Hickey Backs Public Defender for Indigent

Rejecting the recommendations of a blue-ribbon commission and a legal advisory board, county Chief Administrative Officer Norman Hickey proposed Wednesday that supervisors establish an in-house public defender office to represent low-income defendants in criminal cases.

Hickey’s report said a traditional public defender--the choice of 43 of the nation’s 50 largest counties--would be more workable and less costly than the novel “community defender office” devised earlier this year by the blue-ribbon panel and endorsed by the Indigent Defense Advisory Board.

But Hickey joined the experts in calling for the scrapping of San Diego County’s eight-year experiment in contracting with private attorneys to provide indigent defense--an approach that produced spiraling costs and denunciations by state and national legal groups that the county’s poor were receiving inadequate legal representation.

The Board of Supervisors, which has struggled for a decade to balance the high cost of indigent defense with its mandate to provide competent counsel to the poor, is scheduled to debate the future of the defense system at its meeting May 27.

While noting that budgets for both the public defender and community defender proposals are only tentative, Hickey’s report says the public defender plan is projected to cost $2.6 million to $4.4 million less than the quasi-public community defense system, a savings of 19% to 28%.

“It seems reasonable to infer that proponents of the community public defender have a different level of service in mind,” the report says.

But leaders of the blue-ribbon commission--established last year by the University of San Diego School of Law, the San Diego County Bar Assn. and the Board of Supervisors--Wednesday reiterated their view that necessary defense services will cost about the same under either system.

“I don’t accept the view that you will save money by having a public defender,” said Sheldon Krantz, dean of the USD School of Law.

Under the existing system--which employs salaried public defenders for 70% of the most serious felony cases and contracts with private lawyers for the remainder of defense services--the county’s Office of Defender Services will spend about $12.7 million this year for indigent defense.

Melvin Nitz, director of the Office of Defender Services, has estimated that a full-scale public defender will cost $11.4 million per year. But the Indigent Defense Advisory Board said Nitz’s figures are unrealistically low.

A budget estimate for the proposed community defender program, prepared by the National Legal Aid & Defender Assn., pegs that plan’s yearly cost at $15.8 million with optimal staffing levels, although the blue-ribbon commission says the price tag can be cut to $14 million.

The commission’s study proposes that a nonprofit organization--headed by an 18-member board appointed by judges, supervisors and the bar association--would contract with the county to provide defense services to the more than 30,000 indigents charged with crimes each year.

The blue-ribbon panel contends that the new board would increase the system’s accountability by providing county supervisors with more information about indigent defense than they now receive and by placing knowledgeable lawyers in charge of the program. Supervisors would retain ultimate control by setting the office’s budget.

But Hickey’s report says accountability will evaporate if the Board of Supervisors delegates policy decisions about defense to a nonprofit organization.

“Effectiveness concerns of the board of trustees will inevitably come into conflict with budgetary considerations of the Board of Supervisors,” the report says. “This conflict may be difficult to resolve if the Board of Supervisors is at arm’s length from service delivery issues, and the board of trustees does not have the perspective of countywide budgetary needs and constraints.”

The county counsel’s office, the report adds, has issued an opinion saying county supervisors cannot legally delegate indigent defense responsibilities to a nonprofit organization. But the blue-ribbon commission says its research indicates there are no legal obstacles to the community defender proposal.

As supervisors weigh the two defender proposals, some attorneys who contract with the county are drawing up a plan that would maintain a role for private attorneys in indigent defense.

Brad Patton, whose law firm defends indigents in Vista Municipal Court, said he and other lawyers will propose that the existing limited public defense office continue handling serious felonies. Private attorneys and Defenders Inc., a nonprofit group that handles many indigent cases now like a quasi-public defender office, would contract for the remainder of the indigent cases, he said.

“The public defender’s office cannot do misdemeanor and low-grade felonies as economically as the private sector can,” Patton said.

The county’s system has been criticized by national legal publications, the American Bar Assn. and the State Bar of California.