Chasing Gideon (9 page)

Five months later, in July 2010, the Washington Supreme Court proposed new rules for public defense and finally, in 2012, the Washington Supreme Court approved one of the nation's most comprehensive reform packages. The new rules spell out in laborious detail a list of standards ranging from requirements about an attorney's experience in a particular area of law, to mandates that a physical office space be provided for confidential client meetings (not always the case in rural areas and small courthouses), to proof of continuing legal education, to sworn statements that attorneys are complying with caseload limits.
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Washington State is not the first state to recommend or even demand caseload limits, but the Washington Supreme Court is the first to put teeth into its mandate by creating a way to enforce the rules. Here, individual attorneys (not bosses or department heads) will have to certify before a judge, prior to accepting a case, that
they meet each of the standards spelled out in court rules; violators are subject to bar association censure.

Meanwhile, as municipalities across the state cut their budgets, the actual need for legal aid attorneys and public defenders is growing. According to Legal Aid for Washington Fund and the Campaign for Equal Justice in Seattle, which drew on census figures, nearly 30 percent of Washington residents live below poverty. Already, the organization reports, only one in five people requesting legal assistance receives it, and requests are skyrocketing. Domestic violence requests have gone up 109 percent, foreclosures 556 percent, unemployment 890 percent.

The Washington State Office of Public Defense noted in its annual 2010 report, “[P]ublic defense in Washington still is not attaining an overall appropriate level of quality, and serious shortcomings persist in many local programs. These deficiencies are only exacerbated by a lingering economic recession that has forced substantial state and local budget cuts, including cuts to public defense.” Indeed, the Washington State Office of Public Defense, which funnels money to cities and counties across the state to help them decrease caseloads and improve the quality of services, was hit with a 7.6 percent budget cut in 2010. Spokane County is slated to lose two full-time attorneys and three other staffers.

What that means is that legal representation for the poor in Washington remains very uneven. “You have a situation where you have appalling and almost deliberate mistreatment of people and you have some of the most extraordinary work being done by public defenders that makes the American justice system shine,” says Bob Boruchowitz, a professor at Seattle University School of Law. “You can have all of that in the same state. You can have all of that in the same county.”

When I meet with Carol Dee Huneke in her second-story Spokane apartment in November of 2011, she wears a gray-and-black striped shirt. She has black hair, black jeans, black fingernails. We sit on white IKEA chairs on opposite sides of her Restoration Hardware dining room table, a long, distressed wood surface full of pock marks, looking down the planked wood at a giant aquarium, where
a Russian tortoise named Sheldon occasionally blinks at us, as if listening intently but puzzled by illogical plot twists.

“They fired you?” I ask Huneke, waiting for her to explain.

“Lack of diligence and failure to communicate is their official reason,” she says. “And my response?” She takes a sip of her Rockstar energy drink—a dramatic pause. “It was bullshit. I think it all went back to me standing up to them with the trial that I refused to do.” She points out that she actually got accolades from them at the time for her stance, and notes that the Washington Association of Criminal Defense Lawyers gave her the President's Award that year for her “distinguished service to the highest traditions of the criminal defense bar.” She thinks she was fired out of vengeance. “I think judges complained and [my boss] took their complaints as truth,” she says. “And I was trying to exercise my First Amendment rights on my blog—” She pauses a moment, laughs. “Okay, it's hard to say I'm being restrained by advocating ‘revolution,' but I wasn't name calling.” She thinks for a moment about whether she had considered the consequences of her activism. “I guess I knew what I was doing. I was surprised when I was fired, but I guess I knew I might be. I guess I knew, but I was naively idealistic.” She shakes her head. “When people do the wrong thing, it still surprises me.”

Now, though, she wonders whether she'll continue the blog, the advocacy, the fight. She has moved outside for a smoke and stands on the covered balcony of her turn-of-the-century brick apartment building—old for these parts—and inhales, a pile of
Better Homes & Gardens
stacked incongruously (she has an apartment, no garden, doesn't seem the type) on a side table. She holds a cigarette in her outstretched arm behind her. The angle is awkward; she is trying to keep the smoke from billowing toward my face in the windy chill.

