The Metropolitan King County Council on Monday could confirm Interim Director Anita Khandelwal as the new head of the county's Department of Public Defense.
A highly critical audit of the King County Department of Public Defense released in mid-October, coupled with an early political stumble by Interim Director Anita Khandelwal in the summer, could have potentially derailed the 42-year-old attorney’s appointment to the post of public defender.
Instead, Khandelwal — who has already been credited with infusing new hope and vision into a department that’s struggled with low morale since its creation in 2013 — appears poised to win confirmation by the Metropolitan King County Council. She has the backing of employee unions and the Washington Defender Association, among others.
In a 6-3 vote last week, the county council’s Committee of the Whole approved a motion to move Khandelwal’s nomination to a final confirmation vote, which is expected to happen Monday afternoon. However, any council member can request a weeklong delay, and if that happens, it would bump Khandelwal’s confirmation hearing to Nov. 13.
During the committee’s public comment period, several public-defense attorneys and employees spoke in favor of Khandelwal’s appointment.
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Paralegal Risa Collins said the years under former director Lorinda Youngcourt were tumultuous and frustrating, with employees constantly worried about the direction the department was going.
“In the short time that Anita has been our director, it was like a cloud lifted,” Collins said. “ … She’s given us hope, hope that we haven’t had in a long time, hope that things are going to get better.”
Should she be confirmed, Khandelwal’s salary of just under $200,000 a year will be equal to that of Prosecutor Dan Satterberg.
Executive Dow Constantine named Khandelwal as Department of Public Defense’s interim director in July after notifying Youngcourt that he would not appoint her to a second, four-year term because of complaints over her management and leadership style. Youngcourt resigned June 29. After a national search, Constantine nominated Khandelwal for the directorship of DPD on Oct. 3.
The Department of Public Defense (DPD) emerged after the state Supreme Court ruled that employees of four independent public-defense contractors were allowed to enroll in the county’s Public Employees’ Retirement System.
In July 2013, the county hired the employees, and voters later approved a measure to create a single Department of Public Defense within the executive branch. Under the county charter, the department is responsible for both providing legal counsel and representation to indigent clients who can’t afford an attorney and promoting “system improvements, efficiencies, (and) access to justice and equity in the criminal justice system” without interference from elected officials.
The four former nonprofits — The Defender Association, Society of Counsel Representing Accused Persons (SCRAP), Associated Counsel for the Accused, and Northwest Defenders — are now each a separate division within DPD, each with a managing attorney overseeing what are essentially four separate law firms. The county’s 200 public defenders represent felony and misdemeanor criminal defendants in King County superior, district and juvenile courts as well as Seattle Municipal Court, along with clients facing civil commitment to mental-health facilities, sex-offender commitment, or loss of parental rights. DPD also employs around 200 investigators, mitigation specialists, social workers, paralegals and legal assistants.
Within three weeks of being named interim director, Khandelwal faced backlash from county officials after she publicly opposed construction of the county’s new Children and Family Justice Center, Crosscut reported in the summer. On July 27, DPD’s policy directors sent a joint letter to the Public Defense Advisory Board, asking to discuss “an alarming effort” to undermine DPD’s independence and remove Khandelwal from consideration for the permanent position.
Addressing the controversy during last week’s hearing, Khandelwal told council members she should have given the council and courts warning that she planned to speak out against the youth jail, but she did not reverse her stance.
“The thing I do regret in that was failing to communicate better,” she told the council.
Khandelwal also defended her right to take policy positions that might make elected officials uncomfortable, pointing out that public defenders opposed capital punishment and treating juvenile criminal defendants the same as adults long before the state Supreme Court ruled both the death penalty and standard sentences for juveniles convicted in superior courts unconstitutional.
“It’s not just a right but a responsibility to take policy stances on behalf of our clients,” Khandelwal said in a later interview, adding that joining community groups in opposing the new youth detention center was “an important thing to do.”
At the same time, Khandelwal said she has been excited to work with the executive and prosecutor’s office on the Zero Youth Detention Plan, which seeks to reduce the number of juveniles in detention. She worked with the King County Sheriff’s Office to create a simplified Miranda warning for juveniles, which the Seattle Police Department is looking to implement, and worked with Councilmember Dave Upthegrove on an ordinance to provide youth an opportunity to talk to an attorney before being questioned by police.
During last week’s council hearing, Khandelwal said she mostly agreed with the 13 recommendations outlined in the critical 23-page audit conducted by the King County Auditor’s Office — which council members acknowledged covered the time period Youngcourt was in charge of the DPD.
A former federal defender and senior attorney with The Defender Association, Khandelwal was hired by DPD in November 2015 and served as deputy director and policy director — positions she said allowed her to make suggestions to Youngcourt, but gave her no authority over the department’s operations, which were largely the focus of the audit.
Among the audit’s findings is that DPD has not effectively transitioned from four nonprofit law firms into a unified department; lacks a strategic plan and performance measures; has not set standards on the amount of time attorneys spend on cases; utilizes a staffing model that may not accurately determine staffing needs; and has a case-management system that results in inconsistent outcomes and potential inequities for clients.
To highlight inconsistencies, the audit points out the percentage of felony cases that went to trial in Seattle ranged from a high of 7.5 percent in one DPD division to a low of 2.1 percent in another, though the audit doesn’t identify the individual divisions. Positive outcomes in those Seattle felony trials — either not-guilty verdicts or guilty verdicts on lesser offenses — ranged from 2 to 25 percent across the four divisions, the audit says.
The audit notes DPD’s per-case cost has increased 93 percent, from an average of $2,240 a case in 2013 to $4,312 in 2017, while the number of cases has remained stable. But the increase was “largely driven” by increases in pay and benefits to DPD employees so they could reach parity with employees in the prosecutor’s office, the audit says. DPD had a budget of $72 million and represented 19,787 people last year.
While Khandelwal says she has already taken steps to improve training and caseload management and plans to complete the strategic plan if confirmed, she disagrees with the audit’s recommendation that DPD be restructured. Currently, cases are equally distributed among the four divisions, with the auditors recommending one large division and three smaller ones.
She said the audit’s recommended structure was analyzed and rejected in 2013 because of caseload limits prescribed by the state Supreme Court and the need for “ethical walls” between divisions.
For instance, an attorney in one division cannot represent a criminal defendant who was a victim or witness in an unrelated case that was tried by another attorney in the same division. If a conflict is found, the case is transferred to one of the other three divisions or to outside counsel. Sixty attorneys across the four divisions handle felony cases.
“If you look at the rules of professional conduct, we have very strict confidentiality rules, and the structure enables us to follow those rules,” Khandelwal said.
Correction: An earlier version of this story incorrectly stated Khandelwal’s confirmation hearing could be moved to Nov. 12. Because the King County Council will observe Veterans Day on Nov. 12, the council won’t meet until Nov. 13.