2012 harrison tweed nomination form€¦ · this letter is written to nominate the san mateo county...

2012 Harrison Tweed Nomination Form Name of Bar Association Nominated: San Mateo County Bar Association Nominated Bar Address: 333 Bradford Street, Suite 200 Nominated Bar City/State/Zip Code: Redwood City, CA 94063-1571 Nominated Bar Telephone/Fax: 650-298-4030 / 650-368-3892 Nominated Bar Executive Director: John S. Digiacinto, Esq. Size of Nominated Bar Association: 1400 Nominated Bar Email: [email protected] President: Joshua M. Bentley, Esq. President Address: 1640 Laurel St. President City/State/Zip Code: San Carlos, CA 94070 President Telephone/Fax: 650-594-4200 / 650-594-4205 President Email: [email protected] President-Elect: Colleen E. McAvoy, Esq. President-Elect Address: 177 Bovet Road, Suite 600 President-Elect City/State/Zip Code: San Mateo, CA 94402 President-Elect Telephone/Fax: 650-341-2585 / 650-341-1395 President-Elect Email: [email protected] Brief Description of Activity (limited to 500 characters): For the past 43 years the Association has operated the Private Defender Program, an extremely successful managed assigned counsel program that is the indigent defense system for San Mateo County, California. All of the 110 lawyers to whom cases are assigned by the Private Defender Program are members of the Association in private practice in the County. It is a superb example of the integration of the private bar with the public defense function. Person w/ most specific information First Name Last Name: John Digiacinto Person w/ most specific information Address: 333 Bradford Street, Ste 200 Person w/ most specific information City/State/Zip Code: Redwood City, CA 94063 Person w/ most specific information Telephone/Fax: 650-298-4038 / 650-369-8083 Person w/ most specific information Email: [email protected] Nominator First Name Last Name: Jim Bethke Nominator Address: 209 West 14th St, room 202 Nominator City/State/Zip Code: Austin, TX 78701 Nominator Telephone/Fax: 512-936-6994 / 512-463-5724 Nominator Email: [email protected]

Texas Indigent Defense Commission 209 West 14

th Street, Room 202 Austin, Texas 78701 www.txcourts.gov/tidc

Phone: 512.936.6994 Fax: 512.463.5724

Chair: The Honorable Sharon Keller Presiding Judge, Court of Criminal Appeals Vice Chair: The Honorable Olen Underwood Ex Officio Members: The Honorable Roberto Alonzo The Honorable Pete Gallego The Honorable Wallace B. Jefferson The Honorable Sherry Radack The Honorable Jeff Wentworth The Honorable John Whitmire Members Appointed by Governor: The Honorable Jon Burrows Mr. Knox Fitzpatrick Mr. Anthony Odiorne The Honorable B. Glen Whitley Executive Director: James D. Bethke

March 23, 2012 American Bar Association Standing Committee on Legal Aid and Indigent Defendants (SCLAID) Attention: Tamaara Piquion 321 N. Clark St, 19th Floor Chicago, IL 60654-7598

Re: Nomination of San Mateo County Bar Association Harrison Tweed Award

Dear Standing Committee on Legal Aid and Indigent Defendants:

This letter is written to nominate the San Mateo County Bar Association (SMCBA) to

receive the 2012 Harrison Tweed Award for the demonstrated and long term

excellence of its Private Defender Program (PDP). The SMCBA is a non-profit

corporation governed by a 14-member Board of Directors, has about 1400 members,

and has facilitated the creation of a unique system of indigent defense that has been

replicated by several counties in Texas. The managed assigned counsel program,

headed by SMCBA Executive Director and Chief PDP Defender, John Digiacinto, has

served the poor of San Mateo County, California, for the past 43 years and is widely

regarded as one of the premier indigent defense organizations in the United States. My

visit to the PDP offices and the interaction I have had with its leaders, lawyers, staff and

others in the criminal justice system in San Mateo County has confirmed the accuracy

of that assessment.

The PDP is the finest example I have found of a successful integration of the private bar

and the indigent defense function and has become a model for several programs and

new legislation in Texas. The Mission Statement of the SMCBA includes its commitment

to “furnish excellent indigent criminal defense,” and below I outline the ways in which

the program continues to meet this commitment, starting with the history of PDP

development.

The United States Supreme Court’s decision in Gideon v. Wainwright in 1963 caused

state courts and county governments across America to move quickly to comply with

its mandate. At that time, the San Mateo County courts established what could best be

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Phone: 512.936.6994 Fax: 512.463.5724

Letter to American Bar Association March 23, 2012 Page Two

described as an ad hoc system for appointing counsel, in which each judge controlling the appointments of

lawyers in his courtroom for all eligible cases that were set there. For a variety of reasons, this system proved

to be unworkable and the County set out to comply with the mandate of Gideon some other way. In 1967

and 1968 the San Mateo County Board of Supervisors considered the recommendation of its own staff that a

public defender office be established. When it considered a counter-proposal presented by the San Mateo

County Bar Association to establish and operate the County’s indigent defense program, it liked what it

heard and accepted the proposal in late 1968. The SMCBA’s Private Defender Program began operations in

February 1969.

The idea of a PDP was attractive to the County because it was a comprehensive program that provided

quality attorneys to the poor. The program highlights and should be commended for its attention to: the

importance of representation early on and throughout the process; the importance of auxiliary defense

services; and the importance of attorney performance measures. These points both cement and symbolize

the commitment of the SMCBA to indigent defense.

At the time of arraignment in the Superior Court, a person who wishes to be represented by a court-

appointed attorney completes a financial declaration form and submits it to the Court. If the Court

determines that the defendant is eligible for court-appointed counsel, the PDP is appointed. The PDP in turn

assigns the case to an attorney who will handle the case through disposition based on their ability, training

and experience, their availability to appear on the dates set for a particular case, and an assessment of the

attorney’s current caseload. All of the lawyers to whom cases are assigned by the PDP staff are members of

the SMCBA and are in private practice in San Mateo County. (Presently, there are 110 lawyers on the PDP

panel.) Prompt appointment of counsel allows PDP attorneys to interview the client and collect information

that may help get charges dismissed or secure a bond reduction early in the process. This may save the

county money by reducing jail time for defendants, but it also allows PDP attorneys to develop a relationship

with their clients and strategize a defense appropriate to the case.

The PDP also believes that assigning the right lawyer early on is only part of the job. They espouse the belief

that even the most talented lawyer will be unable to provide constitutionally adequate representation unless

they have adequate resources to defend the case. For example, in the agreement between the County of

San Mateo and the SMCBA, parity of resources between the prosecution and the defense is always the

centerpiece of contract discussions. Of the $16.5 million budget for the fiscal year ending June 30, 2011,

$10.9 million was spent on attorney’s fees, $2 million was spent on investigation and $1.5 million was spent

for experts. The policy with respect to experts is straightforward and uncomplicated. If an expert is needed

for the case, a request for the funds to hire such an expert will be granted. Requests for investigators are

similarly addressed: any request for an investigator to be assigned to any case – felony, misdemeanor,

juvenile delinquency, juvenile dependency or any other type of case – will be granted. This reflects the

philosophy of the PDP with respect to the importance of ancillary services to the representation of their

indigent clients: they are absolutely necessary.

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Phone: 512.936.6994 Fax: 512.463.5724

Letter to American Bar Association March 23, 2012 Page Three Very truly yours,

James D. Bethke Executive Director Texas Indigent Defense Commission [email protected] Enclosures: 1) Nomination Submission Confirmation, 2) Letters of Support (Laurence Benner, Rodney Ellis, Beth Freeman, Norm Lefstein, David Slayton), 3) Articles of Support

Another area where the PDP excels is in attorney performance evaluation. Unlike many indigent defense

systems across the nation, the PDP is able to monitor attorney training, client relations, attorney caseloads,

initial client meeting and community outreach, as well as conduct performance evaluations. These are

document in the Annual Report to the Board of Supervisors of San Mateo County (for the Fiscal Year 2010-

2011 it can be found at:

https://www.smcba.org/UserFiles/files/docs/ANNUAL%20REPORT%20FYE%202010%20-%202011.pdf ).

For example, the PDP presented 33 hours of “in-house” continuing legal education and received 235 client

inquiries. In addition, the Chief Defender provided a detailed description of the way the PDP sets its

maximum caseload targets based on an empirical study of how much time is needed to complete different

types of cases, and the number of assigned cases of each type (misdemeanor, domestic violence

misdemeanor, felonies subject to pre-preliminary-hearing negotiation, felonies not subject to such

negotiations, juvenile delinquency and juvenile dependency) was reported for each PDP lawyer. Finally, the

Attorney Evaluation Performance Benchmark includes the standards by which the performance of every PDP

lawyer is measured, how the evaluations are conducted, what is emphasized and the results, in general

terms, of those evaluations.

