of them, are a primary gear for the wheels of justice. Most criminal cases are settled through pretrial plea bargains. Without the deadline of a scheduled trial, the bargaining process also stalls.

“They’re horrible conversations,” said Boman, an attorney in the Whatcom County Public Defender’s Office for nearly a decade. “I would say that’s the hardest part of my job: a conversation where something is completely unfair that is out of my control.”

Pending caseloads for public defenders are piling up beyond manageable levels, particularly felony cases, mostly because cases are coming in faster than they are being resolved.

Out-of-custody defendants have little reason to make deals with prosecutors that might result in incarceration or other legal penalty; similarly, prosecutors have little motivation to accept plea deals from in-custody defendants without the pressure of potential trial preparation. 

What few deals being offered by the prosecutor’s office, Boman said, are those that can settle cases. But sometimes the deal is at the expense of her client’s best interests. 

“It’s a terrible position that we’re having to put people in,” she said. “These are cases that deserve a jury, that are supposed to have a jury, but won’t.”

Talking with clients about accepting a less-than-ideal prosecution deal isn’t easy, but Boman said she only attempts to persuade clients if an outcome is reasonable. Still, she has had to suggest unfortunate concessions. 

In several instances, it meant asking clients with cases appropriate for jury trial if they’d settle for judge-only trials, simply to advance their cases and get them out of jail. One client, Boman said, actually pled guilty to a crime they didn’t commit in order to receive a significantly reduced charge. 

“I’m having these very difficult conversations about the need … to choose between terrible options,” she said. “They ask me for my advice, and I just have to just truthfully say, ‘Look, these are all really crummy options. The best one is if you can just wait and wait and wait indefinitely [until] we can access what should be your option right now and isn’t.'”

Pandemic: the ‘mother of all’ good cause

Traditionally, defendants in custody can be held only so long without a court date. The right to a speedy trial, after all, is guaranteed by both federal and state governments. 

However, the timeframe and criteria that define “speedy” differ based on each state’s court rules. 

Starck Follis, director of the Whatcom public defender’s office, said that Washington’s statute covering the tabulation of days toward a speedy trial was suspended in criminal law by the state Supreme Court after the pandemic began. This is because of pre-pandemic changes to the rule, allowing time in custody not to count toward the speedy trial rule if there’s a finding of good cause for postponing a trial, Follis said. 

Based on its overwhelming impact on court schedules, the pandemic just might be the mother of all good cause. 

Without trials, the only solution for settling cases is plea bargaining. But this, too, Follis explained, isn’t happening normally due to multiple pandemic-related reasons, including the closure of offices. The result is an ever-growing caseload for each and every one of the 19 full-time public defenders in the Whatcom County office. 

“There are cases piled upon cases piled upon cases piled upon cases,” he said. 

Boman pointed out that the number of standing cases far exceeds anything the attorneys have seen. 

“It’s obvious to everybody that you can’t handle 150 cases at a time,” she said. “If you’re supposed to get 150 over a year, and we usually had 60 to 80, you cannot have 150 cases at a time.”

The public defender’s office operates under Washington Supreme Court standards for indigent defense, which cap how many cases may be assigned to attorneys on an annual basis. For felony lawyers, it’s 150 cases per year. While Follis said his office is always careful with this guideline — and is still meeting it — the problem is that there is no state standard for pending case numbers.

The sheer volume of backlogged cases is — in Follis’ opinion — at least partially due to the prosecutor’s office continuing to handle cases as if things were normal. 

“The prosecutor’s office has failed to appreciate the magnitude of this problem,” he said. “We are behind the eight ball here, in terms of this backlog, and we’ve got to get cases moved. I have conversations with prosecutors every day, and it’s very apparent to me that the way forward on cases has not materially changed in recognition of the magnitude of the crisis that we face.”

Differing view from the prosecutor

Eric Richey, Whatcom County Prosecuting Attorney, does not agree with that assessment of his department.

“We’ve made some great efforts to alleviate overloaded cases, based on COVID,” he said. “I’ve seen some comments on social media recently that say that we’re not offering [resolutions], suggesting pleas at the top of the [sentencing] range, things like that, and that’s simply not true.”

Understanding the negative affect on case resolutions, Richey said prosecutors have looked at new ways to get cases moving, including giving some defendants a chance to eventually have charges dismissed by agreeing to conditions of good behavior for a time, in addition to potential treatment or enforcement conditions.

Still, Richey said it has been difficult. 

