Cuts will break Gideon’s promise

By Jeff Adachi

Adachi

In the landmark 1963 case Gideon v. Wainwright, the U.S. Supreme Court held that a poor person accused of a crime is entitled to competent and effective legal representation. However, the current economic crisis, rising recession-related crime, and soaring unemployment rates threaten to erode this basic right, which is guaranteed by the U.S. and California constitutions.

The consequences of shrinking public defender staffs and budgets is illustrated by a recent California Court of Appeal decision where the court decried the Mendocino County public defender’s failure to provide adequate representation to a minor due to lack of resources.

In In re E.S., a 17-year-old boy was sentenced to seven years for committing a sexual assault. His assigned public defender failed to interview witnesses who would have testified that the victim came from an incestuous family and that the witness had lied in the past.

The attorney later submitted a declaration, stating that he had too many cases and clients to properly investigate and prepare his client’s case. The attorney also said that when he informed his supervisor that his high caseload prevented him from investigating the case, he was told, “I’m doing a murder case — do you want to trade?”

The court found that the attorney’s excessive caseload was no excuse for failing to provide adequate representation. Citing an American Bar Association ethics opinion, Justice Anthony Kline, writing for a unanimous court, held that when a public defender does not have the resources to competently investigate and defend a case, “she must decline the representation.” Justice Kline noted that “the obligations of public defenders . . . are no different from those of privately retained defense counsel.” The court also referenced the State Bar of California Rules of Professional Conduct, which require that counsel withdraw from any case that would result in incompetent representation.

The scenario of public defenders withdrawing from cases as a result of budget cuts is occurring throughout the nation. Public defenders in California, Kentucky, Minnesota, Missouri, Maryland, Arizona and Tennessee have all resorted to withdrawing from cases as a result of budgetary and staffing cuts.

Last year, the Miami-Dade County public defender’s office sued the state of Florida for the right to refuse cases after experiencing a $2.48 million budget cut and a 29 percent caseload increase. In September, a Florida judge allowed the office to turn away noncapital felony cases and the case is currently under review by a Florida appellate court.

In February, my office began declining complex cases due to increased felony filings and staff shortages. We were forced to do so after the mayor and board of supervisors refused to allow the office to fill vacant positions due to the city’s budget deficit. As a result, the office began sending cases to private attorneys, which will cost the county nearly twice as much as having public defenders handle them.

As California counties begin preparing their budgets, policymakers must recognize that the public defense model is the most cost-efficient and effective means of providing legal representation to the poor. Public defense offices are staffed by attorneys, investigators and paralegals who specialize in criminal law, share resources and are held to consistent standards of accountability. Most public defenders work long hours, do not earn overtime and are paid far less than their private sector counterparts. They also handle large caseloads. For example, in San Francisco, a staff of 93 attorneys and 70 support staff handle over 24,000 cases each year. Individual public defenders handle as many as 200 misdemeanor cases at any given time or 50-70 felony cases.

The most fiscally sound solution to providing a constitutionally mandated legal defense to this rapidly growing number of people is to exempt public defense offices from budget cuts.

As Justice Kline warned, “boards of supervisors face the choice of either funding the costs of assignment of private counsel … or making provisions of funds, facilities and personnel for a public defender’s office adequate for the demands placed upon it.” Funding public defender offices eliminates the short-term cost of hiring more expensive private attorneys and reduces the need for re-trials, appeals and potential lawsuits arising from trial error and inadequate representation, as in the case of In re E.S.

Failing to provide public defender offices with adequate resources has proven penny-wise and pound-foolish. Clark County, Nevada, paid $5 million to a man who spent 14 years on death row due to inadequate case preparation and investigation by the public defender’s office; last January, a Washington man was awarded $3 million because his public defender, who was handling 500 cases, failed to discover evidence that would have exonerated him.

Even in these difficult economic times, Gideon’s promise of equal justice for the poor must not be abandoned. The integrity of our criminal justice system depends upon it.

• Jeff Adachi is San Francisco’s public defender.