Board Backs Revisions in Legal Defense for Indigents

An overhaul of the county’s mechanism for providing lawyers to indigents accused of crimes won tentative approval Tuesday from the Board of Supervisors despite uncertainty about the cost of the reform.

By a 3-1 vote, the supervisors endorsed a proposal by a blue-ribbon commission to abandon the existing system of contracting with private attorneys and implement in its place a quasi-public “community defender office” directed by an independent board of trustees.

The decision overrode the advice of the county staff, which recommended expanding an in-house public defender office--established two years ago to handle serious felony cases--to represent virtually all indigent defendants.

Studies by both the commission and the county urged the scrapping of the contract system, implemented eight years ago to control the escalating cost of defending indigents, now involving more than 30,000 cases per year.

The system failed to stem the upward spiral--defense costs have nearly tripled since 1978. Local, state and national studies, meanwhile, denounced the county’s contract system for providing inadequate legal assistance to defendants unable to afford a private attorney.

Supervisor Susan Golding, who made the motion to adopt the community defender plan, said she favored it over the more conventional public defender approach because the nonprofit defense office could act as an independent force to seek funds from private sources and lobby for greater state aid.

Moreover, she said, if the office--modeled on the defense system used in San Diego’s federal district court--fails to work, it could easily be converted into a traditional public defender system.

“It would be much harder, once we establish a public defender system and have the employees, to reverse the process,” Golding said.

The supervisors balked at the commission’s suggestions for the makeup of the board of the nonprofit corporation that would run the defense office. The commission’s report called for an 18-member board, with the majority of its members appointed by the San Diego County Bar Assn. But the vote Tuesday instead directed county officials and the commission to hammer out a plan giving the Board of Supervisors a greater say in the board’s membership.

Officials also will draft a proposed contract outlining the role of the nonprofit corporation and develop a plan for the transition from the contract system to a community defender.

Within 30 days, they also will draw up a detailed budget for the new system--the subject of much of the discussion before the board’s vote and most of the uncertainty over the viability of the community defender plan.

“The great majority of my constituents and of all the taxpayers in San Diego County don’t have the ability to say, ‘I want the best attorney money can buy,’ ” said Supervisor Brian Bilbray. “We are going to be limited by money just as much as the taxpayers are out there.”

David Janssen, assistant chief administrative officer, said the county could keep better control of the costs of a public defender than a community defense office, which might be shielded from the supervisors’ scrutiny by its trustees.

But Supervisor George Bailey said it was unrealistic for the county to expect that it could do much to rein in the cost of indigent defense under either system.

“If you’ve got to do it, you’ve got to do it,” he said, noting that the courts and state law leave the county no choice but to pay for defense lawyers. “To me, the budget is an unknown in these areas.”

Lawyers advocating establishment of the community defender office warned the supervisors that shifting to the new plan will do little to improve the quality of defense services unless the office is adequately funded.

“No matter what system you establish, if you overload it, we’re going to be back here with more trouble,” said San Diego attorney Gerald Blank, chairman of the indigent defense committee of the State Bar of California.

Melvin Nitz, director of the county’s Office of Defender Services, had reported to the supervisors that an in-house public defender office would cost $11.4 million in the first year of operation--$1.2 million less than the current system and about $2.6 million less than the estimated cost of the community defender office.

But critics of Nitz’s plan told supervisors that it underestimates the true cost of a public defender program and requires that its attorneys handle excessively large caseloads.

Advocates of the community defender proposal also said its lawyers would be more aggressive than the civil service lawyers who would be employed by a public defender office.

“Lawyers suffer from a lot of things, but put lawyers in government, and you will tend to see institutional rot occur,” said Judy Clarke, executive director of Federal Defenders Inc., the federal court defense office on which the blue-ribbon panel’s plan was based.

The only group to speak in favor of a traditional public defender office was the Earl B. Gilliam Bar Assn., an organization of black attorneys. Patricia Robinson, an attorney representing the group, said a public defender would afford more uniform defense.

She objected, too, that no black lawyers are under contract to represent felony defendants, prompting supervisors to direct that the plan to establish a community defender include affirmative action guidelines.

Supervisors Golding, Bilbray and Bailey voted in favor of moving ahead with the community defender proposal. Supervisor Leon Williams opposed it, saying he wanted more time to study the issue. Supervisor Paul Eckert was absent.

Earlier in the day, attorneys who had challenged the constitutionality of some of the defense contracts announced a final settlement of their 3-year-old lawsuit against the county. Under the out-of-court settlement, the county agreed not to enter into any more contracts that fail to pay attorneys for trial time and case investigation or fail to split the job of initially counseling defendants from their later representation in court.

Defenders Inc., a nonprofit contract defense group, had alleged that contracts that failed to include such provisions created a conflict of interest for attorneys because they gave them an incentive to settle cases early and expend as little effort as possible on an indigent client’s defense.