“It must have been odd,” I muse, thinking about the lawyer who went into court with her as she fought to delay Sean's trial a week, “to be a lawyer hiring your own lawyer?”

“Yes,” she says. “But I liked it. It was comforting to know someone had your back.” She learned things, too. She had a new understanding of how vulnerable someone felt in a courtroom when so much was at stake.

To fill the time, and because she found it therapeutic, she had begun writing a novel. It is the story of a public defender who tries cases that seem an awful lot like the ones Huneke did. The manuscript, which she shares with me, reveals a lot about the public defender's life, her life in particular. She wrote about the disorienting sense that she alone was overwhelmed by her workload and the knowledge that her clients were suffering. And then she had an epiphany. She put her personal story in the larger political context, recognizing that many of the problems she faced with her workload were systemic problems that public defenders across the country were struggling with. “Now I knew it wasn't me—it was the job. I had been given the enormous responsibility of trying to protect people's liberty, and then not given enough time or resources to do the job right,” she wrote in this fictional book, as the protagonist prepared for the trial of an innocent nineteen-year-old high school senior in a vehicular homicide case.

As I stand up to leave Huneke's apartment, some five hours later, I ask her what she plans to do next. She pauses, surrounded by the boxes of papers, stacks of folders, files of cases she has emptied in her dining room in a search for some backup document I've asked for and tilts her head to the side slightly, thinking. She's not sure what comes next for her. “Maybe I'll get out of law and do something completely different,” she says. She has to act soon. Rent on her apartment is only $500 a month, but she is now divorced, has a twelve-year-old daughter and last week only had $400 left in her account. (No severance package.) “My parents loaned me $5,000,” she admits, shaking her head at the sea of papers that surround her, the sea of trouble. “I'm forty-three years old and my parents are supporting me.”

When I meet with Sean Replogle ten years after the trial, I am struck by the fact that he is twenty-eight years old but still looks like a skinny eighteen-year-old, retaining a young teen's nervous discomfort in his own skin. We meet at his small apartment in Spokane Valley, where he has moved to be away from his past—“I left because I couldn't walk down the road without knowing that people were looking at me going, ‘Oh, there goes that kid who
killed someone,'” he explains—but remains close enough to see his extended family regularly.

He sits in a brown recliner facing a flat-screen television mounted on the wall and speaks more comfortably to the TV than to me, sitting on the couch to his left. He has muted the TV's volume, but his pale face is illuminated by its flickers—like flickers of conflicting thoughts—as dusk settles and darkens the room.

It is clear that a decade has done little to diminish the impact of his arrest.

“It made me not trust anyone,” he says. He can't help it, he explains, that's just the way he feels. His life's narrative is divided by a coming-of-age story that knocked all his assumptions about the way things worked aside, a pre- and post-accident worldview. “At the time, I trusted everyone,” he says. “I was smiley and go-lucky. Now, I'm very reserved. I see any kind of legal case on TV and I feel for the person who's been accused, no matter what the charge, because I know the process.” He mentions a local case that has gotten a lot of recent attention—and left him feeling deeply conflicted. The week before, on November 2, 2011, a jury had convicted a police officer, Karl Thompson, for the murder of a mentally disturbed man he beat to death in a convenience store. “I even felt sorry for him,” Sean admits. And that's saying something. “After my whole situation, I can't stand police officers—the way they lied about my speed—but I feel bad for anyone involved in a trial like that.” He pauses, reconsiders, thinks about his experience with cops. “Once, I thought anyone who said cops would lie were out of their minds,” he says. “Then, they fudged all the numbers on my case and now I'm like, wow.” He is silent for a moment, trying to pull the right words from the air in some middle ground he stares at between himself and the TV. “I'm still super cautious because I don't want to get screwed over again.”

