The Spokane litigator is all about protecting liberties

Published in 2015 Washington Super Lawyers magazine

By Beth Taylor on June 15, 2015


Q: You interned in the prosecutor’s office at law school, but decided on defense. Why?

A: I wasn’t really cut out to be a prosecutor. I just had a little more empathy for the defendants than perhaps I should have had for the culture of those offices. And I didn’t find it extremely challenging from an intellectual standpoint. It may well have been the position that I was in at the prosecutor’s—misdemeanors—you’re just reading police reports and working off the interviews conducted by the police and the detectives, and looking at criminal histories.

There’s an old joke that the prosecutors’ direct examination of their witnesses goes something like this: “Well, officer, what did you see? Then what did you do? What did you do next? Then what did you do? Then what did the defendant say?” From a defense side, it’s obviously more challenging. You start with that police report, but you’ve got to meet with your client. You’ve got to find out what may be missing, try to develop themes, create a defense, investigate, find other witnesses. I just enjoyed the personal touch of working with a client, trying to understand their issues.


Q: What drew you to law in the first place?

A: There’s no background in my family of lawyers, but in junior high or high school, for some reason, I was attracted to the profession. Probably through TV or movies.


Q: Any in particular?

A: I can’t say that there was. I should say something like To Kill a Mockingbird. Growing up when I did, in the formative years as a teenager in the late ‘60s and early ‘70s, obviously there was quite a good deal of social consciousness. Those were probably factors that influenced me, and probably also interested me in public-sector and criminal defense work. Making sure that justice went all the way down to the little people.


Q: After more than a decade as a public defender, you switched to private practice in 1996.

A: I had just turned 40 … and a private firm had just lost two or three litigators. In a moment of weakness [for me], one of the attorneys at the firm said, “Kevin, you’ve got a lot of litigation experience. We’ve lost litigators. Have you ever thought about going into private practice?”

I said, “I’ve thought about it, but I’ve been at the public defender’s a little short of 14 years.” I thought it would probably be too late to make a move. They made me promise that night that I would put a resume together and submit it. In the process of putting the resume together, I asked a couple other attorneys that I knew for references. One of them was an attorney here at Winston & Cashatt. The firm I was looking at was looking more for civil litigation, and Winston & Cashatt had a history of doing criminal defense along with civil litigation. They said, “We know your past is criminal defense, so why don’t you come over here?”


Q: Was it a major transition going from public to private practice?

A: Was it different! Civil litigation … it was an eye-opener both from, first, understanding the business side of law, but also [there was] quite a difference in terms of litigation practice between the civil rules of evidence and the criminal rules of evidence, and the differences in litigation between the two areas. Learning how to litigate civilly … in terms of persuasion, preparation, arguing to juries, arguing motions to the court, it’s the same litigation background.


Q: Was criminal defense very different in private practice?

A:  I found fairly quickly that, when clients come to hire you and pay you money, their expectations are oftentimes different than a public defender’s office. And there’s a difference in how you are at times treated by prosecutors and the court as a private attorney. Sometimes that difference is good, sometimes that difference isn’t as good.


Q: Is the credibility different?

A:  I was at the public defender’s long enough that I think that helped quite a bit. You may have private practitioners who may not be highly regarded because of how they conduct themselves over the years. Whether you’re within the public defender’s office or in private practice—particularly in criminal defense, but in any area as a lawyer—how you handle yourself, your credibility, your reputation, your integrity makes such a difference in how successful you’re going to be for your client.

Not saying that it’s right or it’s true, but the common public perception is that a private attorney would carry more sway or credibility initially. When I was at the public defender’s, one of the things you [would] hear so often from your clients is, “Gee, I wish I could afford a real attorney.” Now, that perception, I believe, isn’t true. Truly, these public defenders, they are my heroes.


Q: The private attorney at least has a lighter workload.

A: That’s what I tell my clients when they come in. I tell them I have more time, generally, to look at your case, early on in particular. I can generally be more responsive to you and your needs, and questions and concerns, just because of the time limits.


Q: Can you tell me about some significant cases?

A: From a criminal standpoint, one of the largest and most complex cases that I handled was a death penalty case. The defendant’s name was Joseph Andrews. He was an African-American from Compton, California, from a gang that they alleged had come up here. In the course of a drug deal that had gone bad, they alleged that he shot two people in the back of the head three times each while he was in the back of the car and they were in the front.

I tried that case along with Phillip Wetzel here in Spokane. The jury, after a seven-week trial, was hung. Generally, a county won’t file for the death penalty unless they obviously believe, number one, they have a very strong case, and number two, they have aggravating factors to convince the jury to seek the death penalty. In an aggravated murder, there are only two potential outcomes if the person’s convicted: They either impose the death penalty or they impose life without the possibility of parole. There have not, I don’t think, been a lot of cases in which the person has not been convicted. That was an extremely significant case, and obviously a very difficult case.


Q: What happened after the jury deadlocked?

A: The state decided to retry the case and remove the death penalty. Which again resulted in a hung jury. Then the state offered—if he would plead to two counts of second-degree manslaughter and accept credit for time served with no probation—[to] allow him to walk out of prison, because he had probably been in two, three years. Mr. Andrews accepted that deal, entered the pleas, and walked out of jail.

More recently, I was asked by the Innocence Project Northwest to get involved in the case of [Jeremy Davis], who had been convicted of first-degree murder here in Spokane, had spent five years in prison. In the meantime, another person had been convicted [in] the same murder, and the county prosecutor’s office had changed their theory substantially from the first trial conviction of my client to the conviction of the second person, and were resistant toward granting my client a new trial. The Innocence Project Northwest initially got involved. We were successful last year in obtaining his release and getting the murder charges dismissed. The Innocence Project Northwest deputy director who I worked co-counsel with was Anna Tolin, a fantastic lawyer. That was an extremely gratifying case.


