Monthly Archives: March 2015

Who qualifies for a public defender?

Last week, the Seattle Times wrote about how prosecutors for the US Attorneys office are arguing that a Russian hacker, who is accused of stealing and selling tens of millions of credit-card numbers, should have to reimburse the public for the cost of his public defense. The prosecutors allege that the Russian hacker made $18 million running his criminal enterprise and was vacationing at a hotel in the Maldives that costs $1,470 a night before being arrested.

So how does a guy who can afford a $1,470 hotel room get a free public defender? Under the Constitution and the landmark Supreme Court case, Gideon v. Wainwright, 372 U.S. 335 (1963), anyone charged with a criminal offense has a right to an attorney, and if they cannot afford an attorney, one will be appointed to them by the court (at taxpayers expense). This is true regardless of whether the person is accused of stealing $18 million or accused of stealing a candy bar from 7 eleven.

Qualifying for a public defender. Under Washington law, to receive a public defender, you must qualify as indigent under RCW 10.101.010, which defines “indigent” as:

  • Receiving one of the following types of public assistance: Temporary assistance for needy families, aged, blind, or disabled assistance benefits, medical care services under RCW 74.09.035, pregnant women assistance benefits, poverty-related veterans’ benefits, food stamps or food stamp benefits transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or
  • Involuntarily committed to a public mental health facility; or
  • Receiving an annual income, after taxes, of one hundred twenty-five percent or less of the current federally established poverty level; or
  • Unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.

The federally established poverty level depends on the size of the household. But in 2015, for a one person household, if the person is making less than $11,770 a year it means the person is living in poverty. So in Washington State,  if a person lives by themselves and make less  than $14,713 a year, the person will get a free public defender.

However, even if the person makes more than $14,713, they may still qualify for a public defender if the person is “[u]nable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.” In other words, it is up to the public defense agency to decide how much an attorney would cost for that person’s particular case and whether the person can afford an attorney. If the public defense agency finds that the person is not indigent, but that the person does not make enough to afford an attorney, then the person will still qualify for the public defender. The public defender in this case is not completely free. Instead, the public defense agency will make the person sign a promissory note agreeing to make payments towards the cost of their public defender. The total fee imposed is a sliding scale based on the person’s income and the person normally has at least 12 months to pay back the costs.

What documents are reviewed to determine if the person qualifies for a public defender? In King County, the public defense agency requires the person attend a financial interview, where the screener will ask the person questions about their financial situation. The person is asked to submit pay stubs from the last three months, the most recent bank statement, a copy of last year’s income tax return, and any items that shows the person is receiving public assistance or unemployment compensation. RCW 10.101.020 also requires the person to sign an affidavit under penalty of perjury that the answers and documents provided are accurate. RCW 10.101.020 also states the appointment of counsel shall not be denied “because the person’s friends or relatives, other than a spouse who was not the victim of any offense or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capable of posting bond.” So even if the person has rich parents, they may still qualify for the public defender.

A public defender is only available to those facing criminal charges, involuntary commitment to a mental health facility, contempt of court for failure to pay child support, or if the State is trying to take the person’s child away from them. A public defender is not available for infractions (like speeding tickets) or the DOL Administrative Hearing on a DUI case.

Does the system work? The vast majority of people who qualify for the public defender have told the truth, and actually do qualify for the public defender based on their financial situation. But as the Russian hacker case shows, they system is not perfect and even people staying in $1,470 a night hotel rooms can somehow get a public defender at taxpayers expense. Note the Seattle Times calls the prosecutors attempts to get the Russian hacker to pay for the costs of his public defense as a “rare step.” Also, the prosecutors are not even asking that the public defenders be removed from the case and the Russian hacker have to find a private attorney. The prosecutors are just asking that the Russian hacker be required to pay the taxpayers back for the free attorney they have given him.

Details on why the prosecutor did not charge the guy who fatally punched another

In December 2014, 18 year old Michael Galen fatally punched 18 year old Jarom Thomas in Snohomish County. According to the police, the two teens had some kind of argument at a party. Galen punched Thomas once. Thomas fell to the ground, hit his head on the pavement, and was knocked unconscious. He later died.

