A Question of Parity?

Fog City Journal
By Kwixuan H. Maloof
July 20, 2009

The recent discussion of whether the District Attorney’s Office should receive the same level of funding in the city’s budget add back process as the Public Defender’s office was curious to me, since the functions of the two offices are very different, as are the resources afforded to both. As a person who has worked in law enforcement both as a probation officer and as a public defender, I wish to bring some basic facts to light.

First, the resources afforded to the Public Defender are significantly less than those provided to the District Attorney. Although the Public Defender presently handles approximately 60 percent of all felony cases and 70 percent of all misdemeanor cases filed by the District Attorney, the Public Defender’s funding is approximately half of what the District Attorney receives.

The District Attorney’s Office has 290 full-time employees while the Public Defender’s Office has 163. That is 78 percent more employees than the Public Defender’s office. The District Attorney has 137 attorneys compared to 90 attorneys in the Public Defender’s office. This is 51 percent more attorneys. The greatest difference is the number of investigators. The District Attorney has total 89 investigators while the Public Defender only has 19. That is 369 percent more investigator employees than the Public Defender’s Office.

Additionally, the District Attorney’s office can rely on a police force with over 2,300 officers, a crime lab, the medical examiners unit and other agencies. For example, in a homicide or serious felony case, the police department typically assigns several full-time inspectors to work with the prosecutor throughout trial. The Public Defender cannot seek these resources from the police, who view the Public Defender as an adversary.

This difference in resources is also the result of historical inequities stemming from grant funding. Most government grants only allow prosecuting agencies to apply for funding. For example, the District Attorney receives $7 million in grant funding from the state, while the Public Defender receives less than $100,000. The federal funding is similarly lopsided. The District Attorney has received over $1 million in federal funding over the past few years, while the Public Defender has received none.

Second, the functions of each department are different. First of all, the District Attorney’s Office prosecutes cases that are brought to it by the police department. The police make the arrest, conduct the investigation, and then send the case to the District Attorney for prosecution. The District Attorney reviews the case, conducts additional investigations, interviews victims and witnesses and then represents the interests of the government in prosecuting the case in court by filing legal motions, appearing in the various hearings ordered by the court and if the case proceeds to trial, trying the case before a jury.

Once the District Attorney makes the decision to charge a case and the client is brought to court, the Public Defender is assigned to represent the individual. The individual then becomes a “client” and the Public Defender has the duty of making sure that the client is adequately represented in court. This includes filing all legal motions necessary to assert constitutional rights of the accused, including contesting the validity of a search or seizure of evidence, speedy trial rights and other issues that are presented in the case. The defender also conducts an independent investigation of the case and must interview police witnesses as well as locate additional witnesses who have not been interviewed by the police. The defender also gathers additional evidence to present in court and may consult with scientific experts, such as in DNA cases. The defender attempts to negotiate a settlement for the client to consider, or if the case does not resolve, provides representation at the trial.

There are other functions of each office which are unique to each office. For example, the District Attorney’s office provides support to victim-witness advocates who assist victims of crime in court proceedings. They also have a unit that prosecutes infractions. The Public Defender only provides representation in misdemeanor and felony cases, not infractions, but has other functions such as the Clean Slate program which helps rehabilitated offenders clear their record, for which there is no counterpart in the District Attorney’s office.

But in the end, there are several fundamental differences between the Public Defender and District Attorney that goes beyond simply tallying the responsibilities of each office. The first distinction is that public defenders can’t control the number of cases that it is assigned by the court. Unlike the District Attorney, who decides which cases to charge and which not to charge, the Public Defender has no control over its caseload. A prosecutor can decide to dismiss a case that he/she does not wish to try. The defender does not have this option. In the last year, the Public Defender’s office has experienced an increase in felony cases and serious felony cases. The office has stretched its resources to meet this increased caseload and is now 50 percent over our normal caseload capacity. This has been exacerbated by the fact that due to the economy, fewer people can afford to hire lawyers. This has had the effect of increasing our overall caseloads while the District Attorney’s caseload are not affected by whether people can, or cannot afford, a lawyer, since they prosecute all cases.

The other basic difference is the fact that defenders owe a separate ethical obligation to each client to provide competent and adequate representation, while prosecutors do not. Prosecutors represent “the state” in court. They do not have a client who they owe a duty of representation to. While prosecutors are expected to execute their responsibilities competently, they are not held responsible for lapses in duties towards a client. By contrast, public defenders who fail to adequately represent their clients face the prospect of being reported to the State Bar and possibly losing their license to practice law. Indeed, there has never been a prosecutor who has lost its license to practice law or even faced discipline for inadequate representation of the “state” and there are many stories of defenders who have run into trouble when they have failed to provide competent representation of a client.

Public Defenders cannot provide only 75 percent of the legal representation to which the client is entitled. A defender cannot tell clients that he/she can only interview 5 of 10 witnesses because he/she doesn’t have sufficient investigative support. The defender cannot tell the client that he/she can only file one motion in their case because it is too expensive to file all the appropriate motions. The defender cannot tell a client that he/she cannot properly evaluate fingerprints, DNA, gunshot residue, blood alcohol content, etc., because we lack the funding to consult with an expert.

Recently, I handled a complex homicide case that was over 35 years old. It was a complicated case which involved DNA experts, fingerprint experts, identification issues and more. As the defense attorney, I had to reconstruct the clients’ whereabouts from the past 35 years. The resources available to the District Attorney could have easily overwhelmed the resources available to our office.

As a native San Franciscan who has worked in the criminal justice system for nearly twelve years, I believe that both the District Attorney’s office and the Public Defender’s office need to be properly funded so that each office can fulfill its mission of ensuring that cases are properly prosecuted and that individuals accused of crime are competently represented. But I do think that it would be a miscarriage of justice for anyone to suggest that the Public Defender’s funding should be contingent on parity with the DA’s office, because the offices are not equal to begin with.

In this sense, “parity” is not the same as equality when it comes to funding this country’s promise of justice for all.

Kwixuan H. Maloof is the Misdemeanor Unit Managing Attorney for the San Francisco Public Defender’s Office.