OLD_San Francisco Public Defender's Office

It is hard to believe that a month has gone by since I started working at the CJC. My decision to staff the court myself was a product of necessity, since I just don’t have the staffing for this court. The Mayor’s office had originally promised to fund the court with two public defenders, and when the court opened, they said they could not fund the court due to the budget deficit. Our staff now is down by eight and our felony and serious case load is still steadily rising.

Because of the recession, there are more people who cannot afford an attorney. Who can afford to pay an attorney $250-$500 an hour? I know an attorney who handles white collar-type criminal defense. He is a very good attorney and he charges $700 an hour. I was thinking that there is no way that I could afford to hire him. That’s why most people, even middle-class folks can no longer afford to hire a lawyer.

This has translated into more clients and cases. We do not control the number of cases that are filed or the number of clients we represent. When a person is in need of an attorney, the Public Defender is assigned to the case, period. That’s the reason I am staffing the CJC. This is a court, and there are people charged with crimes who can’t afford lawyers, so we need to be here.

The only exception to not being able to say no is when we are overloaded with cases. And we are already past that point. When the Mayor and Supervisors’ Budget Committee did not approve my request to fill vacant positions, I had to begin turning down cases because I didn’t have the staff available to properly and competently represent clients. The American Bar Association sets forth the standard number of cases lawyers should be handling, and we are operating at about 60% past the workload attorneys should be handling.

Because I am staffing the CJC, I have to split my day between my job as Public Defender and as an attorney for the CJC. My routine now is that I start my day at about 6:00am, get into the office at 8:00 am to take care of a few matters, and then head over to the CJC, which is located at 575 Polk Street. I usually finish up at the court’s morning matters by 11:00am, and then I head back to my office for meetings. Then I go back to the CJC by 1:00pm, handle the afternoon calendar, and then return to the office by 3:00pm and try to finish the day by 6:30 or 7:00pm. Because of the CJC, I now do much of the paperwork that comes with the job as Public Defender at night, including writing this update.

This week has been somewhat disappointing. The CJC is supposed to be a “problem solving court” but so far, there hasn’t been enough coordination of the various agencies’ efforts to make a difference in the lives of most people assigned to the court, in my opinion. There’s a huge difference between how the criminal justice system and the social services systems operate. The criminal justice system is very rigid and has a cookie cutter approach to resolving cases. Prosecutors often try to impose consistent punishments for the same crimes. While this sounds “fair,” it actually isn’t, because everyone person’s situation is different.

The social service system, I am learning, is supposed to treat every person on an individual basis, identifying and treating their particular needs. For example, not everyone needs housing or mental health treatment.

From what I’ve experienced in the last month, the CJC is like a microcosm for what is wrong with our city services. We have many of the agencies responsible for healing society’s ills at the table. Yet because of the limitations of the systems we operate in, we are often unable to really address the root of the problems we are trying to solve and provide the support that people need. A person who needs help qualifying for social security because of their mental or physical disability has to fill out reams of paperwork and wait months before being able to obtain a check. Housing, for the most part, is shelter bed housing that expires every seven days, and there are long waiting lists for semi-permanent housing. And the criminal justice system often erects the obstacles to many of the barriers we need people to overcome to stay crime and arrest-free.

The criminal justice system also suffers from institutional inefficiencies. Police officers continue to cite people for possession of small quantities of marijuana, even though the city has a clear policy which states that law enforcement should not enforce laws prohibiting marijuana possession. Every day, we have 2 or 3 cases on calendar where the only charge is possession of less than an ounce of marijuana. We even had a person in court this week who was arrested despite presenting a medical marijuana card to the police officer. The officer nonetheless took her pot and money away. This poor woman will now send the next month or so trying to get back the $500 they took, which was all of her savings. No one bothers to find out why the police officer did this, or to make sure it doesn’t happen again. She called me today because the police refused to return her money. This means I have to file a return of property motion, which has to be heard in front of a judge, just to get $500. This will probably cost $1000 in court time, not to mention my time.

Case-in-point: In my last posting, I mentioned a man, who I’ll call Bill, who was arrested last year for selling $10 of prescription medication to a police officer. Bill’s case was brought over to the CJC from the Hall of Justice to see if we could produce a better outcome for Bill and for the community. Bill has some serious health problems, and needed housing. The social workers at the CJC found Bill housing in a shelter immediately, and began working with Bill to address his health problems, including getting him on the right prescription medication so he didn’t need to buy it on the street. He also needed to get his social security benefits worked out. After several weeks, Bill was stabilized, off drugs and living in a shelter bed.

