Hilltop Crips sweep cost Pierce County public $7,200 per defendant

Pierce County paid nearly four times the going rate to provide private defense attorneys for 31 men swept up in a crackdown on the Hilltop Crips street gang last year, according to a News Tribune analysis.

Still, some county officials called the $225,000 outlay a bargain. They’d worried the bill could top $1 million before all the cases were resolved.

Al Rose, the county’s executive director for justice services, credited chief public defender Michael Kawamura with controlling expenses in what he called a complicated and logistically difficult case.

“He did an amazing job of keeping costs down while making sure these guys got good representation,” Rose said recently.

Prosecutors filed felony charges in February 2010 against 36 suspected members of the Crips after a months-long investigation by the South Sound Gang Task Force.

The men were charged with a variety of crimes, from burglary to attempted murder.

Those counts alone were routine, but Prosecutor Mark Lindquist decided to try something different in prosecuting the men. He instructed the deputy prosecutors in his gang unit to also charge the men with a vast criminal conspiracy. The theory: Joining a gang meant you were responsible for any and all crimes committed by the gang.

The decision made headlines and put Kawamura in a difficult position.

He was forced to provide attorneys for the 31 defendants declared indigent by Superior Court judges and therefore entitled to a defense paid by the public. The remaining five defendants hired private counsel.

But Kawamura couldn’t just draw from his stable of county-employed lawyers because many had represented the defendants – or witnesses against them – in previous cases. That created an unacceptable conflict of interest, Kawamura said at the time.

“You might have divided loyalties,” he told The News Tribune in February 2010.

So Kawamura went outside his office to find counsel for the men. In many cases, that also meant going outside the county.

He managed to line up attorneys – some from as far away as Snohomish County – for all the defendants, but he wanted experienced lawyers who could handle what at the time was a novel legal theory. A judge ultimately rejected the conspiracy theory but not before three months of litigation.

So Kawamura had to sweeten the pot.

“You had to provide some kind of accommodation for people,” he said recently. “We understood that this was a special kind of case.”

RAISING THE CAP

Kawamura said he took the rare step of raising the cap usually paid to private attorneys asked by the county to represent indigent clients.

The going rate for such work is $62 per hour with a maximum of $5,500 for cases that go to trial, and $1,100 for cases resolved before trial, according to Department of Assigned Counsel policies.

Lawyers who take on the work must sign an agreement stating “work performed through DAC by appointment of the court is work done in the public service, and, as such, involves some donations to time and effort for the public good.”

Kawamura said it quickly became clear that the caps would limit his pool of potential lawyers, some of whom complained they couldn’t break even on such a complicated case at the standard rates.

Port Orchard attorney Ron Ness was one.

“I can’t afford to represent someone in a Class A felony for that payment rate,” Ness wrote in a Feb. 27, 2010, email to Kawamura. “Sorry, but I didn’t realize the payment was so low and there was a cap.”

Ness wound up not taking part in the case.

County officials decided to double the caps to attract applicants, Kawamura said.

He also held open the possibility of higher payment with the approval of the DAC’s Advisory Board, a group of local defense attorneys and county officials who review petitions for payment.

Deputy department director Richard Whitehead explained it in an email to another attorney thinking about joining the case.

“The caps are not ‘hard caps,’ or we could never get panel attorneys for the more significant cases,” Whitehead wrote. “However, fees above the caps are subject to directory and advisory board approval.

“As such, monthly billings will be required so that the director and advisory board can better assess the impact of the case and respond appropriately.”

Kawamura and the advisory board ended up approving fees above the adjusted caps in more than 20 cases.

$7,263 PER DEFENDANT

Under the revised rules, the county paid an average of $7,263 per defendant, the News Tribune analysis found. The high was $16,865 paid to attorney Stephen Johnson, whose client went to trial on a conspiracy to commit first-degree murder charge and was found guilty.

The low of $1,251 was paid to Mark Deming, who negotiated a guilty plea for his client.

The county paid more than $10,000 each for five plea bargains in the case, about nine times the usual rate. Rose, an attorney, said he wasn’t surprised by those figures. Some plea bargains are complicated and take many hours to complete, he said.

“It’s keeping a lot of balls in the air, sometimes right up until the trial date,” Rose said. “That can be costly.”

Attorneys charged hourly for meeting with their clients, reading police reports and other discovery, attending court and travel time between their offices and the County-City Building in downtown Tacoma.

The lawyers outside Pierce County received $31 per hour while traveling plus 50 cents per mile. Seattle-based lawyer Peter Connick charged for some meals.

Under the normal rate of pay – $5,500 per trial and $1,100 per plea – the county would have paid $60,500 for the six jury trials, 23 plea bargains and two dismissals ultimately generated. All the trials and plea bargains ended in convictions.

Instead, the bill came to $225,166.37, according to The News Tribune’s analysis.

Kawamura said the costs of the case did not hurt his annual budget in either 2010 or 2011. There was enough money in an existing fund set aside to pay private attorneys to cover the fees, he said.

Kawamura said he didn’t have to ask the County Council for more money, which had been a concern at the beginning of the case.

“We had our worst-case scenario hats on then,” said Rose, who asked early on to be apprised of expenditures in the case.

Kawamura said he was able to keep costs down by having his office organize much of the evidence – which amounted to several thousands pages of documents – for the private lawyers, saving them the time and effort of doing so.

The DAC also delivered many documents to defendants and prosecutors, which eliminated the need for the private attorneys to spend their time on such tasks, he said.

“Internally, we did quite a few things to eliminate multiple duplication of projects,” Kawamura said. “It dropped significantly the hours each attorney had to do.”

He also credited the attorneys.

“Lawyers did a good job of kind of cutting to the chase and doing what they needed to do,” Kawamura said. Not everyone was pleased with the outcome.

Attorney Mark Prothero, whose office is in Kent, was paid more than $12,000 to secure a plea deal for his client. Prothero, who defended Green River Killer Gary Ridgway, felt he was owed $2,880 more and appealed to the DAC advisory board, which turned him down.

“What really burns me the most is that you shouldn’t treat fellow defenders like this,” Prothero wrote to DAC in December 2010. “DAC was in a jam. They turned to experienced people and asked who would be willing to absorb a financial hit to help out when it was needed. And then you don’t pay for the work performed, even a the meager rate the we had agreed upon.”

Kawamura said he wasn’t surprised that some people felt that way but he thinks everyone was treated fairly. “People are going to have different opinions about what’s going on,” he said. “It’s the first time, I think, we’ve had this. It required us to think out of the box. I think we found we could do a pretty good job at it.”