Activists, Policy Experts, Attorneys Convene in SF to Address Indigent Defense Crisis

SAN FRANCISCO – Over 400 attorneys, criminal justice policy experts, students, activists, community leaders and concerned citizens attended the May 6, 2009 Justice Summit: Defending the Public and the Constitution to show their support for public defense.

The 2009 Justice Summit was the first focused effort by the California Public Defenders Association, California Attorneys for Criminal Justice, Bar Association of San Francisco and the San Francisco Public Defender’s Office to bring awareness to the national crisis in public defense. The Sixth Amendment to the U.S. Constitution requires that an accused person who is charged with a crime and cannot afford to hire a lawyer must be appointed an attorney paid for by the state or county. Because of budget cuts and staffing shortages, many offices are unable to provide quality representation to their clients.

The 2009 Justice Summit began with a dramatic announcement by Federal Judge Thelton Henderson – who was scheduled to deliver the keynote address – that he had received a call from the judicial ethics council in Washington, D.C., advising him not to speak. “They were concerned that this event would be seen as too political,” Judge Henderson said. “So instead, I want you to imagine what I would have said if I were allowed to speak.”

San Francisco Public Defender Jeff Adachi, whose office is facing a 25 percent cut proposed by Mayor Gavin Newsom, gave the opening remarks. “Most of us may never be touched by the Sixth Amendment,” Adachi said, referring the Constitutional right to counsel. “You wouldn’t think about it until you were in a situation where you needed a lawyer. What kind of lawyer would you want for your family member or yourself? Would you want a lawyer who didn’t have the resources needed to represent you or your loved one? Would you want to be in a situation where your lawyer was so overloaded with cases that he or she couldn’t do what had to be done in your case,” he asked.

“The problem is how to ensure that indigent defendants receive competent legal representation in times of budgetary cutbacks and increasing caseloads. For the sake of our constitution, it is a problem we must solve. But we must choose means to that end with great care and with consideration, otherwise may win the game of numbers, but we may lose our sense of justice along the way,” President of California Attorneys for Criminal Justice Ted Cassman said, quoting late California Chief Justice Rose Bird.

“We fully recognize the financial difficulty faced by the city of San Francisco, but our analysis concludes, and today’s speakers will demonstrate, that these cuts will cost the city and society far more in the long run,” President of the Bar Association of San Francisco Russ Roeca said.

The 2009 Justice Summit’s morning session featured a panel discussion on the history of indigent defense in America, the role of public defenders in exposing government misconduct, and ensuring equal access to a fair trial. Panelist Barbara Babcock, a Stanford Law School professor, recounted that the public defense system was founded by Clara Foltz, the first female attorney in California, who spent twenty years advocating for court appointed attorneys for the poor. Babcock noted that the “Foltz Public Defender bill” passed in 1912 only after women won the right to vote in state elections.

Other speakers included: Judge LaDoris Cordell, retired Superior Court judge and legal commentator; Cookie Ridolfi, Director of the Northern California Innocence Project; Richard Goemann, Director of Defender Legal Services, National Legal Aid & Defender Association; Michael Judge, Chief Public Defender of Los Angeles, Michael Hersek, State Public Defender, Barry Krisberg, Director of the National Council on Crime and Deliquency, Kimberly Thomas Rapp, Director of Law and Policy, Equal Justice Society and Christine Voss, Supervising Attorney with the Riverside Public Defender’s Office.

The findings made during the panel discussion included the following:

Minorities, working poor people and disadvantaged youth and families are most likely to rely on public defense.

• Members of the public who rely on public defense are most likely to be minorities; according to a recent study by the National Council on Crime and Delinquency, African Americans are 4.7 times, and Hispanics are 2.1 times, as likely to have a public defender as their Caucasian counterparts.
• In difficult economic times, more members of the public rely on public defense, because fewer people can afford to hire an attorney, and crimes rooted in economic hardship tend to increase.
• Public defenders are most likely to represent persons who have prior criminal records.

The amount of public safety funding designated for public defense is only a tiny fraction of what counties spend on law enforcement and corrections.

• In California, for every $8 spent on prisons and corrections, only $1 is spent on indigent defense. San Francisco has the lowest per capita spending on public defense when compared to all other major cities in California.
• In San Francisco, 59 percent ($470 million) of all public safety spending goes to fund the Police and Sheriff’s departments; only 3 percent ($24 million) goes to fund the public defender.

Budget cuts to public defense result in greater long term costs to counties.