In addition to the help, Bill has a great social worker from Pretrial Diversion’s Homeless Release Project, which supervises homeless people who are released from jail. Although I don’t usually mention names in my updates, I’ll make an exception here for Ali Riker because she deserves recognition. She is in charge of the program, but maintains a caseload of 30 clients, who she zealously assists in every way, including accompanying her clients to court when necessary. Ali already had a good relationship with Bill, and she worked with the social workers at CJC to provide Bill with the support he needed.

Bill had one thing that a lot of people don’t: he has a plan. He has two elderly parents out-of-state, and had decided it was time to go home to care for them. Bill had lived with them until 2002, when he came to San Francisco for medical treatment after suffering a work-related incident. Bill had worked as a machinist his entire life and had climbed up the ladder at his workplace until he shattered his hip. He originally came to San Francisco because he had heard the best doctors were here, but was unable to obtain the treatment he needed once here. He fell into homelessness and then drugs. He had been arrested and convicted of a drug offense 4 years ago, and then was arrested for the case he has now.

The CJC judge suggested that Bill continue to participate in the CJC services for 4 months, and that he then be allowed to return home. If it were shown that he was out-of-state, the case would be dismissed. Bill’s social worker was even able to arrange for a bus ticket for him to return home. But the prosecutor opposed the judge’s solution and instead wanted Bill to plead guilty to a felony possession charge and be placed on supervised probation in San Francisco, which would require that Bill stay in San Francisco for three years. This is often the case because the prosecutor’s office wants a conviction, not a dismissal. Now while it’s true that Bill could try and have his probation transferred to the state where his parents live, but this process takes months and is not guaranteed. So what’s the result? Because there’s no agreement, Bill’s situation is in limbo, and he’s really no better off at the CJC then he would have been in the regular court system. So Bill will remain in San Francisco, where he really doesn’t want to be. And in a few weeks, his shelter bed will expire and he’ll be homeless, starting the cycle that got him into the criminal justice system all over again. Hm, what’s wrong with this picture?

During my lunch break, I stopped by the Sephora store on Powell Street. As I mentioned a few postings ago, a lion’s share of the cases at the CJC involves shop lifting from Sephora and I wondered why so many cases came from there. I met the manager of the store, who was a very pleasant young woman named Lauren. She explained that because Sephora sold perfume and other beauty supply products, the items they sold were easy to take and sell. She also said they have a very aggressive policy of arresting shoplifters. Without revealing any trade secrets, they use undercover officers who are trained to identify people who are suspected of stealing items from the store. They even keep photos of people who have been arrested in the area for shoplifting. And they prosecute everyone.

Interestingly, the store doesn’t have any signage or hint that they are prepared to pounce on any shop lifters at a moment’s notice. Sephora’s corporate policy is to welcome their customers, and they don’t post scary security guards at the front or have a sign that warns people not to steal.

I also spoke with one of the “undercover” shoppers and she told me that they arrest about four people a day. I talked to them both a bit about what the CJC does, and that I would pass on the information about their policies. So the morale of this story: “DON’T SHOPLIFT FROM SEPHORA’S!” You heard it first here.

“There’s a new Sheriff at the CJC.”  Well, actually, not really.  Our regular judge is out of town on vacation, and we have a substitute judge at the CJC for a few weeks.  At our first morning meeting with the substitute judge, the first thing he wanted to know is what problems we were having with the court.  This is a question that you usually don’t want to ask a public defender because we aren’t shy about voicing our complaints.

So I took advantage of the judge’s genuine curiosity and mentioned that for some time now, when a case was discharged or dismissed, the record of the discharge or dismissal was not being entered into the criminal justice computer system because of some kind of dispute between the prosecutor’s office and the courts as to who was going to type in the codes.  (Apparently, this dispute has been going on for months and precedes the CJC.)

Here’s the problem: when a case is discharged or dismissed, the prosecutor has to state a reason.  For example, the prosecutor might say “Case discharged” and then cite a code, which is an abbreviated way of stating why the case was discharged or dismissed.  For several months, there has been an ongoing disagreement as to whether the prosecutor’s office or the court had to enter those codes in the computer system.  And so they weren’t being typed in at all!

