COMMENTARY: Justice, SLO County style

May 6, 2008


You know how the SLO County criminal court system is in turmoil right now? That’s because the county Probation Department and administrative offices came up with the brilliant idea of letting everyone use the public defender’s office, with no pre-check on a defendant’s ability to pay, until later… when everybody gets a bill.

This allows the system to (maybe) save or make the county a few bucks and cover the cost of the four new employees hired to staff the Probation Department’s Revenue Recovery Unit.

County Supervisors voted to enact the fledgling collection system, which measures the theoretical threat of financially able criminal defendants abusing the system against the theoretical threat of indigent defendants not having access to competent counsel.

First, a lesson in civics:

In 1961, a penniless man was charged and found guilty of breaking into a bar and steeling a beer. Clarence Earl Gideon — in a handwritten letter to the courts — claimed he did not get a fair trial because he could not afford an attorney. In 1963, the U.S. Supreme Court ruled the Sixth Amendment mandates the government to provide indigent persons with competent legal representation.

Public defenders are appointed by the court when the accused do not have the resources to hire a private attorney, which in turn safeguards the constitutional rights of the poor. SLO County contracts with a private attorney’s office, doling out a flat rate per month to provide public defender services. Expenses are paid from the county general fund.

In the past, criminal defendants requesting a public defender were required to fill out a financial declaration, their answers subject to penalty of perjury. Then a judge reviewed the application, questioned the applicant regarding income and assets, weeded out those found able to pay a private attorney and accepted those deemed unable to afford legal counsel. Case closed.

Until late 2006, when the Probation Department and county administrators asked the Board of Supervisors to allow them to established a public defender client fee program.

According to the request, Probation Department officials speculated that approximately 50 percent of the 24,000 cases they claimed were appointed to the public defenders office each year had the resources to pay a private attorney. They also estimated it would cost $253,733 per year to run the revenue recovery program that could bring in an estimated $381,368. The board approved the request.

However, according to an employee of the public defender’s office, prior to implementing the new system, the number of cases appointed to the public defender’s office was closer to 10,000 annually, with about 10 percent of clients having the resources to hire their own private attorney.

Under current guidelines, the county provides all who ask — indigent and not so indigent — a public defender. Upon completion of their case, they receive a bill for services: $500 for a misdemeanor, $1,500 for a felony. If one is able to prove poverty by way of documentation such as tax returns and bank statements, the bill is canceled. So I’m told.

Even so, critics of the program argue the Probation Office fails to inform defendants of the documentation requirement and that many of San Luis Obispo County’s indigent are unable to handle the documentation requirements on a timely basis.

A growing troupe — including private attorneys and public defender clients — claim the new program has overloaded the system with unqualified clients; forced public defenders to cut corners and make compromises; prompted indigent defendants, aware of the new billing system, to shy away from using a public defender; and created a void in private attorney cases.

San Luis Obispo attorney Jeff Stein decreed the new system “a real crummy deal.”

“It does have an economic factor on private attorneys,” Stein said. “More importantly, it doesn’t screen appropriately, which vastly overloads the system for those that need it. If you can afford an attorney, pay for one. It’s designed to support the indigent.”

It’s unclear what impact the county’s master plan is having on the number of cases appointed to the public defenders office. Those statistics were used as a catalyst in the county’s application to the Board of Supervisors. Now, though, they are no longer available.

“We have this data thru November 2007, said SLO County Administrative Analyst Leslie Brown. “What will be difficult to determine is how this compares to the total number of cases that went thru the system and how many were handled via a private attorney or self-representation. We don’t have that data.”

San Luis Obispo County Supervisor Katcho Achadjian told that the program was implemented to protect taxpayers while providing the indigent competent legal counsel.

“Someone needs to bring it back in front of us so that we can discuss it,” Achadjian added.

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Member Opinions:

By: Anonymous on 5/7/08

People of California must wake up to some harsh reality. Three strike law, and make everything a DA decides to be a felony or misdemeanor. Now we have to pay for all the tough laws that "supposedly"akes us safer. Many of thecharge could be reduced to an infraction with a simple fine. However, the DA must look like he is tough, after all he waselected on the promise to be tough on crime. If there was not enough crime, they'll create some. So, folks, wake up and smell the roses. Naturally, the bouraocracy loves to grow, so if there is not enough to handle, they'll create more. Why not. After all tax payers pick up the tab.

By: Anonymous on 5/6/08

To Wrong about PD. I fully agree with you. Someimes my sarcasum is mis-interpreted

By: Anonymous on 5/6/08

I'm so glad that you wrote this article. My "renter" who has become a friend over the years was charged with a crime. He spoke to the public defenders office for a "maximun of 5 minutes tops". Primarily he wanted to know if he really needed an attorney. He decided to retain a "private attorney " after his 5 minute inquiry. So get thie one…. He received a bill from the probation department for $1500.00!! They told him that he could afford an attorney had there was a flat fee for using the Public defender (after the fact)! He never used the public defender! They insisted that he pay!! It sounds like some sort of scam to me. I understand that the money went to the Dept of Probation so it's not the public defender who gained or did this!!!! Does anyone get it yet???

By: Anonymous on 5/6/08

Start writing the county board of supervisors. This problem needs to get put on the agenda so they can re-visit it. Someone at the Probation Dept has some explaining to do.

By: Anonymous on 5/6/08

The public defender doesn't make out on this deal at all. He receives a flat fee no matter how many clients are thrown at him. The money is going to the expanded departmental county gov employees. They have literally created jobs and enlarged county gov at the expense of convoluting the system and misleading the public.

By: Anonymous on 5/6/08

I agree with Cindy. The public defenders office should not be run this way. They are there to defend the indigent so that poor people get "some sort" of legal representation. If the county boggs down it's public defenders office everyone suffers.

By: Anonymous on 5/6/08

This doesn't even make any sense. What the heck is the probabtion department doing lobbying the county supervisors on behalf of the public defenders office anyway. Sounds like they made up some creative#'s on top of everything else. This is another example of government games. Someone had something to gain here and it isn't the citizens.

By: Anonymous on 5/6/08

Sounds like typical government to me. Always convoluting the process.Public defenders are there to protect everyone's constitutional rights. Sounds like the local firm with the country contract to provide public (defendant) services has got themselves "one hell of a deal". I thought it was against the law to provide services without an agreement as to fees? So in reality the county is referring all citizens attempting to qualify for public defense to

one single law firm without benefit of cost disclosure and with the false belief that they have obtained free services. Something isn't right here.

By: Anonymous on 5/6/08

What if we socialize legal care as some are trying to do with healthcare?

By: Anonymous on 5/6/08

reminds me of the old joke:

What do sperm and Attorneys have in common?

For every 1,000,000 of them, only 1 does any good.

By: Anonymous on 5/6/08

I have always remembered hearing an attorney answer the question of how much it would cost for his services in defending a charge of murder. His answer was "everything the person has." Maybe this is partially the cause for the Public Defender's office to be over loaded with cases. Most criminals have nothing, that is usually why they commit crimes. Maybe a suggestion would be something similar to the affordable housing programs that our government has forced upon developers. In the case of legal defense, if lawyers want to practice in the community they will be required to provide affordable legal service to people who meet the guidelines set forth by government. In the very low bracket they could charge $25-$50 per hour and in the moderate income bracket they could charge $100 per hour. The same giuidelines to determine elgibility could be used that is in place for affordable housing.

Of course something like this would never work because most attorney's only take and never give.