Justice Slow to Be Served for Indigents : Public Defender’s Office Yet to Staff Key Jobs

When San Diego County supervisors decided two months ago to create a Public Defender’s Office to represent poor people accused of crimes, there was hope that the move would restore order and stability to San Diego’s widely criticized indigent defense system.

So far, that hasn’t happened.

Indeed, as the county’s newest bureaucracy lumbers sluggishly to its feet, private attorneys who represent low-income defendants for a living complain that things are as rocky as ever.

For starters, only a handful of deputy public defenders have been hired, meaning the bulk of the region’s indigent defense work is still being handled by the hodgepodge of contract lawyers who have shouldered the caseload for years.

The search for an executive to head the 159-lawyer Public Defender’s Office is not expected to bear fruit until September, and county officials have yet to find offices for the incoming troops, who will be spread among all five of the county’s courthouses. The office isn’t expected to be operating at full capacity before March.

Finally, those designing the new office have yet to decide how best to deal with the system’s “conflicts” cases--an estimated 11,000 cases annually that have multiple defendants who cannot all be represented by the Public Defender’s Office.

Not Sure of Role

Until the conflicts issue is resolved--a decision that is at least a month away--private-sector lawyers remain unsure whether they will play any significant role in the delivery of indigent defense services.

“The mood is one of uncertainty,” said attorney Richard J. Boesen, whose firm handles about 6,000 misdemeanor cases annually under contract with the county. “No one knows exactly when the public defender is going to take over, and the conflicts thing is just a big question mark. As a result, we’re all wondering what we’re going to be doing from week to week. It makes planning, hiring, budgeting and all the rest really tough.”

At the county courts, meanwhile, judges say the turmoil is evident but has not seriously interfered with the administration of justice. Mostly, the jurists say, the strain is visible on the faces of defense attorneys anticipating the end of an era--those lawyers whose bread has long been buttered by cases their county contracts generated.

“I anticipated that this transition period would be chaotic at worst and unsettled at best,” said Superior Court Judge Wayne Peterson, who presides over the court’s criminal calendar. “The first few days were a little touchy, but it has settled down. I have heard many of the defense lawyers complain about the tenuous nature of their business relationship with the county and the demoralizing aspect of that.”

Aware of the legal community’s anxiety, county officials say they are working diligently to get the new office up and running. But they argue that building a system to provide attorneys for about 65,000 cases annually is a complex, time-consuming chore.

“You don’t create an organization of 150 people overnight. You just don’t turn it around on a dime,” said June Komar, deputy chief administrative officer. “We are moving expeditiously to get the structure in place, but it takes time to hire people, to find (office) space and set up a department that will process the caseload effectively.”

Philip Harry, acting chief of the Public Defender’s Office, said the spiraling cost of providing defense lawyers on a contract basis makes the county particularly eager to see their own employees take over the job.

“It’s more expensive and less efficient this way . . . because you don’t have the economy of scale,” said Harry. Recent estimates pegged the monthly cost of the existing system at about $2 million, he said. “When you have the Public Defender Office, you’ll get a tremendous benefit because you’ll have people doing this work day-in, day-out on a full-time basis.”

Shocked Legal Community

In a controversial May vote, the Board of Supervisors decided to establish a traditional, county-managed Public Defender’s Office rather than contract the job out to Community Defenders Inc., a nonprofit organization.

That decision, made after more than two years of analysis, came as a shock to most of the legal community because the board had previously made a tentative commitment to the Community Defenders alternative--a choice recommended by a blue-ribbon panel of experts. The vote came after Alex Landon, executive director of Community Defenders, resigned amid allegations that he had been involved in a prison escape plot 16 years ago.

Regardless of their position on the board’s decision, many lawyers expressed relief that a verdict on the future of the county’s much-maligned system of indigent defense had finally been rendered. The existing patchwork of services provided by staff attorneys in the county’s Office of Defender Services--which handled 70% of the serious felony cases--and 400 private bar lawyers had been ridiculed in national legal circles for its inefficiency and spotty quality.

Since then, county officials say, they have worked feverishly to put the new system in place. The search is on for office space near the five county courthouses, and applications are being solicited for the 159 attorney positions, which carry annual salaries ranging from $30,305 to about $70,000 for supervisorial jobs. Another 120 support-staff positions need to be filled.