As the Executive Director of the Texas Indigent Defense Commission, I believe that the PDP serves as a

tremendous model for indigent defense organizations in Texas. After several visits to the PDP offices to meet

with the Chief Defender and his staff, we began the process of creating private defender programs in Texas.

We enacted legislation that enabled us to create managed assigned counsel programs modeled expressly on

the PDP. We are so grateful for the many hours that the PDP staff gave of its time to help us learn how to do

it right.

We have now opened two managed assigned counsel offices modeled on the PDP – one in Lubbock and one

in Montgomery County, Texas. The adage “imitation is the finest form of flattery” certainly fits what the State

of Texas has done with the PDP. I certainly hope that the ABA’s SCLAID will honor the San Mateo County Bar

Association for the continuing and pervasive excellence of its Private Defender Program.

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mailto:[email protected]

https://www.smcba.org/UserFiles/files/docs/ANNUAL%20REPORT%20FYE%202010%20-%202011.pdf

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Survey I Qualtries Survey Software

Harrison Tweed Award Nomination Submission Confirmation Thank you for submitting your nomination through the online form. Required Information: Additional required information for the nomination packet, such as the nomination narrative and letters of support, is specified in the N~.nnl!}n.Hml.i21Jj_(t\ztin(;,~~. Deadline for Nomination: The deadline to submit the additional required information for the nomination packet is the close of business on Monday. April 2. 2012. Submission of Materials: AI! materials must be submitted via e-mail and sent to !.i,~.n:.IJ1,0..r.~~,J2jmljgll@nm~1£iG.imJ2n.L.QjI.1.. Please include the nominee's name in the subject line. Formal: 2012 HT Award Nomination for Nominee's Name. Please contact Tamaara Piquion with any questions at 312 988-5767 or j)..i.~1.lJ.iQJ.lI@l;.tgfL0.1!_i~.I.1,Q.LQIil!D.n}'iJ.dEU)[email protected]}QIL(~ill.llE~Ul!:9·

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https:llabaneLqualtries.eom/SEI?SID=SV _eOJGplrR99pkDbu&SaveButton=I&SSID=SS... 3/23/2012

March 21, 2012

Dear Members of the Harrison Tweed Award Committee Please accept my most enthusiastic support for awarding this year’s Harrison Tweed Award to the San Mateo County Bar Association. Under the leadership of Chief Defender John Digiacinto, the San Mateo County Bar Association’s Private Defender Program (“PDP”) has consistently provided legal representation of the highest quality to the indigent accused. Admiration for this exemplary program is indeed universal. This assessment is based not only upon the reputation of this program, however, but also review of its Annual Reports over many years and empirical research conducted for the California Commission on the Fair Administration of Justice, which included responses to detailed questionnaires from certified criminal defense practitioners who participated in the program. Recognition of the PDP’s commitment to innovate and apply best practices is also evidenced by the decision of Stanford Law School to select this program to host its Criminal Defense Clinic and involve PDP lawyers who volunteer to mentor law students during their training. It is fair to say that the PDP is in fact a model for the nation, demonstrating how a coordinated assigned counsel system should operate. The PDP is structured at every step to ensure high quality, client centered representation—from the selection and training of lawyers to be on its panels, to access to the investigative and forensic resources necessary to conduct an effective defense, to the control of attorney caseloads and evaluation of performance and outcomes. Founded upon the premise that defending the poor accused of crime is not “just a job—it is a vocation,” the PDP is much more than just an administrative structure for matching qualified lawyers to clients. Following a thorough screening process, a panel lawyer becomes part of the PDP family, supported by in-house training and mentoring programs, an education allowance to attend outside training programs, and annual performance evaluations. Those ill suited to the task are removed from the panel while those who excel are retained by a fee schedule that adequately compensates pre-trial motion practice and representation at trial. A majority of PDP attorneys in fact have fifteen years or more experience and reflect gender, ethnic and racial diversity. Many also speak Spanish fluently as well as other European languages, Cantonese, Russian, Tamil and Hindi. One of the most important features of the Private Defender Program is that attorney caseloads are controlled to ensure that attorneys are not burdened with an excessive caseload. No attorney is compelled to accept a new appointment and maximum annual caseload targets are set based upon actual time studies, which take into account that offenses involving greater complexity must be allocated greater time to ensure adequate representation.

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An equally important aspect of the PDP program is the importance it places upon client relations. As the PDP’s Practice and Procedure Manual mandates, after appointment at arraignment a PDP attorney must visit their in-custody clients before the next court appearance. The PDP also has an established procedure for handling and resolving client complaints. The resolution of any complaints that do arise (which are few) is published in the PDP’s Annual Report. These procedures together with annual performance evaluations which monitor how often an attorney takes cases to trial and can include in court observation by the Chief Defender or Assistant Defender, ensure that only those attorneys who are committed to vigorous, high quality representation remain on the PDP panel of attorneys. One has only to look through the pages of the PDP’s Annual Reports to see examples PDP lawyers’ dedication to their clients. Most importantly, that dedication has resulted in the vindication of innocent defendants. Recent examples include the dismissal of charges against a mentally ill woman wrongfully charged through police incompetence with attacking her batterer; a not guilty verdict setting free a client who innocently purchased a computer at a swap meet which later turned out to have been stolen; and the dismissal of fabricated sexual molestation charges. In each of these examples the PDP’s commitment to providing adequate investigative resources was also critical to uncovering the truth. Because it has consistently over the years enabled its lawyers to perform the highest and most noble functions of a criminal defense attorney, clearly the San Mateo County Bar Association’s Private Defender Program has “demonstrated long term excellence” in providing high quality legal services for the poor. Although there is a crisis in indigent defense throughout much of America today, San Mateo is one county in which it can be truly said that Gideon’s promise is being kept. Sincerely

Laurence A. Benner Professor of Law and Managing Director, Criminal Justice Programs California Western School of Law San Diego, California 92101

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March 21, 2012

Via electronic mail to: [email protected]

American Bar Association Standing Committee on Legal Aid and Indigent Defendants (SCLAID) Attention: Tamaara Piquion 321 N. Clark St, 19th Floor Chicago, IL 60654-7598

Re: San Mateo County Bar Association Harrison Tweed Award To Whom It May Concern: As senator, one of my legislative priorities is the quality of indigent defense. This letter is written to nominate the San Mateo County Bar Association (SMCBA) to receive the 2012 Harrison Tweed Award for the demonstrated and long term excellence of its Private Defender Program (PDP). This managed assigned counsel program has served the poor of San Mateo County, California for the past 43 years. The PDP is widely regarded as one of the premier indigent defense organizations in the United States. During the last legislative session my staff and I worked closely with the Texas Indigent Defense Commission on enacting legislation that enabled us to create managed assigned counsel (MAC) programs specifically based on the SMCBA PDP program. We have now opened two MAC offices modeled on the PDP – one in Lubbock and one in Montgomery County, Texas. I certainly hope that the ABA’s SCLAID and the NLADA will honor the SMCBA for the continuing and pervasive excellence of its PDP. It is my belief that the PDP serves as a tremendous model for indigent defense organizations in Texas. Sincerely,

Rodney Ellis

TTThhheee SSSeeennnaaattteee ooofff TTThhheee SSStttaaattteee ooofff TTTeeexxxaaasss

SENATOR RODNEY ELLIS District 13

PRESIDENT PRO TEMPORE 1999-2000

COMMITTEES:

Chair, Government Organization Criminal Justice Transportation & Homeland Security State Affairs

Page 7 of 45

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March 19, 2012

American Bar Association Standing Committee on Legal Aid and Indigent Defendants Attention: Tamaara Piquion Dear Tamaara,

This letter concerns the nomination of the San Mateo County Bar Association (SMCBA) for the 2012 Harrison Tweed Award. I understand that the SMCBA is being nominated for this year’s award, and I am pleased to offer my enthusiastic endorsement.

The award recognizes “extraordinary achievements of… local bar

associations that develop…programs to increase access to…legal services to poor persons in criminal cases.” The criteria also references “long term excellence in maintaining…programs providing such access.” Through its Private Defender Program (PDP), established in 1969, the SMCBA fits perfectly the criteria for the Harrison Tweed Award and is deserving of SCLAID’s recognition.

I have read Jim Bethke’s comprehensive letter describing the

reasons for bestowing the Harrison Tweed Award upon the SMCBA, and I agree completely with his detailed description of the bar association’s PDP.

The PDP of the San Mateo County Bar Association is the only

program of its type in California. In fact, I know of no other program quite like it in the U.S. In the late 1960’s, rather than having San Mateo County establish either a county-funded public defender agency or a contract or assigned counsel program, which is what occurred in other California counties after the Gideon decision, the SMCBA volunteered to undertake the organization and provision of the county’s defense services. The county’s government accepted the bar association’s offer and the PDP was launched. Today, it is a model defense program, worthy of replication in other jurisdictions.

