Chasing Gideon (8 page)

“Was there not some suggestion that the children involved, who are the alleged victims, had actually been victimized by other persons?” asked one of the judges, referring to the alleged victim and his sister. “Such that they became sexualized in their behavior and that there might be some reason to credit a viable defense against these charges . . .?”

“Absolutely,” Ahrend agreed.

“And was that ever investigated by the defense attorney? And the reason that I say this is I just think, is there not a duty to give advice to a client in terms of whether or not they have a viable defense before they actually decide to plead guilty?”

“Is there a duty?” Ahrend asked. “Absolutely, yes.” He decided to accept this gift the justice was tossing him and run with it. “And this court has repeatedly held the duty of defense counsel is to actually and substantially assist the client in deciding whether to plead guilty. This includes an evaluation of the evidence that the state has against that person. You can't evaluate that evidence unless you, as the defense attorney, have performed an investigation. And here, it is undisputed. Douglas Anderson performed absolutely no investigation whatsoever in that hour and thirty minutes.”

Justice Gerry Alexander takes up this question of investigation. “If Mr. Anderson had looked at the police report as I understand it, the young man told the deputy he had never touched this other child,” he said. “But the deputy didn't believe him because he was not making eye contact or something like that. Am I right?”

“Correct,” Ahrend agrees. “Even Douglas Anderson said when I met with him initially, he was denying what was in the police reports. And again, they didn't review the police reports.”

“Says something about the detective—” Justice Alexander continues.

“Correct,” Ahrend interrupts. “Detective Matney, he denied it—”

“He didn't just not make eye contact, he turned away and started crying is my recollection of the record here.”

“I believe that is correct as well.”

“Back to my question,” Justice Charles Johnson said. “It seems we've got two paths here in that your argument would be the same based on the facts of this case had this client been the attorney's only client and did the same type of job, and back to the question, to what extent, on review, should the standards in caseload standards play into the equation here? Do we measure competency based on the number of files an attorney currently has when they're representing a person? Or is that just sort of supportive of the factual argument you're presenting?”

All of Washington State's caseload reform efforts hung on this question.

“The answer to your question is, do you need to base your decision here on caseload numbers and caseload number standards? No,” Ahrend admitted. But he offered them the possibility—and a way of framing it. “Can you? I think it's permissible to take them into account. And what we're seeing in this case, um, at some point, caseload does impinge upon the attorney's ability to render effective assistance of counsel. And, unless we start getting definitive pronouncements from this court and effective reversals of cases where somebody is clearly wronged like this, they're going to feel free to continue to ignore those caseload standards because it's expensive for the county.”

There was some back and forth and then Ahrend reiterated the problem. “What happens is that caseload then gets manifested in all kinds of errors and worse, in this case.” Ahrend urged the judges to act decisively. “This court sets the standard for the practice of attorneys around the state and . . . local government entities, judges, and lower courts and attorneys are going to be watching for this decision to see, is this okay? Is it okay what happened here? And I would submit that it can't be okay, because if it is, you're just going to keep seeing cases like this.”

As Ahrend returned to his seat, Carole Highland, deputy prosecutor for Grant County, stepped forward. A round woman, she wore her blond hair in a tight ponytail, and approached the podium. She tried to justify the fact that the juvenile court judge had not probed A.N.J. directly to make sure he understood the particulars of his guilty plea. As she began to speak, the justices cut her off. She tried again with another idea. They cut her off again.

“It seems to me,” said Justice Alexander, “when you're dealing with a twelve-year-old kid, pardon me, child, that maybe there's a little extra duty there to make sure that they understand what they're doing?”

“Case law says that once an individual has reached the age of twelve, they have the capacity,” Highland began.

“Real world, though, a twelve-year-old child? Do you really think they're as able to understand the proceedings as maybe an eighteen-year-old person?”

“Perhaps not,” Highland conceded. “But I worked with Mr. Anderson for many, many years. He has been a juvenile defense attorney for many, many years. And he took his job seriously. And he spent time with each and every one of these individuals and each and every one of these youth. And, um, by all estimates, at a minimum, Mr. Anderson spent fifty-five minutes with [A.N.J.'s father]. At the maximum, according to defense counsel, he spent an hour and a half with [A.N.J.'s father]. And I would put it to your honors that, you hear an argument here before you and the total encompassed time is forty minutes. And that's a lot of time. He spent an hour and a half with this youth.”

The justices grew prickly here.

“We spend a lot more than forty minutes on the case,” Justice Alexander said. “We read the briefs. We confer afterwards. We write opinions. So we don't spend a mere forty minutes on any case.”

The justices grilled Highland on whether Anderson ever conferred individually with his client as he is ethically obligated to do (i.e., to determine whether he was simply pleading guilty because his parents wanted him to)—she conceded he did not—and whether the judge was rushed and failed to make sure A.N.J. understood the nature of the plea. And then they circled back to the specifics of
Anderson's investigation. “Did Anderson personally talk to all the witnesses identified in this incident?” Justice Sanders demanded.

“No,” Highland said. “I believe he testified in the hearing that he attempted to call the witnesses, that he was unable to reach them, and that after that, subsequent to that attempt, [A.N.J.] confessed to him that he had done this. This was a case—”

“Why didn't he follow up?” Justice Sanders interrupted. “Is it because he had a lot to do? He had 263 clients under contract, that he had an average of thirty to forty active dependency cases at one time and another two hundred cases as well? Would that be the reason?”

“Absolutely not,” Highland said.

“He's a busy man,” Justice Sanders said.

