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Sunday, April 4, 2004
For some, free counsel comes at a high cost
Page 4 of 5

Romero put him on the stand after they spoke outside the courtroom for only a few minutes, Swenson says.

Romero finally was removed from the case days before trial at the urging of Michael Frost, a top Seattle attorney who had been appointed co-counsel.

Loukaitis was convicted of aggravated first-degree murder and other charges, and sentenced to life without parole. In 1999, the state appeals court rejected his request for a new trial.
Judge Evan Sperline says he still has "a haunting feeling" about Bladimir Analco Aquino (below): "It was just a feeling that I'm sentencing someone to prison for a long time who may not be going at all if he had more aggressive representation."

Poor defense work leaves judge with uneasy feeling

Despite questions about how well Loukaitis and Lambert were defended, there's no question each committed a horrific act.

But things were not that clear-cut with another of Romero's clients: Bladimir Analco Aquino.

Indeed, evidence of Aquino's guilt was tenuous enough that, to this day, the trial judge has doubts about the conviction.

Grant County Superior Court Judge Evan Sperline had observed Romero in court countless times before the Aquino case landed on his docket.

"Legal analysis was not a strong point for Mr. Romero," Sperline says. Further, "he has a difficult time standing in front of a jury and stating his ideas and arguments clearly."

In 1998, Aquino stood trial before a jury for attempted murder and several related charges. He and a friend, Oscar Barragan, were accused of robbing and brutally beating a department-store manager in the small town of Mattawa. Aquino was 17 when the crime occurred, Barragan 16.

The store owner reported $29,000 worth of stolen property, including one rifle, three video cameras, four TVs, six VCRs, 18 leather jackets, 96 pairs of jeans and 120 shirts.

But no physical evidence connected either teen to the crime. And none of the missing property was ever recovered, even though the two teens were arrested together within 10 hours of the robbery. Aquino was living with Barragan's family at the time.

"The property just sort of vanishes — and it's a lot of property," Sperline says.

Further, Aquino had an alibi: A married couple testified that he was at their house, interviewing for an orchard job, when the robbery occurred.

Before trial, Aquino says, Romero urged him to plead guilty and to implicate Barragan in exchange for leniency. Aquino refused: He was innocent, he said, and didn't know where Barragan was that night.

The prosecution's case hinged on the testimony of Ibrahim Said, the store manager who was attacked and who identified Barragan and Aquino as the robbers. Barragan had done some work at the store, bolstering Said's identification of him.

Because Said spoke English poorly, an interpreter fluent in Arabic and English was needed for trial. The prosecution produced a man who spoke Portuguese.

Sperline rejected the interpreter, and Said testified in his limited English, despite obvious gaps in understanding. A typical passage from Said's exchange with lawyers: "Clothing, what means?"

Despite the importance of Said's identification, Romero never asked how he first picked out Aquino. The two teens were not part of a standard police lineup or photo spread, according to the lead investigator in the case. Instead, Aquino says, Said stood in the police-station parking lot and looked through a window.

"He looked at us," Aquino said in an interview. "We were the only two in the room. We were handcuffed."

Both teens were convicted and are serving 16-plus years in prison.

Sperline says Romero's trial work was so lacking that he wanted to step off the bench and argue the case himself.

"I really had a strong feeling of conviction of the guilt for one, and nothing close to that for the other," Sperline says. "And I tell you, as a judge having to sentence a kid like that, when you have that kind of a haunting feeling, that is tough."

In the "jungle" of litigation, this prosecutor is king

Defense attorneys don't work in a vacuum. Justice presumes a balance — a battle between equal adversaries, with truth as the ultimate victor.

John Knodell has been Grant County's elected prosecutor for nearly 14 years. He works hard, knows the law and knows how to work a jury, charming them with just-folks talk and tales of his wife and grandfather.
Grant County prosecutor John Knodell, right, and public-defense attorney Guillermo Romero, left, speak in court in May 2003. Knodell would rather settle cases than try them, and often found a willing partner in Romero. In Grant County Superior Court, 85 percent of defendants plead guilty — the highest percentage in the state.
But Knodell's stated goal is to keep cases away from juries. "Generally speaking, when you have two lawyers who are unable to resolve a case and have to go to trial, that to me reflects a failure of the system," he says.

By that measure, Knodell is a success. Grant County has the highest percentage of guilty pleas in the state, according to an analysis of Superior Court cases for the last five years. In Grant County, 85 percent of defendants plead guilty. The statewide average is 76 percent, while a few counties have plea percentages in the low 60s.

Knodell says he values the certainty of punishment over the severity, so he offers ample incentive to bargain, trading guilty pleas for reduced charges and lighter sentences.

He also discourages pre-trial motions that challenge the admissibility of the prosecution's evidence. If a defense attorney files such a motion — and Knodell considers it frivolous — he punishes the defendant by withdrawing or diluting his plea offer.

"Litigation is like a jungle," Knodell says. "You can't allow an unscrupulous defense attorney to file a lot of frivolous motions and fight a battle of attrition and not pay a penalty for it."

Pit that philosophy and power against a struggling public defender like Guillermo Romero.

A review of Romero's cases shows he is often blind to potential defenses. For example, he once testified that in "99 percent" of cases where a defendant confesses, there are no grounds to challenge those confessions. "Anything after being Mirandized is admissible," he said.

If that were true, a police officer could beat a confession out of a suspect — as long as he read him his Miranda rights first.

Romero has also testified about his reluctance to anger police and prosecutors with pre-trial motions, thereby jeopardizing plea negotiations.

And he has little financial incentive. With court-appointed cases, he gets paid no more for time-consuming trials or motions than for resolving a case with a quick plea.

That mismatch of legal might can leave defendants at risk.

Consider the case of Keith Roberts, convicted of kidnapping and rape. Knodell led the prosecution; Romero was Roberts' court-appointed defense attorney.

In 1999, the Washington Court of Appeals ordered a new trial for Roberts, finding that Knodell had committed "flagrant misconduct" in trying the case. The court dissected Knodell's closing argument and ticked off these grievances:

He misstated the law. He shifted the burden of proof from the prosecution to the defense. He compared Roberts with Adolf Hitler, in what the court called "an obvious and flagrant appeal to the jury's passion."

As Knodell made one objectionable argument after another, Romero was silent.

Such silence can doom a defendant on appeal, because a reviewing court may consider the objection to be forfeited. But here, the appeals court made an exception, saying the Hitler comparison was too egregious to let pass.

His deficiencies were known, but he worked cheap

In 2001, the Superior Court contract for public defense in Grant County was taken over by Thomas Earl, Doug Earl's brother, sometime colleague and sometime competitor.

By that time, Romero was under investigation by the state bar, and his track record was well-known. Tom Earl had witnessed Romero's clients' frustrations firsthand. "I'd be in court, and they'd come into court, and they'd be screaming at him, so it wasn't hard to figure out," Earl said in a later deposition.

And in 1998, Romero's law license had been suspended for a month because he failed to take required continuing legal education courses. Other lawyers, including Tom Earl, had to cover Romero's cases. This infuriated Earl, who blamed Romero's "inattention" and "lack of diligence."

He urged his brother to fire Romero, to no avail: "I wanted him canned."

Yet when Tom Earl landed the public-defense contract, he, too, hired Romero. His explanation: Romero's "work and work ethic" had "changed remarkably."

The new contract, which was to run through 2005, paid $500,000 a year. Romero proved, once again, a bargain.

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