State v. A.N.J.

Decision Date28 January 2010
Docket NumberNo. 81236-5.,81236-5.
Citation168 Wn.2d 91,225 P.3d 956
PartiesSTATE of Washington, Respondent, v. A.N.J., Appellant.
CourtWashington Supreme Court

George M. Ahrend, Garth Louis Dano, Dano Gilbert & Ahrend PLLC, Moses Lake, WA, for Appellant.

D. Angus Lee, Grant County Prosecuting Attorney, Carole Louise Highland, Attorney at Law, Grant County Prosecuting Attorney Office, Ephrata, WA, for Respondent.


¶ 1 In 2004, when A.N.J.1 was 12 years old, he pleaded guilty to first degree child molestation. Almost immediately, he moved to withdraw his plea upon realizing his juvenile sex offense criminal history would remain on his record once he was an adult, that he might have to register as a sex offender for the rest of his life, that he would have to notify his school, and that he would probably be shadowed by an adult while he was at the school. A.N.J. contends his court appointed counsel was ineffective because he failed to do an adequate investigation, failed to consult with experts, failed to fully inform him of the consequences of his plea, and failed to form a confidential relationship with him independent of his parents. He also argues that the trial judge did not adequately confirm that he understood the elements of the crime. He argues that under the facts of this case, his plea was not knowing, voluntary and intelligent, and that he should have been allowed to withdraw it. We conclude several of A.N.J.'s contentions have merit and remand to the trial court with directions that A.N.J. be allowed to withdraw his plea.

¶ 2 The right of effective counsel and the right of review are fundamental to, and implicit in, any meaningful modern concept of ordered liberty.2 More than 45 years ago Clarence Earl Gideon told his trial judge, "`The United States Supreme Court says I am entitled to be represented by Counsel.'" Gideon v. Wainwright, 372 U.S. 335, 337, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (quoting transcript). The trial judge disagreed, and without counsel at his side, Gideon was convicted and sentenced to five years in prison. The United States Supreme Court granted Gideon's handwritten petition and concluded that the right to appointed counsel was implicit in the Bill of Rights. Gideon, 372 U.S. at 337 n. 1, 344, 83 S.Ct. 792.

¶ 3 The Bill of Rights is part of our founding compact. It promises everyone certain fundamental rights, including the right not to be put in jeopardy of the loss of life or liberty without due process of law, not to be subject to unreasonable searches and seizures, not to be induced to self incrimination, and not to be put twice in jeopardy for the same offense. U.S. Const. amends. IV-VI, XIV; see also Wash. Const. art. I, §§ 3, 9, 22. Without an attorney, these fundamental rights are often just words on paper. As Justice Black wrote:

[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.... From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Gideon, 372 U.S. at 344, 83 S.Ct. 792. The United States Supreme Court held that Gideon was entitled to a new trial and that under the Sixth and Fourteenth Amendments, states were required to appoint counsel for indigent accused, like Gideon before they could lawfully hale men and women into court and subject them to the penalties of the law. Id. at 343-44, 83 S.Ct. 792. Since Gideon, the high court has found that the right to counsel extends to children and in misdemeanor prosecutions whenever the defendant faces a risk of loss of liberty. Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Later, in Strickland, the Supreme Court made clear that the Constitution guaranteed the poor not just an appointment of counsel, but also effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 4 Yet 45 years after Gideon, we continue our efforts to fulfill Gideon's promise. 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. Public funds for appointed counsel are sometimes woefully inadequate, and public contracts have imposed statistically impossible case loads on public defenders and require that the costs of experts, investigators, and conflict counsel must come out of the defenders' own already inadequate compensation. See Gene R. Nichol, The Charge of Equal Justice, JUDGES' J., Summer 2008, at 38 & 41 n. 12 (citing Deborah Rhode, In the Interests of Justice: A Comparative Perspective on Access to Legal Services and Accountability of the Legal Profession, 56 CURRENT LEGAL PROBS. 93, 96-98 (2003)); THE CONSTITUTION PROJECT, JUSTICE DENIED: AMERICA'S CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL 53, 57, 64, 67-68 (2009); Ex. 13, at 7-8 (Am. Decl. of John A. Strait). Such 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. Such public defender systems have been called "`meet `em, greet `em and plead `em'" justice. Deborah L. Rhode, Access to Justice, 69 FORDHAM L. REV 1785, 1793 & n. 42 (2001) (citing Alan Berlow, Requiem for a Public Defender, AM. PROSPECT, June 5, 2000, at 28). It is clear, even if not calculated, that the prosecution benefits from a system that discourages vigorous defense and creates an economic incentive for indigent defense lawyers to plea bargain.3

