Gideon Alert: California counties exhibit wide disparity of services

BY David Carroll on Saturday, April 24, 2010 at 12:06 PM

Justice should not be dependent on which side of a county line one’s crime is alleged to be committed. Yet, in California that is exactly what can happen as demonstrated by three counties (San Francisco, San Joaquin and Sacramento) in relative proximity to one another.  The vast majority of right to counsel services is a county responsibility in California.  And, though California counties collectively spend more than $15.85 per capita for indigent defense (31% above the national average), resources are skewed toward those counties with local resources.

Though the City & County of San Francisco public defender office has experienced periodic budget difficulties, the structure of the system meets the vast majority of the ABA Ten Principles.  For example, Chief Public Defender Jeff Adachi is the only publicly elected chief defender in California giving him a level of independence not seen in any other California County.  As demonstrated in numerous stories over the past weeks - and as exemplified here in the San Jose Mercury News and Bay City News - Adachi’s leadership and promotion of zealous advocacy has led to a potential overturning of more than 40,000 drug cases in the wake of another crime lab scandal in which a crime lab worker admitted to stealing cocaine evidence for her personal use.  As opposed to how the Wayne County (Detroit, MI) crime lab’s falsification of ballistic reports went undetected for more than five years because of a lack of zealous advocacy in that deficient system, the advocacy in San Francisco demonstrates the role public defenders play in the proper administration of justice.  As Mr. Adachi states, “this is not about getting people out of jail free….This is about the integrity of our criminal justice system." Adachi is further pushing for an independent investigation of the lab.

Sacramento County has a staffed public defender office for primary representation and an organized assigned counsel system for conflicts.  The Chief Public Defender, Paulino Duran, is the chair of the American Council of Chief Defenders (ACCD) and has tried to work with the County Commissioners in difficult economic times—caseloads, for example, are currently nearly twice the number recommended by national standards.  The Sacramento Business Journal is reporting that budget figures released last week show a projected $4.7 million dollar cut for the public defender office.  Such a cut would result in the loss of more than a third of the public defender staff (44 of 107 employees). With the conflict system also underfunded and prohibited by county charter from outsourcing services that displace county workers, there is no easy resolution to the county’s economic difficulties.  As reported, Mr. Duran is contemplating court action since he refuses to handle more cases than he is “ethically able.”

The San Joaquin County Public Defender is also being asked to take a severe budget cut that would result in the loss of a third of his attorney staff. The Stockton Record reports that attorneys there are already handling 600 cases per year, or, three to four times above national standards that the ABA Ten Principles state “should never be exceeded.”  Additionally, the office practices what is known as “horizontal representation” [or a system where different attorneys handle different parts of cases (i.e., an “arraignment only attorney”)].  The practice is specifically prohibited under ABA Principle 7 that demands that the same attorney continue to represent the client throughout the life of the case from assignment through trial and sentencing.

Though it may seem intuitive to have an attorney work a case from beginning to end, many jurisdictions employ an assembly-line approach to justice in which a different attorney handles each separate part of a client’s case (i.e., arraignment, pre-trial conferences, trial, etc.). Standards on this subject note that the reasons for public defender offices to employ the horizontal model are usually related solely to saving money and time. Lawyers need only sit in one place all day long, receiving a stream of clients and files and then passing them on to another lawyer for the next stage, in the manner of an “assembly line.” But standards uniformly and explicitly reject this approach to representation, for very clear reasons: it inhibits the establishment of an attorney-client relationship, fosters in attorneys a lack of accountability and responsibility for the outcome of a case, increases the likelihood of omissions of necessary work as the case passes between attorneys, is not cost-effective, and is demoralizing to clients as they are re-interviewed by a parade of staff starting from scratch.

But as opposed to court actions being considered in Sacramento, the San Joaquin Public Defender is preparing to put plans in place to accept the cuts, including discontinuing services to clients in Superior Court branches in Manteca, Tracy and Lodi. Arguing that his office is the best bang for the buck, the Chief Public Defender reportedly stated that "[y]ou're not going to find a private attorney who will take 600 clients a year." Certainly the County Commissioners will not find one unwilling to compromise her professional ethics.