This means that even if you did your community service or whatever it is you were supposed to do, it wasn’t entered into the system.  The criminal history of a person whose case had been discharged or dismissed would still show an open arrest or pending case.  I had complained about this several times, but the problem went unresolved.  At one point, I even offered to enter the codes myself, but people weren’t amused by my offer, since giving the public defender the ability to enter dismissals on the computers wasn’t seen as exactly kosher.

When the substitute judge found that the dispositions were not being entered into the computer, he agreed that something needed to be done, called a meeting and pledged to fix it within a few days.    This is the kind of thing that drives one crazy about government – simple things take forever because of bureaucratic decision making.

As I mentioned in my earlier entry, there has been a dearth of cases in the CJC.  Dearth may not be the right word, since dearth means “inadequate supply.”  We have plenty of cases in the criminal justice system.  (My office alone represents 24,000 people per year.)  We just don’t have many cases at the CJC at this point.

The anemic flow of cases – about 5 or 6 a day – is attributable to the fact that right now, cases are being referred by police officers who decide themselves which cases to send to the CJC.  This gives the power to bring cases to the CJC solely to the police, which, in my opinion, isn’t the best way to get cases to the court since police officers often want to send the people they arrest straight to the Hall of Justice.

Most of the cases sent to the CJC end up being discharged or dismissed because they aren’t even worth filing.  The prosecutors assigned to the court actually do a pretty good job of reviewing each case, and they don’t file cases where the charge is a weak or inconsequential one, or where the evidence doesn’t warrant filing a charge.  Both prosecutors are very experienced and know what flies and what doesn’t, so that’s a good thing, since we don’t want to waste time with cases that shouldn’t have been filed to begin with.

The new substitute judge wasn’t happy with the lack of cases and said he wanted to facilitate the transfer cases from the Hall of Justice.  Now, this isn’t as easy as it seems.  The new CJC is supposed to be located in the community to make it more convenient for the police, the accused and witnesses to come to court.  But because the holding cell (a small jail cell where people are placed while they are waiting to go to court) doesn’t exist yet —it won’t be built until July — the case has to go to the Hall of Justice before being assigned to the CJC.  This means we (the entire staff of the CJC) have to go to 850 Bryant in the morning, handle matters of people in jail, and then go to the CJC at 575 Polk Street to deal with cases of people who aren’t at 850 Bryant Street.  It’s a lot of back and forth and in my opinion, is a waste of time.  I suggested that we have the judges at 850 Bryant simply send the cases to the CJC, but for some reason they don’t want to do this.

Also, there have been cases sent to the CJC that have no reason to be there.  One case was sent there when the person wasn’t even arrested in the geographic area covered by the CJC, so the poor guy had to go back and forth from 850 to 575 Polk Street twice, since he had been the wrong day to show up.  People often are already confused enough about where to show up for court and it doesn’t help when they have to go back and forth from two different locations.

Another case where a woman charged with a drug possession crime was sent to the court from the Hall of Justice, but was promptly sent back when she elected to do a drug treatment program that was only available at the Hall of Justice, which is what she wanted to do in the first place.

But, again, there have been some promising developments at the CJC.  Since we didn’t have many cases, assistant Deputy Public Defender Simin Shamji and I asked that the case of a homeless man charged with a drug offense be heard there.  He met most of the qualifying criteria, and was a good candidate for the court.   However, because he had a few prior convictions, the decision as to whether to admit him to the court in the hands of the prosecutors, and after looking at his case closer, they agreed.   I think he’ll do well there.  He will also be able to obtain housing through the court, which is really what he needs to stay off the streets.

This week, I was visited by a man that we had referred to housing weeks ago.  I hardly recognized him because he looked so good!  His worn, ruddy, red complexion and appearance was completely regenerated, and he had clearly stopped whatever he was doing to his body.  He had received shelter housing through the CJC and was taking advantage of the social services.  His case had been discharged before he was referred to services, but he followed through.  I mention this because I think it shows that people don’t have to be coerced into services, particularly if the service is a good one.

