Cost, Legal Infighting Peril Community Defender Plan

A year ago, it all seemed settled.

The county Board of Supervisors, at the urging of a blue-ribbon panel of legal powerhouses, had agreed to junk a hodgepodge system for providing criminal defense to the county’s indigent--a system whose spotty quality had made San Diego a national laughingstock while its costs skyrocketed out of control.

The board voted in principle last May 27 to replace the hybrid of contracted private attorneys and a small staff of civil servant lawyers with a novel, quasi-public defender office. The change promised to provide top-quality service without a runaway price tag for represention of more than 30,000 defendants unable to pay their own legal costs.

But now the consensus for designating Community Defenders Inc. as San Diego’s first comprehensive, countywide indigent defense agency seems to be crumbling.

A legal challenge from the county employees union, a change in the county charter, shifting budget predictions, courthouse politics, a personal attack on the new organization’s chief executive, and what some call a faltering decision-making process have combined to undercut the new plan and mire the county’s nearly $18-million current indigent defense investment in an inscrutable kind of limbo.

Competing plans are being floated from various quarters as interest groups struggle to eke out a role in whatever program the supervisors finally settle upon. The county’s in-house defense lawyers want to hold sway as a full-fledged, traditional public defender office. Some judges want to return to the days when they named private lawyers from a list to represent indigents. Contract lawyers, saying their notoriety is undeserved, want the county to take another look at the existing system. And Community Defenders is fighting to avert stillbirth.

All bets on the outcome are off.

“I think the options are open,” said Brian Bilbray, chairman of the Board of Supervisors. “The board has not painted itself into a corner. It is not tying itself to one system or two systems.”

Until 1978, the county’s judges handled the appointing of defense attorneys for accused indigents. Costs spiraled. A study concluded that the solution was to contract the work out. Minor felonies, misdemeanors and traffic cases were contracted in bulk to groups of lawyers. More serious felonies were contracted at fixed rates to individual lawyers. But costs continued to spiral. And when the county began giving the contract work to the lowest bidders, with little regard for their capabilities, complaints from judges and clients about the quality of defense work poured in.

The low-bid rules were modified to take quality into account. But in 1984 and 1985, national and state bar association studies condemned San Diego’s unique contracting system. Meanwhile, in further hope of getting costs under control, the county in 1984 created an in-house public defender office for the first time to handle the bulk of the most serious criminal cases.

A county study issued late in 1985 said the public defender system--the indigent defense choice of virtually all the major metropolitan areas in the U.S.--was working, though it was not saving as much money as supervisors had hoped. A simultaneous study by a blue-ribbon commission of area legal experts, commissioned by the supervisors, concluded early last year that a community defender--a quasi-public defender spun off from the civil service, with an independent board of directors--was the county’s best hope for good indigent defense at the lowest reasonable cost. Under the proposal, the supervisors were to name a majority of the board of directors, with the county bar naming the rest.

Opposition Mounts

Rejecting Chief Administrative Officer Norman Hickey’s recommendation that they establish a traditional public defender office, the supervisors voted a year ago to enter negotiations with the commission’s preferred community defender office. But while the new organization slowly went about the business of creating itself, its opponents and challengers were gathering the ammunition for a final attack before the county could sign a contract giving it life.

The onslaught began last fall. The San Diego County Employees Assn., which represents the in-house defense lawyers whose job security was threatened by the new plan, sued the county. The group noted that a charter amendment effective July 1, 1986, stated that the county could contract work out only if it could be shown that a private entity would do the job more efficiently and economically than the county staff.

That challenge lay fallow until the end of March, when Community Defenders Inc. submitted a proposed budget. Though the blue-ribbon commission had estimated a year earlier that a community defender could assume the bulk of the indigent caseload for $12.9 million in its first year of operation, the new budget--reflecting higher estimated caseloads and higher salaries in line with raises given deputy district attorneys--now placed the cost at $16.2 million. Start-up costs, cases requiring outside counsel because of conflicts of interest and cases carried over from past years boosted the first-year estimate to $23.3 million.

The county’s in-house lawyers, in the Office of Defender Services, claimed in the meantime that a traditional public defender could do the core defense work with 40 fewer lawyers at a cost of $10.8 million--one-third less than the new group’s $16.2 million estimate.

Supervisorial nerves already jittery from the cost projections got a further jolt when Assemblyman Larry Stirling (R-San Diego) showed an interest in the issue.

Stirling, a longtime friend of the county employees association, called in April for investigations of the community defender plan by the state attorney general, the auditor general and the county grand jury. He questioned the cost of the proposal, the county’s decision-making process and the selection of local defense lawyers Alex Landon and Glenn Warren as the top executives of the new office.

Stirling dropped a bigger bombshell early this month, when he distributed to supervisors and reporters a copy of a 1975 state appellate court decision that said Landon--one of the most respected members of the local defense bar--had played a central role in a 1972 escape from the California Institution for Men in Chino that resulted in a prison guard’s death.

Most recently, County Counsel Lloyd Harmon called last week for a new competition between Community Defenders and the Office of Defender Services so county officials could meet the charter requirement of determining which defense system--public defender or community defender--is more efficient and economical.

Each development has caused more confusion and vituperation.