He drifts into reverie and I pull him back, wondering what he felt when the jury came back with its decision. “When I heard the verdict, I was holding my breath,” he says. “It was the happiest day of my life.” Still, the whole thing confounds him. “And I ended up getting nothing, not even a speeding ticket,” he says. He laughs. “And I would have paid that!”

But so much in his life remains linked to that incident. For example, he still cannot get a driver's license due to the money owed to the Stacks' insurance company, so his job prospects are confined to what is available on the limited bus routes. A month after the trial ended, he got a job at KFC and has been working steadily since then. First at KFC, then at Papa Murphy's, a take-and-bake pizza place, then at TacoTime, where he has spent the past four years. Today he works as the Spokane Valley TacoTime closing manager. He is good at it, he says. He locks up the place each night, works a 50-hour week on his feet, and scrapes by financially. Public transportation to and from work on the erratically scheduled buses eats up one to two hours a day and $60 a month. When he closes TacoTime for the night, he misses the last bus and walks the three miles home. Someday, if he can ever get his driver's license back, he plans to go to community college and work a night job—but he can't do both without a car.

Judge Judy
is on the TV. Sean picks up the remote and changes the channel to Nickelodeon.
SpongeBob
strides across the screen; a yellow glow floats across Sean's face. Sean tells me that he owes $450,000 to the Stacks' insurance company. He doesn't see how he can pay this. After all, it took him nine years—and his father's help—to pay off a $1,200 student loan for his brief foray into community college, which, with interest, had swelled to $4,000. He ticks off his monthly expenses on his fingers: $550 rent, $100 electricity, $75 cable and phone, and so forth. At the end of the month, he's lucky if he has $100 to work with. “And then I always need something, like shoes for work,” he says, explaining that he is trying to save up $1,000. When he gets $1,000, he tells me, he is going to hire an attorney to help him figure out what to do, to determine if he can declare bankruptcy or something, and get the $450,000 he owes the Stacks' insurance company dealt with in some way. (Without car insurance, he was responsible for all the accident-related costs.) If he can get that problem solved, he may be able to finally get his driver's license back.

Meanwhile, he doesn't go out much. “I wouldn't drink a beer and then go walk around outside, because I'd be afraid a cop is going to arrest me,” he says. “If they can send me to prison for four years for
speeding, they can do anything.” He shakes his head. “I don't want to live like that. I've almost gotten over that, where I look at a cop and I'm scared. I tell myself, I'm not a criminal. I'm not a drug user. Why am I scared?”

Last year, he was walking home and a cop pulled up beside him and stopped him and asked for ID. “He said someone had robbed something and looked similar to me. He said, ‘You know your license is suspended? You hurt someone?'” Sean answered: “Yes, I know my license is suspended. That's why I'm walking.” By the time the cop drove off, Sean was shaking, fighting a panic attack. “This has permanently messed me up,” he says.

I wonder if he has ever sought counseling. “No,” he says. “I just counseled myself. I don't know—” he drifts off, thinking. “Probably I should have. I've just been trying to keep things cool mentally. I never wanted to get on any anti-anxiety pill or anything, so I just try to be cool with it. I have my little moments. I just calm down and breathe. I can manage my panic attacks.”

But there are triggers. “This is a small town, so I still have to see that guy all the time,” Sean says, referring to the prosecuting attorney Clint Francis. “He's come into TacoTime.” Sean took his order and gave him his food.

I wonder, was he tempted to seek revenge? A little spit in his food?

“No, I didn't do anything to it,” Sean says. No spit. No habanero sauce. “I can't do that. I'd have bad fast-food karma, and I eat fast food all the time. But I
was
hoping he would recognize me and worry that I'd done something!” Sean laughs. Then stops. “But he doesn't even recognize me. You tried to put me in prison at eighteen and sat next to me for eight days of a trial and you don't even recognize me?”

Years back, while working at KFC, he also served the cop that “mismeasured” his car's skid marks. He didn't recognize Sean either. Sean realized his case was simply business as usual for these guys.