By Scott Baly
With hands chained to their waste and feet shackled they shuffle into the courtroom six at a time. When I see them I know there are more waiting in a cell not far behind. I wear a suit so I look like a lawyer because sometimes they don’t believe me when I tell them. They call me a “public pretender.” That’s okay, I understand. Sometimes they call me worse. The truth is that I’m a Fresno public defender. At least that’s what it says on the business card that I hand them in court.
In the summer of 1998, it was hot, much like this summer has been. That was when after passing the bar I parked my aging car in downtown Fresno for the job interview. Opening the door, the heat hit my face like a furnace. I considered just turning on the air conditioner and driving back to San Diego. How could I live here with this heat?
These days, when the Fresno nights are hot I still wonder how I can live with this heat. During law school, I heard someone say that “you can make a difference for the better as a law student. You can make a difference for the better as a lawyer. But nearly everything that happens to you as a law student and as a lawyer will tempt you away from making a difference for the better and toward making money.”
Public defenders in Fresno feel this temptation by the day. But putting on a trial suit feels like the last suit you’ll ever wear. Being a public defender is a job with a purpose. There are many people who need your help, and you have the power to help them. But commitment to public service also comes with a personal cost.
When offered the job, I joined an office made up of 68 lawyers that represented the indigent defendants in a county with just above 750,000 people. Early on, I learned that indigent was a fancy word for a poor person. And defendant was a dehumanizing term used to describe any person accused of committing a crime.
Over the years, the heat in Fresno seems to have only gotten worse. There have never been shortages of poor people for public defenders to represent. In 2000, one in five Fresno county residents lived in poverty. The Great Recession turned up the heat higher, and by 2010 that rate increased to one out of every four. And there were more people living here too. Last year, there were almost 950,000 people in Fresno County. Soon our county will have a million people, with more and more of them living in poverty.
Beds have been added to the jail to accommodate the increase of those who cannot afford bail. Within the past decade, construction at the North jail added two floors and a total capacity of just above 3,000. Almost 70% of the inmates in the jail are awaiting trial. The first responders to manage the flow of people from the jail in the courtroom are public defenders. An experiment in 2006 led to the hiring of additional public defenders to manage the crowding. With that, our ability to represent our clients improved. Clients were interviewed more quickly, and cases were investigated in a timely manner. Cases that could be resolved were resolved more quickly. The right to a speedy trial had more meaning then than it does today. Overcrowding at the jail was eased, albeit temporarily.
Decades of progress were wiped out with the Great Recession. In 2009, public defender employees were presented with the county’s cost-cutting plan to “demote everyone except management.” The years that followed brought painful and demoralizing work furloughs, layoffs, pay cuts and drastically increased caseloads. These are dark ages if you are a public defender in Fresno County.
Today, jail overcrowding has returned with a vengeance, even with once-shuttered jail floors open for business and state funding from AB 109. Fresno Police Chief Jerry Dyer complains about crime due to lack of jail bed space. Fresno County Sheriff Margaret Mims is asking to build a new jail near the courthouse. Fresno County District Attorney Elizabeth Egan wants a new office building too. But building more jails will not solve our overcrowding problem if we do not have public defenders to represent people in court.
Public defenders fighting on the front lines of the courthouse today are demoralized from years of pay cuts and cutbacks. Recently, the American Bar Association (ABA) reaffirmed long-held caseload standards that felony attorneys should have no more than 150 cases per year. Misdemeanor attorneys should have no more than 400 cases per year (excluding traffic).
There are 55 lawyers currently working at the Fresno Public Defender’s Office. Attorneys assigned to handle cases to jury trial in felony home courts were assigned an average of 650–700 cases per year in 2012. Many carry more than 200 open cases at any given time. Covering a courtroom alone 2–3 days per week there is not enough time to visit clients in jail or prepare cases for trial. Attorneys assigned to misdemeanor courtrooms were assigned (on average) more than 1,000 cases per year. This is not effective advocacy. To keep up with the flow of people in courtrooms with this volume all there is time to do is to “meet ’em, greet ’em and plead ’em.”
The situation is worse when you consider how hard public defenders have worked with the county trying to preserve adequate representation. In 2011, lawyers at the Fresno Public Defender’s Office voluntarily agreed to pay cuts ranging from 6% to 9.5%. In 2012, they agreed that the pay cuts could be extended to 2014.
Insult was added to injury when a countywide freeze on promotions was lifted last year and public defenders were ignored. Public defenders have watched promotions occur in other county departments, but not theirs. However, the biggest slap in the face comes from watching county prosecutors (who had salary cuts imposed on them because they could not come to an agreement with the county) receive promotional pay increases over them. In a system of justice where scales are supposed to be balanced, there is no reason for any disparity in pay or promotion between prosecutors and public defenders.
For more than five years, there have been no promotions at the Public Defender’s Office. At this point, a Defense Attorney I or II or III (managing a caseload twice the size of the ABA recommendations) has little hope to receive a promotion any time in the future.
The Sixth Amendment to the U.S. Constitution provides for the right to the assistance of “counsel for defense.” That phrase does not mean that there is a right to an attorney only to rich people. It means everyone has the right to an attorney regardless of ability to pay. The rights to a speedy trial, a public trial and an impartial jury have no meaning unless one has an effective attorney.
My clients are accused criminals, and some of them have done bad things. Judged by their worst actions, they garner little sympathy in our Central Valley home that struggles with many problems. Gandhi is quoted as saying that “a society is judged on the basis of how it treats its weakest members.” As they shuffle into court, my clients are scorned, shamed and punished for their transgressions against our law. They are seen and treated as defendants. But each person, each defendant in a Fresno courtroom, is also a member of a family and a member of our community. They have mothers and fathers and brothers and sisters and children. They have people who love them and look up to them and need them and eagerly await their return home. And most of them will return to their homes, living together with us in our community.
How we treat them now will affect us in the future.
It has been hot in Fresno for a long time now, but cooler temperatures are coming. We can have a better system of justice.
Scott Baly is an attorney at the Fresno Public Defender’s Office and a faculty member in the Criminal Justice and Security Program at the University of Phoenix.