Clark County Indigent Defense Office needs more attorneys for serious, time-consuming cases

There are certain felony cases that do not fall under the contract, which pays a flat rate depending on the crime charged. Persistent offender, so-called third-strike cases where the defendant faces a life sentence without parole, homicide cases and attempted homicide cases are paid at an hourly rate of $90.

The indigent defense office maintains the list of attorneys willing to take these more serious crimes. Inclusion on the list is voluntary and the ability to try such cases is subject to the approval of judges and qualifications under court rules. Most attorneys on the list also have a superior court contract, but not all of them, Carroll said.

When Miller Wilber was charged with second-degree domestic violence murder in early October, there were no attorneys left on the list.

So the office started reaching out to attorneys in Oregon. One Portland-based attorney declined to take the case. Next, the office got in touch with Sohaye Lee, who also practices law out of Portland. She accepted.

Miller Wilber’s case appears it will require a large amount of work. She stands accused of murdering her mother, 75-year-old Carole Hardin. The daughter and mother were reportedly in a physical fight that ended in Hardin’s death, according to a probable cause affidavit. Instead of seeking medical aid or calling 911, Miller Wilber told investigators she was confused and began digging a grave in the backyard for her mother. Miller Wilber was arrested on Sept. 30, several days after she reported the death.

During an arraignment hearing in October, Lee attempted to enter not-guilty pleas on her client’s behalf, but Miller Wilber would not respond to the judge and became emotional.

In an affidavit filed Nov. 15 about Miller Wilber’s court-ordered competency evaluation (whether she understands the charges and court process), a licensed psychologist noted that the defendant “did not have the capacity to understand the nature of the proceedings, and she did not have the capacity to assist counsel on her behalf.”

Carroll noted two other recent cases, both involving attempted murder, where there was no available attorney on the hourly list. Two qualified attorneys were appointed on a provisional basis and were later replaced — a local attorney under contract agreed to be added to the list and available for hourly cases, and a second lawyer in Cowlitz County agreed to take a case.

As of Oct. 18, there were 37 defendants charged in Clark County with homicide or attempted homicide and represented by appointed counsel, according to the indigent defense office.

Some of those cases have since been resolved, but at least one other case that will need an attorney to be paid at an hourly rate has been filed, which is the murder case against Ryan M. Burge, 37. Burge stands accused of killing his girlfriend’s 5-year-old daughter.

Twenty attorneys are on the list maintained by indigent defense. Some of them handle multiple hourly cases.

Prosecutors’ caseload

County Prosecuting Attorney Tony Golik said his attorneys are not feeling a strain due to high-profile cases. This year, prosecutors have taken on 25 new homicide and attempted homicide cases. Those don’t include cases that have carried over from the previous year. Last year, there were two dozen such cases. In 2016, there were 20 cases.

An increase of five of these types of cases is significant, said Golik, but the amount of time spent on them varies widely.

“Just looking at the number doesn’t tell the whole story,” he said. “We have a very capable major crimes team that’s certainly very busy, but we’re always assessing the caseload.”

“We’re never really short on people. Our attorneys are trained to do various cases, or they’re getting the experience to do them,” Golik added.

The prosecutor office’s largest caseload is in appeals, he said.

The solution, according to the indigent defense office, is attracting or developing more qualified attorneys to be on the “most serious felony attorney lists” and/or “prosecuting fewer cases that require the most qualified counsel for appointment.” Both solutions are easier said than done.

Golik said when a serious case comes across his desk, he’s not thinking of the indigent defense office’s budget. He said society expects those cases to be charged to the full extent. If prosecutors were to run into constraints, they would pursue fewer less-serious cases, he said.

There are a greater number of attempted murder cases filed this year in Superior Court. Golik said the circumstances under which a crime can be charged as either first-degree assault or attempted murder are similar, but his office has not changed how it makes charging decisions.

County Manager Shawn Henessee said there are several factors causing the difficulty in finding defense attorneys. There have been a number of qualified lawyers who have retired, the economy is doing well and there are better financial opportunities elsewhere, and the hourly rate of pay for court-appointed attorneys has not increased in about a decade.

The county flirted with the idea of creating a public defender’s office last year — two-full time attorneys would serve as public defenders. Not everyone was onboard, partly due to worries about how much it would cost.

Beyond hiring public defenders, Carroll said a work group tasked with looking at the reorganization also proposed increasing contractor pay and the rate of hourly pay, from $90 to $110.

An increase in the rate of hourly pay “could free up some of the contract attorneys who are currently qualified, but they choose not to be on the list because of caseload concerns. If you’re carrying a large contract, you’re not going to want to take a complicated hourly case,” Carroll said.

She said appointing co-counsel, a “second chair” to defend a client for a single case, may also attract attorneys who do not want to take on a full caseload and are attracted by the idea of mentoring a younger professional in their field.

According to the county manager, there will be ongoing discussions about how the county is involved in defense, and whether or not public defenders are a realistic option for the area.

“I think it’s something we need to make a decision on to move forward,” Henessee said. “The difficulty is finding the money for anything right now.”