• Budget cuts that reduce the staffing of public defense offices cause delays in court cases, which drive up incarceration costs. Staffing shortages also result in high caseloads, inadequate investigation and preparation of cases, and an increased likelihood that innocent people are wrongfully convicted of crimes they did not commit.
• In San Francisco, a 25 percent cut in the Public Defender’s budget would translate into reducing staffing by as much as 30 percent. This would require that the Public Defender withdraw from as many as 6,000 cases, which would have to be referred to private attorneys at a greater cost to the city.

Counties may be sued for inadequate legal representation provided by a public defender and public defenders can face disbarment for failure to provide proper legal representation.

• In Mendocino County, a minor was wrongfully convicted of a serious sex offense when his defender, due to having too many clients and insufficient resources, failed to properly investigate the background of a key prosecution witness; the Court of Appeal ruled that the public defender was responsible for the faulty representation of the minor.
• Wrongful convictions also result in civil liability for the county. In January 2009, a $3 million verdict was returned against a Washington county when a public defender failed to conduct an investigation that would have exonerated his client. The public defender was handling 500 other cases at the time and did not have an investigator. In Clark County, Nevada, a man who was wrongfully imprisoned for 14 years was awarded $5 million against the county and the public defender’s office.
• Public defenders face disbarment and can lose their license to practice law when caseloads make it impossible to provide adequate representation to its clients. Chief public defenders are ethically required to refuse appointment in all cases that would exceed their office’s capacity to provide competent representation. In the Washington case noted above, the Public Defender was disbarred for providing incompetent representation.

Budget cuts to public defense increases the likelihood of wrongful convictions.

• According to a national study, 20 percent of wrongful convictions proven through DNA testing resulted from poor lawyering due to insufficient investigation and defense resources.
• The state must expend great sums to reverse a wrongful conviction based on incompetent lawyering; it is much cheaper to provide an adequate defense in the first instance to avoid the cost of appeals and retrials.

Counties save money in the long run by properly funding public defense.

• Fully staffed public defense offices save tax dollars by decreasing pretrial incarceration costs, reducing administrative work and providing budget predictability.
• Public defenders have been forced to file lawsuits when, because of budget cuts, their offices have been inadequately funded. Currently, law suits concerning inadequate funding of public defense systems are ongoing in Ohio, Louisiana, Michigan, New York, Florida, Washington, Montana, Pennsylvania, Connecticut, Virginia, Tennessee, North Dakota, Georgia, and Massachusetts.

The 2009 Justice Summit’s afternoon panel addressed public defense client services that extend beyond the courtroom to address non-criminal social issues, such as drug rehabilitation, mental health treatment and housing. Melanca Clark, of the Brennan Justice Center at New York University Law School, discussed how public defenders are helping to reduce crime and recidivism by providing representation that goes beyond the courtroom to help their clients avoid returning to the criminal justice system. The afternoon panel included a discussion of how public defenders use social workers and reentry counselors to help clients turn their lives around.

In San Francisco, some of these public defender programs include the Clean Slate program, which has helped over 15,000 people clear their criminal records upon a showing of rehabilitation since 1998, and Drug Court, which provides treatment alternatives to jail for persons addicted to drugs.

“Public defenders worry about the community. They worry about making it better for their client,” President of California Public Defenders Association Bart Sheela said. “Trying to help people when they get out of prison not go back, doesn’t just help [the client], it helps the entire system.”

The 2009 Justice Summit attracted the support of a broad-based coalition of over 50 community, faith-based, and legal organizations. The movement to support indigent defense has been motivated by a surge of national interest in how the criminal justice system is being affected by budget cuts to defender offices and lawsuits that have been filed in several states, including Florida and Minnesota, over whether public defenders can be forced to accept cases when they are unable to handle the workloads assigned by the courts.

At the conclusion of the 2009 Justice Summit, members of the public were encouraged to write a letter to the Mayor and Board of Supervisors Budget and Finance Committee urging them to spare the San Francisco Public Defender’s office from budget cuts. A sample letter is available here.

Watch the 2009 Justice Summit this weekend on SFGTV – 1, SF cable channel 26:

• Friday May 15th at 1:00PM
• Saturday May 16th at 6:00PM
• Sunday May 17th at 9:00PM

Starting next Monday, for the next few weeks, watch the 2009 Justice Summit on SFGTV2 Comcast channel 78 (28 on Astound):

• Wednesday’s at 9AM
• Friday at 7PM
• Sunday’s at 6PM
• Monday’s at 1PM

To watch the 2009 Justice Summit on-line, visit the SFGTV website by clicking here.

###