OLD_San Francisco Public Defender's Office

Activists, Policy Experts, Attorneys Convene in SF to Address Indigent Defense Crisis

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May 14, 2009

SAN FRANCISCO – Over 400 attorneys, criminal justice policy experts, students, activists, community leaders and concerned citizens attended the May 6, 2009 Justice Summit: Defending the Public and the Constitution to show their support for public defense.

The 2009 Justice Summit was the first focused effort by the California Public Defenders Association, California Attorneys for Criminal Justice, Bar Association of San Francisco and the San Francisco Public Defender’s Office to bring awareness to the national crisis in public defense. The Sixth Amendment to the U.S. Constitution requires that an accused person who is charged with a crime and cannot afford to hire a lawyer must be appointed an attorney paid for by the state or county. Because of budget cuts and staffing shortages, many offices are unable to provide quality representation to their clients.

The 2009 Justice Summit began with a dramatic announcement by Federal Judge Thelton Henderson – who was scheduled to deliver the keynote address – that he had received a call from the judicial ethics council in Washington, D.C., advising him not to speak. “They were concerned that this event would be seen as too political,” Judge Henderson said. “So instead, I want you to imagine what I would have said if I were allowed to speak.”

San Francisco Public Defender Jeff Adachi, whose office is facing a 25 percent cut proposed by Mayor Gavin Newsom, gave the opening remarks. “Most of us may never be touched by the Sixth Amendment,” Adachi said, referring the Constitutional right to counsel. “You wouldn’t think about it until you were in a situation where you needed a lawyer. What kind of lawyer would you want for your family member or yourself? Would you want a lawyer who didn’t have the resources needed to represent you or your loved one? Would you want to be in a situation where your lawyer was so overloaded with cases that he or she couldn’t do what had to be done in your case,” he asked.

“The problem is how to ensure that indigent defendants receive competent legal representation in times of budgetary cutbacks and increasing caseloads. For the sake of our constitution, it is a problem we must solve. But we must choose means to that end with great care and with consideration, otherwise may win the game of numbers, but we may lose our sense of justice along the way,” President of California Attorneys for Criminal Justice Ted Cassman said, quoting late California Chief Justice Rose Bird.

“We fully recognize the financial difficulty faced by the city of San Francisco, but our analysis concludes, and today’s speakers will demonstrate, that these cuts will cost the city and society far more in the long run,” President of the Bar Association of San Francisco Russ Roeca said.

The 2009 Justice Summit’s morning session featured a panel discussion on the history of indigent defense in America, the role of public defenders in exposing government misconduct, and ensuring equal access to a fair trial. Panelist Barbara Babcock, a Stanford Law School professor, recounted that the public defense system was founded by Clara Foltz, the first female attorney in California, who spent twenty years advocating for court appointed attorneys for the poor. Babcock noted that the “Foltz Public Defender bill” passed in 1912 only after women won the right to vote in state elections.

Other speakers included: Judge LaDoris Cordell, retired Superior Court judge and legal commentator; Cookie Ridolfi, Director of the Northern California Innocence Project; Richard Goemann, Director of Defender Legal Services, National Legal Aid & Defender Association; Michael Judge, Chief Public Defender of Los Angeles, Michael Hersek, State Public Defender, Barry Krisberg, Director of the National Council on Crime and Deliquency, Kimberly Thomas Rapp, Director of Law and Policy, Equal Justice Society and Christine Voss, Supervising Attorney with the Riverside Public Defender’s Office.

The findings made during the panel discussion included the following:

Minorities, working poor people and disadvantaged youth and families are most likely to rely on public defense.

Members of the public who rely on public defense are most likely to be minorities; according to a recent study by the National Council on Crime and Delinquency, African Americans are 4.7 times, and Hispanics are 2.1 times, as likely to have a public defender as their Caucasian counterparts.
In difficult economic times, more members of the public rely on public defense, because fewer people can afford to hire an attorney, and crimes rooted in economic hardship tend to increase.
Public defenders are most likely to represent persons who have prior criminal records.

The amount of public safety funding designated for public defense is only a tiny fraction of what counties spend on law enforcement and corrections.

In California, for every $8 spent on prisons and corrections, only $1 is spent on indigent defense. San Francisco has the lowest per capita spending on public defense when compared to all other major cities in California.
In San Francisco, 59 percent ($470 million) of all public safety spending goes to fund the Police and Sheriff’s departments; only 3 percent ($24 million) goes to fund the public defender.

