Public Defenders - Articles
Lockyer may have to cut 118 lawyers
For the first time in more than a decade, the California attorney general's office is preparing to lay off a sizable chunk of its legal and administrative staff.
With budget troubles persisting, layoff notices are expected to be sent to as many as 118 Department of Justice lawyers and 167 support employees in the next week or two, officials said Tuesday.
"This is huge," Kyle Brodie, a deputy attorney general in Los Angeles and secretary of CASE, the union representing the agency's 1,000 lawyers, said Tuesday.
"The attorney general has talked to me personally and assured me this is not posturing. This is real."
California Attorney General Bill Lockyer was in Colorado Tuesday, attending a meeting of attorneys general from Western states and could not be reached for comment.
If the layoffs occur, officials said it would be harder to prosecute cases against fraud and illegal polluters. Recently hired lawyers would be the first to go.
Officials said the agency, which also employs about 4,500 non-lawyers, would have to cut back on its much-touted Energy Task Force, which Lockyer says has generated more than $2 billion in settlements related to market manipulation and other unlawful action during the state's energy crisis in 2000 and 2001.
The office would also have to be more selective in choosing which criminal cases it prosecutes when California district attorneys have conflicts of interest or limited expertise in local trials.
"It's unclear where we'll have to scale back," Lockyer spokesman Nathan Barankin said Tuesday. "But anytime you take a 12 percent whack, there are going to be serious consequences."
The attorney general's office last faced sizable layoffs in 1992-93, said Don Hayashida, the agency's chief personnel officer. But back then, most of the 250 positions that had to be eliminated were non-attorneys in the agency's Law Enforcement Data Center, and were absorbed through attrition and early retirements. Hayashida said about 60 of the affected employees found jobs in other agencies.
"I've been here 17 years and we have never had to lay off an attorney," Hayashida said. "This is unprecedented."
Like other state agencies, the Department of Justice has faced several years of cuts in its budget, which tops $600 million a year. Gov. Arnold Schwarzenegger's administration recommended several ways to soften the blow in its revised May budget proposal, including a $7.3 million general fund appropriation to cover extra litigation costs. Schwarzenegger's finance staff has also recommended an 18 percent increase in the hourly fee the attorney general can charge other state agencies for legal work.
But even with that boost, lawyers recently hired to work on several complex cases have put the department's four legal divisions nearly $10 million in the red now that some of those cases have been settled and lawyers are being assigned other duties.
"This is the first year we've actually had some of these major problems recognized by the governor's office, and we appreciate it," said Steve Coony, chief deputy attorney general for administration and policy. "Now it's up to us to have to fix the rest."
But he said the state ultimately could pay more in the long run if agencies have to hire more expensive outside lawyers.
Once layoff notices are sent out, state law requires employees be given at least 120 days' notice before being terminated.
A certain number of those employees could then get placed on a special list that would give them preferential placement for hiring by other state agencies. The agency will also continue to try to trim costs in other areas, such as hiring expert witnesses and outside lawyers to assist in certain types of cases, Coony said, in an effort to limit the number of people who lose their jobs.
"We hope to be able to minimize the actual number of layoffs," Coony said. "We won't know until a couple of months after the budget is passed how it will all shake out."
Holly Wilkens, a veteran death penalty litigator in the attorney general's San Diego office and CASE's vice president, said the layoffs would be "devastating" to an agency whose lawyers are already paid an average of nearly 30 percent less than California's other public sector lawyers. CASE is an acronym for California Attorneys, Administrative Law Judges and Hearing Officers in State Employment.
"We're there to implement the mission of the Justice Department," Wilkens said. "It's going to be very difficult to do that if we can't recruit people and we can't retain people and we're short-handed. I don't want to have spent 25 years here and find the agency laid to waste."
The Bee's Gary Delsohn can be reached at (916) 326-5545 or email@example.com .
July 13, 2004
Four decades after the Supreme Court's landmark decision mandating that poor defendants in criminal cases are entitled to legal representation, a group of prominent American lawyers says the promise of that ruling remains unfulfilled.
"There are still defendants who have not been provided competent counsel — or they have no real representation at all," the Constitution Project and the National Legal Aid and Defender Assn. said late last month in announcing formation of the National Committee on the Right to Counsel to address the issue.
"Even though state and local governments are responsible for ensuring adequate counsel for defendants who cannot afford to hire their own lawyers, many people … are nonetheless still convicted and imprisoned each year without any legal representation" or with an inadequate one, the Washington-based group said.
In 1963, the U.S. Supreme Court ruled in the case of Clarence Earl Gideon that the right to counsel in criminal cases was necessary to achieve a fair system of justice.
