‘Very troubling’: Dozens in Whatcom County waiting for a public defender to be named

Nearly a dozen people incarcerated in the Whatcom County Jail are in limbo because public defense attorneys cannot be found for them.

At least two have been waiting for an attorney for more than a month.

In total, across Whatcom County’s Superior, District and Juvenile courts, roughly 43 people are unrepresented because defense attorneys cannot be found for them, according to Starck Follis, Director of the Whatcom County Public Defender’s Office.

Locally, people who are indigent, or can’t afford an attorney, are screened by Whatcom County’s Office of Assigned Counsel. If they qualify, their cases are sent to the public defender’s office to be assigned to attorneys. If the public defender’s office can’t accept the case due to a conflict or caseload limits, the case is returned to the Office of Assigned Counsel. The case is then sent to private attorneys who have contracts with Whatcom County and agree to take on cases the public defender’s office cannot.

All of the 43 people qualify for a public defender, but the county’s public defense office cannot represent them because it’s already handling other cases that create conflicts of interest. For example, if the public defender’s office is handling a person’s case and a new case comes in where that person is a victim, the public defender’s office would be unable to take on the new case, Follis said in a Friday interview with The Bellingham Herald.

But due to a shortage of available private attorneys able or willing to take indigent defense cases, the county’s Office of Assigned Counsel has been unable to find enough court-appointed defense attorneys, Follis said.

“I don’t know that it’s anybody’s fault, but the question is, ‘What do we do with these people?’ Do we let them out of jail or dismiss their cases? On some level, they’re being deprived of pretty fundamental rights and we’ve got to find a solution to this problem,” Follis said. “It’s very troubling, especially for those in custody.”

Of the 43 people who are currently unrepresented, 26 have cases in District Court, 12 are charged with felonies in Superior Court, and five are facing charges in juvenile court, Follis said.

Of the 12 people who are facing felony charges, nine of them are currently in the county jail awaiting an attorney so they can make their first appearance in court. It was not immediately known Friday whether any of the nine included juveniles.

At least one person incarcerated in the jail has been waiting to have a defense attorney appointed to them since April 3, while another has been waiting since April 11.

For the unrepresented people who are in custody right now, no one is there to help them, provide assistance or address their concerns, Follis said. Because they don’t have an attorney, those people can’t get a hearing in front of a judge in order to bring up the issues surrounding delays in getting an attorney appointed to handle their cases, Follis said.

Any person accused of a crime has a Constitutional right to a lawyer. That right begins as soon as a person is taken into custody, appears in front of a judge or court commissioner or is formally charged, whichever comes first, according to Washington state court rules.

“If you’re arrested and booked into jail, you’re given a lawyer the next morning per court rules. That’s the time-frame, it’s immediate. At the time of charging or an arrest you’re entitled to an attorney by the next day — not next month,” Follis said.

When a defense attorney can’t be found for a person, it puts everything on hold and creates issues regarding legal requirements and rights defendants have for when they have to be arraigned, when a trial must begin and more. Without a defense attorney, the time requirements for a defendant’s rights become warped, Follis said.

“Nothing stops a case like somebody who is not represented. It’s very difficult for the court to interact with someone who is not represented. And not only is it difficult, it’s arguably improper, for a prosecutor to interact with someone who is not represented,” he said.

The Herald has reached out to the Whatcom County Superior Court judges, the court administrator, the Whatcom County Sheriff’s Office and the Whatcom County Prosecuting Attorney’s Office for comment.

Growing issue

The lack of available defense attorneys able or willing to handle indigent defense cases conflicted out from the Whatcom public defender’s office is not new.

It’s an issue that’s been brewing over the last several years.

In September 2021, the public defender’s office reached caseloads that were unmanageable, The Herald previously reported. The rising caseloads for attorneys caused by a backlog of court cases stalled by the COVID-19 pandemic resulted in the public defender’s office having to return cases to the county’s Office of Assigned Counsel for the first time.

The situation also led to the county requiring the court administrator to seek attorneys from outside Whatcom to handle cases and to request additional funding because the county’s budget for indigent contract defense had been overshot, The Herald previously reported.

Whatcom County had 11 attorneys on contract to provide outside indigent defense at the time, which was more attorneys on contract than the county had previously ever had. The Herald has asked the Whatcom County Superior Court administrator for information related to the county’s current number of contract attorneys, budgets and pay rates for contracted attorneys and other information.

While the situation in 2021 was largely driven by the backlog of cases facing the county’s criminal legal system, the current situation is different, Follis said. His office is precluded from handling the 43 cases where defendants are unrepresented due to conflicts of interest, he added.

Follis said he knew the county’s Office of Assigned Counsel was having difficulties finding attorneys in a few cases over the past several months, but a few days ago, he learn how many people whose cases had been conflicted out still had no attorney.

There have always been enough private lawyers who accepted court-appointed cases, but due to a state and national shortage of defense attorneys, there are “fewer and fewer” people willing to take on those cases, he said. More needs to be done to attract lawyers to take court-appointed cases. This could include increasing the compensation for private attorneys handling those cases, Follis said, adding that court-appointed cases don’t pay well.

The lack of available defense attorneys is not unique to Whatcom County.

The Tri-Cities in Eastern Washington is facing a crisis after three months of not having any qualified attorneys to assign to new cases, the Tri-City Herald reported. Judges have now begun cutting bail for people accused of crimes and are considering requiring private attorneys to take on public defense cases, according to the Tri-City Herald.

When asked if Whatcom faces the same possible outcome, Follis said Friday that it is unlikely that Whatcom’s judges would require private attorneys to accept conflicted indigent defense cases. When he brought up the issue of nearly 50 people not having access to an attorney earlier in the week, he said Superior Court judges seemed reluctant to get involved due to a new statewide rule for courts regarding the independence of public defense services across the state. The rule went into effect in January.

Follis said since nearly a dozen people in custody in the county jail lack a defense attorney, the issue deserves attention.

“It’s real simple. I want people to know there are people in jail and people in all of our county courts that are unrepresented right now and something needs to be done to address that issue. It could be as simple as releasing the ones who are in custody or dismissing cases without prejudice so they can be refiled at a later time when lawyers are available to them. But it’s simply not acceptable to have people sitting in jail unrepresented,” Follis said.