Budget cuts to public defense result in greater long term costs to counties.

Budget cuts that reduce the staffing of public defense offices cause delays in court cases, which drive up incarceration costs. Staffing shortages also result in high caseloads, inadequate investigation and preparation of cases, and an increased likelihood that innocent people are wrongfully convicted of crimes they did not commit.
In San Francisco, a 25 percent cut in the Public Defender’s budget would translate into reducing staffing by as much as 30 percent. This would require that the Public Defender withdraw from as many as 6,000 cases, which would have to be referred to private attorneys at a greater cost to the city.

Counties may be sued for inadequate legal representation provided by a public defender and public defenders can face disbarment for failure to provide proper legal representation.

In Mendocino County, a minor was wrongfully convicted of a serious sex offense when his defender, due to having too many clients and insufficient resources, failed to properly investigate the background of a key prosecution witness; the Court of Appeal ruled that the public defender was responsible for the faulty representation of the minor.
Wrongful convictions also result in civil liability for the county. In January 2009, a $3 million verdict was returned against a Washington county when a public defender failed to conduct an investigation that would have exonerated his client. The public defender was handling 500 other cases at the time and did not have an investigator. In Clark County, Nevada, a man who was wrongfully imprisoned for 14 years was awarded $5 million against the county and the public defender’s office.
Public defenders face disbarment and can lose their license to practice law when caseloads make it impossible to provide adequate representation to its clients. Chief public defenders are ethically required to refuse appointment in all cases that would exceed their office’s capacity to provide competent representation. In the Washington case noted above, the Public Defender was disbarred for providing incompetent representation.

Budget cuts to public defense increases the likelihood of wrongful convictions.

According to a national study, 20 percent of wrongful convictions proven through DNA testing resulted from poor lawyering due to insufficient investigation and defense resources.
The state must expend great sums to reverse a wrongful conviction based on incompetent lawyering; it is much cheaper to provide an adequate defense in the first instance to avoid the cost of appeals and retrials.

Counties save money in the long run by properly funding public defense.

Fully staffed public defense offices save tax dollars by decreasing pretrial incarceration costs, reducing administrative work and providing budget predictability.
Public defenders have been forced to file lawsuits when, because of budget cuts, their offices have been inadequately funded. Currently, law suits concerning inadequate funding of public defense systems are ongoing in Ohio, Louisiana, Michigan, New York, Florida, Washington, Montana, Pennsylvania, Connecticut, Virginia, Tennessee, North Dakota, Georgia, and Massachusetts.

The 2009 Justice Summit’s afternoon panel addressed public defense client services that extend beyond the courtroom to address non-criminal social issues, such as drug rehabilitation, mental health treatment and housing. Melanca Clark, of the Brennan Justice Center at New York University Law School, discussed how public defenders are helping to reduce crime and recidivism by providing representation that goes beyond the courtroom to help their clients avoid returning to the criminal justice system. The afternoon panel included a discussion of how public defenders use social workers and reentry counselors to help clients turn their lives around.

In San Francisco, some of these public defender programs include the Clean Slate program, which has helped over 15,000 people clear their criminal records upon a showing of rehabilitation since 1998, and Drug Court, which provides treatment alternatives to jail for persons addicted to drugs.

“Public defenders worry about the community. They worry about making it better for their client,” President of California Public Defenders Association Bart Sheela said. “Trying to help people when they get out of prison not go back, doesn’t just help [the client], it helps the entire system.”

The 2009 Justice Summit attracted the support of a broad-based coalition of over 50 community, faith-based, and legal organizations. The movement to support indigent defense has been motivated by a surge of national interest in how the criminal justice system is being affected by budget cuts to defender offices and lawsuits that have been filed in several states, including Florida and Minnesota, over whether public defenders can be forced to accept cases when they are unable to handle the workloads assigned by the courts.

At the conclusion of the 2009 Justice Summit, members of the public were encouraged to write a letter to the Mayor and Board of Supervisors Budget and Finance Committee urging them to spare the San Francisco Public Defender’s office from budget cuts. A sample letter is available here.

Watch the 2009 Justice Summit this weekend on SFGTV – 1, SF cable channel 26:

Friday May 15th at 1:00PM
Saturday May 16th at 6:00PM
Sunday May 17th at 9:00PM

Starting next Monday, for the next few weeks, watch the 2009 Justice Summit on SFGTV2 Comcast channel 78 (28 on Astound):

Wednesday’s at 9AM
Friday at 7PM
Sunday’s at 6PM
Monday’s at 1PM

To watch the 2009 Justice Summit on-line, visit the SFGTV website by clicking here.