The PDP is discussed extensively in Chapter 8 of my book,

Securing Reasonable Caseloads: Ethics and Law in Public Defense, published by ABA SCLAID in November 2011. This chapter features detailed descriptions of three of the nation’s outstanding indigent defense programs, one of which is the PDP. I included the three programs because they not only control the caseloads of their lawyers but also provide

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excellent client representation as a result of their impressive training and support services.

Before I personally visited the PDP, I reviewed reports and

documents about the program and discussed its operations with Chief Defender John Digiacinto. During my inspection of the program, I also interviewed numerous persons connected with the program and reviewed additional documents. My visit to the program convinced me that it should definitely be included in my book. I was enormously impressed with the PDP, both those who manage the program and its defense lawyers, many of whom I interviewed. For further information about the PDP, I encourage those deciding upon the Harrison Tweed Award to read my detailed description of the program at pages 217-228 of my book.

If I can provide any additional information, please do not hesitate to

let me know. Sincerely, Norman Lefstein Professor of Law and Dean Emeritus Indiana University

Robert H. McKinney School of Law Indianapolis, IN 46202

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DAVID SLAYTON

DIRECTOR OF COURT ADMINISTRATION DIRECT DIAL: (806) 775-1020

American Bar Association

LUBBOCK COUNTY ADMINISTRATIVE OFFICE OF THE COURTS

DISTRICT COURTS AND COUNTY COURTS AT LAW ROOM 304 - LUBBOCK COUNTY COURTHOUSE

P.O . Box-l0536 LUBBOCK. TEXAS 79408

(806) 775-1019 FAX: (806) 775-7996

March 21, 2012

Standing Committee on legal Aid and Indigent Defendants (SCLAID) Attention: Tamaara Piquion ([email protected] )

Re: San Mateo County Bar Association Harrison Tweed Award

DEAN STANZIONE

ASST D IR OF COURT ADMIN

M ISTIE HILL ADMINISTRATIVE ASSISTANT

I write this letter in strong support of the nomination of the San Mateo County Bar Association (SMCBA) for the 2012 Harrison Tweed Award. After having read the award criteria, I can think of no better group to receive this award.

In 2008 the lubbock County Jud iciary began to explore options for how to improve access to legal services to poor persons in criminal cases. After reviewing a number of options, we found the Private Defender Program (PDP) of the SMCBA. We were immediately intrigued and sought out more information from the PDP. After reaching out to PDP Chief Defender John Digiacinto, SMCBA spent hours of time on the telephone with our local planning group and provided countless written materials to assist us in our review of the program. Ultimately, a group of judges, criminal

defense attorneys, a county commissioner, prosecutor and I visited the program in Ca lifornia in 2008. SMCBA officials received us wi th great hospitality and arranged individ ualized meetings with each lubbock County representative with their counterpart in San Mateo County. All of the lubbock team members left San MateoCounty feel ing well-informed and with planning documents to assist the formation of a sim ilar office.

lubbock County implemented a similar private defender program in 2009 to serve lega l services to mentally ill persons in criminal cases. During the formation of the office, SMCBA provided countless additiona l hours to answer questions and documents to assist the office. The office has been successfu l and has even been recognized itself in t he State of Texas for providing innovative services to clients.

Based upon t his success, lubbock County has recently expanded the operations of the private defender office to serve all poor persons!n crim inal cases. Once again SMCBA hosted a group of staff from this office in November 2011 to assist them in the implementation of the expansion.

SMCBA's efforts have been integra! to the success of our programs in lubbock County . I certainly hope that the ABA's SCLAID and the NLADA wilt honor the SMCBA for their efforts to contribute to the success of other programs that provide service to poor individuals in criminal cases.

If I can provide further information, please do not hesitate to contact me.

"J~~ /) David Slayton t1fDirector of Court Admin istration

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Supporting Articles for the Nomination of the San Mateo County Bar Association Harrison Tweed Nomination

I.) Annual Report of the Chief Defender to the San Mateo County Board of Supervisors for the FY 2010-201 I https://www.smcba.org/UserFileslfiles/docs/A NNU AL%20REPORT%20FYE%2020 I 0%20-%2020 I I .pdf (Excerpt attached)

2.} Shelter Network's Network News (Winter 2010) http://www. shelt ernetwork. orglpd(sIShelterNetw(Jrk Wint er20 I 0 NewsAnnual Rpt. pd{(Excerpt attached)

3.) Securing Reasonable Caseloads Ethics and Law in Public De/imse, Professor Norman Lefstein, ABA Standing Committee on Legal Aid and Indigent Defendants:http://www.americanbar.org/content/dam/aba/publications/books/ls sclaid def securi ng reasonable caseloads.authcheckdam.pdf (Excerpt attached)

4.) State Texas Resolution of the Texas Judicial Council to "specifically authorize managed assigned counsel programs." (Resolution attached)

5.) Texas Task Force on Indigent Defense 2010 Annual and Expenditure Report hllp:/I11'w11'. "(Jurts.state.tx. usltfidlpdf/FY I OAnnualRepartTFI D. pdf (Excerpt attached)

6.) Texas Lawyer B10g (Excerpt attached)

7.) Bexar County Task Force on Indigent Defense. Final Report, May 20 II (Recommendation No.3, beginning at page I I: http://www.bexaLorg/llldigent/FillaIReport201 I.pdf (Excerpt attached)

8.) California Western Law Review, Spring 2009, Volume 45 Number 2 The Presumption a/Guilt: Systemic Factors That Contribute to Ineffective Assistance a/Counsel in California. Laurence A. Benner, Professor of Law, California Western School of Law, (VI. Assigned Counsel Systems, p.307-309)

9.) California Legal Histmy Volume 5: 20 I 0 Journal qfthe California Supreme Court Historical Society, "The California Public De/ender: Its Origins, Evolution and Decline, by Laurence A. Benner, Professor of Law and Managing Director of Criminal Justice Programs at California Western School of Law, San Diego, California, page 173; (the PDP is mentioned at page 187.)

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TABLE OF CONTENTS

PREFACE. .............................................................................................................................................. 1 FOREWORD ......................................................................................................................................... 3 THE PRIVATE DEFENDER PROGRAM

A Brief History ........................................................................................................................ 5 Administration and Structure ............... " ........................................... " .. "" ........ ", .................. 6 Appointment and Assignment ..................... ", .... " .... " ............................................................ 8 Who arc the Lawyers of the PDP? ........................................................................................ 9 I-low the PDP Lawyers Accomplish Their Mission ............................. " ..... ,,, ................... 19 Building for the Future: Stanford Law School and the PDP .............................. 22 'The lnvestigation Division ................... ,""', ............................................................................ 23

THE IMPORTANCE OF RELATIONSHIPS The Superior Court ................................................................................................................. 28 Other Important Relationships ................. " ... , ..................................................................... 30

APPOINTMENTS IN FISCAL YEAR 2009-2010 .................................................................... 31 THE BUDGET ................................................................................................................................... 32 PERFORMANCE BENCHMARKS

Attorney Training ..................................................................................................................... 34 PDP Seminars ........................................................................................................... 35 Mentoring .................................................................................................................. 36 Other PDP-provided Training and Education .................................................... 37 Resources Outside the PDP ................................................................................... 38

Attorney Evaluation ............................................................................................................... 38 Evaluation Standards ............................................................................................... 39 How Performance is Monitored and Evaluated .................................................. 39 Annual Surveys ......................................................................................................... 41 Results of the Evaluations ....................................................................................... 42 Other Subjects of Evaluation ................................................................................. 43

Client Relations ....................................................................................................................... 43 Attorney Caseloads ................................................................................................................. 46 Initial Client Meetings ............................................................................................................ 50 Community Outreach ............................................................................................................ 52

CONCLUSION ................................................................................................................................... 56

APPENDICES Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G

Endnotes County Contract PDP Case Counts PDP Budgets PDP Fcc Schedule Evaluation Standards Artorney Cascloads FYE 2011

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PREFACE

This year marks the 42" anniversary of the operation of the San Mateo County Bar Association's Private Defender Program. We are happy to be once again celebrating the longevity of the relationship we formed with the County of San Mateo and the commitment we made together to those members of our community who, by virtue of their poverty, are entitled to the appointment of counsel at public expense.

While the pages that follow describe the operation of the Private Defender Program for the fiscal year ending June 30, 2011, we hope that the detail enhances rather than obscures how we have been and continue to be !,'1lided by the commitment articulated in our Mission Statement.

