As youngsters, many of us grew up hearing preambles to radio and television shows stating something to the effect that our superheros were: fighting for truth, justice and the American way. Our heros in these programs taught us how wonderful the American Way; that in our system truth and justice always prevailed. We believed this to be fact. As we became older, those raised in California were subjected to eighth grade civics classes, where we learned all about how our government functions. Or, should I say, is supposed to function. One thing we learned was our justice system was the best in the world; that we did not send innocent people to prison; that a person is innocent until proven guilty. 

We believed all of this. But now recently, the press has carried numerous stories of wrongly convicted people being freed after umpteen years in prison. This mostly the result of DNA evidence showing the prosecutors had the wrong person. So now we have irrefutable proof that the system is broken; it hadn't worked properly; it no longer works the way our founding fathers envisioned, nor does it work as we were taught by our childhood superheros or in our civics classes. But still, the average uninformed taxpayer will have their collective head in the sand as to reality while crying foul over releasing innocent people. Society has developed a very dangerous and scary prison mentality. They are in abject denial, clinging to their childhood beliefs of truth, justice and the American way. They make the mistake of believing the hype thrown their way by the self serving politicians and special interest lobby groups, never taking the time to find out the facts for themselves. 

Only when someone close to them becomes involved in the justice system do the previously uninformed truly get a shock of reality. The first thing they learn is the accused is considered guilty until he is able to prove himself innocent. I used the male gender because statistics show the justice system to be far harder on men than women. The guilty until proven innocent reality is immediately obvious in the exorbitant bail amounts. One needs only to attend some court "bail hearings" and listen to the prosecutor's vehement and venomous allegations of culpability, and then witness the court's blind acceptance of this rhetoric while upholding exorbitant bail amounts, to see first hand that the only reason reasonable bail is not set is the system already considers the accused to be guilty. 

The next thing happens if there is any political hay to be made: the prosecutor will release information and make statements inferring the person's predetermined guilt; effectively trying the accused in the press prior to the accused's day in court. In America we love this mud slinging, no matter the unfairness and damage it does. In some European countries, the press may cover the story, but they refrain from printing the accused's name until convicted. Then, of course, the person is fair game. The British have for several years now been accusing the U.S. of doing to people the very same oppressive type acts that were the original excuses for the American Revolution. It appears we have come full circle; we now have become what we hated. 

The next thing one sees when involved with the justice system is a disparity between rich and poor defendants. We see that justice today does not include our childhood image of truth, justice and the American way; of guilt or innocence. It is about statistics. The prosecutors need conviction statistics in order to justify their bureaucracy. This results in prosecutorial misconduct, and it was in that context while referring to defendants as victims of the system that the late Supreme Court Justice William O. Douglas wrote in Donnelly v. DeChristoforo, (1974) 416 U.S. 637, "The function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. It's function is to vindicate the rights of people as expressed in the laws and give those accused of crime a fair trial." Nevertheless, politics seems to demand overzealous prosecutors to ignore truth, justice and the American way in their quest for conviction statistics. The system is broken. 

In a rural county, like the County of Shasta, conviction statistics bring in state and federal funding, both direct and grant funding. This is pushed at the state and federal levels by various special interest groups who have a vested financial interest. It is always about money. Follow the money trail to the truth. It is not about true and justice. For example, in California, the most powerful lobby in Sacramento is the California Correctional Peace Officers Association ("CCPOA"), that constantly lobbies for anything that will preserve or cause the prison population to rise, and thus, insure continuing and higher paying jobs for their members--the prison guards. High conviction statistics jointly suit the needs of both the CCPOA and the counties, as the special funding as well as prison guards salaries trickle down into the local rural economy. This at the expense of the taxpayers in the larger counties who are essentially funding a welfare system for the rural counties. 

So how do they achieve their desired high conviction statistics? Certainly not by concentrating on the rich defendants, ones who can afford to hire an attorney who will put on an adequate and proper defense, and even if found guilty will often only receive probation or a very minimal sentence. For rich defendants, the prosecution must spend more time and money to gain a conviction, with dubious odds of winning when compared to prosecuting the poor. If it is a high profile case the prosecutor has no choice, e.g., the O.J. Simpson fiasco that the prosecution spent millions on and still lost. In lesser known situations, the prosecutor will tend to "work out deals" with affluent defendants, and concentrate his conviction statistics efforts on the poor who are stuck with public defenders that often don't fight back. 

There are many problems allegedly behind the demise of what we once believed to be truth, justice and the American way, including many losses of freedoms via such as the recent Patriot Act, but those are beyond the scope of this writing. However, what many consider to be a most egregious failing of the justice system is in the area of public defense. Again I will pick on California, and in particular the County of Shasta, although they are certainly not alone in their failings. 