We also had a case of a woman who needed SSI (social security benefits) but thought she had warrants from another state.  This is a problem, because if a person has a warrant from another state, they can’t qualify for SSI benefits.  It turned out that she was wrong.  The prosecutor’s investigator checked into it and found that whatever warrants she had once were now clear.  But we haven’t been able to contact the woman, who was on the brink of losing her apartment, so she still doesn’t know that “Indiana (Doesn’t) Want Me,” to quote the 70’s song by R. Dean Taylor.

Today I was walking down Market Street near the CJC and I saw a homeless woman being forcibly moved from in front of a store by a store security worker.  The security guard was obviously frustrated, and was moving her cardboard boxes from the front window area of the store.  The woman was also upset at being uprooted from her spot.  I thought about intervening and saying something about services at the court, but it didn’t seem appropriate at the time.  Afterwards, I thought about how what I had witnessed epitomized the great divide that separates those who lack safe shelter from those safely housed.

The second week of the new court has been more of the same.  Each day, about five or six cases are scheduled to be heard in court, and most of the cases end up being discharged simply because they aren’t bona fide cases.  What I mean by this that they are cases that otherwise would not be charged in a regular courtroom at the Hall of Justice.  So why are they being sent to the Community Justice Center?  It may be a lack of clear guidelines that have been provided to the police officers who are sending the clients and cases there.

One of the initial concerns I had about the court was that it would become a “dragnet” for cases that otherwise would not even be brought at the Hall of Justice.    The term “dragnet”, which incidentally was the name of a famous TV show in the 60’s and 70’s, refers to a coordinated campaign or method by police to arresting or rousting people.   For example, police rarely bother to cite a person for a crime known as possession of paraphernalia.  So if a person possesses a pipe that could be used to inhale or smoke drugs, such as crack, the officer might confiscate the item but not arrest the person found in possession of the pipe.  This is because the charge may not be provable in court, often the pipe has been taken by the police in violation of the person’s Fourth Amendment rights, or that it’s too much trouble for the officer to file a report over this type of offense.  But now the officer, knowing that the Community Justice Center exists, sends these cases there.

We have had at least one or two of these cases on the court’s calendar every day.  If the person shows up, the case is usually discharged.  However, in some cases, if the person wants services, they are referred to a social worker.   But we make sure that the case is dismissed first.

Other crimes that I’ve seen that fall into this category include loitering, which is difficult to define because what constitutes loitering is often in the eye of the beholder, and obstructing the sidewalk.

There have been a few bright lights in the court of late.  There was one case involving petty theft from Sephora.  Sephora, as most people know, is a beauty products retailer, known for its reasonably-priced perfumes.  For some reason, 80% of the petty thefts that wind up in the Community Justice Center come from Sephora.  This could be because they experience more petty thefts or they have a more aggressive approach to detaining persons suspected of shoplifting.  Whatever the reason, nearly every theft case we see in the court involves a bottle or two of perfume.  It would be interesting to see why this is so.

Anyways, there was a person charged with a theft from Sephora.  When a person is suspected of shoplifting, the security guard at the store usually detains that person, and the police are called.  The police officer in that case spoke with the person accused and learned that the person had just lost their job.  The officer referred the case to the CJC.  When I was speaking to my client, we were approached by the officer who made the arrest.  The police officer actually came to the client’s court proceeding, because the officer wanted to know how the person was doing and to offer support.

The client was referred to meet with a social worker and to services.  The case was put over for a short time, and the case will likely be dismissed when the client returns with a favorable outcome.  This is not much different than what happens at 850 Bryant.  There, for a person accused of shoplifting on a first offense would have the option of participating in pretrial diversion, which is a program that allows a person to make restitution to the community in the form of public service in exchange for a dismissal of the charge.  The person usually has to pay a fee as well.  Most people who do pretrial diversion end up never coming back into the criminal justice system.  So these types of programs are very successful.  But instead of being referred to do community service, in this case, the client was referred to services.

Because we have been in court only several hours a day, I have tried to spend some time meeting with community organizations in the Tenderloin, not necessarily about the new court, but about how our office can help assist their constituents.  Many of our clients and cases come from the Tenderloin, and I feel an affinity for many of the residents.  I went to law school at U.C. Hastings College of the Law, which is located on McAllister Street, and lived in the neighborhood for many years, even while I was a young public defender in the late 80’s.