1 'he Mission of the Private Defender PlVgram is 10 pmvide high qllality legal reptrsmtation 10 ewry indigent pmon Ivhose case bas beet] elltmsled 10 lIS by tbe San Mateo County SlIperiOl' COllli. We are dedicated to the I)igorolls protection of the jil1ldalJJC1ltal rights of our dimts in criminal,jllt)eniie, mental healil) and in other cases for Ivhich the appointtllCl1! of cOIIIISel at public expense is provided by Imv. IV/Jile acting as stmtlg alld etbical adl)ocatesfor those focing lo.rs of life, ji-eedo/IJ oljamily, Ive strille to ImJe71Je the dignity of the individllals we I~presenl, 10 keep them and the commllnities in whi,;' they live srifi frM' IV1rJllglill convictjom and IInjllSt ollicomes, and to enhrlllce the integrity of tbe Climjnal jmtice system in San Mateo C01l11ty.

OVERVIEW

This is the tenth Annual Report of the Chief Defender of the Private Defender Program to the San Mateo County Board of Supervisors. OnJune 20, 2006, the County of San Mateo and the San Mateo County Bar Association entered into a five·year Agreement for the provision oflegal representation to indigent persons entitled to the appointment of counsel at public expense. (Attached as Appendix B.) Paragraph 10.g. of that Agreement calls for the submission of this report within 90 days of the end of the fiscal year, and requires that it detail the Private Defender Program's performance with respect to the items described in Paragraphs lO.a. through 10.f. of the Agreement, and that it include the annual budget of the Program, "setting forth the costs of the operation of the Program for the year, including fees for attorney's services, investigation and other ancillary defense services as well as the cost of administration."

The Agreement between the County and the Association addresses concerns that go beyond the crueial issue of providing adequate fmaneial resources. For the past 42 years, the County and the Bar Association have shared a cotnmitment to the people of our community. That commitment has been and continues to be the provision of high·quality legal representation in a cost·effeetive manner to the members of our community who cannot afford to hire their own counsel. During contract discussions a considerable amount of time was devoted to discussing ways in which we could effectively evaluate how that commitment was being met. The County and the Association concluded that an annual report on certain performance benchmarks and the budget of the Program would serve to achieve that goal. It is thus that this tenth Annual Report is submitted.

NEW ELEMENTS

There are some new clements that we are pleased to include in this year's Annual Report.

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Weare pleased to report on the continuing success and expansion of the clinics we are staffing at homeless shelters in San Mateo County. This ambitious community outreach effort has been spearheaded by civil attorney Amanda Riddle of Millbrae's Corey, Luzaich, Pliska, de Ghetaldi & Nastari LLP and Assistant Chief Defender Myra Weiher in concert with the Legal Aid Society of San Mateo County and the San Mateo County Bar Association.

We once again include mini-biographies of two Private Defender Program lawyers whose diverse experience and backgrounds contribute mightily to our clients and to this community. Cristina Mazzei, known as "Crissy" in our legal community, has earned her reputation as a top flight defense attorney. She finds thc support from her fellow lawyers, administrators and investigators to be pervasive and very rewarding. Her strong support of the PDP and its way of doing business recently brought her an appointment as the Chair of the PDP Committee by the President of the San Mateo County Bar Association. She has the confidence and support of the entire organization as she embarks on this leadership role.

We are also pleased to include a mini-biography of Pat Concannon, who has led the younger lawyers of the PDP hy example for the past 35 years. Known as a lawyer to whom the staff can turn for any kind of case - from misdemeanors to murder - Pat's love of the competitive components of thc criminal justice system are evident in evcrything he does. Representing the individual against the power of the State of California - "37 million to one" as he puts it - is suited perfectly to him.

The resume of PDP Investigator Doug Eckles is beyond impressive. The chance for any criminal justice organization to have him on its side would make its leaders drool. The good news for the PDP and its clients is that he brought that resume to our Chief Investigator. His reputation for integrity on both sides of the criminal justice system is simply unimpeachable. Digging for the truth is crucial for everyone.

We have also included a brief description of how the Private Defender Program teamed with Stanford Law School in the operation of its Criminal Defense Clinic. We focus on how young PDP lawyers jumped at the opportunity to help these law students as mentors, and how much one of the students, Veronica Alegria, enjoyed this special experience.

Prominently featured again in this year's Annual Report is the PDP's Investigation Division. The complete makeover plan highlighted in last year's Annual Report has found its wings and taken flight. Chief Invcstigator John Maness has built a dynamic team that has transformed the Investigation Division into what we believe to be the finest indigent defense investigation team in the nation. Applying his vision of teamwork, strategic spending, and comprehensive training opportunities for PDP investigators has made the Investigation Division a model of cost efficicncy and excellent performance.

To illustrate the crucial role that investigation plays in PDP cases, whether in jury trial mode or while still in the pretrial negotiation posture, we include two brief stories about how PDP investigators and lawyers worked together as a team to represent clients that they firmly believed were factually innocent of the charges brought against them. PDP Attorney Steve Chase teamed with Investigator Rich Dickerson to successfully defend a client charged with child molestation. We also sUlnmarize how even a successful outcome in the criminal justice system froln the perspective of thc accused is so frequently accompanied by very real collateral harm for everyonc

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involved. A case that featured the team of PDP Attorney Mara Feiger and Investigator Frank Daley showed just how crucial the assistance of an expert can be.

We received positive feedback from the change in the layout of the Annual Report that we initiated five years ago, and thus we repeat it here. While the information contained in the detailladen footnotes remains an integral part of the Report, we havc kept this information at the end of the document (as Endnotes in Appcndix A) in the hope of making it easier for the casual reader to peruse.

The reader will also find randomly placed throughout the documcnt answers of Private Defender Program attorneys and investigators to various qucstions posed by the Chief Defender. We hope their thoughts help paint the picture of just how intensely these lawyers and investigators care about what they do. It is, after all, not just a job to them.

"Yon a" 1I0t going to will every fight and yon a" not going to JIlin every case. Bllt yotl never stop trying and yotl never stop (ming. When the system "getsyon dOlVU".yON simply hal)e to dig in fJarder and make JII".yOIJ a" tryingyour best, becallse it "ally is the fairest system in the Ivorld and in the end there are good restllts to be had and great thillgs to be aecomp/isbed. "

PDP Attorney Eric Liberman

"The most frightening thing I can imagine facing in the criminal justice system would be seeing an innocent person charged and found guilty going to prison. I tly to insure that I am doing everything in my power to conduct the most thorough investigation I can and to assist the attorney to the best of my ability. And, I pray a lot. "

PDP Investigator Frank Daley

FOREWORD

"In all criminal prosecnt;om, tbe acctlSed shall eo/oy the right ... to have the Assistance of Connse! for his defence. " United States Constitlltion, Sixth Amendment

On March 18, 2011, our country marked the 48th anniversary of the United States Supreme Court's landmark decision in Gideon l!. WailllVlight.' Gideon established that any person accused of a crime who is too poor to employ an attorney has a constitutional right to the appointment of counsel at public expense.' In so ruling, the Supreme Court recognized the right to appointed counsel as a fundamental guarantee of the Bill of Rights and as immune from state invasion as the freedotns of speech~ press, religion, assembly and association.

Writing for the Court, Justice Black noted:

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" ... [R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute arc everywhere deemed essential to protect the public's interest in an orderly society .... The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in SOlne countries, but it is in ours. FrotTI the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.""

San Mateo County is perceived to be a very prosperous place. The median price of owneroccupied houses is more than twice that of the rest of California. Per capita and median household income figures identify this as one of the wealthiest counties in America.

But there is another story here. While only 7.7 percent of the 711,591 people and 4.7 percent of the families who live here are beneath the federal poverty threshold ($18,310 for a family of three)" our Court determined that accused people were without the means to employ counsel 21,000 times during the year.; The faces of poverty arc not all to be found beneath poverty lines drawn by demographers. They arc found in families all over San Mateo County struggling to keep their heads above water in a place in which the cost of living is staggering.

Chief Justice Warren Burger" spoke of the defense function in a criminal case as critical to the administration of justice in America. He likened the roles of prosecutor, judge and defense lawyer to a three-legged stool. If one leg is weak, the stool will collapse, and the promise of equal justice under our Constitution falls with it.' If an appointed lawyer is without the skill, experience and resources to defend a poor client properly, our Constitution and the system of justice it defines is trivialized and exposed as an elaborate lie. If there isn't equal justice, there is no justice.

Fulfilling the promise of Gideon is not inexpensive, and it can hardly be suggested that funding indigent defense from dwindling resources is high on the priority list of most taxpayers. But the leaders of our County, along with our Court and the San Mateo County Bar Association, have recognized, by deed as well as word, that a promise is a promise. They have also recognized that the promise of Gideon is not a promise only to the poor. It is a solemn promise to all the people of San Mateo County that the criminal justice system here - their criminal justice system - will accurately reflect tbeir belief in equality as promised by their Constitution.

Defending the poor accused of crime has never been just ajob- it is a vocation. We hope that the pages that follow will provide a glimpse at the context within which the men and women of the Private Defender Program answer their calling. We hope, too, that the information that follows will help the leaders and citizens of San Mateo County feel assured that the promise of Gideon is being kept in their community.