“I guess my question is, even if the defendant told his attorney, I did this, why would that remove the obligation of counsel to see whether there was a triable case nevertheless?” Justice Madsen wondered. “Guilt certainly doesn't mean you plead guilty, it means the State, whether or not you put the State to its burden to prove that you're guilty, and we have a system that presumes you're innocent. So I guess I'm not understanding why, and particularly when you're dealing with victims who are four and five years old, who are going to be pretty poor witnesses probably—maybe no, but probably—and you have allegations that they were previously sexually molested, so it seems like a pretty good defense case without, I mean, at least [a] good enough case to go and investigate. So I don't understand why you're sort of taking the position that he, you know, what happened was his client confessed, so therefore that's a good excuse for not going further in the investigation?”

“Absolutely not,” Highland said, but explained that A.N.J. agreed the event had taken place, but insisted the five-year-old had initiated things. Then, the detective who interviewed A.N.J. said his behavior seemed damning. “[A.N.J.] put his head down. He started crying. He started trembling. Which would certainly be indicative of guilt and consciousness of guilt. . . .”

Highland goes on, but Justice Sanders cut her off, incredulous. “You're confronted, you're a twelve-year-old kid confronted by a police officer? Isn't that a traumatic experience?”

Highland laughed. “I don't know.”

“If I get pulled over for speeding, my heart is palpating, you know? And I'm a little more than twelve years old,” the justice said.

Highland tried to get around this one, and moved the discussion to A.N.J.'s sex offender record, arguing that it is not always permanent. She pointed out that he could go to court as an adult and make a case to be relieved of the requirement to register as a sex offender wherever he went.

Justice Alexander pointed out that the court did not have to grant him that, however. “It's conceivable that this twelve-year-old child would have to report until, uh, the rest of his life.”

“It's conceivable. It's highly unlikely. I've never—”

“But the fact that it's a possibility seems to me that's something that he should have been told.”

The justices persisted here, circling around the issue of the permanency of A.N.J.'s sex offender record. Highland tried to wrangle the argument elsewhere. “I would like to say that this plea needs to be upheld for finality, certainty, and closure. Not just for the victim, but for [A.N.J.],” she said.

Closure for Sean Replogle—and indeed, public defender Carol Dee Huneke and car crash victim Judy Rodeen—would prove elusive. On the heels of winning Sean's case, Huneke had a surge of euphoria, before realizing that the victory was just a blip on the screen and she would be headed back to her hundred remaining open cases. She asked to be reassigned to the juvenile division, where she hoped she could make more of a difference. And her boss approved this lateral move.

But Sean's case had made her think about and question authority and the system. Her dawning awareness that the challenges she faced as a public defender with overwhelming caseloads represented vast systemic problems, and that public defenders and legal aid attorneys were facing similar crises all across the country, led to a political awakening. She penned a highly critical article looking at problems in the system and pointing out that reform was unlikely as long as the advocacy organization lacked independence. She thought the Washington Defender Association should be run
by the public defenders in the trenches, not department heads and directors who were too eager to please the local bureaucrats and politicians who had a role in their appointment. She titled her paper “WTF WDA?”

When the Washington Defender Association declined to publish it, she self-published the piece on a blog she started called
Public Defender Revolution
. She developed a manifesto and issued a call to arms. “I believe that if we are going to change, we all have to become public defender revolutionaries—every PD, every law professor, every law student, every law dean, every citizen who cares for justice—every one of us has to engage our problem-solving brain and take action,” she wrote. “The fact that we underfund our systems, overload idealistic but human lawyers, but allow reform to be someone else's cause is not acceptable. Our current system is unfair to clients, to public defenders themselves, and to a nation that thinks it has a justice system that is fair.” She began to get followers. Public defenders from various states began to forward their own stories, news accounts, exposés, abuses. As Huneke published these comments and linked to other stories, her followers grew. She urged them on.

She rabble-roused on the Internet, in her office, in the courthouse, at conferences, on panels—and then, on September 27, 2011, she was fired by the same boss who had weighed in on her lawyering in the
Spokesman Review
a month before Sean Replogle's trial, saying, “She's incredibly aggressive and effective.”

It would take six years, and twelve-year-old A.N.J. would be eighteen, before the Washington Supreme Court would rule that his “court-appointed counsel's representation fell below the objective standards guaranteed by the Constitution for effective counsel,” and that he would be allowed to withdraw his guilty plea. At that point, Grant County prosecutors dismissed the charges against A.N.J. completely. Douglas Anderson, however, was not censured or even investigated by the state bar. Indeed, news of his role in this case seems to have been completely limited to small legal circles, and he went on to make an unsuccessful bid for a local judgeship.

Six days after the state supreme court's decision, the Washington State Office of Public Defense sent out a memo to everyone involved in the court system announcing, in essence, that the rules of the game had changed thanks to A.N.J.'s case. What had long been considered “recommended” caseload limits were now mandated case limits.
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Writing for the Supreme court's majority opinion, Justice Tom Chambers said, “While the vast majority of public defenders do sterling and impressive work, in some times and places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance.” He added, “Public funds for appointed counsel are sometimes woefully inadequate, and public contracts have imposed statistically impossible caseloads on public defenders.” Further, “[s]uch public contracts for public defenders discourage appropriate investigation, testing of evidence, research, and trial preparation, and literally reward the public defender financially for every guilty plea the defender delivers.”

Justice Richard Sanders, in a concurring opinion, went even further in his criticism. “Just because a county attempts to balance its budget on the backs of indigent criminal defendants is no reason for the court to facilitate this constitutional violation,” he wrote.