You can read the Snohomish County Sheriff’s Office’s case summary here.

The case summary provides insight on why the prosecutor declined to file charges in the case. It seems the only charge that was considered was Manslaughter in the Second Degree. To prove this offense, the prosecutor would need to prove that Galen acted with criminal negligence, and caused the death of Thomas. A person acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.

I am not sure who was the author of the case summary (whether it was the lead detective or the prosecuting attorney). The author recommended that no charges be filed, arguing that it would be difficult to prove Galen “caused” Thomas’ death. The author contended that Galen did not intend to kill Thomas and it was not reasonable for Galen to believe a single punch would cause Thomas’ death. I have requested the prosecuting attorney’s decline to prosecute memorandum, but the prosecutor contends that this document is exempt from disclosure.

What do you think? It certainly was a tragic case and a tough decision for the prosecutor to make.

UPDATE: Officer, I’m not texting and driving, I’m updating my Twitter account and driving

I previously discussed a new bill proposed in the legislature that would make it illegal to email and drive and provided an update on a substitute bill that passed the Senate transportation committee. On March 10, 2015, the full Senate passed the bill, which means the bill will now move to the House for consideration. Currently, the bill is scheduled for public hearing in the House Committee on Transportation on March 25, 2015, at 3:30 pm, although this is subject to change.

I had some questions and concerns about the proposed legislation, so I emailed the sponsors of the Senate Bill (Senators Rivers, Chase, Fain, and Keiser). Only Senator Keiser responded in a meaningful way (thank you Senator Keiser!; Senator Chase just pointed me to the public hearing currently scheduled in the House).

Senator Keiser confirmed that yes, all violations of this law would be part of each individual’s driving record, but that the first offense will not be reported to insurance companies or employers. Senator Keiser explained that the Department of Licensing (DOL) currently has the programming ability to remove the first offense violation from an individual’s driving record before sending that driving record to insurance companies and employers. So as long as DOL’s computer programs are working correctly, individuals should not have to worry about a first offense violation inadvertently being sent to insurance companies and employers. And again, a second offense would be on the driving record that is sent to insurance companies and employers (although insurance companies can only view three year driving records; employers can see the full record).

I was also confused about whether a person could still use Google Maps on their smart phone to navigate as they drive. Senator Keiser confirmed this was still possible under the new proposed law. However, to comply with law, the person cannot hold the phone in their hand and drive at any time, even at stop signs or traffic lights. Instead, prior to driving, and while the person is pulled to the side of the road, or off the road completely and stationary, the person can enter the destination address into their phone to activate Google Maps navigation. Then, the person would have to put the phone in a dashboard or wind shield mounted holder (because the phone cannot be in their hand). The person could then look at their phone while driving for navigational purposes. While driving, the person could use “either hand to activate, deactivate, or initiate a function of the device” and any touching of the phone would be limited to these purposes only. So you have to be pulled off the road and stopped to enter a new destination into the phone.

The law is still somewhat confusing to me. We’ll see if the House makes and changes to the legislation.


Judges must inquire about a defendants ability to pay fine before imposing fine

A new decision from the Washington Supreme Court today ruled that during sentencing, a judge must decide whether the defendant actually has the present and future ability to pay the court fine before deciding what fines to impose. In the cases, the Pierce County judges just included boilerplate language claiming the courts had done this, when in reality, the courts impose whatever fine the prosecutor asked for. The Supreme Court ruled the boilerplate language was improper unless the judge actually analyzes the defendants ability to pay on a case by case basis, and adjusts the fine accordingly.  The court came to this conclusion based on a statute, RCW 10.01.160.  Moreover, the court considered that court fines are disproportionately imposed throughout Washington State. For instance, “counties with smaller populations, higher violent crime rates, and smaller proportions of their budget spent on law and justice assess higher [fines] than other Washington counties.”
As a criminal defense attorney, I have seen this phenomenon play out in various courts. Smaller counties in Washington State (like Clallam County) will actually issue a warrant for a person’s arrest if they do not pay a fine. Other jurisdictions will suspend a person’s driver’s license for failure to pay. This court’s decision today is a good ruling that requires judges to exercise their discretion, rather than be a paper pushing robot.