Chasing Gideon (3 page)

Then, in 1993, a year after she graduated from law school, she found herself unemployed, broke, and struggling after following a love interest to Washington State. “I needed money,” she recalls today, and a slight smile plays around her lips as she describes a newspaper ad that she answered for a public defender. She showed up for her interview and walked into the office's chaotic reception area. One client snoozed on a chair; the receptionist was AWOL; a basket of condoms sat on the front desk where there might ordinarily be, say, a bowl of mints. Down the hall, a disturbed and disheveled client with his hair in Einstein-like disarray stormed around ranting at the top of his lungs: “Fuck those fucking fucks!”

Huneke took a seat in the lobby and watched, bemused, as drama unfolded all around her. Eventually, someone called her name and led her into a back office. Behind the desk waiting to interview her was the “disturbed” man—not a client at all, but the director of the agency.

He grilled Huneke, asking her everything from philosophical questions to hypotheticals about trial decisions, then offered her the job. Afterwards, he took her on a tour of the building, introducing her to her colleagues in the misdemeanors department where he told her she would start out. This was a Thursday and one of the attorneys, shaking her hand, joked that he had three trials all starting on Monday. Might she be persuaded to take one? She blithely agreed.

He wasn't joking.

He came by her cubicle the next day with a folder that he plopped on her desk. He explained that this was a DUI case. But Huneke, fresh out of law school, had never tried a case before. “I had never even watched a trial,” she says, “unless you count TV.” But they seriously expected to send her into court on Monday. So she went. “The first trial I ever watched was myself doing it,” she says.

Huneke spins a good yarn—a useful trait for a trial lawyer, and one she has clearly honed over the years as she built complex narratives to sell her clients' perspectives in court. There are the facts, and then there are the facts-woven-into-story, and Huneke clearly
understands the superior power of the latter. Her life, too, as she spins it, is a series of cautionary tales and comeuppances with herself as the hapless, accidental hero forced into serious reckoning by the end. Her first trial falls in this tradition.

“At the time, I thought what you read in a police report was true,” she begins. “I don't think that now.” The police report said that her client, an elderly fisherman, had caused an accident by turning onto a road in front of an oncoming car. Her client admitted having several glasses of wine but said he wasn't drunk. The officer on the scene made her client do three tests to see if he was intoxicated. He made the man walk a straight line and then turn. The man walked a crooked line. He made the man stand on one leg. The man could not perform this simple task; he listed to one side. He made the man use his right thumb to touch and count all the fingers on his left hand. The man got no higher than three. He refused a Breathalyzer test.

Huneke knew she had a lousy case and figured she would suggest to her client that he simply plead guilty. Then, the “funny, crusty old character” came into her office. She explained what the police report said and as she spoke, the guy struggled with his pant legs, trying to pull them up to show her something. He couldn't manage to get his trouser legs high enough to show her what he wanted. Finally, right there in the office, he dropped his pants. The sight of his leg shocked her. It was bent at an odd angle and horribly disfigured, full of scars from multiple surgeries. He explained that he had fallen into the machinery of a conveyor belt on one of the fishing vessels he worked on and was disabled. When she questioned him about the finger test, he raised his hand for her to inspect. He'd lost two fingers in a fish guillotine. Later, when she asked him a final question in the courtroom—“Why had he refused the breath test?”—he referred to his past machinery-related accidents. “I don't like machines,” he said. “I don't trust 'em.”

The jury laughed. They loved him.

Huneke won the case, but she knows now she was simply lucky.

And she knows now that any system that would allow her to try a case like this is ridiculous. Back then, she had spent her weekend cramming, reading two books, one about the law in the state of
Washington, one about how to try a DUI case. A colleague had to talk her through the basic structure of a trial by sketching out the standard sections on a legal pad—“first you have the prosecutor give his opening argument, then it is your turn for an opening argument,” etc.—and then she was thrown in a courtroom to sink or swim, defending clients for whom the stakes were much higher.

“I remember so specifically sitting next to this old fisherman as the jurors were coming in,” she says. “I was thinking, ‘Somebody has to stop this from happening. I don't know what I'm doing.'” Huneke shakes her head. “You learn some basic rules at school and then you get this job being someone's lawyer,” she says. “You understand, I'm supposed to do the best for this person. Court, the law, nothing was how I thought it would be.”

Then Huneke got another client, and another and another until, like public defenders across the city, the state, the nation, she had hundreds of clients in a year and way more than she could reasonably handle. “It didn't shock me, but it was more like, ‘How do I do this job that is so overwhelming and crazy and all these people are relying on me?'” She was profoundly aware that she was getting a legal education on the backs of clients who deserved better. “When you're thrown into this, you're just trying not to drown. You are just so incompetent on so many levels, you don't even know this is too many cases.”

What Carol Dee Huneke was feeling, personally, was in fact a problem that public defenders struggled with all across the nation. Indeed, only ten months before she was assigned to represent Sean Replogle, the U.S. Justice Department had declared a “crisis” in the country's courts. Issuing a scathing report, “Keeping Defender Workloads Manageable,” the Justice Department and others drew on reports pouring in from jurisdictions around the country that documented how overworked public defenders were handling anywhere from 200 to 2,225 felony and misdemeanor cases in a single year, compared to private attorneys who would consider 100 clients a crushing workload.
¹¹
The legal community—judges, state bar associations, court administrators, public defenders, and even some prosecutors—were throwing up a red flag; if public defenders can't properly defend their
clients, defendants' constitutional rights are being violated on a daily basis. This runs counter to the intent of the U.S. Supreme Court's 1963 decision in a case called
Gideon v. Wainwright
.

