by Carolyn Bick
When lawyer Courtney Hudak walked up to the King County Correctional Facility on Seattle's 5th Avenue just before 2 p.m. on Sunday, May 31 to make a professional visit to protestors who had been detained, following Saturday's protests against systemic racism and police brutality, the last thing she expected was for the doors to be locked. But they were.
"There wasn't any information. There wasn't any sign that told me what to do, but there was an intercom. So, I pressed the intercom button and identified myself as a lawyer, said I was … there for professional visits," Hudak said. "The voice on the other end of the line told me that lawyer visits were suspended, until further notice, due to the damage."
Hudak doesn't work in criminal defense — she's a lawyer volunteering pro bono services for the Northwest Immigrant Rights Project — but she wanted to lend her services to the protestors, who were demonstrating against the murder of George Floyd in Minneapolis, Minnesota and against systemic racism within the police force. She was there to see if they needed anything, like medications or someone to take care of their outside affairs while they awaited a court hearing. Still, even though it's not her area of expertise, she told the Emerald that she's worried the jail's decision to bar lawyers' access to clients may have been a constitutional violation.
According to Public Defender Association Director Lisa Daugaard, it very well could have been.
While she said it is impossible to know what the circumstances were from the outside, Daugaard said "it would be extraordinary to deny access to counsel, even in states of emergency." Even during the WTO Protests in 1999, when there was a declared state of emergency for an entire week, she said, lawyers still had access to detained people inside the jail.
"Impeding access to counsel is not done," Daugaard said. "It is very problematic and unprecedented, in my experience, even in thinking back in a number of emergency conditions."
Daugaard said that if lawyers were unable to get into the building for more than a momentary period of time to facilitate access, she would consider the move a violation. Anytime a lawyer visits a client in jail, she said, there is a certain amount of wait time, and an emergency or unusual circumstances could create more of a wait time and extra barriers. It is particularly important now, she said, in light of the novel coronavirus pandemic and a civic state of emergency that lawyers not be denied access.
"Access is one of the most important checks that we have on conditions of confinement. And even assuming the good will and good faith of everyone involved, it's really important to keep that channel open," Daugaard said. "[Detainees] have no ability to opt out, no ability to walk away. They are subject to whatever the conditions are. Access to legal counsel … is just a fundamental safeguard to ensure that conditions are appropriate and lawful."
And if the reason for the lawyer's visit were time-sensitive, even short interruptions in access could defeat the purpose of the consultation.
"At a high level, I would say, yes, it could be unlawful and unconstitutional to impede that access," Daugaard said. "There is a court rule that mandates access to counsel at the earliest practicable moment, after someone is taken into custody, and what [was described] absolutely sounds like [a] violation of the court rule, as well as a constitutional violation depending on the context."
Speaking on behalf of Anita Khandelwal, King County Department of Public Defense Director, Public Information Officer Leslie Brown said that, initially, their public defenders were also unable to get into the county jail in Seattle on Sunday. Brown said that when Khandelwal heard about this, she called Director of the Department of Adult and Juvenile Detention John Diaz. She said that he "quickly" fixed the issue and characterized it as "a communications issue, some minor issue." However, Brown said she did not know why the jail was closed to lawyers or how long attorneys had been denied access.
By the time Hudak had arrived at the jail, it was nearly 2 p.m. Not only was it mid-afternoon, but this also meant that there were just three hours until Mayor Jenny Durkan's emergency curfew took effect.
Hudak said the person on the other end of the intercom didn't identify themselves and did not specify what the "damage" was. She also said that the only damage she could see was on the exterior of the building, not the doors, and that she was not afraid to try to open the doors. She does not remember if there was any broken glass.
Hudak and another lawyer were both trying to get inside and Hudak said she used the intercom to ask if there was someone else they could speak to. The voice inside told her to wait and returned with a phone number that the other lawyer immediately called. Hudak said the lawyer was shunted to voicemail and left a message. She does not know if that lawyer got a call back.
The Emerald called the number Hudak had been given. It turned out to be an internal line within the jail itself. A police captain within the jail told the Emerald that the line is staffed at all hours of the day but that the person who is assigned to the line may not always be there, as they have other duties. He also gave the Emerald the jail's media contact information. The Emerald has reached out to the jail's public information officer and to Diaz and will update this story as more information becomes available.
While Daugaard wanted to caution against speculation, and affirmed that there very well could have been a life-threatening emergency, or that visiting may have literally been physically impossible, "at a minimum, it was a communications failure," she said, and added that the extenuating circumstances needed to be communicated to both lawyers and clients.
"'We're just not doing lawyer-client visits' is not an acceptable position," Daugaard said. "There needs to be an alternative plan opened up promptly. Just saying there is no lawyer access is very concerning."
Carolyn Bick is a journalist and photographer based in South Seattle. You can reach them here.
Featured image from Wikimedia Commons.