Is This Really the Best Defense?

Sean Garrant, a dark-haired thirtysomething with a string of convictions on theft and other charges in his past, is standing again before a Seattle Municipal Court judge. His crime this time: stealing a pair of pants. His sentence: spend several days serving sandwiches to homeless people at a downtown shelter. He's just returned from his week of penance.

"What did you think about it?" asks Judge Ron Mamiya.

"I liked it a lot," Garrant says. "I'm going to make it a weekly thing. It's woken me up."

"You know you don't have to steal?" the judge asks, reminding Garrant that there's a "resource center" in the courthouse where he can get toothpaste, shampoo, and donated clothes.

Yes, says Garrant, he knows.

The judge gets assurance from Garrant that he has housing and medical care, then pronounces the offender done with his sentence.

"Congratulations," Mamiya says. "We're going to give you a hand." Everyone in the courtroom claps as Garrant walks up to the judge, shakes his hand, and receives a certificate.

The feel-good scene stands in sharp contrast to the usual adversarial atmosphere at the courthouse. Here at Community Court, repeat offenders can avoid jail for low-level crimes—such as shoplifting, panhandling, and disorderly conduct—if they agree to perform community service and enter the world of social services for drug-abuse treatment and the like. The other requirement: plead guilty.

Community Court is meant to address the "root causes" of criminal behavior. It also helps relieve chronic overcrowding at the King County Jail.

"It's a magical thing," says David Chapman, head of the Associated Counsel for the Accused (ACA), who worked with Seattle City Attorney Tom Carr to launch the program three years ago. ACA is one of two public defense agencies serving Municipal Court, where misdemeanors are heard.

The other agency working Municipal Court has a different take. Lisa Daugaard, deputy director of the Defender Association (TDA), sees this new "collaborative" model as an abandonment of one of the most basic principles of American jurisprudence: the conflict between prosecutors and defense attorneys. She doesn't like the idea of defenders automatically acquiescing to a guilty plea, even in the name of "helping" their clients. "You shouldn't have to plead guilty to get help," she says.

It's not an idle philosophical debate. In the view of Daugaard and other observers, TDA's refusal to "go along and get along" with the city's plans, including Community Court, has caused it to be squeezed out of the courthouse by the Nickels administration. When the city took control of muni court's public defense system from King County three years ago, TDA—which had previously been assigned a third of the misdemeanor defense business—was reduced to getting a fraction of that. Last fall, when a panel appointed by the mayor made recommendations for renewing the contracts, TDA was slated to be cut out entirely, according to documents recently obtained by Seattle Weekly. The panel recommended replacing TDA with an agency founded by Nickels' father. However, the panel's recommendation was shelved after the City Council began to raise questions about the mayor's handling of the contract, and the mayor agreed to a new round of bidding. The City Council also succeeded in changing the makeup of the review panel so that its members would be chosen from a list submitted by the King County Bar, not just by the mayor.

Still, that may not be enough to keep TDA at the courthouse. And in the view of some TDA allies and other court observers, marginalizing the agency has undermined public defense.

"I think [the city] took a competent system and trashed it," says Seattle University law professor John Strait. He points, as evidence, to a recent city auditor's report that showed fewer cases going to trial. Traditionally, the overwhelming majority of criminal cases end with a plea. But the "jury trial rate" at muni court has fallen further under the city's new system. For every 100 cases, only 0.98 went to trial in 2006, versus 1.35 in 2004. That's a 27 percent decline.

Janet Ainsworth, also a law professor at Seattle University, and a former TDA board member, calls the shift "the canary in the coal mine. That's a signal that the system isn't working." Even defendants who don't want to fight the charges against them are negatively affected by a slip in the trial rate, says TDA's executive director, Floris Mikkelsen, because good plea deals are hard to get if prosecutors don't believe that a trial is a real possibility.

The audit explicitly raises the question of whether the drop is linked to ACA's tendency to take fewer cases to the jury. ACA's Chapman responds that if clients are deciding to plead, "it's because they've made an informed choice. It's not because we're scared."

The audit also determined that Chapman's attorneys were juggling 10 percent more cases than they were supposed to in 2005. It anonymously quoted officials saying that "some ACA attorneys appear overwhelmed and unprepared." While Chapman defends his attorneys, he concedes that some have handled as many as 50 cases a month. (The average, based on a standard imposed by the City Council, should be about 32.) When it won the city's primary contract and began handling nearly all the misdemeanor work, "we couldn't hire fast enough," he explains.