Public Defender Nomination Puts Office in Turmoil
Harvey Zall had been demoted and was looking to leave the State Public Defender’s office where he had worked since 1977.
But then in March, Gov. George Deukmejian appointed him to head the agency. “I was down for the nine count, and I came back,” Zall said. His fight, however, is far from over.
His nomination has splintered the office. The morale of many senior deputies, particularly those who handle death penalty cases, has spiraled downward. At least five deputies have quit the agency of 50 lawyers, in part because of the appointment. More say they plan to resign soon.
Death penalty experts even question Zall’s commitment to the office’s most important job--representing Death Row inmates.
With some of the most senior and experienced deputies leaving the office and their cases behind, the internal problems threaten to bog down the appellate courts and further slow the capital punishment process. The office has been unable to meet its commitment to accept 10 new death penalty cases this year. And its failure to accept more cases has exacerbated a problem of growing concern to the courts and death penalty bar: 20 men on Death Row are without attorneys. There was only one inmate without counsel last year.
“This office is close to being on the rocks,” said a deputy state public defender, one who personally likes Zall. “We’re in a very serious situation here. I don’t know that there is any hope.”
Another veteran deputy, who is among the office’s death penalty experts, said: “I am not long for that place. The office may be beyond saving at this point. (Zall’s appointment) is like the straw that broke the camel’s back.”
At first glance, Zall’s appointment seems solid. He attended Oxford and is a graduate of Boalt Hall Law School at UC Berkeley. Zall, 52, spent 11 years as a deputy state public defender and was a defense and prosecuting attorney in Monterey and Tulare counties. Terry Flanigan, chief deputy appointments secretary for Deukmejian, said Zall’s nomination was backed by “legislators and several prominent judges.”
But in an office known for its nonconformists and liberals, Zall never quite fit in. He has “no philosophical problem” with capital punishment, and would tell colleagues that he opposed liberal Chief Justice Rose Elizabeth Bird’s reelection in 1986. In turn, he seems uneasy with the views of some of his colleagues.
“We need to be a part of the loyal opposition and not the destructive, alienated viewpoint that says that the system is out to destroy all of our clients. I think there are certain people who have that view,” Zall said.
The State Public Defender’s office has served an important role in the appellate court system since it was formed 13 years ago by Gov. Edmund G. Brown Jr. By law, the state must provide lawyers in criminal appeals. Private lawyers handle most appeals, but many of the toughest and most complex cases--those of serial killers, child murderers and others that private lawyers will not accept--fall to the agency.
The work never has been especially popular, and the office long has been criticized for a lack of productivity, never having handled more than 40% of indigents’ appeals. Given the added problem of internal turmoil, some deputies fear that the Legislature simply will abolish the office.
Their worry is heightened because the Little Hoover Commission, a state watchdog agency, will issue a report Wednesday that very likely will be critical of the office, which already is half the size it was at its height. Four years ago, Deukmejian forced a reduction in the number of lawyers to 50 from 100.
For his part, Zall said it would be a “very serious mistake” to abolish the office that he calls “one of the best appellate law firms in the state.”
“I didn’t accept this job to preside over the dissolution of this agency,” Zall said in an interview. He insisted that he is doing his “level best” to rectify the ills and increase productivity. The solution, he hopes, will be to fill roughly 15 vacancies.
“There have been people resigning from this office ever since I came here in 1977,” Zall said. “Bringing in fresh blood, committed productive people, will do amazing things to office morale.”
But after interviews with more than 20 past and current deputy public defenders, it is clear the office is deeply split. Critics who have worked with Zall call him petty, vindictive, indecisive. Most of them spoke on the condition that they not be identified, saying they fear for their jobs.
“I have never seen morale so low, including the time when Deukmejian did the cutbacks,” said Richard Lennon, who was a death penalty coordinator before quitting in July, largely because of Zall. “A lot of people are wondering, ‘How long is the office going to be here?’ ”
Zall’s defenders call him an intellectual and believe that because he spent three years as the office’s lobbyist, he will help ensure the survival of the $7-million-a-year agency.
Peter Silten, who runs the agency’s San Francisco branch, attributed the malaise of some deputy public defenders to Zall’s effort to increase productivity. He also told of “burn-out” and increased pressure brought about by the conservative state Supreme Court, which rules against the agency’s attorneys regularly in death penalty cases. In the last 1 1/2 years, the high court has affirmed sentences in 12 of the office’s capital cases. Now, deputy public defenders face the grim prospect that their clients will die in San Quentin’s gas chamber.
