Is SF privatizing legal defense for the poor?

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By Tim Redmond
San Francisco Bay Guardian
Politics Blog
June 23, 2009

The San Francisco Public Defender’s Office is facing a budget cut of about $1.9 million — small change compared to the city’s half-billion deficit. But the reduction comes at the same time as the San Francisco Superior Court is budgeting an additional $1.2 million for handling cases that the public defender can’t.

And that’s led to some serious intrigue in the Hall of Justice. Among other things, Public Defender Jeff Adachi has charged that the presiding judge of the Superior Court, James McBride, is trying to take all of the misdemeanor cases away from the PD’s office and give them to private defense lawyers.

Like most privatization schemes, this one would either save the city money or cost money, depending on who’s doing the figures. But it would mark a dramatic change in the way San Francisco provides legal defense for indigent people.

And it comes at a time when several judges have openly criticized Adachi’s aggressive legal tactics and suggested that he pushes too many cases to trial instead of settling them with the district attorney.

In essence, the critics say, Adachi’s working too hard for his clients — and clogging up the courts in the process. At the same time, Adachi has infuriated both the mayor and some judges by saying that if his budget is cut, he will have to stop taking some serious cases — and hiring private lawyers for those defendants will cost the city far more than it is saving with the PD budget cuts.

The story goes back to January 2009, when Adachi appeared before the Board of Supervisors Budget and Finance Committee and asked for money to hire two new paralegals. The committee refused, citing the budget crisis.

“I informed the committee that without additional paralegal support, I would be forced to decline representation in several complex felony cases, due to a 33 percent increase in homicide cases and a 10 percent increase in felony cases,” Adachi wrote in a Feb. 12, 2009 letter to the Commission on Judicial Performance.

Adachi then informed McBride that he was prepared to start rejecting a few felony cases. Since the Constitution guarantees free legal representation to all, the Superior Court assigns cases the PD can’t take (typically because of a conflict of interest) to private lawyers.

The clear threat here was that the public would lose money on the deal: The court, which gets some of its funding from the city, would pay the private lawyers $106 an hour to handle the felonies — far more than Adachi pays his staff. “And my folks don’t work by the hour,” Adachi told me. “They’re on salary and all of them work a lot more than 40 hours a week.”

The message from Adachi: Give me my funding now, or you’ll wind up paying far more later.

Two days after Adachi formally announced that he would start declining some felony cases, McBride sent an unsolicited and somewhat unusual letter to the mayor and the supervisors. The letter never mentioned Adachi’s threat — but pointed out that the number of misdemeanor cases filed in San Francisco had dropped by nearly 51 percent over the last decade. It seems entirely likely that the McBride letter was related to Adachi’s actions and carried its own not-so-subtle message: The PD is asking for more money — but his workload, at least in misdemeanor cases, should be dropping.

That brought to the surface a lingering sore spot at the Hall of Justice, where judges have openly criticized Adachi’s practice of taking misdemeanor cases to trial. In a Feb. 18, 2009 article for the Recorder, a legal newspaper, reporter Evan Hill quoted several judges chiding the public defender.

“I think they’re willing to take marginal cases to trial and take the risk that they’ll lose them for the purpose of overworking the system and overworking the DA’s office,” Judge Kevin McCarthy was quoted as saying.

The issue of how many cases the public defender takes to trial is an old one. Some PD’s argue that it’s usually better for a client to cop a plea and get a reduced sentence, and that lawyers shouldn’t be pressured to try cases. Adachi makes no secret of his interest in seeing cases go to trial — for one thing, he says, it helps his staff hone their skills and makes them better lawyers. But it also gives the PD’s office more leverage in negotiating pleas — if the district attorney thinks that a case may go to trial, and it may end in acquittal, the defendant will get a better deal.

Adachi says that his office wins 40 percent of the cases that go to trial. But trials are expensive and time consuming, and eat up court resources. So many judges would much rather see minor misdemeanor cases settled quickly.

In fact, McBride told me that misdemeanor cases go to trial in San Francisco five times as often as the state average. “It’s an indication that the system isn’t doing as good a job of disposing of these cases,” he said.

On Feb. 4, 2009, McBride met — at his request — with Controller Ben Rosenfield, who was preparing an audit of the PD’s office. Present at the meeting were Deputy Controller Peg Stevenson and two lawyers who sit on the San Francisco Bar Association panel that monitors the way the courts assign criminal cases to private counsel.

Adachi says he got a phone call shortly afterward. “According to one person who attended the meeting,” he wrote in his letter to the judicial panel, “the subject of the meeting was to discuss the possibility of having the Public Defender removed from handling misdemeanor cases and transferring these cases to the private bar.”

Adachi used that information to file a complaint against McBride with the judicial panel. “In the seven years I have served as a public defender,” he wrote, “I have never seen a judge attempt to intercede in a budgetary matter involving the Board of Supervisors and the Public Defender or District Attorney.”

And the numbers sure are curious: Why would the courts need additional money for outside counsel in almost the exact same amount as Adachi’s budget is being cut? The budget analyst’s report shows that the court projects $200,000 more will be needed to defend the case of the SF 8 — a major murder trial that will be working its way through the courts this year. Adachi’s office represents one of the seven defendants, but since it’s considered a conflict to handle more than one of a multiple group charged with the same crime, the private bar will handle the others.
Why the other $800,000? Nobody has much of an explaination.

There’s no love lost between Adachi’s office and McBride. In a rare proceeding, the Commission on Judicial Performance publicly admonished McBride in November, 2008 for, among other things, improperly forcing the Public Defender’s Office off of criminal cases.

“I believe the above actions are being taken against the Public Defender’s Office in retaliation for complaints made by several public defenders in [the admonishment case],” Adachi wrote.
McBride denied that he was trying to take misdemeanor cases away from the public defender. “I never suggested that,” the judge told me. “In fact, the private bar adamantly doesn’t want those cases.”

One of the two lawyers present at the Feb. 4th meeting, Betsy Wolkin, told me she has little recollection of it and couldn’t comment on what anybody said. The other lawyer, Julie Traun, was out of town and couldn’t be reached for comment.

Stevenson’s handwritten notes on the meeting, which I obtained under a Sunshine Ordinance request, shed little light on the issue and show only that there was some discussion of the cost of hiring private lawyers to take cases that the PD’s office can’t. And Stevenson told me she doesn’t remember any discussion about removing the PD’s office from misdemeanors.

McBride did acknowledge that there was some talk of what would happen if Adachi stopped taking new cases — “that’s one solution to a PD who doesn’t have the budget, they stop taking cases” — but never indicated that that would be a preferable alternative.

One court insider, who spoke only on the condition of anonymity, told me that the Adachi was playing a sort of brinksmanship: “There’s a perception that Jeff isn’t willing to share the budget pain with everyone else, that he’s demanding more when everyone else gets cuts,” the insider said. “He’s threatening not to take cases, then he’s complaining that they want to take cases away from him.”

But Adachi sees it as a very different battle. “We are very aggressive in fighting for our clients,” he told me. “We do a great job. Some people would rather we just settle cases and get them out of the way.”

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