In 1963, the U.S. Supreme Court decided the landmark case of Gideon v. Wainwright, 372 U.S. 335, a case that achieved much notoriety as it was first written by an inmate on toilet paper after prison authorities had denied him writing paper. Chief Justice Earl Warren angered the conservative establishment, who had thought him to be in their collective pocket when he wrote that, the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right. . .to have the Assistance of Counsel for his defense," and further held that the 6^th and 14^th Amendments require appointment of counsel for indigent defendants in state court. (Id. at 342.) Thus establishing a state obligation to provide public defense. 

The State has subsequently delegated the administration of this required public defense system to the counties, some of which have established a public defender's office, and others such as Shasta who contract for the service. However, the ultimate obligation under the law still belongs to the State. Although, with the recent budget deficit debacle, the State is attempting to pass the buck to the counties without providing adequate funding, and providing no oversight. 

The result is the poor become conviction statistics. This shouldn't be under our truth, justice and the American way belief. There are supposedly standards of performance for defense attorneys which must be followed. The standards exist, but the reality is they are too often not followed. Complaints are made, but to whom. Other attorneys such as judges, who are also attorneys; or, the State Bar, who are also attorneys. Attorneys investigating other attorneys are loath to find fault with their brethren, as to do so would interfere with the justice system's financial bureaucracy. Again it's the money, and who's worried about the poor. Hence, no meaningful oversight. 

There has been much ado in the Redding press for several months as the County Board of Supervisors grappled with creating a public defender's office. The Supervisors acknowledged they are aware of problems with their public defense contractors. County Administrator Doug Latimer even cited specific complaints, as did individual members. The most common complaints being received include: failure to make scheduled court appearances; failure to properly interview clients before court appearances; divulging confidential information by attempting to interview clients in court holding cells in the presence of others; failure to investigate; failure to provide documents to defendants; failure to keep defendants informed of status of case; and, being just plain rude, degrading, and condescending to their clients. 

In California, Business and Professions Code §6068 sets some standards for attorneys, and also requires attorneys to follow standards set by the State Bar, other statutory laws, and case law. Section 6068, in pertinent part states: "It is the duty of an attorney to do all the following:" Subsection (e) states, "To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client." This subsection is violated multiple times daily when public defenders attempt to conduct what should be confidential client interviews in court holding cells in the presence of other inmates and sometimes marshals. 

Subsection (m) requires attorneys to "respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments. . ." Subsection (n) requires attorneys to, "provide copies to the client of certain documents under time limits. . ." These two subsections are also often violated. 

What causes these problems? The greed of the contractors in attempting to take on more clients under the contract than their available man hours will allow them to adequately defend. This is exacerbated by either the contract being so poorly written so as to allow this, or the contract terms not being fulfilled and/or enforced. Whichever, the result is the same, poor defendants do not receive an adequate and proper defense. Californians attempt to do their own thing, that is ignore the rest of the world, and attorneys are no different. The American Bar Association ("ABA") Standards are likewise ignored, even though the ABA has adopted Standards for attorney performance followed by the rest of the country. 

In addition to its other rules, on February 5, 2002, the ABA "Adopts or reaffirms The Ten Principles of a Public Defense Delivery System." ("Principles"). Each Principle cites the ABA standard upon which it is based. 

What makes these ABA Principles and standards significant is that the controlling U.S. Supreme Court case which set minimum constitutional standards for effective assistance of counsel is Strickland v. Washington, (1984) 466 U.S. 688, where the court stated: "Prevailing norms of practice as reflected in American Bar Association standards and the like. . .are guides to determining what is reasonable." (Id. at 688-689) This has been reiterated in subsequent decisions, e.g., Williams v. Taylor (2000) 529 U.S. 362, 369; and again most recently in the June 26, 2003, decision in Wiggins v. Smith, Supreme Court Case Number 02-311, which makes several references to attorneys following and being judged by ABA standards. 

In light of the numerous U.S. Supreme Court cases which reference the ABA standards, it becomes obvious that all attorneys, even those in California, will be judged by the ABA standards by the appellate courts. The ABA Ten Principles cite and incorporate the National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Court, Chapter 13, The Defense (1973)("NAC"), and the National Study Commission on Defense Service Guidelines for Legal Defense Systems in the United States (1976)("NSC"), and others. 

The greatest problem with public defenders is their workload, as this also causes other standards to be violated. ABA Principle 5 deals with maximum workloads, and incorporates NAC Standard 13.12, providing, "(maximum cases per year: 150 felonies, 400 misdemeanors, 200 juvenile, 200 mental health, or 25 appeals.), and other national standards state that caseloads should 'reflect' (NSC Guideline 5.1) or 'under no circumstances exceed' (Contracting Guideline III-6) these numerical limits." 