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KQED Interviews Jeff Adachi on Public Defender Budget Cuts

Budget
Media

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May 7, 2009

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Public defenders and defense attorneys from around California met in San Francisco today to discuss how budget cuts are affecting their work. What cuts are public defenders being asked to make, and how are those cuts impacting their ability to defend people accused of crimes who can’t afford a lawyer?

Listen to the interview here:

[audio:http://sfpublicdefender.org/wp-content/blogs.dir/1/files/audio/2009-05-06-kqed-justice-summit.mp3]

The real defenders of San Francisco values

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May 5, 2009

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By Steven T. Jones
San Francisco Bay Guardian, Politics blog
May 4, 2009

While Mayor Gavin Newsom gallivants around the country – he’s been back east accepting accolades for same-sex marriage and Healthy San Francisco and trying to shore up White House support for his Treasure Island and Hunters Point redevelopment schemes – other city leaders are doing the hard work of restoring San Francisco values.

On Wednesday, there are two shining examples of this uphill battle that take place on opposite ends of Civic Center Plaza. First, SF Public Defender Jeff Adachi hosts “Justice Summit 2009: Defending the Public and the Constitution,” which highlights the importance of constitutional guarantees of quality legal representation for all defendants, regardless of income level, a right that has been eroded by budgetary pressures in San Francisco and around the country.

Among the long list of respected legal thinkers will be a keynote speech by US District Judge Thelton Henderson, who has ordered California to finally do something about severe overcrowding and substandard medical care in its prisons – a laudable and courageous stand that has been met with utter cowardice, contempt, and pandering by state officials. That event begins at 10 a.m. in the main library’s Koret Auditorium.

Read the rest of this article here.

Judge Thelton Henderson to Keynote SF Summit on Indigent Defense Crisis

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May 5, 2009

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Public Defenders, Criminal Justice Leaders from around U.S. to Convene in San Francisco

SAN FRANCISCO – Over 300 people in support of public defense will gather on Wednesday, May 6, 2009 to hear Judge Thelton Henderson, senior federal judge of the Northern District of California, speak to the importance of the Sixth Amendment right to counsel, which is currently being threatened by nationwide budget cuts.

Judge Henderson will be the keynote speaker of the 2009 Justice Summit: Defending the Public and the Constitution. The purpose of the summit is to examine the endemic and systemic failures of the indigent defense system, how public defenders, appointed attorneys and their clients are coping with the crisis, and the steps that must be taken to avert the undermining of the right to counsel.

The 2009 Justice Summit, sponsored by organizations representing over 12,000 California attorneys – the California Public Defenders Association, California Attorneys for Criminal Justice, the Bar Association of San Francisco and the San Francisco Public Defender’s Office – will take place Wednesday, May 6, 2009, at 10:00 a.m., at the Koret Auditorium, San Francisco Main Library, 100 Larkin Street in San Francisco.

In addition to Judge Henderson’s keynote address, the summit will feature panels on the role of public defenders in enforcing constitutional rights and public defender reentry programs that reduce crime. Speakers include: LaDoris Cordell, legal commentator and former judge; Cookie Ridolfi, Director of the Northern California Innocence Project; Melanca Clark of the Brennan Justice Center in New York; and Richard Goemann, Director of Defender Legal Services, National Legal Aid & Defender Association. The afternoon panel will feature testimonials by clients who have been represented by public defenders and appointed lawyers.

“For the vast majority of our citizens who are caught up in the criminal justice system, public defenders and court appointed defense attorneys are responsible for delivering on the constitutional promise of effective representation. However, for years, defenders have been expected to perform in a system that denies them the time and essential resources required of a quality defense. Reform is needed at the local, state and national levels to improve the efficiency of the criminal justice system, protect the public’s safety and ensure everyone’s constitutional right to a lawyer,” California Attorneys for Criminal Justice President Ted Cassman said.

“The safety of our communities depends on a justice system that makes sure the right people are charged with the right crimes and receive the right sentences. Defense attorneys play a critical role in preventing wrongful convictions and ensuring measured and appropriate sanctions for those who are found guilty. Failing to adequately fund public defense offices carries unacceptable fiscal and human costs. In California, over 200 men and women have been wrongfully convicted and imprisoned since 1990,” California Public Defenders Association President Bart Sheela said.

