Private Attorneys Say Defender’s Office Is Draining Their Caseload

Some private defense attorneys in North County are complaining that they are losing too many cases--not to the district attorney’s office, but to the county’s own crew of public defenders.

Free access to the county’s staff of defense attorneys--which is supposed to be available only to indigent defendants--is available to anyone who walks into Vista Municipal Court for their arraignment and wants to plead guilty, these attorneys complain.

The private attorneys grumble that they are being hurt financially--and that county taxpayers are unfairly picking up the tab--because people who can afford their own, private legal representation are getting freebie advice instead, financed from the public coffers.

At issue is a Vista courts practice in which the public defenders represent people accused of misdemeanors who decide to plead guilty at arraignment. The plan is hailed by some as a cost- and time-effective way of thinning the ranks of criminal defendants who bog down the courts, by speeding the process for minor lawbreakers.

But defense attorneys complain--selfishly, they admit--that their own pool of clients is being drained because those people no longer need a private lawyer.

Moreover, some attorneys say, defendants who have free access to attorneys on the arraignment day might be pleading guilty when they have a viable defense.

“What we’re seeing is expedited justice for the sake of expedition, but not necessarily for the sake of justice,” said Tom Mix, a criminal defense attorney and former president of the North County Bar Assn.

Another attorney, Tom Smith, said the new practice is hitting him in the checkbook.

“The private bar has noticed our business has gone way down,” he said, “and I mean way down.”

At issue is how people accused of misdemeanors--non-injury drunken driving, petty theft and the like--are dealt with in Vista Municipal Court. Affected are people who are not in custody but are simply ordered at the time of their arrest to appear in court for their arraignments and to enter a plea. If they plead not guilty, they are ordered to return to court for pretrial hearings and, ultimately, a trial.

Under the old system, before a person entered his plea, he was first advised by a “counseling attorney”--private-practice lawyers under contract to the county. Since the police report was seldom available to the counseling attorney at that time, and the district attorney’s office wasn’t ready to negotiate a plea to a lesser charge, defendants were strongly encouraged to plead not guilty. The person would then hire his own attorney or ask, on the basis of his financial condition, for a court-appointed attorney.

During the ensuing weeks, the district attorney’s office would meet with the defense attorney and either negotiate a plea bargain, in which the defendant could plead guilty to a lesser crime, or maintain his innocence and go to trial.

Now, at the request of the judges, the district attorney’s office proposes a reduced charge in exchange for a guilty plea before arraignment, so the defendant can more accurately and quickly determine what his options are.

Also, arraignment counseling is now provided by the county’s staff of public defenders--which also will serve as the defendant’s lawyer on the spot if he wants to plead guilty immediately to the lesser charge.

Deputy Dist. Atty. Charles Bell, in charge of issuing cases in the Vista Courthouse, said his office has no problem with the arraignment-day pleas--even if it means that, for the first time, he has to assign prosecutors in the arraignment courtroom.

“Common sense dictates, if there’s no legal issue, why have a second, needless hearing?” he said.

Municipal Court Presiding Judge William Draper agrees. In a letter to the North County Bar Assn., Draper said the new system saves money, even if some defendants can afford to hire their own attorneys.

The cost of the public defender, he said, must be weighed against costs to the court, the defendant and taxpayers “in terms of creating files, providing copies of (evidence) discovery, repeated trips to the courthouse, continuances and the other normal activities.”

Still, some private attorneys are unhappy.

“The judges want to look like law-and-order judges by getting guilty pleas real quick, and at the same time reduce the number of cases they have,” Smith said. “But the public is getting screwed because it ends up helping to pay for the legal advice for someone who doesn’t deserve a free attorney, and the defendant is getting screwed by pleading guilty when maybe he shouldn’t.

Added Herb Weston, another defense attorney: “In this day and age of tight county budgets, why is the county giving away free services for those who don’t deserve it?”

But Larry Beyersdorf, the supervising attorney in the public defenders office in Vista, said the actual number of those people is very small.

“Our own surveys indicate that 5% of the people we serve don’t qualify for us,” Beyersdorf said. “And the courts feel very strongly that they save a whole lot of money by not continuing those 5% of cases for private lawyers.”

Mix questioned whether public defenders have time to assess a case properly before concurring with a client’s decision to plead guilty.

“These attorneys only have three to five minutes per case--and they’ve got to read the police report very quickly, interview the person, ask a couple of questions and move on to the next defendant,” Mix said. “A lot of people will take the convenience of pleading guilty, based on that advice, because the public defender didn’t have enough time to get into an in-depth discussion of the case and possible defenses.

“What’s happening is, the law is being administered in-house--by the judges, the prosecutors and even the (public defenders). It’s like a socialized legal system. They’re being run over by the system. I’m not sure everyone is receiving equal justice. Swift pleas do not always result in good justice.”

But Beyersdorf disagreed with the notion that defendants are being ill-advised to plead guilty.

“The people who plead guilty are usually the ones who have already decided to plead guilty, even before talking to us,” he said. “Their cases are what we call dead-bang--there’s no legal issue at stake. There’s no defense and they just want to get the case over with.”

Despite those arguments, about a dozen criminal defense attorneys--including Smith and Weston--met recently with Draper to air their grievances.

Draper agreed afterward to ask the county counsel whether it is proper for the public defender to serve as the attorney of record for out-of-custody misdemeanor defendants who want to plead guilty at arraignment, even if their eligibility to use public defenders has not been determined.

(Currently in Vista, the review of a defendant’s finances, to determine if he is indigent and therefore qualifies for free legal services, occurs after the arraignment but before his next court hearing. In San Diego Municipal Court, the financial review is made before the arraignment-day plea.)

How hard hit are local attorneys who say they are losing clients at the pass?

Debbie Tisch, executive director of the North County Bar Assn.’s Lawyer Referral Service, said the number of people calling her office for help in finding a private lawyer dropped 28% from the first seven months of 1989 to the first seven months of 1990--from an average of 56 people per month to 40.

Some private defense attorneys say they have not been affected much by the recent development, partly because they don’t rely much on the bar’s referral service for clients.

And others said they want to put distance between themselves and the complaining attorneys.

“It sounds like we’re just some greedy lawyers who are whining because we’re losing clients to the public defender’s office. We have a bad enough reputation as it is without sending out that message,” said one Escondido attorney who asked not to be identified.