Scrap Contracts, Set Up Public Defenders for Poor, Panel Urges

San Diego County should abolish its contract system for providing criminal defense to indigents and replace it with a more costly quasi-public defender program, a blue-ribbon panel of lawyers and judges says.

The existing system “is inadequate to ensure quality representation” to defendants, the commission report says, citing “glaring breakdowns” in defense services in Juvenile, Traffic and El Cajon Municipal courts. It faults the management of the contract system by the county’s Office of Defender Services (ODS) and says the county “has emphasized cost control at the expense of quality representation.”

County supervisors ordered the inquiry by the 15-member commission last summer on the heels of criticisms of San Diego’s indigent defense system by the American Bar Assn., the State Bar of California and a national legal magazine. The draft report, which is subject to revision, was circulated this week to the county’s Indigent Defense Advisory Board members.

The system--the largest of its kind in the nation--provides criminal defense to more than 30,000 accused persons each year through a variety of contracts with private law firms and individual lawyers. Some attorneys are paid on an hourly or per case basis. Others contract to defend all or some of the indigents in a specific court for an annual fee.

Most cities use a public defender office of salaried, civil-service lawyers to provide similar services. San Diego County has experimented with such an office for the last year, hiring 21 lawyers to represent about 70% of the indigents accused of serious felonies.

ODS Director Melvin Nitz said Wednesday that in the next few days he will renew his proposal to expand that experiment into a full-fledged public defender program.

Also Wednesday, supervisors received the final version of a report from the county’s chief administrative officer urging expansion of the experimental public defender office to handle virtually all serious felony cases. The CAO’s report makes no reference to the commission’s proposed community defender system.

However, the commission, chaired by former U.S. Atty. M. James Lorenz, is recommending that San Diego adopt a variant on the public defender concept that it calls a “community defender office.”

It proposes that a nonprofit organization--directed by an 18-member board of trustees appointed by county supervisors, judges and the San Diego County Bar Assn.--contract with the county to represent nearly all indigents. The board would employ an executive director and a staff of salaried attorneys. The office would handle all cases except the estimated 20% to 25% of cases in which it would have a conflict--for instance, multiple-defendant crimes in which legal ethics would permit the office to represent only one of the accused. Such cases would be assigned to private attorneys.

The proposal is modeled on Federal Defenders Inc., a well-regarded office that provides indigent defense services in U.S. District Court in San Diego. Non-civil-service defense offices also exist in Philadelphia and Portland, Ore., according to the commission’s report.

A community defender office would have the advantages of a public defender program--including improved quality control, stability and cost-efficiency--without creating a new government bureaucracy, the blue-ribbon panel contends. It would foster ties with the private bar and increase accountability to supervisors, the report says.

The report offers no estimate of the cost of establishing a community defender office, but says it initially would cost more than the existing contract system--which it says is under-funded. At model staffing levels and workloads, a community defender office might cost $15.8 million a year, the National Legal Aid & Defender Assn. estimated.

Current county estimates peg Office of Defender Services spending this year at $12.7 million, more than $1.8 million over budget.

Supervisors established ODS and implemented the contract system in 1978 in hopes of capping the spiraling costs of defense under the previous system, in which judges appointed lawyers on a case-by-case basis. Yet ODS repeatedly has outspent its budget, and defense costs have climbed 125% since contracting began.

Some contract lawyers--who face the choice of losing large portions of their incomes or becoming community defenders if the proposal is adopted--insist that contracting remains the best way for the county to control the cost of defending indigents.

Thomas Sauer, an attorney whose firm contracts to defend indigents accused of misdemeanors in San Diego Municipal Court, said Wednesday that the competitive bidding procedures employed under the contract system assure that “the marketplace would determine the costs” of indigent defense. Quality defense can be assured by making certain that only qualified firms be allowed to compete for contracts, he added.

“Their recommendation calls for a nonprofit organization, and nonprofit organizations in San Diego haven’t shown any track record of saving the taxpayers money,” Sauer said.

Judges in San Diego and El Cajon, where some contract lawyers have come under severe criticism, said their initial reactions to the proposal were favorable.

“It’s obvious to everybody who has any contact with the current system that it has not worked the way it was intended to work and it is unworkable,” said Presiding Judge Frederic Link of San Diego Municipal Court. The community defender proposal “is an excellent recommendation,” he said. Presiding Judge Larrie Brainard of the El Cajon Municipal Court also said the proposal was promising.

In North County and the South Bay, where judges and lawyers told the commission that the contract system had worked well, the reaction to proposed changes was more critical.

“It appears to me that every time we have something good, politicians or bureaucrats want to screw it up,” said Presiding Judge Thomas Gilgorea of the South Bay Municipal Court in Chula Vista.

Brad Patton, an attorney whose firm defends indigents in Vista Municipal Court, said the county could strengthen supervision of contract lawyers and model an improved contract system on the effective North County program, rather than replace the 8-year-old contract system.

“I’m not sure you scrap an entire system you’ve devoted a lot of money to and time to just because of the failure of one or two key people,” he said.

The commission report singles out ODS Director Nitz for criticism, saying he “is perceived by most members of the defense bar as more interested in cost control than in providing quality defense services.” Generally, it says, ODS “has not taken a position of leadership in the criminal justice system and has reacted slowly and ineffectively to problems and crises.”

In an interview Wednesday, Nitz defended his record at ODS since 1981. “I have been concerned all my life as a public defender about the caliber of service that’s being given,” he said.

Nitz agreed that the contract system has proven impossible to monitor, but insisted that ODS had responded effectively to the few problems brought to his attention.

“Anytime we ever got any information that was showing us that something was wrong, we took action to make sure it was straightened out,” Nitz said. “We didn’t let it ride, for heaven’s sake. That’s stupid.”

However, the commission report notes that it took more than two years of complaints from judges and lawyers before ODS took steps to replace contract lawyers in Traffic Court and El Cajon Municipal Court.

Moreover, the blue-ribbon panel said that, in Juvenile Court--where more than 95% of youthful offenders rely on contract defenders--”ODS involvement both in terms of finances and quality control has been woefully inadequate.” Witnesses at commission hearings described ODS services at the court as a “disaster,” the report says.

A letter to the commission from Juvenile Court judges, attached to the report, calls for improved training, pay and staffing for defense lawyers at the court.

“Many current contractors, especially those with excellent abilities and skills, are disgusted with the administrative headaches and roadblocks inhibiting them from doing their best work,” the letter says. “Many good lawyers will live with the slave wages we pay, but when low wages are heaped on top of administrative abuse by the Office of Defender Services, it is too much for our attorneys to bear.”

Juvenile Court Coordinator Mike Roddy said Wednesday that the court’s judges believe the proposed community defender system would help “a great deal” in improving defense services at the court.