There are a lot of great programs in the neighborhood.  I visited one program called Youth on A Mission and met a young man named Brian who helps operate the program, which provides a place for homeless individuals to hang out.  They show movies and have activities and events for people who live in the neighborhood, including many seniors.  Brian explained to meet that they do this to give people something to do during the day and to keep them engaged.  I promised to come back sometime and meet some of their staff, who seemed quite dedicated to their mission of befriending people who are in need of a good friend and a helping hand.

You may have heard or read that the new Community “Justice” Center (CJC) opened last week.  Based on Brooklyn’s Red Hook Community Justice Center, the CJC is supposed to  solve neighborhood problems like drugs, crime, prostitution and theft.  The court is a full-fledged court, except that it is situated in the Tenderloin and deals with misdemeanor and low-level felony cases.    Although this new court has been in the planning stages for several years, including a pilot run early last year, this is the first time that the court has begun to hear a regular calendar of cases.  Initially, the court was seen as an answer to “quality of life” infractions and crimes; however,advocates for the court promised that it would not be a “homeless court” and would seek to deal with a broader range of offenses and cases, including felony cases.    Participation in the court is supposed to be voluntary; a person can choose to opt-in or opt-out. Those who decide not to have their cases heard in the new court can have their case heard at the Hall of Justice 850 Bryant Street.

I was present in the new court during its first week to see what was going on.  Most of the cases involved individuals cited for sleeping on the sidewalk, possessing paraphenalia and petty theft.  There were only 5 or 6 cases calendared each day.   For the first week, all of the cases were either discharged or dismissed by the DA.

There was one case last week where the prosecution decided to file.  It involved a homeless woman who had been cited multiple times for sleeping on the sidewalk. She had no other criminal history and had received multiple citations from the same police officer.  She did not come to court and the DA said she would file a complaint and ask that a bench warrant be issued.  Since I was concerned that a bench warrant would be issued for her arrest, I offered to attempt to locate her so she would not be taken into custody.  She was found at her usual spot, and, because she had an existing relationship of trust with one of our attorneys, agreed to come to court to clear the matter up.

Once in court, the Judge wanted the client to be referred to services and to come back the next day.  Because I doubted very much that the client would show up,  I proposed that the client meet with the social worker that day, and then afterwards, the case would be dismissed.  The judge said no.
I asked that the case be set for a jury trial on a no-time-waiver basis.  At this point, the judge agreed to voluntarily ask the client if she wanted services and then dismiss the case, which is what happened.  After the client met with the social worker, the social worker reported that the client was resistant to services because she would not accept a shelter bed.  I knew that the client really wanted permanent housing, not a shelter bed, and expressed her position in court.  I informed the judge that the client had negative experiences with shelters.

The next day the Mayor’s office came up with a hotel room the client could move into.  We checked out the room, and then showed the apartment to the client. However, the client was not ready to commit to move into the room, and so she is still on the street.  We’ve tried to locate her since, without luck.  But we will keep trying.

Since that first case, we have helped one man get into a temporary shelter, and another man agreed to participate in counseling to help mediate disputes.  The vast majority of cases have been discharged, and no one has been convicted of any crime to date.  Even in cases where the individual seeks to participate in services, that participation is completely voluntary.  I suspect this may change as the number of cases increases.

Interestingly, there is no jail or holding cell.  This means that no one can be placed into custody, at least for now.  The holding cell won’t be built until later this year, so the plan is to have custody cases at 850 Bryant.  This doesn’t make much sense, since we’ll have to go back and forth each day.

I have decided to staff the court myself.  Our office had originally been promised two attorneys to staff the court.  A week before the court opened, I was told that the Mayor’s office would not provide the staff promised, and that the District Attorney and Public Defender would be expected to staff the court from it existing staff.  Because our attorneys handled specific clients and caseloads, we can’t simply pull someone away from their courtroom assignment, leaving their clients without representation.

Because our staffing is short at this point, we really can’t spare any staff for the CJC.  The DA’s office has two investigations and two attorneys staffing the court.   We just do not have enough staff to assign to this new court, since we still have to staff the existing courts.  Simin Shamji, who oversees our specialty courts and reentry programs, will be assisting me, and helping to develop a strong services component to our work.

Our new offices are located right next to the court, which is at 575 Polk Street. To get to the office, you go up to the second floor and our two offices are near the rear of the building.  Feel free to come by and say hello anytime.   We are open for business and ready to defend the public we serve.
I plan to provide weekly posts and updates as to what’s happening at the court. Please check here often.