ACLU v. Fresno PD

18 Jul

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After the exchange of several letters between the ACLU, the Fresno County Board of Supervisors, and the Fresno County Public Defender’s Office, the ACLU has sued the State of California and the County of Fresno for systematically violating the constitutional rights afforded to indigent persons accused of crimes based on alleged failures of the public defender’s office in providing effective assistance of counsel to their clients. (a few letters here; Complaint here; Fresno Bee article here). I’d also note that there is a really good analysis of the issue here, which points out that if PDs worked 40 hours a week exclusively on their cases, with no vacations or holidays, they would have 2 hours to spend in total on every felony case and 1 hour on every misdemeanor.

I read the letters, the article, and the complaint.  I resent being put in the position between the ACLU and a PDs office.  That said, the majority of their criticisms, if true, are completely valid.  Below is a summary of what I think are fair allegations and what I think are not.

Fair Not Fair
FC PDs carry approximately 612 felony cases, per attorney, per year, where the recommended case load is 150.  PDs carry approximately 1462 misdemeanor cases, per attorney, per year, where the recommended case load is 400. The ACLU makes bold and broad accusations such as that the PDs office is regularly responsible for wrongful convictions and the waiver of meritorious defenses, among other things.  Of course, this is a complaint so they do not need to prove these allegations (so says my civil attorney husband), but I cannot foresee how you could remotely prove these accusations.  Proof of prejudice for IAC is a much lower standard than proving that someone is actually innocent or a defense would be meritorious, and even then few people can meet the prejudice standard.
PDs “group advise” clients of the waiver of constitutional rights when pleading no contest/guilty.  This is kind.of.outrageous.  Judicial group pleas are bad enough and, in my opinion, totally unconstitutional.  I have no idea how you could contend that this is acceptable or a professional norm. They set forth two examples where they allege that police violated the defendants’ Fourth Amendment rights.  They say that the PDs filed motions to suppress, but the clients pled before the motions were heard.  Frankly, I see no problem with this practice because, often times, a DA recognizes the suppression issue in a case and reduces the sentence offered accordingly.  It is a bargaining chip.  You cannot ever say that a motion to suppress is a slam dunk.  That is irresponsible.  Especially in Fresno County.  The client would be harmed after losing the motion because a DA would then have more incentive to raise the jail time in a deal.
There was one instance where a client was in custody for 92 days before a PD was assigned to his case.  Who knows if this was a regular practice, but this is totally outrageous.
The DAs office has 2x the number of attorneys than the PDs office.  The PD says that 35% of the cases go to outside attorneys.  What about the other 15%? The DA says that they have attorneys assigned to reviewing cases for charging decisions where, if the case is not filed, there would be no need for a PD.  I cannot imagine that the DA rejects 15 % of cases.  I mean, if that were the case that would be awesome.
In Fresno, .19% of cases go to trial, whereas the average in other counties (presumably in California) is 2.29% for felonies and 1.02% in misdemeanors.  (This surprises me because there is less risk for trial with a misdo given potential exposure).  That means PDs county- wide go to trial 11% more frequently than Fresno.  This seems to be statistically significant.  On one hand, it would find it surprising that deals in Fresno are much better than other counties, or that people in Fresno are more likely to be guilty of crimes.  It could be said, though, that Fresno defendants have more exposure because of prosecutorial discretion to refuse to strike priors, incentivizing a plea deal.  Although, generally, I am against using statistics to determine whether a case should go to trial because each case is specific to the exposure, the client’s desire, and the strength of the case, this does seem to be suggestive that the PDs office is a plea deal.
The ACLU says they reviewed the jail visit records and found that 79% of felony pre-trial defendants had 0 visits from a PD.  If true, this is completely outrageous.  They argue about the reasons why this is bad.  Frankly, the stats speak for themselves.  I am somewhat unclear as to how they determined who was or was not a PD client or how they determined who was or was not a PD because I assume (I could be wrong) that these records are handwritten.  In any event, assuming these statistics are true, the PDs office needs a change.

 

As you can see, it does appear that the allegations, if true, raise some strong arguments about the deficiency in representation.  I initially thought that the ACLU should have made efforts at collaborating with the PDs office to pressure the supervisors for more funding.  It appears from ACLU letters to the Board of Supervisors, that they attempted to do this to no avail.  In addition, it also appears from letters from the PDs office to the ACLU that the PDs office was not receptive to making changes.  To be fair, the PDs office is in a tough position because to admit that changes need to be made might suggest that they are, in fact, rendering deficient performance.  That said, when counties like San Francisco argued for more funding, they said that they would refuse new cases indicating that they were providing proficient representation, but that, if they did not receive more funding, they would refuse to increase their caseload.  My main question with the lawsuit is how they can prove some of their claims, as noted above.  The pressure and cost this might impose on the county, though, could lead to more funding for the PDs office which would ultimately benefit those poor folks accused of crimes.

4 Responses to “ACLU v. Fresno PD”

  1. Paul Upton July 18, 2015 at 11:59 am #

    Could it make a difference, however, that the only Public Defender that is ELECTED to that position in California is in San Francisco? Whereas, other Public Defenders in other counties are appointed by their Board of Supervisors. In the latter case, would a similar threat by the Public Defender not to take more cases unless additional funding was provided, possibly find the Public Defender looking for a new job? If that is correct, while not an excuse, does it possibly provide an explanation?

    • JJC July 18, 2015 at 6:01 pm #

      I think in theory that it would be better to have an elected official. At the same time, every other office in the state has appointed PDs and though I don’t know the specifics of those offices, it seems like local ones have fought for their budgets. But, it probably doesn’t help.

  2. Jody July 18, 2015 at 5:13 pm #

    The Board of Supervisors has repeatedly cut the PD budgets without regard to the consequences to the level of representation. They at one point wanted to eliminate the office and go with a private defender situation-that guy who comes in to smaller counties and make low ball offers. Thus it does not surprise me that there are issues with adequate representation.

    • JJC July 18, 2015 at 6:02 pm #

      I agree. It is not their fault. It really puts the PD in a terrible place to be forced to defend their representation when it has been impacted by funding which is out of their control.

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