By Vic Bedoian
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.—U.S. Constitution, Amendment VI
The Fresno County Office of the Public Defender is in crisis. So much so that public defenders are speaking out and making their concerns public. In late September, virtually all the attorneys in the office wrote a strongly worded letter to the Board of Supervisors complaining about their working conditions due to excessive caseloads. Their clients are people who can’t afford a private lawyer and whose lives are caught up in the legal system due largely to the War on Drugs, and complicated by social circumstances such as poverty and joblessness.
For each case a public defender is assigned, she or he is responsible for upholding the constitutional rights that the client has to a fair, expeditious trial and effective counsel. That mission is now imperiled by a crushing caseload well beyond the limits of professional standards. What’s more, Fresno County could be violating the U.S. Constitution’s Sixth Amendment.
This crisis is rooted in Fresno County’s recession-driven budget cuts since 2009, which over time have severely reduced the number of attorneys, investigators and clerical staff in the Office of the Public Defender. Because of the insufficient funding from the Board of Supervisors, public defense attorneys in Fresno say they face a daunting array of challenges, including far more clients than they can effectively handle, low morale, lack of job mobility, inequity of funding compared to the District Attorney’s operation, a District Attorney policy of aggressively prosecuting on relatively minor charges and the threat of privatization.
One experienced public defender has already left for the private sector because the working conditions compromised his health. Another was fired for complaining that the extreme caseload compromised her ability to serve her clients consistent with her constitutional obligation. These concerns strain not only the effectiveness of public defenders but also, more important, the quality of justice in Fresno County.
Kathy Marousek and Scott Baly are dedicated public defenders whose fidelity to the constitutional rights of their clients and commitment to their profession have led them to this trying moment in their careers. As an intern with the San Diego Public Defender during law school, Baly became captivated with the idea that public defenders “can really make a difference” in peoples’ lives and in society. By the time he became an attorney, Baly knew what he wanted to do with his law degree.
“People think you’re dealing with criminals, people think you’re getting criminals off,” Baly emphasizes, shedding his coat and tie after a long day in court. “You’re dealing with people and you’re helping people through the most difficult times of their lives.”
Marousek’s path came from the opposite direction. For 12 years after finishing law school, she was a prosecutor for the Fresno County District Attorney’s office working under District Attorney Ed Hunt. Then she switched sides and became a public defender. It gave her a new perspective on the nature of law and order, “Your successes are defined differently because you’re concerned about peoples’ rights.” For a prosecutor, she observes, success is measured by how many convictions you win.
In 1973, the National Advisory Commission on Criminal Justice and Goals recommended standards for maximum caseloads for public defenders, which was initiated by the U.S. Department of Justice and incorporated into the American Bar Association’s Ten Principles of a Public Defense Delivery. It states that an attorney should handle no more than 150 felonies or 400 misdemeanors annually, exclusive of other duties like research or supervision.
Fresno County far exceeds those standards. In the first half of this year, Fresno County felony attorneys averaged 200 open cases, exceeding the national standard by 50% (from data by the Sixth Amendment Center). According to budget numbers that Marousek provided, the Public Defender’s office handled 23,000 criminal cases last year. For the 38 attorneys assigned to those cases, it amounts to 605 cases per attorney. Not counting the 10 public defenders covering major crimes cases, the ratio jumps to 805 cases per attorney. One misdemeanor public defender had a whopping 1,925 cases over an eight-month period, and a felony attorney had more than 600 clients assigned in that same time frame.
“Five years ago, my office had 80 lawyers and there has been a shift, now there are 51,” Baly emphasizes. “Caseloads haven’t gone down, poor people in Fresno haven’t gone down in that time, crime hasn’t gone down in that time.”
During this time the Public Defender’s office has been cut dramatically. Meanwhile, the District Attorney hasn’t suffered the same level of cuts. Currently, the District Attorney has 101 attorneys and 46 investigators. Baly infers that “whenever you have an imbalance like that, the system doesn’t work.” The upshot is that a public defender only has about two hours to spend with a client from the initial interview to final disposition of the case. That’s about the same amount of time it takes to watch back-to-back episodes of Law and Order on television.
Such a logjam results in cases being continued, or delayed, because public defenders don’t have enough time to devote to each case. This situation has clogged the courtrooms and the jail with people waiting for justice. It means that if you are charged with a crime and can’t pay bail, you could spend months, even a year or more in jail pending the disposition of your case. And, of course, you’re supposed to be presumed innocent until proven guilty. Nearly 70% of the people now sitting in Fresno County’s jail are there under those circumstances.
Major crime cases can take two to three years before coming to trial. Even for lower-level felonies the accused could be in jail well more than a year. One of Marousek’s clients was accused of murder and was in jail for more than a year before his trial, in which the jury found him not guilty. And that case was rushed.
Baly says the snarl-up in the system creates another form of injustice because it takes time to prepare an effective defense and, unlike expansive prison facilities, jails are not designed for long-term stays.