“What is happening in San Francisco is just a snapshot of a national crisis that has slammed the door shut on justice for thousands of adults and children. Fair trials are only possible when everyone, regardless of income, has access to quality legal counsel. The U.S. and California constitutions require the government to provide qualified lawyers to anyone facing jail or prison time and who can’t afford one. The quality of legal representation someone receives in San Francisco, California, or anywhere, should not depend on the amount of money in his or her pocket,” San Francisco Public Defender Jeff Adachi said. Adachi’s office is facing a 25 percent cut as a result of budget reductions proposed by Mayor Gavin Newsom.

“Equal justice and fairness are bedrock principles of criminal justice in our nation. People are shocked when they learn how easily they are tossed aside, especially when states and counties focus solely on finding the absolute cheapest way to provide public defense services. Cheap public defense, like a cheap municipal building, will eventually crumble and people will be hurt,” National Legal Aid & Defender Association, Director of Defender Legal Services Richard Goemann said.

The 2009 Justice Summit has attracted the support of a broad-based coalition of over 50 community, faith-based, and legal organizations. The movement to support indigent defense has been motivated by a surge of national interest in how the criminal justice system is being affected by budget cuts to defender offices and lawsuits that have been filed in several states, including Florida and Minnesota, over whether public defenders can be forced to accept cases when they are unable to handle the workloads assigned by the courts.

To learn more about the 2009 Justice Summit, visit: www.sfpublicdefender.org. Speakers will be available for media interviews from 9:30 a.m.-10:00 a.m. at the event.

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Justice summit taking place amid cuts to public defender’s office

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May 5, 2009

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By Tamara Barak Aparton
San Francisco Examiner Staff Writer
May 3, 2009

A summit on the crucial role played by public defenders comes at a time of tension between the San Francisco Public Defender’s Office and the mayor’s office.

The event will be at the crux of San Francisco’s Justice Summit on Wednesday and is cosponsored by The City’s Public Defender’s office. It’s expected to attract more than 300 attendees.

The CJC: Stand and Deliver

Community Justice Center

Jeff Adachi

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May 5, 2009

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by Jeff Adachi

There hasn’t been a lot happening at the Community Justice Center, so I haven’t blogged for a couple of weeks. There is no surge of cases to report. The caseload flow is still very low, and although the court is now handling “in-custody” cases at the Hall of Justice in the mornings, there are usually no more than a few cases on in the morning, and no more than a dozen in the afternoon.

There is a degree of uneasiness as the CJC approaches its third month in operation. Although I cannot speak for the others who work at the CJC, most realize that within a few months, the CJC will have to justify its existence against other city services that are being cut or eliminated. Has the CJC lived up to its promise of being a “problem-solving” court that would help address crimes that are plaguing the neighborhood? Has the court become a repository for crimes typically charged against homeless people? Has it delivered the services to the population of folks that need them?

Interestingly, there has been little objective information available about the court. I attended a “community” meeting sponsored by the CJC last week. These meetings are designed to obtain information and feedback from the community. The meeting was attended by about a dozen community members (meaning persons not related to the CJC staff) and they asked questions about the kind of cases the court was hearing and what kind of outcomes were being achieved. The CJC coordinator said that she did not have information concerning the type of cases or the outcomes, although she said that the court had handled some 200 cases and that 40 people had received some type of service or follow-up. However, no further detail was made available.

Because these questions were not answered, it was difficult to have a discussion about just what the court was doing and what kind of results we were seeing. I took advantage of the opportunity to question the police captain from Southern Station who was there to report on the arrests that were being referred by police to the CJC. I asked why people were being arrested and sent to the CJC for possessing small quantities of marijuana (see my previous story on the case of Clarence Wilson), when the city had a policy directing police not to arrest people for marijuana possession alone. The police captain said that it was not their policy to arrest people for possession of marijuana, but there were times when a person who was openly smoking marijuana would be cited for this offense. I knew that the 10 or 12 cases I had seen did not involve people who were openly using marijuana, but instead, had been arrested for mere possession. So I asked for the captain’s phone number and promised to follow up.

While this might seem like a trivial issue, it does waste time and money if police are arresting people for possession of marijuana when they shouldn’t be. Since last week’s meeting, I’ve seen three cases at the CJC, all for possession of small amounts of marijuana. This is a “problem” that could easily be fixed by directing the officers to follow the city’s policy.