In his initial trial, Gideon represented himself because he could not afford an attorney. After his conviction was overturned, he was retried and his appointed attorney discovered new witnesses and won an acquittal.
Former Vice President Walter F. Mondale is serving as the newly formed committee's honorary chairman. In 1963, Mondale, then Minnesota's attorney general, organized 22 state attorneys general to file a friend of the court brief in favor of Gideon's right to a lawyer.
Gideon's handwritten petition to the Supreme Court is now on display at the National Constitution Center in Philadelphia.
Many around the country argue today that the promise of Gideon remains unfulfilled, even if an attorney has been appointed. The attorney may be handling hundreds of other cases, have no expertise in criminal law or have no funds to investigate facts or get DNA tests.
Four years ago, the Justice Department declared that public defense in the U.S. is in a "chronic state of crisis."
Rhoda Billings, former chief justice of the North Carolina Supreme Court and one of the three co-chairs of the new committee, said examples of problems abound.
"In some instances across the country, courts have upheld convictions even when the defendants were represented by lawyers who slept through portions of the trial or were drunk or under the influence of drugs," she said. "That level of performance is not what the constitutional right to counsel means."
The other committee co-chairs are Robert Johnson, a former president of the National District Attorneys Assn., and Timothy K. Lewis, who served a decade on the federal appeals court in Philadelphia.
"The balance is tipped too heavily in favor of the government when it comes to prosecution of persons without means who can't afford private counsel," said Lewis. "We really need to take a look at that. Who are we as a people if we not giving adequate and equal representation to those who can't afford a lawyer?"
Lewis also said that although there were many fine public defenders, most of them "carry a staggering caseload."
Among other members of the committee are Susan Herman of the National Center for Victims of Crime; Larry D. Thompson, senior fellow at the Brookings Institution; and Hubert Williams of the Police Foundation.
In the precedent-setting case, Gideon was charged with breaking and entering a poolroom with intent to steal, a felony under Florida law. Having no money, Gideon asked that a lawyer be appointed to represent him. His trial judge denied the request. Gideon conducted his own defense and was convicted. The verdict was upheld by the Florida Supreme Court.
Gideon then submitted a handwritten petition to the U.S. Supreme Court, which granted him a hearing and appointed prominent Washington attorney Abe Fortas, who later served on the high court, to represent him.
The Supreme Court ruled unanimously in Gideon's favor. Writing for the court, Justice Hugo Black said that "Gideon conducted his defense about as well as could be expected from a layman." He noted that 31 years earlier, the high court had ruled that there was right to counsel at every stage of a death penalty case, but in 1942 the Supreme Court said there was not a fundamental right to counsel in other criminal cases.
The high court overturned that decision in the Gideon case, saying it was restoring "constitutional principles established to achieve a fair system of justice."
"Reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him," Black wrote. He noted that "governments, both state and federal, quite properly spend vast sums of money" to prosecute crimes and that defendants who had the means hired the best lawyers they could.
Those actions, Black said, "are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries."
Among the problems with the system cited by the National Assn. of Criminal Defense Lawyers in a study last year:
• In Wisconsin, more than 11,000 people go unrepresented annually because anyone with an annual income of more than $3,000 is deemed able to afford to pay a lawyer.
• In Lake Charles, La., the public defender's office had only two investigators for 2,550 new felony cases and 4,000 new misdemeanor cases assigned to the office each year.
• In Bucks County, Pa., the public defender's office handled 4,173 cases in 1980. Twenty years later, with the same number of attorneys, the office handled an estimated 8,000 cases.
The study said that caseloads of many public defenders throughout the country exceeded American Bar Assn. standards, which limit caseloads to 150 felonies a year per lawyer.
Those heavy workloads mean that "for many people the right to counsel means nothing more than a hurried conversation with a court-appointed attorney before entering a guilty plea or going to trial," said Stephen B. Bright, director of the Atlanta-based Southern Center for Human Rights, who has played a key role in efforts to upgrade indigent representation in Georgia and other states.
In recent years, the center has filed five major lawsuits contending that various Georgia counties had failed to provide proper representation for poor defendants. Last year, after a blue-ribbon commission issued a report saying Georgia was failing to meet its constitutional duty to protect the rights of poor people accused of crimes, the state enacted a law designed to remedy the problems, including the creation of a statewide public defender system. And this month, Gov. Sonny Perdue signed a bill to fund the new system.
Elsewhere, the news is less promising. The Minnesota State Board of Public Defense said recently that one quarter of the state's public defenders would be laid off in August because of a shortage of money. Lawsuits are pending in other states, including Michigan and Montana, about problems with their public defense systems.
