Does that mean that defends are not being well-represented? Tracie Olson, the County’s Public Defender, says no, but at the same time the resource gap between the District Attorney’s Office and public defense is perhaps too large to ignore.
The Vanguard attended a seminar in San Francisco put on by the San Francisco Public Defenders Office. The program was entitled, Ordinary Injustice. The name came from a book written by Amy Bach. Ms. Bach was one of the panelists and she traveled across the country watching the courts and noting a long list of failures in the system, due in part because the people most affected by the injustice tend to be poor, minorities, or otherwise unable to both protect themselves and speak out. The problems have become so pervasive that they have become invisible to those who are supposed to be safeguards in the system, whether they be defender, prosecutors, or judges.
One of the more interesting panel speakers was Lawrence Benner, a Professor of Law at California Western School of Law. He wrote an article last spring in the California Western Law Review, “The Presumption of Guilt: Systemic Factors That Contribute to Ineffective Assistance of Counsel in California.”
He writes, “In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise of effective representation by a well-prepared and experienced defense counsel, supported by defense investigators, experts, and other resources needed to mount an effective defense. Yet recent empirical research undertaken by the author for the California Commission on the Fair Administration of Justice (Fair Commission) portrays a discouraging reality that is often far different from this theoretical model.”
He argues instead that there is a presumption of guilt in our legal system. His empirical research finds a number of troubling asymmetries in the resources and expertise that appointed defenders face versus prosecutors and his research is the jumping off point for our own brief look at the Yolo County criminal justice system.
Professor Benner’s research indicates that “More than eight out of every ten felony defendants prosecuted in the superior courts of California are indigent and must be provided with counsel by the county.” He continues:
“Our research has revealed that there are significant disparities between counties in their commitment and ability to provide effective defense services for the indigent accused. Even more disturbing, this research also documents that while public defenders represent the lion’s share of criminal defendants in California, in almost all counties across the state there is a glaring disparity between the resources allocated to the prosecution and the defense function. For every dollar spent statewide on prosecution, only fifty-three cents is spent on average for the defense of the indigent accused. Yet at least 85% (and in some counties as high as 95%) of the felony docket is comprised of defendants who must rely upon publicly provided defense services.”
In Yolo County, Tracie Olson comfortably believes that her office handles 75% of the felony cases with the remainder somehow split between the conflict panel and private attorneys. The conflict panel represents people who need public defense but the Public Defender’s office is somehow conflicted from representing them. Perhaps there are multiple defendants in the same case and the same office cannot represent all of them. The conflict panel are generally private attorneys who have contracts with the county. So it may be that 85 to 90 percent of all felony defendants are represented by public money in Yolo County, which would make Yolo County rather typical.
Unfortunately, Yolo County is also rather typical in terms of the resource disparity between the prosecutor and defense. The American Bar Association has ten principles among which is the provision, “There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system.” As cited by Professor Benner, Chief Justice Warren Burger declared in Argersinger v. Hamlin that “the system for providing counsel and facilities for the defense should be as good as the system which society provides for the prosecution.”
In Yolo County this remains a problem, as it does across the state.
As Tracie Olson acknowledges, “In 2009-2010, my budget was about $4.6 mil and the DA’s was about $12.3 mil. The conflict panel had a budget of $1.8 mil. The math is way off, I know.”
She did say, “The one thing the County has been very good about, however, is maintaining an attorney staffing ratio between the two offices. The traditional ratio observed is 3:2. This accounts for the fact that the DA’s Office has some attorneys whose work doesn’t really produce criminal filings that involve my office – e.g., the consumer fraud/environmental attorney and the child abduction attorney are examples. However, the DA’s Office outstrips my office in support staff, hands down.”
This is a significant problem and it actually understates the magnitude of it. One reason the DA’s office has such a vast resource advantage is that they have access to a large number of grants as we have previously reported on, that quite simply the defense does not.
But worse yet is that the office ratio does not include the resources that law enforcement and probation bring to the table that aid the prosecution in their investigations.
That brings us to another problem that Lawrence Benner cites, the ratio of attorneys to investigators. Writes Professor Benner, “A majority of the certified criminal defense specialists also reported that the lack of investigative resources was a significant problem for their indigent defense system. In our examination of appellate cases, we discovered that the failure to conduct an adequate investigation was a major cause of ineffective representation.”
Lawrence Benner found that the average ratio of attorneys to investigators was one investigator for every 4.6 attorneys, with some counties having the ratio as much as 9:1. The recommended standard is 3 to 1.
In Yolo County, according to Tracie Olson, we have 21 attorneys in the Public Defender’s office but only four investigators. That puts us slight below average at about 5.25 to 1. We should have seven according to the standards.
Professor Benner also cited excessive caseloads as a problem statewide. He writes, “when measured against national standards promulgated to ensure the delivery of adequate defense services, we found that the majority of these indigent defense systems are laboring under excessive caseloads. Over half of the public defender offices surveyed reported their staff attorneys handled caseloads that exceeded national standards established by the National Advisory Commission on Criminal Justice Standards and Goals and the American Bar Association.”
The problem of excessive caseloads is obvious, especially from reading Amy Bach’s book, defenders often get overwhelmed, they do not know their client’s cases that well, they lack the resources to carry out their own investigations, and thus many do not get a fair and adequate defense.
Tracie Olson argues that this is not a problem in Yolo County. “This question is hard to answer because the National Advisory Commission hasn’t defined – to my knowledge – what a “case” is,” she said. “Is it a new felony filing? Is a subsequent VOP on that same felony a separate case? What if a conflict panel attorney handled the new filing and we were appointed only at the VOP stage? Is a modification counted separately?”
She continued, “I constantly monitor caseloads of individual attorneys and case shifting happens on a weekly basis. However, because it’s in the best interests of the client to maintain consistency in representation, we try to identify such cases early in the process.”
The county is clearly hurting for resources, having to make huge cutbacks in staffing, services, across the board. The danger I think is that as we have reported, the DA’s office is increasingly relying on grants to fund programs that have slipped through the cracks. They have had to cutback on programs not funded by grants. But the Public Defender’s office does not have the same access to grants.
Moreover, we have noted and are continuing to monitor a sizable number of cases that have been either overprosecuted or should not have been prosecuted at all. Both of these are a real danger. Overprosecution tends to lead to plea agreements for defendants who either not guilty or guilty of a lesser crime. This will be exacerbated by a resource disparity as the Public Defender’s office feels more pressure to get some of these cases off their hands. Meanwhile, resources get taken up defending a number of cases that should not have been prosecuted to begin with.
The county needs to make a commitment to at the very least equally fund the public defender’s office / conflict council and the District Attorney’s office. At least that levels the playing field and gives the accused a chance. Clearly this is not a problem unique to Yolo County, however it is an issue for the county to deal with.
—David M. Greenwald reporting