Another consequence of the Public Defender’s budget cuts the Board of Supervisors has made is that the number of investigators has been reduced from 18 to just nine, which makes cases go on longer. Investigators do the research and footwork that discovers and compiles the basic facts of the defense case. It’s a critically important task that must be done right because failure to investigate is one of the main reasons that cases are overturned on appeal.
“I don’t think they understand how bad it’s become in our office,” Marousek declares. “I would really enjoy meeting with the Board of Supervisors and talking about this. I would really like to understand why they continue to fund the DA’s office, they have not lost any money, and yet our office has been slashed by 16%. I don’t understand that, because the scales have really tipped.”
Kenneth Taniguchi, Fresno County’s chief public defender, views the situation from a different angle. “Frankly, I’m looking at their successes. I’m very proud of the attorneys here. They’re winning more cases than they have ever in the history of this office. So while, yes, they are working very hard, probably at the maximum of their capability, they should be proud of themselves.”
Taniguchi is a veteran public defender who is sensitive to the social context of crime and punishment in Fresno. He grew up in a mostly White neighborhood and experienced prejudice firsthand as a Japanese-American in the wake of World War II. He says he’s tried to protect his department from budget cuts and outsourcing but understands the frustration from attorneys due to realities of the post-recession era.
Regarding the imbalance between funding levels of the District Attorney’s office versus the Public Defender’s office, Taniguchi calculates that “the standard most counties go toward is for every three deputy DAs there’s two public defenders. We’ve only got one for every two. If you look at the money the county provides the DA and us, it looks equitable until you look at the bigger picture.”
Taniguchi contends that the funding inequity is also due to the overly zealous prosecution of low-level drug offenses. As to why, he replies, “The District Attorney is an elected office, so certainly how they portray themselves has to do with being an elected official and getting themselves back in office again.”
Another cause of imbalanced resources results from money coming to the District Attorney’s office through grants and special funding from outside sources, such as the federal government or even local groups such as Indian casinos. No such funding has been given to public defenders. Taniguchi warned the Board of Supervisors back in 2008 that further cuts would impede the ability of the Public Defender’s office to effectively perform its constitutional requirement for indigent defense. Yet the Board continued to the cut their budget.
Fresno County is “constitutionally deficient” according to David Carroll of the Sixth Amendment Center, when public defenders are forced to handle such heavy caseloads. Carroll is a nationally recognized expert on the standards and methods for the delivery of right to counsel services. For 15 years, he has been providing technical assistance to policymakers at the federal, state and local levels, and has led numerous research and evaluation projects. He has testified on right to counsel issues before a number of state legislatures and the U.S. Congress.
The Sixth Amendment Center is a nonprofit that seeks to ensure that no one faces jail time without a lawyer who has sufficient time, resources and training to do what is needed on cases. “Any caseload crisis can be boiled down to a problem of independence,” Carroll states. It’s a principle repeatedly upheld by the Supreme Court. To do a good job, public defenders must balance keeping that job with their ethical duty to their client. It’s that conflict that leads to such overwhelming caseloads, Carroll asserts. “The independence of the defense function is constitutionally protected. The fact that there’s no independence in Fresno means it’s unconstitutional, if what has been alleged proves to be true.”
Is Fresno County at risk of violating the Sixth Amendment? Marousek believes so, “If any expert looked at our numbers they would tell you [public defenders] can’t be effective.”
Baly cautions, “These are rights that we are trying so hard to preserve. I think we are at risk. We have a safety net with huge holes in it.”
Even their boss, the cautious Taniguchi concurs, “The potential is always there.”
Which is why a few years ago the Public Defender’s office had to decline cases, and private attorneys were hired to handle the overload. About the same time, the Board of Supervisors brought up the idea of privatizing the public defender service. It was voted down.
Baly dismisses such talk as a tactic of intimidation, “The idea that you’re going to find private lawyers that are going to do it more cheaply doesn’t hold water. But it’s a threat because I like my job, I like being a public defender, and most of us believe that a good community has a good public defender’s office.” But the potential threat is still there.
According to Carroll, California has a prevalence of flat-fee contracting, “These are contracts where private lawyers basically agree to take on an unlimited number of cases for a single flat fee. This means that they have a financial incentive to do as little on the case as possible.” Whether the county will actually try to revive this proposal remains to be seen.
Marousek assures that public defenders don’t want to take money away from the District Attorney or the police; they just want parity with prosecutors in order to ensure that justice is served to everyone in Fresno County.
Baly affirms that “we just want people to be aware of the importance of these issues for adequate indigent defense. When you’re talking about the importance of police officers and a jail and a court system and district attorneys, you can’t talk about those things without addressing adequate representation. We can’t fund all of these parts of the criminal justice system and then overlook adequate representation.”
Note: The next article in this series will take us into the courtroom for a closer look at the criminal justice system and indigent defense issues.
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Vic Bedoian is an independent radio and print journalist working on environmental justice and natural resources issues in the San Joaquin Valley. Contact him at vicbedoian@gmail.com.
