Defensive End

David Donnan’s rebellious streak used to help him find trouble. Now it helps him find justice.

The son of a Navy man, Donnan grew up in military-base towns on both coasts and spent the 1970s—his high school and college years—in Salt Lake City. A debater and a wrestler, he didn’t mind taking the unpopular side of an argument.

Donnan is still in the fray, now as director of the Washington Appellate Project. He leads a group of lawyers who question authority as a matter of course.

In his teens, Donnan admits he raised his share of hell. He says that a lot of things he learned living in Salt Lake in the ’70s have carried over into his work as a defense attorney.

“I learned that inherently good people can make bad choices, that people in authority can overreact and that a vigorous defense can produce a more just result,” says Donnan. Being a non-Mormon teenager in Utah contributed to some of his youthful anti-authority sentiment, but it also helped him understand what it’s like to be part of a minority.

The non-profit Washington Appellate Project is a good fit for Donnan. Through a contract with the state Office of Public Defense, the organization provides defense in appeals courts for indigent clients in criminal and certain civil cases.

“Washington [state] has been very good in understanding the importance of providing counsel in those circumstances,” says Donnan, 49. “At its base, it’s all about equal justice for all.”

After earning a degree in political science at the University of Utah, Donnan served three years in the Navy. Then it was on to California Western School of Law. He spent a few years in general practice in San Diego, then moved to the Seattle area in 1989. He started doing defense work, first in a trial practice, then with the Snohomish County Public Defender’s Office.

In 1992, Donnan became part of a pilot project to take on the backlog of appellate-defense cases. The Washington Appellate Project emerged from that pilot project. Donnan, fellow attorney Richard Tassano and office manager Ann Joyce left the public defender’s office to launch the project. Tassano has since left, but Joyce still runs the office and Donnan became director in 2001.

“In ’94, our budget was so small that we brought in green attorneys right out of law school—the pay scale was $26,000 for everyone—and we tried to provide oversight by reviewing briefs with them,” he says.

The budget improved over time, and the project has been able to keep some quality attorneys around. Two of them, Greg Link and Tom Kummerow, are certified to handle death-penalty appeals. Another, Elaine Winters, has handled some watershed parental-rights cases. The office now includes 10 full-time and six part-time attorneys in addition to Donnan, Joyce and a paralegal.

Appellate public defense isn’t for everyone. Criminal appeals succeed only about 10 to 15 percent of the time. And many of the attorneys in the Washington Appellate Project could be earning six-figure incomes in private practice, but their scale starts at $52,500 and tops out at $72,000.

The benefits package includes bus passes.

“It’s about fighting the good fight,” says staff attorney Lila Silverstein. “It’s gratifying to know we’ve done the best we can, and to know that we are enforcing the Constitution ... When we get down, we can remind each other why we do it—and those 15 percent of cases that you win are that much sweeter.”

Aside from Donnan’s role as director, there is no hierarchy at the Washington Appellate Project. Some of the lawyers who’ve been there a long time put “senior staff attorney” on their briefs, but internally they joke about it.

A longtime member of the American Civil Liberties Union, Silverstein grew up in Spokane and earned a degree in economics from Yale. She spent a year in Spain, then found work with Microsoft as a program manager, and began working with the ACLU of Washington. In her 30s, she decided it was time to put her energy into public service and enrolled in law school at the University of Washington.

The flat hierarchy of the Washington Appellate Project appeals to Silverstein’s team-oriented nature, and the balance of empowerment and support reminds her of her Microsoft days.

“You own all your cases—and that’s true from the start—but you’ve also got the benefit of this great team of people who you can consult with,” says Silverstein, 41.

Washington Appellate Project attorneys meet in small groups to hone their briefs and find better ways to tell their clients’ stories. Donnan tries to take on a case a month, but more often than not he’s busy reviewing other people’s work. He has great faith in his staff.

“I have the fortunate privilege of having my name attached to the hard work they do,” he says.

A lot of the people who ask the Washington Appellate Project for help aren’t accustomed to having circumstances break in their favor. Some are appealing criminal convictions, others trying to get their children back from the state and get resources and training to help with their parenting. For many, having someone else care enough to fight for them is something new.

“You have to want to find out why it is they feel they were not done right [by] in the trial court proceeding and be willing to mine that out of the trial court record,” Donnan says. “There’s also a creative element, to be able to look at the proceedings and be able to see it differently than others did.”

In the best instances, it leads to a new understanding that can be applied to everyday interactions between citizens and government. Donnan points to a 2004 case, State v. Rankin, in which the state Supreme Court ruled that an officer on a traffic stop couldn’t request identification from another passenger in the car without some reason to investigate that person.

“Even if you’re not succeeding, you’re providing that backstop and requiring the system to validate itself,” says Donnan.

While trial-court public defenders handle several hundred cases a year, attorneys in the Washington Appellate Project have only three to four a month—though appellate cases typically stretch out over months or even years. The work involves poring over 400-page court records, looking for places where things might have been done differently. A lot of it can be done away from the office. That creates flexibility.

Many of the project’s part-time attorneys are former public defense trial lawyers who decided to change course once they had families. And though the work can demand a lot of time, appellate lawyers tend to know in advance when those big pushes are coming.

“It’s far less stressful than a defense trial practice,” says Donnan, who coaches one of his daughters’ soccer teams and plays a little banjo in a band known as 7-Chord Pileup. “I’ve been there, and my hat is off to our brothers and sisters in the trenches.”

Meanwhile, Donnan says, he and his colleagues get the chance to read the work of some of the best lawyers in the state. And some of the worst.

The good ones are exciting because you’ve got great lawyers going toe to toe. The bad ones … well, they carry their own special joy.

“When you get to call them on the carpet for the worst stuff,” says Donnan, “that’s one of the great rewards.”  L&P