Q: Do you think we’re moving toward doing away with the death sentence?

A: I think that is where we are heading. Part of that is the result of groups like the Innocence Project. I think from two factors—the possibility of wrongfully executing somebody and the costs—society is moving toward doing away with the death penalty. If somebody is convicted of aggravated first-degree murder and you know they’re going to die in prison, period, does it really make sense to attempt to hasten that process through putting them to death? Even financially, it just doesn’t seem to make a lot of sense.


Q: And what about your cases on the civil side?

A: It’s funny, I guess my two longest trials were both in front of the same judge, Judge [Richard] Schroeder. After I had tried the death penalty case in front of him, I was back in front of him with other co-counsel, representing what was Coopers & Lybrand. They had merged into PricewaterhouseCoopers by the time of the trial. They were being sued by a startup company, a dot-com, back in the days when anything with a dot-com was going public through initial public offerings and going for billions of dollars. A company called Micro Enhancement International Inc. was suing them for $64 million, alleging that negligence in not issuing timely audits and reports forced them to miss their window in their initial public offering. It was the largest civil case in Spokane. It still may be, in terms of damages sought. We were able to obtain a defense verdict of zero.


Q: As a criminal defender, do you ever get asked, “How can you represent those people?”

A: We get asked that all time in social settings in terms of what do you do, and how can you do that, or how do you represent somebody if they tell you they’re guilty. Or do they tell you they’re guilty or not? That’s a question that anybody who practices criminal defense gets all the time. Including from your parents.


Q: Your parents?

A: My mom, saying, “You’re going to be a public defender? How can you do that?”


Q: What did you say?

A: When you decide to represent an individual who’s charged with a crime, in many cases you are no different than the judges who take an oath to uphold the law, and police officers who are upholding the law, prosecutors who believe they’re enforcing the law. You are as much ensuring that the law is being upheld as the other participants in the criminal justice system.

We often hear of people accusing lawyers of looking for loopholes, but these loopholes are almost always rooted in constitutional rights: in the Fourth Amendment or the Fifth Amendment or the Sixth Amendment, or the statutes or other laws. Is the evidence that the state is attempting to use to convict your person, is that admissible? Were the processes and the constitutional rights we all have followed? I have no problems making sure that my client has been treated fairly in the system.

The public perception, at times, is that what criminal defense attorneys do is not appropriate. I would argue strenuously that criminal defense attorneys—and particularly public defenders, who are underfunded, overworked, have none of the resources of prosecutors and law enforcement—they and [private] criminal defense attorneys, I believe, do more to protect your individual rights and your liberties than anybody else in the system.

Listen, people read about crimes, and people are victims of crimes, and they want justice. What concerns me at times is not the public perception, because I can always talk to somebody and explain to them why sometimes the system has run afoul and why you need to have somebody there looking out for your interests and performing a check-and-balance.

What concerns me more is when that perception of criminal defense attorneys permeates into the court or into the prosecutors. There’s a perception both in the public and, I believe, at times, in the Bar association, that prosecutors and police wear white hats, and defendants and defense attorneys wear black hats.

It’s frustrating, but you understand that that comes with the territory. How you handle yourself as a criminal defense attorney can go a long ways toward overcoming those perceptions, both with the public and within the profession.


Q: Did your mom ever come around?

A: I think my mom is proud of me in terms of my beliefs, and I think she’s proud of some of the results and skills. But I think deep down in her heart, she would sure prefer that I be a judge.


Q: What’s your favorite part of the job?

A: When you’re in litigation, people are coming to you most of the time with problems. Particularly people charged with serious crimes, their lives have been torn apart. The greatest satisfaction is being able to guide them through the process and, if possible, get them their lives back.


Q: Do you have clients who stay in touch with you over the years?

A: I do. Sometimes I’ll get calls from people just checking in or saying they’re in town. They just want to call to check in, let me know they’re doing well, and say thanks. It makes you feel good.

I have people at times come up to me in stores, or I’m walking somewhere in a public place and somebody will say, “Hey, are you Kevin Curtis?” You always kind of scrunch up: “Oh, my God. I hope this was somebody that we did well for.” But they say, “Hey, do you remember me?” Sometimes I do, sometimes I don’t. I think all litigators will tell you, you don’t remember as many of your success stories as you do the cases you lost. The cases you lost stay with you mentally forever, and you can remember in great detail every part of that case, because it grates on you.


Q: Which do you like better, the criminal or the civil side?

A: My true passion—probably because I cut my teeth on it—is criminal defense. It makes you more humble, in a way. You’ve had times where you’ve met the family, and you’ve got a child saying, “You’re going to make sure my dad or mom stays at home and doesn’t go away, aren’t you?”

[But] I really enjoy the balance of both. Honestly, the criminal work can wear on you at times. In a civil case, you really do have a level playing field. I enjoy being able to refresh myself with civil work and being able to conduct litigation and do interrogatories and depositions, and be able to get the facts without having to go through law enforcement hoops, prosecutor hoops. I just enjoy, obviously, litigation.


Q: Any funny stories?

A: [I had a] client pulled over for DUI; police ask him what day of the week it is—a standard question to see if client is oriented—client replies, “Triple-shot Tuesday.” Needless to say, we didn’t end up doing so well.

[But] people do get accused of things they didn’t do. Certainly a fair number of people accused of crimes have done something wrong, but there are also a growing number of cases we’re finding where the accusations may be false, or the facts may not support what initially was alleged.

So that’s why we do what we do.


This interview was edited and condensed.

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