While prosecutors aren’t burdened with enforced case limits like public defenders are, they’re still handling higher caseloads. Per prosecutor, ideal case numbers are around 100, Richey said. At the worst points of the pandemic, however, prosecutors had caseloads around 175 until Richey reassigned an attorney from a different position into felony courts, hoping to spread out case numbers more. 

Richey also points out that while most felony cases have out-of-custody defendants, those in custody are among the most difficult the prosecutor’s office handles. These include people accused of murder, sexual assault and continual repeat offenses, he said. 

Although the suspension of time for trial limits is unfortunate, Richey said in-custody defendants are not being held any longer than they would be if convicted and sent to prison. 

Resolutions that achieve the dual goals of safer communities and fair justice, he said, are always on the table. 

“We want to help, not only our courts and our jail, but also the defendant — the person who’s being held,” he said. “We want to make sure that they’re being treated fairly and make sure that they’re not being held unreasonably.”

Underused therapeutic options?

Another concern Follis and Boman share is what they see as the current underuse of the county’s therapeutic court system.

Participant numbers in Superior Court’s drug and mental health courts are down substantially since the pandemic began. There are fewer than 20 in drug court, which Follis said has previously seen highs of 60 to 70 people. The mental health court is down to 5 or 6 participants. 

When a public defender’s client enters such a court, it eliminates one more case from his or her assigned attorney’s caseload.

While state law stipulates who is and is not eligible for therapeutic court, Whatcom County — specifically the prosecutor’s office — is excluding far more people than is necessary, according to Boman, the defender for the drug court. 

The way these courts are set up here also means the public defender’s office cannot petition a judge into admitting someone into them, Follis noted; the prosecutor’s office has complete control over admissions. 

As to why numbers are down, Richey said numbers dropped significantly once the pandemic took hold, but had been falling prior to COVID-19 as well. On Sept. 30, Richey sent an informal email survey to prosecutor’s offices across the state, hoping to better understand how drug court numbers might improve. 

What he found, he said, was that many counties are seeing dwindling numbers for both drug and mental health courts, mainly due to the pandemic and the 2021 state Supreme Court ruling in State v. Blake, which resulted in the dismissal of many simple drug possession charges.

Another factor for lower numbers, Richey said, may be due to a growing number of alternative sentencing options created and used by prosecutors in lieu of drug court since many drug courts were formed in the 1990s.

For example, he said, “I’ve been offering some sentences that focus more on treatment and less on prison and jail sentences since I was elected. And people are taking advantages of those offers.”

Back to normal?

The jury trial moratorium is set to expire on Nov. 1, and it appears that it won’t be extended.

After an Oct. 7 meeting of Superior Court judges, Presiding Judge Robert Olsen sent an Oct. 10 email reiterating the court’s desire to resume criminal jury trials, one at a time. Cases will be prioritized based on custody status of the defendant, age of the case and other considerations, the email said. 

Despite the backlog, the public defender’s office is still taking cases, Follis said, but has referred more of them to assigned counsel (private lawyers) than ever before. This costs more than if the office handled the cases.

Dave Reynolds, Superior Court administrator, said it’s unclear if — or by how much — they may run over budget for private counsel. Half the cost of such help is paid up front, with the second half due later. Reynolds said it’s unclear if those second-half costs will come due this year or next. 

In the meantime, help for the public defender’s office is already at hand, thanks to the American Rescue Plan Act of 2021. 

This summer, the Whatcom County Council determined that a portion of the county’s $40 million in pandemic relief funds should be used to attack the county’s legal logjam.

A joint proposal between the public defender’s office, prosecutor’s office and local courts was created and approved by the council. Four additional lawyers, two investigators, a behavioral health specialist and several support staff will be hired by the public defender’s office through the end of the year. 

The investigator positions are already filled, Follis said, with interviews ongoing for the other positions. In November, the council will vote on whether to extend funding of the positions through 2022. Because federal relief funding expires in 2024, it’s possible for the extra staff to remain even longer.

In bringing on more staff, Follis hopes to bring case numbers back down to where they should be: around 50 to 70 cases at a time. If cases are still on the high end of that range, he might consider arguing for the extra positions to become permanent. 

Once trials resume, Follis, Boman and Richey all expect the scheduling of court dates to help many cases begin resolving before they ever end up in a courtroom, as happened when jury trials briefly resumed earlier this year. In addition, 12 cases with juries were tried in both district and superior court during that time. 

Still, Follis said many resolutions will be needed to speed up the processing of the backlog, which may take many months or even years to get under control. 

One trial a week, he said, won’t cut it. 

“If the case resolutions don’t start picking up, frankly, it doesn’t really matter how many lawyers I have,” Follis said. “The pending numbers will just keep going up.”

— Reported by Matt Benoit

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