By Cres Vellucci
The Vanguard Sacramento Bureau Chief
LAKEPORT, CA – Often “unprepared” lawyers who may not be “qualified or trained” are generally not providing “effective representation” in Lake County, just 120 miles north of San Francisco, violating the Fourteenth Amendment rights of indigent clients, according to a comprehensive, 109-page report released Wednesday by the Sixth Amendment Center (6AC).
An ongoing theme of the evaluation suggested the state of California shares much of the responsibility, implying other underfunded counties may also be failing in their constitutional duties to indigent defense.
The report, “The Right to Counsel in Lake County, California: Evaluation of Trial-Level Indigent Representation Services,” was commissioned by Lake County to “focus on the constitutional requirement to provide effective assistance of counsel at all critical stages of a case to the indigent accused facing a potential loss of liberty in a criminal or delinquency proceeding.”
The conclusion provided in the copious study by the 6AC was that Lake County needs to form and fund a $4.65 million public defender office – with the help of the state of California.
Currently, the county provides indigent defense through a pool of private attorneys, and the report said the system is suspect.
The costs of an 18-person public defender office, consisting of at least eight lawyers, and 10 support staff, including investigators, social workers and paralegals, would be on par with the District Attorney Office, said the 6AC.
But the county need not feel it must fund the multi-million PD Office on its own, the report noted.
“Because the State of California has the Fourteenth Amendment obligation to ensure counties are capable of fulfilling the state’s Sixth Amendment right to counsel responsibilities delegated to county government, the California legislature should appropriate state funds to defray all or a portion of Lake County’s increased costs necessary to ensure effective assistant of counsel pursuant to the Sixth and Fourteenth amendments,” the report suggested.
In fact, the 6AC evaluation was more than a little direct about the state’s responsibility in Lake County, and other counties regarding the defense for indigent parties.
Report authors charged, “It is difficult for Lake County officials (who initiated the 6AC study on their own) to improve indigent representation services in the trial court, because so many of the problems described throughout this report are inherently tied to decisions made by the state and over which the county has little control.”
“For so long though, as the State of California makes county officials and trial court judges responsible for ensuring the effective right to counsel for indigent defendants, the trial court judges and county officials in Lake County are responsible,” the report added, noting what Lake County must do “until such time as California meets its Fourteenth Amendment obligations.”
Currently, Lake County contracts with an informal partnership of private attorneys, Lake Indigent Defense LLP (LID), to “represent indigent people in all the types of cases that receive appointed counsel (other than juvenile dependency and family law proceedings), whenever they are appointed by the superior court to do so,” said the report.
However, that system appears to be failing, according to not just report authors, but “stakeholders,” including one who confided, “no one teaches anyone what to do” – there is no “professional development, nobody getting taught how to be a public defender.”
The 6AC report notes some of the biggest critics of the indigent defense system now are prosecutors and judges, who told authors “subcontractor attorneys often seem unprepared for their court appearances and have not communicated with their clients in advance of scheduled court proceedings (and) frequently confer with their clients for the first time during court proceedings, causing confusion and frustration for indigent defendants.”
“The anecdotal evidence, on top of the limited available caseload data, suggests that LID subcontractor attorneys have excessive workloads that affect their ability to provide effective assistance of counsel to each individual defendant,” the evaluators said.
The study also reports there also appears to be “almost no oversight of either LID partner attorneys’ performance…obligations to administer and provide direct representation of indigent people or
of the subcontractor attorneys’ actual representation of indigent people.”
“The LID partner attorneys say they do not conduct any type of performance evaluation of the LID subcontractor attorneys because ‘there is no way to do a performance evaluation without supervising the attorneys, which we are not allowed to do,’” the report reads.
6AC repeatedly emphasizes in its report the constitutional obligation of the state, noting, “The U.S. Constitution holds the State of California responsible for ensuring adequate funding for the right to counsel under the Sixth and Fourteenth Amendments.
“California has delegated to its counties all responsibility at the outset for funding trial-level indigent representation services, and up through March 2022, Lake County has never received funding from the state government for trial-level right to counsel indigent representation services.”
But the report again emphasizes, “Lake County should not be responsible for solving these problems alone,” calling out the state’s “dereliction of its constitutional obligations to provide effective representation to indigent people.”
6AC cited a recent class action lawsuit in 2020, where the trial court found CA “cannot disclaim its constitutional responsibilities merely because it has delegated such responsibilities to its [counties]…If the State created an indigent defense system that is systematically flawed and underfunded…the State remains responsible, even if it delegated this responsibility to political subdivisions.”
The report also criticizes the use of subcontractor attorneys, who “are paid a flat monthly fee for their LID-appointed work but are not required to devote all of their working hours to their LID-appointed work (and) wind up taking other work to pay their bills, leaving “fewer working hours for the subcontractor attorneys to devote to their appointed Lake County clients.”
And, the 6AC report concludes, “Frequently, subcontractor attorneys are in a different county representing other clients when they are scheduled to be in court for their LID-appointed clients. This results in many continuances of Lake County cases, creating a backlog of cases for the courts…forcing indigent defendants to return again and again to court before their cases can be resolved.”
One Lake County stakeholder told the authors, the subcontractor attorneys “have too many cases, and they’re too busy, and should not be appointed new cases,” wishing that “the attorneys would decline to take cases” because of their excessive caseloads – “clients do not have their day in court.”
The report concludes, “Lake County has established an indigent representation system that is devoid of basic oversight. Neither the State of California, Lake County, nor the LID partner attorneys know whether each indigent defendant in the Lake County Superior Court who is entitled to public counsel is in fact represented by a qualified and trained attorney.
“The absence of systemic accountability has allowed deficiencies in the provision of direct services to indigent clients to become institutionalized, which the U.S. Supreme Court describes as the constructive denial of the right to counsel. And without oversight, Lake County lacks any mechanism to identify and rectify these systemic deficiencies.”
The Sixth Amendment Center made three recommendations in its evaluation, “calling on the State of California to uphold its constitutional responsibilities,” and two others the authors call “stopgap measures” until the state steps up.
First, Lake County policymakers should push for a state legislative/gubernatorial committee to “study and make recommendations about how best to fulfill the state’s Sixth and Fourteenth Amendment responsibilities to ensure that each indigent defendant who faces the possible loss of liberty in a criminal or juvenile delinquency case receives effective assistance of counsel.”
Second, the Lake County Board of Supervisors should establish “a non-partisan independent commission to oversee all aspects of indigent representation services and should fund the operations of the commission and the implementation of the methods and standards it adopts.”
Three, the Lake County Board of Supervisors should “immediately establish an office of indigent representation services to carry out the day-to-day duties of the commission, headed by an executive director attorney selected by the commission.”
In short, the 6AC report suggests “As quickly as possible, Lake County should provide adequate permanent staff to fulfill the commission’s duties to ensure effective assistance of counsel to each indigent defendant.”