“People who won everything now are losing everything,” Silten said. “It’s very depressing. . . . A lot of people are simply opting out.”
Cut Caseload Promise
Repercussions of the internal problems are starting to be felt. At the beginning of this year, the agency, which now has 41 capital cases, agreed to accept 10 new death cases this year. Partly because of resignations, it now says it will take only four cases.
At the same time, fewer private lawyers are accepting court appointments, knowing that the odds are that that they will lose before the state Supreme Court. As it is, 20 of the 241 inmates on Death Row have no attorney.
Some death penalty experts doubt the State Public Defender will be able to take many capital cases in coming years. There simply won’t be enough veterans who know the highly specialized field.
“You cannot bring people into the office and expect them to be able to handle capital cases right off,” said Michael G. Millman, director of the California Appellate Project, which is responsible for finding private lawyers to take death penalty cases.
Zall scoffs at claims that he is not committed to death penalty defense.
“It’s one thing to take a case and another to do it,” Zall said, adding that in the past, cases would go unattended. “If we accept an appointment, the case is not going to sit around for years and years and years moldering in some corner.”
Colleagues call it ironic that Zall talks of increasing productivity. As a deputy public defender, several colleagues say, Zall had a reputation for being unproductive.
“He was at best workmanlike,” one of Zall’s former bosses said. “He was a marginal deputy. His productivity was low. He was one of the least likely choices to head the office.”
Questions about Zall have become so intense that California Attorneys for Criminal Justice, an association of private defense attorneys, established a committee to investigate Zall and is considering taking a stand against him when his confirmation comes before the Senate next year, said Tom Nolan, the organization’s president. The group has never taken such a step.
Zall’s confirmation, however, appears probable. He has strong defenders in the Legislature, among them Senate Judiciary Committee Chairman Sen. Bill Lockyer (D-Hayward) and Vice Chairman Sen. Ed Davis (R-Valencia).
“Harvey is a forceful advocate of what the law is and should be,” said Davis, among those who recommended Zall to the governor. “He wasn’t an off-balance zealot, which some people would like him to be. It is going to take some time for Harvey to get things squared away.”
Zall defends his personal work as a deputy in the office, and says he won several significant rulings. He is particularly proud of a 1984 case in which he successfully argued that a court of appeal should reverse a man’s conviction for assault on a sheriff’s deputy after proving that the officer lied in court.
Zall became chief deputy and the office’s lobbyist in 1984, when Deukmejian named his first Public Defender, Frank O. Bell. Bell, who also faced animosity and some morale problems, said Zall was among the few deputies who seemed to be supportive. But Bell became displeased with Zall, sources said, and abolished the position of chief deputy last year. Zall kept his lobbying job.
Bell, meanwhile, had issued a policy that all deputy public defenders had to take capital cases. Some of them quit, unwilling to take on the responsibility. Zall also was hesitant, his bosses at the time said.
“His reasoning was that he was in favor of the death penalty and therefore didn’t feel he should handle one,” said Lennon, then the office’s capital case administrator. “I told him I thought that was silly, it wasn’t an appropriate reason. I’m not in favor of putting rapists and murderers on the streets, yet I can represent them on appeal.”
Zall eventually relented. But before he was assigned a case, he became embroiled in a nasty dispute with another veteran deputy, Monica Knox, who was acting Public Defender when Bell quit late last year.
Knox was considered to be among the office’s most productive and skillful attorneys but a blunt administrator. She took away Zall’s lobbyist duties in January, in a move that Zall called “typically heavy-handed.”
It certainly proved to be impolitic. In February, Lockyer and Davis sent Knox a two-page letter detailing their “strong dissatisfaction” with the action and described Zall as someone who showed “eloquence in expounding the philosophy of the defense bar that is beyond duplication.” Knox said she threw out the letter without answering it.
Two weeks later, Deukmejian named Zall Public Defender. Friction between Zall and Knox escalated to the point where Knox quit. Besides affecting office morale, Knox’s departure took its toll on the office’s work. She had to leave behind four capital cases, including massive files on William Bonin, the Freeway Killer.