COMMENTARY: Justice, SLO County style

May 6, 2008

By KAREN VELIE

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 UncoveredSLO.com 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.