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Chapter 8: Case Studies: Public Defense Programs and Control of Caseloads

~ Lawyers accepted as CJA panel members must agree to complete eight hours of continuing legal education related to indigent defense, and they must ptomise to comply with the Superior Court's "Attorney Practice Standards for Criminal Defense Representation." The standards, which cover the attorney-client relationship, pretrial responsibilities, hearings, trial preparation, and postconviction advocacy, are intended to ensure the provision of "quality legal representation." While disciplinary action against defense counsel is always possible in the event of misconduct in providing defense services, sanctions for violations are not specified.

" Private assigned lawyers are compensated at the rate of $65 per hour, regardless of whether the representation is provided in juvenile, misdemeanor, or felony cases. For misdemeanor cases (including juvenile delinquency offenses that would be a misdemeanor if committed by an adult), maximum compensation is $2,000 per case. For felony cases (including juvenile delinquency offenses that would be a felony if committed by an adult), maximum compensation is $7,000 per case. 'These caps on compensation can be exceeded for extended or complex representation upon approval of the chief judge of the Superior Court.

" Although there is no limit on the number of cases to which lawyers may be appointed over the course of a year, the annual amount they can be paid is $135,200, which is based upon 2000 hours of work (2000 hours x $65 per hour ~ $135,200).

C. Private Defender Program (PDP), San Mateo County, California The funding of indigent defense in California is at the county level, and the majority of counties rely primarily upon staffed public defender programs as the means of delivering services. lOS During the late 1960s, the Board of Supervisors of San Mateo County considered establishing a public defender program to fulfill its requirement to provide counsel for the poor. Asked for its opinion, the Board of Directors of the San Mateo County Bar Association objected, fearing that the proposed agency would lack the necessary resources to meet the demands thrust upon it. As an alternative, the Bar Association "proposed to establish and administer the County's indigent defense program,"I06 utilizing the talents of solo practitioners and small firms with expertise in

10, A list of all California county public defenders can be accessed on the website of the California County Public Defender Association, available at hrtp:llwww.cpda.org/County/county.pdf.

106 ANNUAL REflORT FISCAL YEAR 2008-2009 TO THE BOARD OF SUPERVISORS SAN MATEO COUNTY 7 (San Mateo County Privace Defender Program) [hereinafter PDP ANNUAL REl1oKr]. Prior to establishment of the PDP, the system of defense in San Mateo County was entirely ad hoc, with lawyers frequently appointed because they happened to be in the courtroom and without regard ro whether rhey had the requisite experience to provide representation in the cases to which they were assigned. Also, compensation claims of lawyers were often reduced by judges who were responsible

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criminal law. The County accepted the Bar Association's ptoposal, and the PDP of San. Mateo County began operations in Februaty 1969. Now, more than forty years later, the PDP has developed into a model assigned counsel ptogram, relying exclusively on independent private lawyers.

Unlike Massachusetts and Washington, D.C., there are no salaried full-time pnblic defenders in San Mateo County. However, the PDP has many of the same attributes of the Massachusetts and D.C. ptograms, in that the PDP is independent, monitors the caseloads of private lawyers to ensure that they are not excessive, requires training and mentoring, and evaluates the quality of the legal representation ptovided by its lawyers.JO? Thus, the PDP is an outstanding illustration of what the ABA means in recommending "coordinated assigned counsell) progralns. 108

Organization of the PDP

Independence and Management

The San Mateo County Bar Association is a nonptofit corporation governed by a fourteen-member Board of Directors. The PDP is overseen by a ten-member standing committee of the Bar Association, known as the "Private Defender Program Committee," which reports to the Board of Directors. 109 The head of the PDP-its Chief Defender-is hired by the Board of Directors and reports to the Board, while also working closely with the Private Defender Ptogram Committee. 'ID

for approving them. Id. at 6.

107 'lbe mission statement of the PDP declares that its purpose "is to provide high quality legal representation to every indigent person who has been entrusted to us by the San Mateo Counry Superior CoUrt." [d. at I.

108 See ABA PROVIDING DEFENSE SERVICES, supra note 8, Introductioll, at 5-1.2 (b) ("Every ~ystem [of defense representation] should include the active and substantial participation of the private bar. That participation should be through a coordinated assigned-counsel sysrem .... ").

109 The committee is provided for in the by-laws of the San Mateo County Bar Association. Five of the committee members must have at least five years experience as PDP panel lawyers handling serious felony cases. Lawyers employed by the County Counsel's Office and the San Mateo District Attorney's Office are prohibited from serving as committee members.

l!O The Chief Defender of the PDP is John Digiacinto. Myra Weiher serves as the program's Assistant Chief Defendet: I received considerable assistance from both during my visit to the PDP in January 2.010, and I am grateful to them for the cooperation and help they provided to me. I also express thanks to the ten PDP panel lawyers and two members of the judiciary who agreed to be interviewed during my visit. I also express appreciation to James Bethke, Director of the Texas Task Force on Indigent Defense, who accompanied me on my site visit to the PDI~ Information about the PDP that is not supported with footnote citations was acquired during the in-person meetings to which I refer or are contained eithcr in the PDP ANNUAL REPORT (see supra notc 106) or in the PRIVATE DEFENDER PROGRAM A-rfORNEY MANUAL: POLICIES AND PROCEDURES FOR INDEPENDENT CONTRACTOR ATTORNEYS (2010) [hereinafter PDP ATTORNEY MANUAL).

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In addition to the Chief Defender, the PDP staff consists of eleven persons: an Executive Assistant to the Chief Defender, an Assistant Chief Defender, a Managing Attorney for Juvenile Court (delinquency and dependency cases) and for PDP representation in mental health cases, a Chiefinvestigator, a Controller, a Senior Bookkeeper, a Billing Coordinator, and an Office Manager assisted by three other staff. 1be PDP is housed in downtown Redwood City, near the county's courts, and PDP lawyers often stop at the office, which has space for them to meet.

The PDP is funded by San Mateo County pursuant to a contract executed between the county and the San Mateo County Bar Association.'" Besides listing the types of cases for which the PDP was responsible, the last contract between the parties contained provisions for a fixed sum to be paid to the Bar Association during the first year of the contract and automatic increases in the annual contract price to be either 4% of the previous year's contract or the consumer price index for the San Francisco area, whichever was greater.

The contract also acknowledged uncertainty about the number of cases for which lawyers would be needed during the ensuing five years, and hence the parties "agree to meet, at the request of either party, to discuss any such concern at the earliest possible time so as to determine whether changes in the terms of the Agreement are necessary." 1 12 Additional contract provisions covered "performance benchmarks," including attorney training, evaluations of attorneys, the handling of client complaints, attorney caseloads, initial client meetings, and community outreach. Finally, the contract required the PDP's Chief Defender to submit an annual report addressing each of these and other subjects to the county's Board of Supervisors within ninety days after the end of each contract year.

PDP Lawyers

In its Annual Report for 2008-2009, the number of PDP lawyers is listed as II5, and the number of panel lawyers today is substantially unchanged. Almost all PDP lawyers are solo practitioners who provide representation in misdemeanor, felony, and juvenile delinquency and dependency cases. However, five lawyers devote their time to assisting other PDP lawyers with motions and handling extraordinary writs, and one lawyer divides her time between these specialized legal activities and trial work.'l3 The size of the PDP panel oflawyers is based on the program's "need for additional lawyers [and] ...

!II The last contract between the panics was from JUlle I, 2006, through June 30, 2011. See PDP ANNUAL REpORT, supra note 106, at Appendix B, which contains a copy of the agreement.

112 Jd. at para. 3, Compensation.

Il) Appeals of cases handled by the PDP are taken by the California Appellate Ptoject in San Francisco, whose website is available at http://www,capsf.org/,

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the current caseload and projections for the future."'" PDP lawyers may retain private clients while handling cases for the program, but on average lawyers spend approximately 80% of their time handling PDP cases. Invariably, there are many more lawyers seeking admission ro the PDP than there are available openings, and thus the program is able ro be selective in adding new members.

Admission to the PDP requires submission of a written application rogether with a resume. If deemed appropriate, an interview will be held with the Assistant Chief Defender and then the Chief Defender. Criteria for selection to the panel include the applicant's skill level, information obtained ftom references and other persons with knowledge of the applicant, fluency in a foreign language, and an "evaluation of the applicant's devotion to the representation of the indigent as opposed to a simple desire to supplement his or her income."Il' Both admission and removal from the PDP panel is entrusted ro the Chief Defender. Besides disciplinary proceedings, reasons for removal can include the following:

Failure to handle assigned cases in a satisfactory and professional manner; Violating professional ethics; ... Failure to comply with the rules, regulations or policies of the Private Defender Program; Failure to attend mandatory training seminars and programs .... 'IG

According to the Chief Defender, usually at least one member of the PDP panel is removed each year.