¶ 5 This case challenges the constitutional adequacy of the prior indigent criminal defense that was provided by Grant County under a previous public defender contract.4 Since this case, public defense in Grant County was reorganized and improved in response to changes to the Rules of Professional Conduct that addressed several of the troublesome structural components of the system.


¶ 6 On April 7, 2004, Deputy Matney received a report that five-year-old T.M. of Moses Lake had been sexually molested by another child. On May 3, Deputy Matney interviewed T.M., who reported that his neighbor, A.N.J., had touched him and his four-year-old sister "over and under [their] clothing." Clerk's Papers (CP) at 1, 21-23.

¶ 7 Eleven days later, the deputy called A.N.J.'s parents. Apparently, after speaking with an unnamed attorney, A.N.J.'s parents agreed to have their son talk to the police. According to A.N.J., five-year-old T.M. had attempted to instigate a game of "Icky Poke-U," which, it seems, involves putting one's hands down another's pants. A.N.J. told the deputy he had declined to play and had touched neither child. The deputy noted in his report that he did not believe A.N.J. because he stopped making eye contact and started crying.

¶ 8 A.N.J. was charged with one count of first degree child molestation under RCW 9A.44.083 and assigned a public defender, Douglas Anderson. Anderson had contracted with Grant County to provide public defender services in juvenile cases, among other things, for a flat fee. A 2000 version of the contract set the fee at $162,000 per year. Under the contract, Anderson was required to pay for "expert witnesses, investigators and other service necessary to an adequate ... defense ... except for extraordinary cases." Ex. 8, at 5.5 Additionally, if conflict counsel was required, it was Anderson's responsibility to notify the court and pay for that counsel out of his flat fee. Under recent revisions of the rules governing attorneys' professional conduct, it is now unethical for an attorney to sign a public defender contract to deliver public defense if the contract requires the attorney to pay for conflict counsel, expert witness, or investigative costs out of a lump fee. RPC 1.8(m). The year he represented A.N.J., Anderson represented 263 clients under this contract. Additionally, he carried an average of 30-40 active dependency cases at any one time, and about another 200 cases. Anderson's only assistant was his wife, who had been home with a sick child at the time he was representing A.N.J.

¶ 9 Anderson filed a notice of appearance on behalf of A.N.J. on July 29, 2004. He met with his 12-year-old client and his client's parents once before the August 2, 2004, arraignment for about five minutes, and then briefly before the arraignment itself. Client and lawyer did not meet again before the pretrial conference on September 14, 2004, though A.N.J.'s father called in weekly. Anderson did little if any investigation or research into the case. Despite being given the names of witnesses who might have been able to testify that the victim had been abused by others, which could have provided an alternative explanation for T.M.'s report and knowledge, Anderson called these witnesses only once, did not reach them, and did not follow up. He never spoke to the investigating officer. He made no requests for discovery and filed no motions. At the pretrial conference, Anderson spent 5 to 10 minutes with A.N.J. and his parents.

¶ 10 The day after the pretrial conference, the State offered a deal. If A.N.J. would plead guilty to one count of first degree child molestation, the State would recommend a special sex offender disposition alternative program (SSODA). If A.N.J....

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