Above: Thurston County Courthouse sign directs visitors. A 2017 independent
report says Thurston County Prosecuting Attorney Office practices
contribute to slow case management. In an interview, Prosecuting Attorney Jon Tunheim
touts new case management protocols and programs.
By
Janine Gates
Little Hollywood
In his bid for a third term as Thurston County Prosecuting
Attorney, Jon Tunheim is, for the first time, facing a challenger.
In a recent interview with Tunheim, Little Hollywood focused on themes mentioned at his May 14 campaign kickoff party. It also took a deep dive
into a 74 page independent report published in 2017 about Thurston County
Superior Court felony case flow and calendar management.
Prosecutors in Washington State process all criminal
cases, including those filed in Superior Court.
The report is particularly harsh in its findings about
the Thurston County Prosecuting Attorney Office, saying the office does
not have many policies in place that are standard best practices for trial
courts.
Tunheim responded to the report and revealed new
case management protocols currently underway.
National
Center for State Courts (NCSC) Report
The report, published in June 2017 by the National
Center for State Courts (NCSC), is titled “NCSC Felony Caseflow and Calendaring
Study of Thurston County Superior Court.”
The consultants studied data and a sampling of cases within
the prosecuting attorney’s office (TCPO), the public defender’s office (TCPD),
and the court system, identifying a host of procedural and performance issues that
causes delays, system inefficiencies, and productivity problems.
“Importantly, most everyone in the criminal justice
system interviewed by the NCSC project team is dissatisfied with its
functioning. To create the changes this report is recommending, every
participant in the system, including the TCPO and the TCPD, must be willing to
modify and reengineer their operations to improve overall system productivity
for the public and for themselves,” it says.
The report is available online at
http://www.co.thurston.wa.us/superior/documents/ncsc-report-20170601.pdf
The NCSC consultants contend that lack of
supervision of deputy prosecutors and ineffective pretrial conferences
contribute to poor-quality decisions regarding which cases to take to trial. It also says there are too many trials.
For those cases that do go to trial, approximately 50 percent end in not guilty findings or guilty findings to lesser charges.
For those cases that do go to trial, approximately 50 percent end in not guilty findings or guilty findings to lesser charges.
Of 388 scheduled pretrial events, only 138 (35
percent) occurred on the date and time scheduled. The
report says that this is a tremendously high percentage given the number of
events that take place.
In blunt language, the report says that in-custody defendants’ length of stay at the jail is longer than it needs to be, the jail population is higher than it needs to be, and the current practices of the prosecuting attorney are a substantial cause of continuances, thus contributing to a slow case management system.
Of the cases analyzed by NSCS investigators, the time from charging to disposition ranged from 28 days in a burglary case to 681 days in a drug sale case. Sex offense and drug sale/purchase cases took the longest to reach finality.
Pertaining to the handing over of case evidence, the
discovery delivery process, the report illustrates communication difficulties
between the prosecutor’s office and public defender’s office.
The report recommended that the prosecutor’s office
overhaul its discovery delivery system to include a checklist so defense
attorneys can see what is being delivered and is not yet delivered. This list
should be entirely electronic, saying other counties have systems
that could be copied.
“The Prosecutor believes in case management autonomy
for his deputies. Although this may sound good in theory, in practice autonomy
leads to large-scale plea agreement inconsistencies across his deputies. This
is an issue of justice and fairness,” says the report.
To improve overall efficiencies, the report lists several major recommendations for the prosecutor’s office.
Above: Thurston County Prosecutor Jon Tunheim
Photo by Janine Gates/Little Hollywood Media
Tunheim
Responds To Report
In our interview, Tunheim was asked to respond to
the report, which, to a layperson, appears particularly scathing toward the
prosecutor’s office.
Tunheim said that “if there’s anything good that
came out it [the report], everyone got their finger pointing done,” while
pointing out the flaws in case flow and timeliness.
“There’s been a cultural issue with our Superior
Court for a while now – nobody is holding anybody else accountable. It’s a
delicate issue. Prosecutors and defenders work together in a relationship…of
give and take on both sides…we try hard in this county to not be
inappropriately adversarial. We try not to make it personal and try to
understand each other’s hurdles.”
As a result of this relationship, Tunheim said there
are continuances.
“Judges let lawyers make those decisions and were
criticized in the report for not holding our feet to the fire,” he said.
Tunheim said he disagrees with the report’s comments
on prosecution policy as there was no prosecutor involved in its writing.
“There were two consultants, a court administrator
and a judge, both from large court systems. They are good system thinkers…
(but) I don’t feel like they understood
that very well from a prosecutor’s perspective. Some things in there I just
flat disagreed with on a philosophical policy level. All the system stuff about
how we can move cases through – most of that I agree with.
“…There were admittedly things causing cases to be
delayed. The discovery issues were less about discovery and more about when
they get offers and are part of the negotiation process. We have been having a
hard time getting discovery from the law enforcement agencies and that is
putting some delay in our process because we can’t turn it over until we have
it – and it takes time to do that,” said Tunheim.
New System
Improvements
Tunheim says processes have improved since the
report came out. New case management protocols which determine how a case moves
through the system officially went live on June 1.
One of the recommendations in the report was for the
process of discovery to be handled electronically.