PDP lawyers reflect substantial diversity in defense experience, gender, ethnicity, and racial composition. Just over half of the lawyers have more than fifteen years of experience; the rest of the panel range in experience from under five years (18 lawyers); five to ten years (22 lawyers); and ten to fifteen years (10 lawyers). Forry-nine of the lawyers (43% of the total panel) have experience either as deputy prosecutors (26 lawyers) or with public defender programs (23 lawyers). Seventeen lawyers (15% of the panel) are members of a racial minority; 38 lawyers are women (33% of the panel); and 17 lawyers are fluent in Spanish. 117

The PDP is assigned to provide representation in all cases in which the San Mateo County courts determine that persons are eligible for legal representation due to their inability to afford counsel. The panel lawyer selected to provide representation is

114 PDP ArrORNEY MANUAL, supra notc 110, at para. 2.2.3 a. III [d. al para. 2.2.3 d.

JJ6 [d. at para. 2.2.3 a., b., d., C.

Jl7 PDP pancllawycrs also arc Aucm ill fourtccn additionallanguagcs-Byclorussian, Cantonesc, Catalan, Czech, Dutch, French, German, Hebrew, Hindi, Italian, Polish, Russian, Tamil, and Ukrainian. PDP ANNUAL REPORT, supra note 106, at 13.

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determined by PDP management, which matches the seriousness of the case with the experience of the lawyer while also taking into account the number of previous assignments to the lawyer during the recent past. -l1ms, judges in San Mateo County are not involved in making decisions about lawyers to appoint to specific cases. 'IB

Although the PDP is committed to vertical representation, exceptions arc made for arraignment calendar courrs in which felony and misdemeanor defendants appear for the first time. 'l9 In misdemeanor cases, arraignment calendar lawyers are rotated daily, and lawyers who attend these arraignments may retain up to five cases in which they appear. In felony cases, arraignment calendar lawyers do not rotate, and the panel lawyers do nor retain the cases in which they appear. Instead, the lawyers provide temporary representation at the arraignment, following which PDP management promptly assigns the case to a PO P lawyer. 120

The fee schedule for PDP lawyers is significantly more complex than the hourly fees paid to private lawyers in either Massachusetts or D.C., 121 because the PDP uses a combination of hourly fees and flat fees for various events in which lawyers participate. 122 To illustrate, in a routine misdemeanor or felony case, if a lawyer provides representation in a jury trial, the lawyer will be paid $125 per hour and will also be eligible for "preparation fees" for work spent in advance of trial at the rate of $260

per day. These fees will be in addition to other fees the lawyer will have earned during earlier stages of the case in which representation was provided. All serious felony cases are paid on an hourly basis, ranging from $95 per hour to $165 per hour, depending on the charges. These hourly rates are the same for in-court and out-of-court work, and no caps are placed on the amount of compensation that can be paid to counsel on any given case. The fee schedule also contains special provisions for "extraordinary fee requests," which are handled either by management or by a PDP Special Litigation Fee Committee.

I!S Thus, the practice in San Mateo County is similar to Massachusetts, because there, too, judges are not involved in selecting lawyers to be appointed to cases. Also, as in Massachusetts, compensation claims submitted by PDP lawyers are approved by administrators, not by judges. See supra note 16-17 and accompanying text and supra note 47.

1!9 Similar to the CPCS in Massachusetts and PDS in Washington, D.C., a separate PDP lawyer is appointed for each codefendant in a multiple-defendant case. Because PDP lawyers arc independent contractors, conflicls of interesl among PDP lawyers are avoided.

120 lbere are a number of provisions in rhe program's Attorney's Manual designed to ensure that clients are effectively represented. Considcr, for example, the following: "Only tbose lawyers possessing extensive felony and misdemeanor experience will be selected for assignment to in-custody arraignment calendars .... No felony cases will be closed on an arraignment calendar at wbicb rhe client is making his or her initial court appearance." PDP ATTORNEY MANUAL, supra note 110, at para. 3.1.3.

lU See, e.g., supra notes ~6-~7 and accompanying text for the assigned counsel fcc structure in Massachusetts.

In See PDP ANNUAL REPORT, supra note llO, at Appcndix E, which contains the program's complcte fcc schedule.

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Securing Reasonable Caseloads: Ethics and Law in Public Defense ~--~------~----~~----------

Ensuring Quality

Investigations

In many assigned counsel programs, lawyers must seek court permission ro retain an investigator, funds to do so are limited, and requests are not always granted. As a result, lawyers often are discouraged even from asking for investigative assistance. In contrast, the PDP has its own Chief Investigator, strongly encourages the use of investigarors, and prides itself on never refusing a lawyer's request to retain an investigator regardless of whether the case is a felony, misdemeanor, or juvenile case. 123 To obtain an investigator, PDP lawyers submit a written request to the PDP's ChiefInvestigator, and thus judicial permission to hire an investigaror is not required. 121

According to its 2008-2009 Annual Report, thirty-six private investigators, all independent contractors, performed services for PDP lawyers and their clients. Investigators are compensated on an hourly basis so they have an incentive to spend as much time as necessary on their assigned cases. PDP policy is to permit lawyers to select the investigator they prefer whenever feasible. A password-protected PDP website shows lawyers which of the program's investigators are available ro accept assignments. Investigators are organized into teams depending on the kinds of cases on which they typically work, i.e., homicide, major felony, felony, misdemeanor, and cases requiring a Spanish-speaking investigator.

To facilitate rhe work of PDP investigarors, a listserv has been established through which they can exchange information and ideas with the program's ChiefInvestigator and with one another. Although California does nor require continuing education to maintain a private investigator's license, the PDP has instituted mandarory training for all of its investigarors. In addition, the PDP has begun a mentoring program for all new investigators when they begin working on PDP cases.

123 The PDP also readily approves the retention of experts, because it has funds in its budget to covcr the expense. Requests for experts are directed to the Chief Defender, the Assistant Chief Dcfender, or the Managing Attorney [or Juvenile Court. 1hus, defense counsel is able to avoid ex parte requests of judges to approve expcrt witness expenses. In the pasr, the program has approved retaining experts from other parts of the country and even from abroad.

!:l.~ Also, in Massachusetts, privatc counsel division lawyers seek permission for invcstigarors from CPCS, nor from judges. In Washington, D.C., assigned counsel seeking to retain an investigator or expert must obtain court permission in an ex parte proceeding. See Plan for Furnishing Representation to Indigcnts Under rhe District of Columbia CriminalJustice Acr, supra note 103, at para. D (9).

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Training

PDP lawyers must complete more than the twenty-five hours of continuing legal education over a period of three years required of all lawyers in California. 12' However, during their first full year with the program, PDP lawyers must "complete 21 hours of relevant classes or equivalent training .... "126 After their first year, the number of required hours of education or equivalent classes is reduced to fifteen hours per year.127

Each year, the PDP conducts several of its own mandatory training seminars. Panel lawyers unable to attend mandatory seminars are required either to view a videotape or listen ro an audiotape of the ptograms in order to maintain their eligibility to receive appointments to cases. During 2008-2009, mandatory seminars dealt with "New Laws and Revisions for 2009" and "Voir Dire." In addition, the PDP organizes and hosts a number of other seminars for panel members who may attend without cost. During 2008-2009, fourteen such programs were offered providing 18 hours of CLE credit. Five of the programs were designed for juvenile court practitioners.

Finally, each year, PDP lawyers may draw upon a fund to be used for "approved education and training programs that are directly related to the types of cases he or she is handling for PDP clients."128 ·Ibe program also covers the cost of panel lawyers to join various defense-related organizations such as the California Attorneys for Criminal Justice, the California Public Defenders Association, and the National Association of Criminal Defense Lawyers.

Mentoring

All new PDP lawyers are assigned mentors, who are active panel lawyers with more than ten years experience in either criminal andlor juvenile defense representation. In addition, mentors are assigned to lawyers who transition from one panel to another (e.g., from juvenile to criminal court) and when, in the judgment of PDP management, a lawyer has not had sufficient trial experience within the prior three years. When I visited the PDP in January 2010, approximately fifteen panel lawyers (about 1)% of the total panel) were assigned to mentors.

The primary role of mentors is to meet frequently with their men tees, thoroughly review with them their cases, attend interviews and various types of hearings in which mentees provide representation, and critique their performances. According to the POP's "Mentor Program Manual," mentors are expected ro "be available by telephone

I2j Wehsite of the State Bar of California, available at http://mcle.calbar.ca.gov/ .

126 PDP ArrORNEY MANUAL, supra note lIO, at para. 2.5.3.

!27 Id. 128 PDP ANNUAL REPORT, supra note 106, at 36. See also PDP AtTORNEY MANUAL, supra note IIO, at

para. 2.5.2.