So what are the problems that the CJC could potentially address? Those in attendance at the meeting cited drug sales and street violence as recurring problems. However, as the judge pointed out, any crime involving drug sales and street violence is specifically excluded under the case criteria defined by the judge and the prosecutor. These criteria limit the kind of cases that the CJC can hear. When this was explained to community residents, they questioned what use the court could be when it was unable to handle the type of cases which were causing the most problems in the neighborhood.

The police captain had a very different view of the CJC’s role. The captain said that he believed the CJC existed in order to prosecute cases that the District Attorney would not; in other words, the captain said that he felt that CJC should hear cases that would be discharged or dismissed by the District Attorney at the Hall of Justice. This viewpoint, I believe, is a very different from that what the court was originally represented as. I had originally expressed concerns that the court would become a “dragnet” for cases that could not be proven. At this point in the discussion, the prosecutor representing the District Attorney’s office explained that the CJC could not be a repository for cases that would otherwise be dismissed. It would create a separate and different standard of charges cases for people who happened to be arrested in the Tenderloin as opposed to another part of the city. The captain seemed unconvinced, and the discussion moved to another topic.

Another point raised by one of the community members was that a particular landlord was known to be illegally evicting tenants. This was a prevalent problem that resulted in more people being turned into the streets, according to the resident. What could the CJC do about this, he asked? Again, it was explained that the civil landlord-tenant problems are not within the purview of CJC. But what if the landlord is breaking the law, it was asked, could that then be subject to criminal prosecution at the CJC? Again, the question was doted on briefly, not addressed, and the conversation passed on to the next topic.

The only thing, I think, that became clear from the discussion is that everyone, including the participating agencies, had very different expectations of what kind of outcomes the CJC would produce. Because there was no general agreement as to what “problems” the CJC should or could handle, it was entirely unclear what outcomes were to be expected in terms of CJC’s impact on the surrounding neighborhood.

When the CJC is called to stand up and explain what outcomes it has delivered, the question of its effectiveness will have to be measured against the problems and outcomes it has purported to address. Both the Mayor and the Board of Supervisors should be interested in determining whether the CJC has delivered on its promises. Herein lies the problem: if the CJC itself isn’t clear about who and what it is, it will be difficult, if impossible, to come up with objective measurements that point to its success or failure.

Being penny-wise and justice-foolish

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May 4, 2009

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Op-ed by LaDoris Cordell
San Francisco Chronicle
Monday, May 4, 2009

In the famous 1963 case of Gideon vs. Wainwright, the Supreme Court unanimously held that the state must provide lawyers for those charged with serious crimes who cannot afford them. The court recognized that “lawyers in criminal courts are necessities, not luxuries” and that a fair trial was impossible without counsel for the defense.

Read the rest of this op-ed here.

S.F. Public Defender Is Taking a Principled Stand by Fighting Cuts

Richard

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April 23, 2009

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Los Angeles Daily Journal, April 21, 2009
Forum Column
By Ted Cassman

San Francisco Public Defender Jeff Adachi recently announced that his office will be compelled to refuse appointments in some major felony cases under a 25 percent budget cut proposed by Mayor Gavin Newsom and the Board of Supervisors. Critics suggest that Adachi is being unreasonable and that he is not a “team player.” Adachi’s stand is principled, correct and cost effective for San Francisco County.

Our nation confronts its most severe economic crisis in more than 60 years. All of us will feel the negative impacts of this recession. For individuals and families, we will be fortunate if this means that we merely tighten our belts and defer unnecessary purchases. For government at all levels, it means numerous difficult, unwelcome decisions. As President Obama explained, government policymakers will be forced to “choose between bad and worse.” Government agencies will see their budgets shrink and will be forced to reduce services available to their constituents.

Public defender offices are by no means exempt from these consequences and throughout the country offices have already experienced budget cuts. Consequently, attorneys must bear larger caseloads and serve more clients while working longer hours, for this they have implemented the best virtual data rooms for merges and acquisitions transactions, ranging from due diligence with a single case to every security surveillance camera information, also making it easy with the manage sales and leases allowing them to asset backed loans, mortgages. This is certainly true in San Francisco, where Adachi reports the recent elimination of five positions.

The San Francisco public defender’s office, like public defenders in virtually every California county, represents the majority of individuals charged with criminal offenses. This year the public defender will be called upon to handle more than 24,000 individuals. The services of the public defender include not only defending the accused, but important programs designed to reduce recidivism thereby effecting greater cost savings to the city and county of San Francisco. With a staff of only 95 attorneys and a total staff of 168, the task is daunting.