On the whole, California is considered to have one of the best systems of indigent defense in the nation. Still, public defenders in rural areas lament funding problems and fear that local governments may decide to scrap existing programs and replace them with lawyers who bid on a contract. Such low-bid systems have been widely criticized by legal experts because studies have shown that to make a profit, the contractor has to spend as little time as possible on a case.
The National Committee on the Right to Counsel plans to do field research and make reports but has not set a timetable for its work yet. The committee's oldest member, Abe Krash, 77, who worked with Fortas on the Gideon case, said the group faced a formidable challenge.
"When you ask yourself who is the constituency for this issue, it's poor people, frequently badly educated, living on the fringes of society with almost no political clout. Our present system is not a true adversary system. Ninety percent of the accused plead guilty, often without adequate investigation of their cases," Krash said.
"There is no question that there has been improvement since 1963, but the great hope of Gideon has not been achieved," Krash said.
Public defenders say heavy caseloads making their jobs impossible
Two years ago, public defender Lisa Tabbut's caseload was more than six times the accepted standard set by the Washington State Bar Association.
"It is so much," said Tabbut, who in 2002 juggled 276 dependency cases, 295 juvenile-offender cases and 16 criminal appeals in southwestern Washington's Cowlitz County. "Frankly, it's malpractice per se. It's insane. You just can't help people when you're dealing with numbers like that."
Tabbut's dilemma highlights what legal experts call a crisis in the state's public defender system, where many public defenders say skyrocketing caseloads make it difficult for poor people to get a fair trial.
"It's a huge concern, all over the state," Cowlitz County Superior Court Judge Stephen Warning told The Seattle Times for a story in a three-part series that wrapped up Tuesday. "This is an ongoing, great big problem."
Last March, a fed-up Tabbut dropped her juvenile court contract — a fixed-fee contract that placed no cap on the number of dependency and juvenile-offender cases assigned to her.
"You decide who you can help and who's not going to get help. That's a terrible admission," she said.
Tabbut's juvenile court contract paid her about $86,000 a year — roughly $150 per case. In King County, where public-defense caseloads are controlled, the same amount of work would have been handled by two to three full-time attorneys.
Getting the government to pass laws that would help fix the problems is difficult, Warning said.
"It's tough to go into the Legislature and say people who are accused of crimes, or people who are alleged to have done awful things to their children, need your help," Warning said. "We can't exactly do a telethon for them."
In 1989, Washington passed a law that requires each county to adopt public-defense standards on more than a dozen topics, from caseload limits to attorneys' duties and responsibilities. But the law doesn't dictate what those standards should entail. It merely suggests using state-bar guidelines as a reference.
However, based on a statewide review of county ordinances, resolutions and superior court contracts, the American Civil Liberties Union of Washington recently concluded that many counties failed to honor their obligations.
Fourteen of Washington's 39 counties have adopted standards on some or all topics. Of those, only King County has comprehensive standards that include numerical limits on attorney caseloads, the report says, and 25 counties have not adopted any standards at all.
The American Bar Association Juvenile Justice Center, in collaboration with other groups, issued a report last October documenting Washington's struggles to provide adequate representation in juvenile-offender cases. Researchers interviewed about 30 public defenders in seven counties who reported carrying 360 to 750 cases a year.
In juvenile courts, the study found, some attorneys appear more concerned with fostering good relationships with judges and prosecutors than with defending their clients. Such "defenders do not set trials, bring motions, or push for investigation funds because they fear 'rocking the boat' and being ostracized by the juvenile-court community," the report said.
Because the state generally doesn't help pay for indigent defense at the trial level, counties and cities must shoulder the cost.
In Washington, the state contributes a much smaller share of defendants' court costs, an average of 5.5 percent, than the average state funding level nationally, 50 percent, according to a study by The Spangenberg Group, a research and consulting firm.
Legal experts and indigent-defense studies have suggested a variety of alternatives for improving the state's system, including abolishing the use of fixed-fee contracts, creating a statewide public defender system or having state and local governments share the cost of trial-level indigent defense.
Some experts say individual lawyers could help force government to keep its promise of equal defense.
"If lawyers around the state were willing to insist on reasonable compensation and reasonable caseload limits, then these practices would go away," said says Bob Boruchowitz, director of The Defender Association, the largest public-defense firm in King County. "But as long as local governments can find attorneys willing to take these unreasonable caseloads, they'll keep doing it."
On the Net:
American Bar Association: http://w3.abanet.org/home.cfm
Information from: The Seattle Times, http://www.seattletimes.com
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