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or in person to consult with the mentee on an as-needed basis."l29 Recently, the program was strengthened by the addition of a senior PDP lawyer with more than thirtyfive years of experience, who devotes all of his PO I' time to mentoring lawyers who have cases scheduled to be tried and observing them in trial. Mentors also assist lawyers with practical matters related to serving as a PDP panel lawyer such as the program's fee schedule, billing procedures, and preparing investigation requests. To ensure the success of the mentoring program, PDP's fee schedule compensates mentors for their efforts.

The length of time that mentee lawyers are assigned to a mentor varies, as "it depends entirely on the pace of the ... lawyer's progress."lJO A lawyer in his sixth year with the PDP who was representing felony defendants acknowledged that he still had a mentor with whom he met to discuss his most serious cases. Similarly, the Mentor Program Manual recognizes that the role of the mentor may vary depending on the specific needs of the mentee. The manual also declares that the "[tJhe mentor/mentee relationship should be reflective of a relationship between colleagues or partners, not as between employee and supervisor." Interviews of PDP lawyers working with mentors suggested that this goal was being achieved. Several of the program's newer lawyers commented that they relied heavily on their mentors and that the PDP felt like "family" because "everyone always was willing to help." The lawyer added, however, "if you mess up, they will tell you." Another lawyer explained that she "talks to her mentor constantly-more than her family." In 2009, for the first time, men tees were asked to comment about their mentors through an online survey administered by PDP management.

Performance Evaluations

Each year, the Chief Defender and Assistant Chief Defender undertake an evaluation of each PDP lawyer. The criteria for these evaluations are contained in the program's "Evaluation Standards," which are published as an appendix to the PDP Annual Report. The list of standards is comprehensive, containing seventeen different areas for consideration, including recognition oflegal issues in assessing cases; legal research and use of pretrial motions; effective use of investigators and experts; witness preparation; case negotiations and sentencing; advocacy skills; ethics and integrity; effective communication with clients; interactions with PDP staff and court personnel; and calendar management.

To assist in conducting evaluations, PDP lawyers are required to complete an annual survey about the work they performed during the previous year. For example, lawyers

129 1his document is an appendix to the PDP AtTORNEY MANUAL, supra note 110.

I}O PDP ANNUAL REI'ORT, supra note 106, at 32.

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must list all cases tried during the past year and their results, CLE courses attended that were not sponsored by the PDP, and the legal research tools that they used in preparing motions, briefs, etc. Lawyers also are asked to attach a "motion or brief" they prepared during the past year that is an example of their own work and that was not a "canned" document developed for a prior case. 13' The instruction for this requirement explains that the "brief or motion is to be an example of your work, and your work alone. If you have not submitted any such document in the one-year period, please so indicate in your answer to the question."132

In making judgments about the performance of PDP lawyers, the Chief and Assistant Chief Defender take into account the responses of lawyers to the annual survey, whether the lawyers attended CLE programs in addition to those organized by the PDP, use of investigators, billing records, and complaints against the lawyer, if any. 133 The Chief and Assistant Chief Defender also attend trials and other proceedings to make personal assessments of the skills of PDP lawyers. PDP mentors also share with the Chief and Assistant Chief Defender their views of the progress of their mentees.

The PDP Annual Report for 2008-2009 explains that following their most recent annual assessments the Chief or Assistant Chief Defender met personally with twelve PDP lawyers to discuss various performance issues.'" Their most frequent concern dealt with the apparent underuse of investigators by three lawyers handling criminal cases and by five lawyers providing representation in juvenile court. 'I1e issue was reviewed with each of the lawyers involved. Also, a lawyer assigned to his first serious felony case did not seem to be preparing the case appropriately. The case, therefore, was reassigned to another PDP member and a remedial training program was instituted for the lawyer. In addition, a lawyer who was handling misdemeanor cases failed to rerum his annual survey and was suspended from receiving new appointments.

13! [d. at 40.

131. Id. In Each day an experienced felony lawyer is designated to be present at the PDP's offices to serve as {he

"Officer of the Day." Ihe purpose of this program is to ensure that there is always someone available to answer client questions and to track complaints about PDP lawyers. During 2008-2009, 287 calls were received from clients, broken down as follows: 196 were general inquiries and questions; 83 pertained to relationship issues between PDP lawyers and clients; and 8 of the calls raised performance issues. In each instance of a complaint, the Assistant Chief Defender reviewed the documentation prepared by the Officer of the Day, and an inquiry was made of the PDP lawyer respecting the matter. In two instances, after investigation, the Assistant Chief Defender arranged for the lawyers' cases to be reassigned to other panel members. As the Annual Report points out, given the volume of cases handled by the PDE complaints against PDP lawyers surfaced in 0.03% of the cases in which the program was designated to provide representation. Id. at 43.

lH [d. at 41.

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Caseloads

The Bar Association's agreement with San Mateo County requires that the PDP provide information each year in its Annual Report about lawyer caseloads:

The Association and County agree that the number and type of cases for which a lawyer is responsible may impact the quality of representation individual clients receive. While there are many variables to consider, including the seriousness or complexity of each case and the skill and experience of the individual lawyer, useful information might be gathered ftom an evaluation of the caseloads ofPrivare Defender Ptogram Attorneys. To this end, the Private Defender Program shall incl ude the caseloads of each Private Defender Program attorney by type of cases, as well as the average caseloads for the Private Defender Program as a whole in the annual report .... 135

The data reported by the PDP are based on a weighted caseload study conducted among a group of PDP lawyers in 2001-2002. 136 The study led to the program determining maximum numbers of various types of cases that PDP lawyers could competently handle over a twelve-month period, assuming that they were devoting 100%

of their time to the representation of PDP cases. l37 Approximately every two years, therefore, all PDP lawyers are required to estimate the amount of time that they devote to PDP cases in their law practice. Thus, if a lawyer devotes 80% of his or her time to PDP cases, the maximum numbers of various types of cases to which the lawyer can be appointed over twelve months is reduced by 20%. The data presented in the PDP's 2008-2009 Annual Report shows that slightly more than 60% of PDP lawyers spent 90% or more of their time on PDP cases, so, for these lawyers, there is either no reduction or only a modest reduction in the maximum numbers of various types of cases to which the lawyers may be appointed.

Based upon the program's 2001-2002 weighted caseload study, rhe maximum numbers of cases to which PDP lawyers are permitted to be appointed are higher than those recommended in the 1973 NAC standards. I" However, the overwhelming majority of

135 [d. at Appendix 2, para. 10 d. 1,6 For discussion of weighted caseload studies, see supra notes 6-46 and accompanying text, Chapter 6. 137 The specific maximum numbers of various types of cases that PDP lawyers can represent are as follows:

misdemeanors-450; misdemeanors involving domestic violence-334; Felony 1 cases-265; Felony z caseS-I74; Juvenile Delinquency cases-335; and Juvenile Dependency caseS-ISS. The PDP's weighted cascload study was based upon the availability of 1860 hours for casework per year. In reporting its data, the PDP does not give the names oflawyers, but instead each lawyer is given a number, and thus it is possible to determine the precise number and types of cases to which each lawyer was appointed during the fiscal year. See PDP ANNUAL REPORT, supra notc 1I0, at 44-47 and Appendix G.

13R For discussion of the NAC caseload standards, see supra notes 91-104 and accompanying text, Chapter 2. Thc PDP Annual Repon explains why j[ believes [hat its weightcd caseload study came out with higher case limits than the NAC:

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Chapter 8: Case Studies: Public Defense Programs and Control of Caseloads --------------------

PDP lawyers do not come close to reaching their target numbers of maximum cases. In fact, as noted in the PDP's 2008-2009 Annual Report, "the average PDP lawyer handled only 47.24 percent of the targeted maximums for all types of cases." 139 My own review of the PDP data revealed that only 13 of 103 lawyers exceeded 75'/' of their targeted maximums for all types of cases. 1<0 Of all lawyers during 2008-2009, only one exceeded his targeted maximum, and the excess over 100% was slight-only 2.57%.

While the data in the Annual Report is essential in understanding the program's caseloads, my interviews with PDP lawyers were equally revealing. The ten lawyers with whom I spoke represented a range of experience; some were senior lawyers whereas others were relatively new to the program. I asked the lawyers about their pending caseloads, because I had reviewed the Annual Report and knew the number of cases to which PDP lawyers were appointed each year. Without exception, the lawyers told me that their caseloads were modest and, in the view of several lawyers in a position to compare, substantially lighter than the caseloads typically handled by California public defenders.

Here is a sample of what I was told by the lawyers I interviewed:

" Lawyer I had many years of experience and had previously been a public defender in two different California defender agencies. He reported that his caseloads as a public defender were manageable but that he knew of California public defenders who were overwhelmed, handling as many as 100 felonies at a time. He stated that he spent almost all of his time on PDP cases and that his current caseload was fifteen to twenty serious felony cases. He added that he worked with three or four different investigators and had an investigator assigned to virtually all of his cases.