In contrast with the 134 candidates considered when Community Defenders was looking for someone to fill its top spot, county officials said 17 candidates have applied for the job of Public Defender. Dee Chastain, the county’s personnel director, said more applications are still being accepted for the post, which pays $75,600 to $95,500.

Chastain said the pool of applicants will be screened with assistance from a panel of local legal experts before the chief administrative officer chooses a half-dozen finalists. One or two candidates will be recommended to the Board of Supervisors, which makes the appointment. Chastain predicted it will take up to two months for the finalists to be named.

Harry, who has applied for the top job, said applications for attorney positions in the new department have been flooding in. Still, he said, the office will not be operating at full strength until March.

In the meantime, part of the caseload is being handled by 22 staff attorneys transferred to the new office from the Office of Defender Services. Another 12 lawyers have been hired temporarily to take over as “counseling” attorneys who make initial court appearances for low-income defendants and advise them of their rights.

The balance of the cases are being handled in two ways. Some are funneled to private attorneys like Boesen, who have renewed their contracts with the county but have a 30-day cancellation clause that will halt the flow of work once the public defender’s office sputters into motion.

The rest are doled out on a case-by-case basis to several contractors who did not renew their agreements with the county--largely because of the uncertainty and the cancellation clause. Community Defenders, the largest single contractor, is among these. Attorneys with that group say their size and annual budget structure make it imperative that they have a predictable workload.

“We need some certainty about the future to be able to lease space and to keep staff on board to handle these cases,” said James Spievak, chairman of the Community Defenders Board of Trustees. “The way the county is handling this transition period indicates they have no master plan, and it’s making it very difficult for all of us. We are in limbo.”

Other attorneys echoed the frustration. Boesen noted that three attorneys who worked for his office were hired away by the county two weeks ago, leaving him short of manpower.

“I can’t blame (the lawyers) for going with the county, because they pay more over there, but I got virtually no notice and it caused some problems, to say the least,” Boesen said. “It just seems like the county doesn’t have any sort of transition plan so everything’s up in the air.”

The issue raising the most concern is the fate of the conflicts cases, now parceled out to private attorneys. County staff members had been scheduled to present a list of options to county supervisors June 21 and again last week, but twice postponed the action. At the most recent meeting, Supervisors Susan Golding and Brian Bilbray expressed exasperation over the delays and demanded some alternatives be produced within one month.

“What I don’t understand is, we’ve been examining . . . this issue in detail for three years,” Golding said. “If we don’t know what these costs are yet, then we never will. . . . I can’t believe this information is not available.”

Bilbray, who abruptly switched sides in May to give the in-house public defender office the extra vote it needed, was equally impatient. “This is not an issue that just popped up,” he said. “We knew it was coming down the pike. If you can’t give us answers in 30 days, then we’ll have to look somewhere else for them.”

Proposed Different Options

Among the options for dealing with the conflicts cases, Komar said, is the establishment of a separate, county-run office of lawyers; the designation of a private organization, like Community Defenders, to take the bulk of them; or the creation of a rotating panel of private attorneys who would receive appointments from the court.

The San Diego County Bar Assn. has favored maintaining the current, longstanding system of distributing the conflicts cases to lawyers in private practice, and numerous other professional groups share that desire.

“The private bar has always been deeply involved in indigent defense, and there was a time when cases were handled pro bono--for no money at all,” Glorene Franco, a criminal defense attorney, said. “It seems unfair that now, when the county is finally offering some decent sums of money for these services, that the private bar should be excluded.”

Franco also argued that including private practitioners in the system “provides some healthy competition in the legal community and would keep everyone on their toes.” Other attorneys noted that many young attorneys in private practice use appointed work as a steppingstone as they try to build a clientele; allowing them access to conflicts cases would continue that tradition.

For Community Defenders, the decision on the fate of the conflicts cases is virtually one of life or death. Just yesterday, it seems, the venerable organization was confidently awaiting the supervisors’ formal decision to award it a $40-million contract to provide all indigent defense services in the county. Office space had been lined up and furniture purchased, a phone and computer system had been picked out and plans were laid to start up operations Sept. 1.

Then came the board’s decision to go with the public defender, and things fell apart.

Now, if Community Defenders does not win designation as the recipient of the bulk of the work, the county’s oldest provider of indigent defense services--it turned 20 this year--likely will fold.

“Unless we are named the primary contractor, there’s really no reason for the organization to exist,” said Landon, noting that 10 of the office’s 39 staff attorneys have already quit out of uneasiness about the future. “It’s really as simple as that.”