WSR 20-01-039

RULES OF COURT

STATE SUPREME COURT

[December 4, 2019]

The Washington Defender Association, having recommended the suggested amendments to CrR 3.1—Right to and Assignment of Lawyer, CrRLJ 3.1—Right to and Assignment of Lawyer, and JuCR 9.3—Right to Appointment of Experts in Juvenile Offense Proceedings and Assignment of Lawyer, and the Court having approved the suggested amendments for publication;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the suggested amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2020.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2020. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

dated at Olympia, Washington this 4th day of December, 2019.

(A) Name of Proponent: Washington Defender Association

(B) Spokesperson: Magda Baker, Misdemeanor Resource Attorney, Washington Defender Association

(C) Purpose: The Washington Defender Association (WDA) suggests changes to CrR 3.1(f), CrRLJ 3.1(f) and JuCR 9.3(a) that would ensure that criminal defense attorneys who request funds for experts on behalf of indigent clients in superior courts, courts of limited jurisdiction and juvenile courts do so ex parte. WDA has heard from defenders who have requested expert funds ex parte only to have judges invite prosecutors to weigh in on their requests, which allows opposing counsel a preview of the defense's trial strategy. The changes we propose would eliminate that practice and any chilling effect it may have on defenders considering requests for expert funds. Such changes would also lead to a more uniform administration of justice throughout the state, since currently some judges seek prosecutorial input on defense requests for expert funding while others do not. Finally, the changes would promote a more level playing field for defenders and prosecutors, since prosecutors can often consult with law enforcement employees as experts or get expert funding from their offices without court approval.

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.

(a) – (e) [unchanged]

(1) A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court.

(2) Upon finding that the services are necessary and that the defendant is financially unable to obtain them, the court, or a person or agency to whom the administration of the program may have been delegated by local court rule, shall authorize the services. The motion mayshall be made ex parte, and, upon a showing of good cause, the moving papers may be ordered sealed by the court, and shall remain sealed until further order of the court. The court, in the interest of justice and on a finding that timely procurement of necessary services could not await prior authorization, shall ratify such services after they have been obtained.

(3) Reasonable compensation for the services shall be determined and payment directed to the organization or person who rendered them upon the filing of a claim for compensation supported by affidavit specifying the time expended and the services and expenses incurred on behalf of the defendant, and the compensation received in the same case or for the same services from any other source.

[Suggested changes to CrRLJ 3.1(f)]

(a) – (e) [unchanged]

(1) A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court.

(2) Upon finding that the services are necessary and that the defendant is financially unable to obtain them, the court, or a person or agency to whom the administration of the program may have been delegated by local court rule, shall authorize the services. The motion mayshall be made ex parte, and, upon a showing of good cause, the moving papers may be ordered sealed by the court, and shall remain sealed until further order of the court. The court, in the interest of justice and on a finding that timely procurement of necessary services could not await prior authorization, shall ratify such services after they have been obtained.

(3) Reasonable compensation for the services shall be determined and payment directed to the organization or person who rendered them upon the filing of a claim for compensation supported by affidavit specifying the time expended and the services and expenses incurred on behalf of the defendant, and the compensation received in the same case or for the same services from any other source.

[Suggested changes to JuCR 9.3(a)]

(a) Appointment. A juvenile who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense may request that these services be provided at public expense by a motion. The motion shall be made ex parte and, upon a showing of good cause, the moving papers may be ordered sealed by the court and shall remain sealed until further order of the court. Upon finding that the services are necessary and that the juvenile is financially unable to obtain them without substantial hardship to himself or herself or the juvenile's family, the court shall authorize counsel to obtain the services on the behalf of the juvenile. The ability to pay part of the cost of the services shall not preclude the provision of those services by the court. A juvenile shall not be deprived of necessary services because a parent, guardian, or custodian refuses to pay for those services. The court, in the interest of justice and on a finding that timely procurement of necessary services could not await prior authorization, may ratify services after they have been obtained.

(b) [unchanged]