The most striking ... [reason] is the computer, which enables lawyers {O do on-line research, create brief banks, produce template motions, and track their time easily. Other factors relate to the way criminal cases are handled in San Mateo County Superior Court. For example, rather tban being required to handle one case at each pretrial conference or SCR [Superior Court Review}, PDP lawyers are able to set three or four cases on the same calendar, thus handling multiple cases in the same time as it would lake to handle one. 1he [act that most of the courtrooms that handle criminal cases are whhin 100 yards of rhe County Jail also contributes to lawyer efficiency. The makeup of the PDP itself also contributes ro the findings of the study. Because homicide-qualified PDP lawyers also handle misdemeanors and less serious felonies, they bring a wealth of experience to the process of defending our clients.

Id. at 46. 1,9 PDP ANNUAL REpORT, supra note no, at 47.

!40 I noted earlier that the number of PDP pand lawyers was listed as II5 in the program's 2008-2009

annual report. Data is reported on only 103 lawyers, however, because not all members of the panel were available to accept appointments during the fiscal year. Also, one lawyer was engaged full-time in mentoring less experienced lawyc,·s as they prepared for trials, and five lawyers devoted their rime to assisting lawyers with motions and extraordinary writs.

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~ Lawyer 2 had been with the PDP for about three and one-half years. He estimated that his current pending caseload was thirty, consisting of about ten felonies and twenty misdemeanors.

~ Lawyer 3 started with the program six years earlier and was now handling some felony cases in addition to misdemeanors. He estimated that he currently had about thirty cases, probably about ten felonies, and twenty misdemeanors. While observing that few panel members ever leave the PDI~ this lawyer added that "the caseloads in the PDP are way lower than in PO offices."

" Lawyer 4 was a senior lawyer who graduated from law school twenty-six years earlier. He had been a public defender in a large California city for fifteen years and been with the PDP for four years. He characterized his experience as a public defender as performing "triage" because he "could never dedicate enough time to ... [my] cases." In contrast, he said that with the PDP he could spend as much time as needed on his cases and could also ask not to be appointed to new cases. He explained that when the PDP calls, "the question that I am asked is whether I am available to take a new case." This lawyer indicated that he devoted about 60%

of his time to PDP cases and had about fifteen to twenty felony cases, whereas his public defender caseload was probably about fifty to sixty felony cases, with some lawyers having as many as seventy-five to eighty cases. 'Ibis lawyer estimated that if a California defender had adequate time to prepare and provided representation in a mix of serious and lesser felony cases, the lawyer could probably close about ninety to 100 cases over a twelve-month period.

" Lawyer 5 started his career as a public defender but had been with the PDP for nearly forty years, spending nearly 100% of his time on PDP cases. At the time of my interview, he was mentoring one lawyer engaged in juvenile representation and also was available to assist other lawyers handling juvenile cases. In addition, he was mentoring a lawyer handling a serious criminal case. Lawyer 5's personal caseload was about twenty misdemeanors and ten to fifteen juvenile delinquency cases.

'lbe foregoing summary of conversations with PDP lawyers would be incomplete without noting that all of the lawyers with whom I spoke were extremely proud of the program and pleased to be a part of it. Because the lawyers controlled their caseloads, had ample investigative services, and were adequately compensated, they were unanimous in their belief that the PDP had achieved a measure of success uncommon among public defense programs. Asked whether they had complaints about the program or thought there were areas in need of improvement, the lawyers mentioned only two relatively modest concerns. "lbe first related to the absence of benefits such as health insurance, and the second pertained to the difficulty of PDP lawyers taking collective action on issues of concern, because they were independent contractors.

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STATE OF TEXAS

RESOLUTION

of the

TEXAS JUDICIAL COUNCIL

Specifically Authorize Managed Assigned Counsel Programs

WHEREAS, the Texas Judicial Council is the policymaking body for the Texas Judicial Branch, created under Chapter 71, Texas Government Code; and

WH EREAS, the Task Force on Indigent Defense has reviewed the proposal related to providing a clear statutory framework for managed assigned counse l programs;

NOW T HEREFORE, BE IT RESOLVED, that the Texas Jud icial Council supports, and recommends that the Texas Legislature enact statutory changes in keeping with the following statement of the Background and Purpose of such legislation:

Background Lubbock County has recently established and Montgomery County is establishing managed assigned counsel programs. These are modeled on the private defender program in San, Mateo, California, where the county contracts with the local bar associati on to manage the assigned counsel system. These types of programs involve outsourcing to a governmental or nonprofit agency, independent of the judiciary, the responsibility for screening attorneys for court-appointment eligibility, assigning lawyers to individual cases, approving attorney fee requests, and approving requests for investigative and expert assistance. Current law clearly authorizes assigned counsel programs managed by the judiciary, but is silent on how to establish a managed ass igned counsel program.

Purpose Amend Code of Criminal Procedure to better enable local jurisdictions to estab li sh managed assigned counsel programs. This proposal includes ( I) defining what a managed assigned counse l program is in the code, (2) amending art. 26.04 to allow counties to adopt local indigent defense policies that incorporate managed assigned counsel programs, and (3) amending art. 26.05 to allow for payment of attorney, investigator, and expert expenses incurred in managed ass igned counsel programs. The proposal would be strictly a loca l option, and implementation would require the assent of both the commissioners court and the judges to implement. Th is type of program provides jurisdictions with another option for delivering indigent defense services and relieves judges of most of the admini strative burdens of managi ng indigent defense.

Honorable Wallace B. Jefferson Chief Justice, Supreme Court of Texas Chairman, Texas Judicial Council

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-+

BEXAR COUNTY

TASK FORCE ON INDIGENT DEFENSE

FINAL REPORT

MAY, 2011

1

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undermine public confidence in our judicial system. See, for example, Brian Chasnoff,

"Review sees apparent Violations in Bexar Courts," San Antonio Express-News,

October 10, 2010 page 6A, and another article by the same reporter, "Being a Favorite

of Judges Pays" on the front page of the same newspaper of November 3,2010.

Whether or not these perceptions on the part of the responding attorneys or the media

are accurate, these perceptions should be addressed. The most effective way would be

to stick with the wheel system, or where good cause exists to deviate from it, spell out

on the public record the good cause which permits or even require the judges to make a

separate appointment.

Recommendation No. 3: Bexar County should explore the implementation of a private

defender program based upon the success of the San Mateo County, California system.

Vote: Yes -5 No - 2

The San Mateo County Private Defender Program (PDP) began operating in

February, 1969. It has been described by the Chair of the Texas Task Force on Indigent

Defense as one of the three best indigent defense programs in the country. The PDP is

operated by the San Mateo County Bar Association and is housed in their offices. The

Board of Directors of that association selects the Chief Defender of the PDP. The Chief

Defender selects his staff, which consists of an Assistant Chief Defender, Chief

Investigator, and support staff. There are twelve employees in all, and three of those

staff members are shared with the Bar Association .

If a judge determines at arraignment that a defendant is eligible for court

appointed counsel, the PDP is appointed. The PDP then assigns the case to one of its

participating attorneys. All the lawyers to whom cases are assigned are in private

practice. Thus, the County does not house the attorneys nor pay for their office

overhead. (The PDP's offices are modest, sharing space with the San Mateo Bar

Association, in a 4,000 square foot facility.)

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Among the advantages this system affords over a traditional public defender

program is that the county does not pay the attorney overhead. Also there are no cases

where a conflict of interest requires appointment of counsel outside the system.

The PDP conducts a rigorous screening and mentoring program. There is a great

deal of cooperation between the judges, the Bar Association, and the prosecutors.

Details regarding the program, include salaries. fee schedules. attorney training

materials. and other matters, have been made available to Bexar County. Members of

the Texas Task Force on Indigent Defense have visited the offices of the PDP and

remain in close contact with it.

The per-case cost and salaries paid to PDP employees are more expensive than

such cost and salaries would be in Bexar County, reflecting the cost of living in San

Mateo County.

Bexar County should initiate a long-term planning discussion involving the

judiciary. the San Antonio Bar Association. the District Attorney's office, and criminal

defense attorneys. Bexar County should name either a county employee, or contract

with someone, to prepare a full-scale feasibility study. The study would include a

detailed cost and benefit analysis and a proposed location of such a program. That

individual would be responsible for meeting and discussing with members of the various

constituencies the details of the operation of the PDP. He or she would seek to enlist

their support in attempting to determine whether such a program could be implemented

in Bexar County.

B. Ritenour Concurring:

I concur with this only if the study is based on quality of representation first, with

cost a secondary concern. In no way should Bexar County imply or take action that says

defense of indigent criminal defendants is a cost-based activity. The constitutional Fair

12

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ofhis/her time to the representation of

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The Private Defender Prog ram is fuoded by

the COUnty of San Mateo pu rsuant to the tefms of its contra<:t with the $MCSA .

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2012 harrison tweed nomination form€¦ · this letter is written to nominate the san mateo county...

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