Back in 1961, when an itinerant man named Clarence Earl Gideon was accused of breaking into a pool hall in Florida and stealing some liquor and money from a jukebox and a cigarette machine, he asked the judge in his burglary trial for a lawyer to represent him. He was too poor to hire one himself, he said, but he needed one to help him try the case. The judge said the state was under no obligation to provide him with an attorney. So Gideon represented himself—badly—and landed in prison. Gideon fought his conviction, going all the way to the U.S. Supreme Court as he insisted that there was no such thing as a “fair trial” if both sides didn't have attorneys.

Then, in March 1963, the U.S. Supreme Court agreed with him, ruling in the landmark case
Gideon v. Wainwright
that poor people charged with a crime that carries potential jail time have a right to an attorney to represent them in court. Complying with this decision was hugely complicated and expensive for the states, cities, and counties who took on the burden of providing these lawyers for the poor—but it was doable. At the time, the number of indigent folks accused of crimes was smaller and arguably more manageable. On the heels of
Gideon
, cities and counties did one of three things: they established public defender offices with a staff of salaried lawyers who were paid by the city, county, state, or some combination of these; they developed a roster of private attorneys that judges appointed on an as-needed basis, paying them an hourly rate; or they handed over the contract for all local public defense to a single attorney or law firm for an agreed-upon flat fee. It sort of worked. For a while. But today, on the heels of the War on Drugs, the Three Strikes Law, and the lock-'em-up mentality of politicians, indigent clients have flooded the courts. Indeed, the Justice Department reported in 2001 that public defenders represent 80 percent of all criminal cases and “[a]s caseloads have increased, many public defender offices have been unable to obtain corollary increases in staff” and too often “the quality of service suffers,” concluding, “[a] t some point, even the most well-intentioned advocates
are overwhelmed, jeopardizing their clients' constitutional right to effective counsel.”
¹²

Since that 2001 report, little has changed on the national scene.

In 2009, the Constitution Project, the National Legal Aid & Defender Association, and the National Right to Counsel Committee investigated the current state of public defense and came to the conclusion that the system of providing counsel for the poor in this country was broken, with defendants' constitutional rights routinely violated. The group drew from news articles, law reviews, and the myriad panicked reports that cities, counties, and states had generated by culling data and creating task forces, blue ribbon commissions, and special councils. They pulled the information together in a comprehensive report titled
Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel
.
¹³

The report began almost pathetically, arguing on the most basic level for the value of indigent defense. “It helps to define who we are as a free people and distinguishes this country from totalitarian regimes, where lawyers are not always independent of the state and individuals can be imprisoned by an all powerful and repressive state,” the authors noted, insisting that “sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the
Gideon
decision and the Supreme Court's soaring rhetoric.”
¹⁴
It fails the poor, and underfunding indigent defense in the short run costs society money in the long run, insisted the authors, a group that included policy makers, victim advocates, scholars, judges, public defenders, district attorneys, and law enforcement. “State and local governments are faced with increased jail expenses, retrials of cases, lawsuits, and a lack of public confidence in our justice systems,” they wrote. “In the country's current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent persons will be greater than ever.”
¹⁵

The same month that Sean Replogle's case was slated for trial, in March 2004, another case began quietly making its way through the Washington State courts as a public defender in Grant County
made very different decisions about zealously representing his client in court than the ones Carol Dee Huneke was making. His story would serve as a cautionary tale—an inadvertent foil to Huneke's unfolding story with her client Sean Replogle. This incident, though the press did not cover it at all, was destined to alter the definition of “effective counsel” in the state of Washington.

Here, in a town called Moses Lake, less than an hour from Spokane, a public defender named Douglas Anderson decided to keep things moving with his client—one among more than 460 open cases he had on his desk—urged the youngster to plead guilty to a crime, regardless of whether this was a good choice or not.

That February, a five-year-old Moses Lake boy accused his twelve-year-old neighbor of playing “Icky-Poke-U” with him. The five-year-old said that he had climbed up onto the older boy's lap on an easy chair. Then, he said, the twelve-year-old asked if he wanted to play Icky-Poke-U and stuck his hands down the little one's pants. Several days later, the five-year-old told his parents about the game of Icky-Poke-U. Twenty-eight days later cops interviewed the five-year-old about the incident. Then the twelve-year-old was interviewed and, crying, denied the allegations. On July 2, 2004, cops arrested the twelve-year-old and the state charged him with child molestation in the first degree.

While the twelve year old's current attorney agreed to speak with me, his family declined to, so much of the following is drawn from court records and interviews with the boy's present lawyer. Because he is a minor, I'll refer to the boy by his initials, A.N.J., as he is identified in court documents. Both children are white and live in a middle-class neighborhood.

A.N.J. was assigned a Grant County public defender. In addition to A.N.J.'s case, Douglas Anderson had 240 other child criminal defense cases and 200 or more dependency cases—typically abuse or neglect cases—that year. According to court records, Anderson had a staff of one (his wife) to assist him.

A.N.J. was charged in court, without Anderson's presence, on July 19. Because Anderson was not there to advise A.N.J. as to how he should respond, the arraignment was continued until August 2. On September 14, the judge convened a pretrial conference and
set a trial date of September 22. But on that day, on the advice of counsel, twelve-year-old A.N.J. pleaded guilty to child molestation.

A.N.J. and his parents barely met with the public defender. “Between the first appearance and the arraignment, Mr. Anderson met with A.N.J. and his father on one occasion,” according to a deposition. “According to A.N.J.'s father, this meeting lasted only five minutes. Mr. Anderson did not disagree with this estimate. About the substance of this first meeting, Mr. Anderson testified: ‘Initially, he [A.N.J.] was not agreeing with the information in the police reports.'”