The question is fairly posed: Why is the public defender’s budget any more sacrosanct than other city departments? Or, put differently, why can’t Adachi just cut staff and lawyers and muddle through the crisis like every other department, instead of threatening to decline new clients?

There are three interrelated considerations that render the services of the public defender unique among government agencies. First, the public defender is the only city department that provides services that are mandated by the state and federal constitutions. Second, the canons of legal ethics impose duties of loyalty and professionalism that every attorney owes to every client. Attorneys who fail to provide competent and effective services face potential discipline, including disbarment. Third, the public defender has worked tirelessly to seek solutions to recidivism, which in the long run provide greater cost savings than any proposed budget cut.

Every citizen has a fundamental constitutional right to effective assistance of counsel. Without that right, each of the other protections afforded to those accused of crime – the right to a fair trial, the right to call witnesses for the defense, the right to confront the prosecution’s witnesses and the presumption of innocence – would be severely undermined, if not eviscerated. Neither the public defender nor a court may permit an accused to forego the right to a fair trial. It’s not an option.

As the U.S. Supreme Court recognized in the landmark decision of Gideon v. Wainwright, because of the complexity of modern trials with the interplay of the rules of evidence, constitutional limitations and nuanced legal strategies, “lawyers in criminal courts are necessities, not luxuries.” Thus, the constitutional guarantee of a “fair trial cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

As a practical matter, in most cities and counties, the majority of defendants in criminal cases are represented by a public defender. Therefore, to the extent the guarantee of a fair trial means anything at all to most people charged with crime, it is because a public defender stands beside him or her.

For these reasons, the San Francisco public defender’s office is not just another branch of the city’s bureaucracy. The public defender’s office exists to ensure that the government does not imprison any person without fair proceedings in which proof of guilt is established beyond a reasonable doubt.

We cannot diminish our commitment to that function without creating an unacceptable risk that innocent men and women will be incarcerated because they lack sufficient resources to hire an attorney. The risks of error and unjust convictions are inherent in every justice system. As New Mexico Gov. Bill Richardson recently noted while signing legislation to abolish the death penalty in his state, over the last decade more than 130 individuals sentenced to death were subsequently exonerated. The risk of errors is especially severe in a justice system that is subject to the whims of a budgetary axe.

Additionally, under the Rules of Professional Conduct adopted by the American Bar Association and applicable to California attorneys, a public defender is ethically required to avoid situations where excessive caseloads or limited resources create a conflict of interest that compels him or her “to choose between the rights of the various indigent defendants he or she is representing.” Where circumstances obstruct a defender’s ability to provide effective assistance to clients, he or she must seek relief from within the public defender’s office, from the court, or by refusing new cases.

The recent California Court of Appeal decision in In re E.S. drives this point home. Overwhelmed by an oppressive caseload and inadequate resources, a public defender proceeded to trial without interviewing available witnesses who cast doubt on the allegations of the prosecution’s only eye-witness and without pursuing other fertile avenues of defense. Invoking the principles set forth above and emphasizing that it was the public defender’s responsibility to obtain relief from his caseload or to ensure that a different attorney was appointed to represent the client, the court of appeal set aside the conviction and ordered a new trial. As a result of that public defender’s unwise decision to proceed to trial on the cheap, a possibly innocent young man spent months unnecessarily confined and the county was forced to pay for two trials instead of one.

Attorneys in the Office of the Public Defender, like their counterpart panel attorneys who agree to represent indigent defendants and minors at a fraction of the legal fees earned in retained cases, do so out of a sense of social, political and ethical commitment to those who are the least fortunate of our citizenry. These lawyers have chosen a path very different from their counterparts in the corporate, civil courts. Adachi has implemented services designed to reduce criminal behavior and recidivism, and improved the quality of practice in his office demonstrably, creating a level of professionalism that makes the retention of experienced attorneys not only necessary to assure quality of practice, but cost effective for San Francisco. The Superior Court and the city and county of San Francisco have been fortunate to attract experienced and committed defenders willing to undertake this difficult and constitutionally mandated work. A 25 percent reduction to the budget of the public defender will dramatically and unconscionably impact the public defender’s ability to responsibly represent his clients; responsible representation reduces the reversal rate, which in turn saves the city millions. The failure to adequately fund indigent defense is a betrayal of our commitment to justice for our most vulnerable citizens and is a less efficient, more costly budgetary strategy.