“We all came to the table and came to specific agreements….The
public defender’s office and the prosecutor’s office have been working together
for the last six months to put a request for proposals out to get a new case
management system that will hopefully be another improvement for all of us so
we can exchange our discovery electronically, better schedule things and be all
on the same page and use the system to better watch cases as they are moving
through on the timeline.”
Felony
Leadership Improvement Project (FLIP)
Tunheim described a new felony leadership improvement
project (FLIP) that involves the leadership of the prosecutor’s office, public
defender’s office, the court clerk, the court, jail, and pre-trial services to
design a new case flow management system.
Meeting one and a half hours every month since last year,
with a subcommittee meeting more frequently, part of their work is to set a
realistic schedule for trial dates and design tracks for cases. The process is called
differential
case management - a good assessment at the very front of what a case might look
like and how it might be resolved within a realistic timeframe.
Tunheim says a Thurston County murder
case will take six months to a year to get to trial. A drug possession charge
will take sixty to ninety days.
Addressing criticism in the report, Tunheim said he
has felt unheard for a long time regarding the creation of a management system.
In
2010, when another report was done about the court system, Tunheim said he advocated
for a differential case management, but the court responded, “We don’t have the
computer system to be able to do that.” Tunheim agreed it was a dinosaur of a
system.
More case management fits and starts occurred as he
worked with the previous county commissioner appointed public defender, Daryl Rodrigues,
and it could never get rolled out.
“Finally, when the report came out, everyone was ok,
let’s do this,” Tunheim says. He says the report unfairly implies that it’s the
prosecutor’s office responsibility to develop a differential case management
system.
“We can’t do that – it’s a system – so that’s why
FLIP was so important – everyone finally came to the table and we were able to
participate.”
First
Look Unit
Tunheim’s new “First Look” unit is an idea that came
out of the FLIP process. Its goal is to do a front end assessment of cases,
contact the public defender’s office, and see which cases could be resolved
quickly.
These cases often involve a significant addiction
issue or are in need of some other kind of diversion. The unit’s purpose is to
take a chunk of cases out of the system, so that the ones that are left get the
prosecutor’s time and attention.
“Theft may be the case, but what (may be) driving it
is the addiction…or maybe it comes in and nobody is arguing about what needs to
happen, it just needs a plea offer to be made to see if we can resolve the
case.”
Since January, about 150 cases have gone through the
First Look process. It started with one deputy prosecuting attorney and Tunheim
has since added two more, taking them away from other caseloads.
Tunheim credits one of his deputy prosecutors with
coining the “First Look” phrase.
“I like it…it’s different. It proactively seeks out
cases that could benefit from earlier resolution….I want to give it a very
specific role and authority in the office…not make it just a process or a phone
call.”
Law
Enforcement Assisted Diversion (LEAD) Program
Tunheim was asked about the law enforcement assisted
diversion (LEAD) program, a law enforcement led alternative to jail or other criminal
justice response.
Tunheim took issue with points his challenger,
Victor Minjares, made about it in an interview with Little Hollywood. Minjares had declared the county program a
failure.
“I’m not ready to do that,” Tunheim said, saying it is a
still a pilot project, begun last fall with the Lacey Police Department and
the county sheriff’s department.
“It’s all set up, but we’re not getting the
referrals from law enforcement. We’re still troubleshooting that…We’re in a way
different environment than Seattle where it was created….We thought we could
take this and do it on a county scale and that’s where we are running into our
challenges. At the county, a deputy has someone in custody, and it’s easier for
them to just take someone to jail and let the system work it out….Our feeling
is that law enforcement doesn’t think it meets their needs right now.
“This may evolve, but if law enforcement would
rather just take them to jail, our First Look program will take a look at the
case and put it into community diversion.
Instead of charging them, release them from custody, and have mobile
outreach meet them at the jail as they are being released to help them set up
their plan. That’s our next step. I’m hopeful that will become our
solution….We can make that happen.
“That’s why I was concerned about the slow process.
When FLIP is fully activated, that will reduce caseloads, and that burden will
come down a little bit,” he said.
Speaking of caseloads, Little
Hollywood asked about the morale of his team.
In an office of 32 deputy prosecutors, 13 lawyers
are assigned to felony cases. Last year, each deputy prosecutor had about 120 open felony
cases at any one time.
The question led Tunheim into an animated
conversation about the theory of hope.
Saying his style of leadership is driven
by the concept of hope – the belief that the future can be better than the
present and one’s ability to make it so, Tunheim says he has a good team that
works well together. The office has experienced a very low turnover of lawyers
over the past seven and a half years.
“We are creating a forward thinking culture for the
community,” he said.
Editor’s Note/Clarification, June 4: In reference
to the morale of Mr. Tunheim’s team and the number of open felony cases last year, Mr.
Tunheim says each deputy prosecutor had 120 open felony cases, not a total
caseload of 120 for the team. The reference has been corrected.
For more information about the campaign for Thurston County Prosecutor, go to “County Prosecutor Tunheim Defends Career, Successes,” at https://janineslittlehollywood.blogspot.com/2018/06/county-prosecutor-tunheim-defends.html and “Minjares Makes Case for Prosecuting Attorney Race,” at https://janineslittlehollywood.blogspot.com/2018/05/minjares-makes-case-for-prosecuting.html
