They do it in San Francisco. They do it in Florida, Nebraska and Tennessee. They elect their public defenders. Why not in Los Angeles County?
In calmer times, this question might be of interest mostly to academics. It has taken on new urgency now, however, as L.A. County deputy public defenders rebel against the appointment of their interim leader, Nicole Davis Tinkham, because of her lack of experience in criminal law. They plan to protest outside downtown’s Clara Shortridge Foltz courthouse on Monday, the 54th anniversary of the landmark U.S. Supreme Court decision in Gideon vs. Wainwright, which recognized that the 6th Amendment right to counsel — regardless of the defendant’s ability to pay — applies in any criminal case, whether state or federal, felony or misdemeanor.
Deputy public defenders take their role as guardians of the 6th Amendment seriously. What they lack in pay and resources compared to private-sector lawyers they make up for in a sense of mission to serve the indigent and to push back against a culture of over-criminalization, excessive punishment and racially selective prosecution.
The Board of Supervisors already had been through several interim department leaders when it picked Tinkham in January to serve for six months while it continued to search for a permanent public defender. The appointment has been taken by many in the criminal defense world as an attack on the independence of the Public Defender’s Office and a disruption in the careful constitutional balance of power in the criminal justice system.
But there’s a certain structural imbalance already, isn’t there? The other players are elected, and because of that, they enjoy a measure of independence in carrying out their duties as they see fit. We elect the district attorney, who prosecutes criminal cases. We elect the sheriff, who polices much of the county and locks up accused and convicted criminals. We even elect the judges. But the public defender is an appointee. How come? Why is San Francisco the only county in California to elect a public defender?
Maybe the best answer is that it’s San Francisco. Small, compact and notoriously liberal, it’s a city in which voters are at least as vested in who represents criminal defendants as who prosecutes them.
L.A. is liberal too, of course, but not as consistently so. We have been the birthplace of many tough-on-crime measures. Like other counties, we elect our district attorney to represent us in court and to protect us from lawbreakers. If we pick a lousy lawyer, we suffer the consequences, at least in theory. Guilty people are acquitted, or perhaps charges are never brought. Crime proliferates. If need be, we make a change, ousting the D.A. at election time and picking a replacement.
Public defenders are different. They don’t represent The People. They are lawyers in a more traditional sense, representing individuals accused of crimes. They are employed by us, but they don’t work for us. They work for the people who our lawyer, the district attorney, is trying to convict.
If L.A. were going through one of its fear-of-crime waves, voters who want to crack down on crime might, if they elected the public defender, find themselves in the perverse position of choosing the least effective defense lawyer for indigent people accused of crimes.
The Board of Supervisors has to deal with a different set of tensions. Its goal is not necessarily the most acquittals or convictions, but rather an office that represents its clients in a way that at least meets constitutional standards. Its job in one sense is to butt out and let the lawyers do their work as they see fit, while standing ready to butt in when things aren’t working and changes are in order. By butting in with the appointment of Tinkham, it’s trying to make up for many years of deference. Or, if you prefer, neglect.