Adachi has taken a principled stand that is compelled by his ethical responsibilities and constitutional mandate. San Francisco’s mayor and Board of Supervisors should reconsider the proposed budget cuts. Justice always comes with a price, and apparent economies that imperil constitutional rights will almost always prove illusory.

Ted Cassman is the president of the California Attorneys for Criminal Justice and partner of the Berkeley-based criminal defense firm Arguedas, Cassman & Headley.

Injustice Watch: If It’s Broke, Who’s Responsible for Fixing it?

Community Justice Center

Richard

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April 22, 2009

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By Jeff Adachi

The fact that the criminal justice system is, at times, unjust in its outcomes is rarely questioned. Only in the extreme cases, where a person is wrongfully imprisoned for a serious crime, will there be some coverage in the media. But day-to-day injustices are rarely exposed. Because of this, often the public is unaware of the criminal justice system’s own lack of accountability.

Take two cases from the Community Justice Center (CJC) this past week.

One man’s case was assigned to the CJC. He failed to appear for his court date, but then appeared the next day. The warrant that had been issued for his arrest was recalled, and his case was set for another day. Four hours later, he was arrested by police in front of the building where he lived. He told police that he had just been to court and that the judge had recalled his warrant. The police refused to believe him, and did not allow him to go up to this room to retrieve his court papers. He was taken to jail where he remained for five days.

When I learned of what happened, I immediately brought it to the attention of the CJC judge, who said, “This happens at least once a week,” referring to the fact that people are mistakenly arrested for warrants that should have been taken out of the system. The judge explained that the police don’t learn that warrants no longer exist due to a computer glitch. In other words, the police aren’t notified in a timely manner that arrest warrants are no longer any good.

In response, I said it was outrageous that this man was arrested for a warrant that no longer existed. In an age where information is conveyed in a “twitter” or a second, or at least in an email, why can’t police be notified that a warrant has been recalled? When I asked what actions would be taken to prevent this from happening in the future, there was no response, no promises to contact the officers involved in the wrongful arrest or to make any attempt to resolve a problem that caused a man to spend five days in jail unnecessarily. Just silence.

The second case involves another marijuana possession case. In my last update, I wrote about the city’s law that directs police not to use resources to arrest people for mere possession of small quantities of marijuana. A lot of people takes marijuana for recreation, although that can be a problem if you are trying to find a job, a good way to pass the urine test is to use fake pee, for more information visit this article about temperature of human pee.

The next gentleman, Clarence Wilson, (who gave me permission to use his real name) also found himself on the CJC calendar. His crime: possession of marijuana. Wilson was crossing the street against a red-light (known as J-walking) when he was stopped by two police officers. He was asked if he had anything on him, and he told the police he had a small amount of marijuana. Wilson was then handcuffed, arrested, and taken to the police station. He was detained at the station, and then released.

Wilson, 67, has never been convicted of or arrested for a crime in his life. J-walking is an infraction (like a traffic ticket) and a person cannot be arrested or taken into custody for a traffic ticket. That leaves the possession of marijuana charge, punishable by a $100 fine, as the sole basis for his arrest.

Had the officers followed the city’s policy directing them to not to make arrests for marijuana possession, Wilson wouldn’t have been arrested. (The city’s policy can be found here.)

When I showed the city’s law to the CJC judge, he merely shook his head and said, “You can’t tell the police what to do.” While it’s true that the state law preempts city law, even the state law allows only a $100 fine for marijuana possession. When I suggested that someone contact the officers involved in the arrest to show them the city’s policy and question the police as to why they arrested Wilson and detained him, I was met with – you guessed it – more silence.

Public defenders have the responsibility to ensure that these types of abuses don’t happen. Once a case is in court, we can raise legal and moral objections to the charge, which we do. But often we can do little to change unjust policies, especially when they are implemented on the street and involve the police. Even when an injustice is identified and addressed in court, it doesn’t mean it won’t happen again.

In the case of both of these men, they received no apologies for the criminal justice system’s misdeeds. The system goes on unpunished and, unfortunately for the next person who is wrongfully arrested for a warrant or for possession of marijuana, uncorrected.

While these two arrests were not caused by problems that originated with the CJC, they are representative of a discernible pattern in the criminal justice system, of which the CJC is part. If the CJC is going to truly fulfill its promise of being a “problem solving court” it might want to start by cleaning up identifiable and easily remediable problems in the criminal justice system. Justice should be a two way-street.