The Law Office of Steven Kennedy, who claims to be the prime contractor handling 80 to 90 percent of the public defense work in Shasta County, has only three attorneys. Yet in contract negotiations also claimed handling a number of cases which is in excess of five times the ABA Standard. In addition to accepting more contract cases than the ABA Standards allows, one of the Kennedy Office attorneys, Elliot Burick, runs a very large Yellow Page advertisement soliciting additional private clients outside the contract. Allowing this is an obvious flaw in the contract, and an ethical violation on his part. Moreover, he is not the only contract attorney doing this, but he is the most visible as he receives a large number of complaints. 

Other ABA Principles being violated by various Shasta County public defenders include ABA Principle 4, which requires, "Defense counsel is provided sufficient time and a confidential space with which to meet with the client." (Citing NSC, supra note 2, Guideline 5.10; ABA Defense Function, supra note 15, Standards 4-2.3, 4-3.1, 4-3.2; Performance Guidelines, supra note 15, Guideline 2.2.) For "confidential access to the client for the full exchange of legal, procedural and factual information between counsel and client." (ABA Defense Function, supra note 15, Standard 4-3.1.) "To ensure confidential communications, private meeting space should be available in jails, prisons, courthouses and other places where defendants must confer with counsel." 

ABA Principle 8 requires, "There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system." This is a lengthy Principle so the individual standards will not be cited, but it essentially requires the defense to have access to the same resources as the prosecution, to "benefits, technology, facilities, legal research, support staff, paralegals, investigators, and access to forensic services and experts." It also states, "Contracts with private attorneys for public defense services should never be let primarily on the basis of costs; they should specify performance requirements. . ., and separately fund expert, investigative and other litigation support services." 

ABA Principle 10 requires, "Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards." The Shasta Board of Supervisors has discussed fulfilling this and other requirements, but has not yet acknowledged that they are requirements, but rather their discussion is more political in nature with talk of making a better and more efficient system. In other words, they are looking to save some money. 

When a defendant is dissatisfied with a court appointed attorney, there is a system in place for requesting the attorney be replaced which was first announced by the California Supreme Court in People v. Marsden, (1970) 2 Cal. 3d 118, and now commonly referred to as a Marsden Motion, which results in a Marsden Hearing, where the defendant is allowed to articulate his or her complaints before the court. Marsden Motions are so common in Shasta county that recently Judge Wilson Curle was heard complaining in court, "We are having too many of these." Whether he was referring to Marsden Motions or defense attorney standards violations or both is unclear. However, even though defendants cite documented standards at their Marsden Hearings, rarely is their motion granted. But instead, when an attorney is replaced, the reason given on the official record is almost always for something other than a standards violation, such as, "conflict of interest," or "personality conflict." This behavior in our truth, justice and the American way justice system reeks of protectionism. 

Judge Curle has been overturned several times by appellate courts, the most recent notable case which also received national press coverage was a Three-Strikes case where attorney Elliot Burick had failed to investigate. For this, the Third District Court of Appeals found Ineffective Assistance of Counsel ("IAC") against Burick in People v. Morgan, (2001) 91 Cal.App. 4^th 1324, later ordered depublished by the California Supreme Court while upholding the decision itself. Yet another example of protectionism. 

In the Morgan decision, the appellate court excoriated the "defense attorney," being careful not to name him even though court records showed the "defense attorney" to be Elliot Burick, by stating in one place, "He was manifestly not prepared." Then in another place, "This is not a case in which counsel's performance can be excused on the ground he made a tactical decision. That claim arises only where counsel 'having made [the required] inquiries and investigations, makes tactical or strategic decisions. . .' (Citation) But when, as here, 'the knowledge necessary to an informed tactical or strategic decision is absent because of counsel's ineptitude or lack of industry, no such grounds of justification is possible.'" (Id.) Because most of this statement and rationale originally comes from the California Supreme Court in In re Williams, (1970), supra, 1 Cal. 3d 168, 177, it is binding precedent even though the Morgan decision was ordered depublished. 

In the June 26, 2003, Wiggins decision, the U.S. Supreme Court has again reaffirmed this same principle. While the Wiggins decision was a capital murder case, the Supreme Court did not limit its rationale only to such cases. But rather, the language used and the precedent cited made it clear that these same principles apply at every stage of any criminal preceding. 

So what does this mean for our truth, justice and the American way we grew up believing in? It simply confirms that the system, at least in the County of Shasta, California, is broken. That everybody except the taxpayers knows it is broken; that everybody who knows it is broken is apathetic, except the defendants and their families; because as of yet no one is taking affirmative steps towards fixing the problems. 
 

Inmate Tom Watson