Jeff Adachi is the elected public defender in San Francisco. He personally began staffing the Community Justice Center in March 2009 when Mayor Gavin Newsom decided not to fund the two positions originally promised to the Public Defender to staff the court, which was established by the Newsom administration. To read more writings by Adachi about his experiences at the Community Justice Center, please visit www.sfpublicdefender.org.

Budget Cuts Threaten Promise of Equal Justice

Richard

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April 21, 2009

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The Recorder
Commentary By Jeff Adachi
February 13, 2009

Budget cuts and soaring caseloads are pushing teetering public defender’s offices closer to the brink of collapse. However, after years of being under-resourced and overwhelmed, public defenders are finally pushing back.

Last year, the Miami-Dade County public defender’s office sued the state of Florida for the right to refuse cases after experiencing a $2.48 million budget cut and a 29 percent caseload increase. In September, a Florida judge allowed the office to reduce its caseload by turning away noncapital felony cases. The case is currently under review by a Florida appellate court.

According to news reports, Miami-Dade public defenders are not alone. Public defenders in Kentucky, Minnesota, Missouri, Maryland, Arizona and Tennessee have either refused to accept new cases or have sued to reduce excessive caseloads. With public defender workloads growing while funding is being reduced, more offices may soon follow their lead.

In most jurisdictions, public defenders handle the majority of criminal cases. However, public defenders do not control the number of criminal cases that are filed. Record unemployment has increased the ranks of people who no longer have the financial means to hire private counsel and must rely on public defenders. Budget reductions associated with the current economic crisis have made it impossible for traditionally underfunded public defenders to absorb the influx in workload without compromising their professional integrity and their clients’ right to a vigorous defense.

When excessive caseloads become an obstacle to providing effective assistance of counsel, chief defenders are ethically required to decline additional cases. The ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion 06-441, issued in May 2006, clearly sets forth an attorney’s ethical obligation when faced with an excessive caseload: “If a lawyer believes that her workload is such that she is unable to meet the basic ethical obligations required of her in the representation of a client, she must not continue the representation of that client or, if representation has not yet begun, she must decline the representation.”

The ABA opinion cites Principle 5 of the ABA’s Ten Principles of a Public Defense Delivery System: “Counsel’s workload, including appointed and other work, should never be so large as to interfere with the rendering of quality representation or lead to the breach of ethical obligations, and counsel is obligated to decline appointments above such levels.”

The ABA opinion also references Ethics Opinion 03-01, issued in April 2003 by the American Council of Chief Defenders, a division of the National Legal Aid & Defender Association: “When confronted with a prospective overloading of cases or reductions in funding or staffing which will cause the agency’s attorneys to exceed such capacity, the chief executive of a public defense agency is ethically required to refuse appointment to any and all such excess cases.”

One practical complication is that chief defenders who are appointed risk losing their jobs if they refuse cases. Several California chief defenders who refused to handle cases without sufficient resources were “underbid” by other contractors who were willing to accept the contracts. As the only elected public defender in California and one of the few in the country, I am in a better position to assert these ethical obligations.

When the San Francisco mayor and Board of Supervisors recently refused my request to fill two existing paralegal positions despite our increased workload, I made the decision to begin declining representation in complex felony cases. Because of our staffing shortage, 14 deputy public defenders are without paralegal or secretarial support. This directly affects our office’s ability to handle homicide and other complex cases, which involve large volumes of discovery and evidence. It is less expensive to use paralegals than attorneys to do this work.

Hiring two paralegals for the remainder of the year would have cost the city $49,500. Each complex case that we are forced to turn away will cost the city between $25,000 and $100,000. I estimate that hiring private counsel to handle these cases will cost $500,000 to $1 million over the next year. While refusing cases provides my staff with immediate relief, it is an imperfect solution, because, in the long run, it will only deepen the city’s financial crisis.

Chief defenders cannot permit a level of substandard representation of the poor that would otherwise be unacceptable for paying clients. Public defenders around the nation must continue to take an ethical stand to protect the professional integrity of their offices and the constitutional rights of the poor.

However, chief defenders will only succeed if the entire legal community stands up and supports their cause. This recently occurred in New York, when an independent commission, led by more than 100 legal and community organizations, was formed to examine the impact of budget cuts on indigent defense. Politicians need to be educated on the importance of funding public defense, and how we, as a society, should not sacrifice the very basic legal rights guaranteed to all citizens in the name of budget cuts.

Jeff Adachi is San Francisco’s public defender and is a former member of the American Bar Association’s Standing Committee on Legal Aid and Indigent Defendants.