The attack on Landon provoked the deepest feelings. Though Bilbray declared Landon’s background “irrelevant” to the supervisors’ decision-making process, Supervisors George Bailey and John MacDonald said the charges raised by the appellate case demanded further investigation.

Landon insists the court findings seized on one of several contradictory claims made by an informant who testified in a San Bernardino County murder trial--a man Landon once counseled during his days in the prisoner-rights movement but whom he came to regard as a “pathological liar.”

Landon notes he was never charged with a crime, and that the State Bar of California found there was no credence in a complaint about the incident lodged by the state Department of Corrections.

On Thursday, the board of Community Defenders unanimously voted its confidence in Landon. Asking Landon to defend himself afresh against the charges is “totally repugnant,” said E. Miles Harvey, a San Diego civil lawyer who is chairman of the board.

The budget issues are far more difficult to sort out.

Supervisors say their support of the community defender concept was dependent upon it being affordable. The new budget estimates have them wondering if it is, in an era of tight county budgets for every aspect of the criminal justice system.

“You don’t want one part of that criminal justice process to have Rolls-Royces while everybody else is in Volkswagens,” Bilbray said. The community defender proposal, he said, “is a Rolls-Royce.”

MacDonald favors a domestic auto metaphor. “The issue is what standard of defense we are able to afford,” he said. “I’d like to drive a Cadillac, but I drive an Oldsmobile, and I get the best possible Oldsmobile I can buy.”

Supporters of the community defender plan say the county will get the latest in a long string of lemons if it opts for the proposed in-house public defender simply because it promises to deliver services at a lower cost.

History of Budget Overruns

Historically, they say, the Office of Defender Services has submitted preposterously low budgets for its contract and in-house defense operations, only to return to the supervisors begging for supplementary appropriations later in the fiscal year. This year, for instance, the office was budgeted to spend $10.2 million, while the latest estimate of its spending exceeds $17.7 million--a 74% overrun.

“What has been happening is a very dishonest approach to this,” said Daniel Tobin, a La Mesa attorney who serves on Community Defenders’ board. “The dishonesty is low-balling at the front end, and then sneaking in the back door with your increases . . . .”

Proponents of the community defender plan say the latest in-house budget proposal is more of the same, promising either late-inning budget busting or pitiful representation for indigent clients.

The in-house plan has only two supervisors for a staff of 136 lawyers, indicating the office will do none of the training of young lawyers that the blue-ribbon panel said was crucial, Landon contends. Landon’s plan calls for a staff of about 180 lawyers, including seven administrators.

The in-house proposal would require public defenders to carry caseloads far in excess of those projected by the community defender budget: 457 juvenile delinquency cases per lawyer per year compared to 300, some 208 non-serious felonies compared to 175, and 533 misdemeanors compared to 450.

“We are not talking about providing a Cadillac defense,” Harvey said. “We’re talking about getting there in an efficient, economical way that protects the rights of the defendant but doesn’t overburden the system.”

Wyleen Luoma, general manager of the county employees association, disagrees, arguing that the community defender’s budget estimates are unbelievable. “There is no way anyone can demonstrate in this case it can ever be as efficient, let alone more efficient, than a public defender office fully constituted,” she said.

Landon’s caseload figures are slightly higher than those recommended by the National Legal Aid & Defender Assn. Those proposed by Phil Harry, acting director of the Office of Defender Services, far exceed the national standards. But Harry says his figures are based on years of expertise--his, as assistant director of the office since its establishment in 1978, and the experience of his predecessor, Melvin Nitz, the former Fresno County public defender who retired April 2 as director of the county office.

Cost Called Unpredictable

While defending the integrity of their projections, both Harry and Landon concede that the cost of indigent defense is unpredictable. The workload depends on the number of crimes and the number of prosecutions. Even one more death-penalty case than anticipated can blow a budget by $1 million or $2 million in a year.

“The real question is whose guess is the best guess,” Harry said.

County officials, however, would like to reduce the guesswork to a science.

Harmon’s proposal for a cost-efficiency comparison would have both Harry and Landon submit proposals for handling the indigent defense duties with a staff of 128 lawyers. The figure, according to a memo submitted to supervisors, is based on the number of county and city prosecutors whose jobs mirror the work public or community defenders would perform.

Harvey and Landon say the proposed comparison is ridiculous. Though Harmon’s memo suggests inviting recommendations for supplementing the 128-member staff, Community Defenders’ board agreed last week that using the figure even as a starting point would doom a defense program to failure. If supervisors insist on it as the basis for a bidding war, Community Defenders Inc. will not bid, they said.

The board also voted to insist that defense attorneys receive the same pay as their counterparts in the district attorney’s office--not the 85% of “parity” now paid to the county’s in-house defense lawyers. Harvey and Landon concede they would lose the economy competition if they bid at full parity while Harry bids at 15% less. But they insist that the competition must be conducted with equal pay as an inherent assumption.

Outside experts also question the proposed cost comparison. San Diego defense attorney Gerald Blank, former chairman of a State Bar committee that studied indigent defense programs across California, predicted disaster at the low staffing levels. An understaffed defense office would consist, he said, “of overworked, underpaid lawyers in a system built like a house of cards that’s just going to collapse somewhere in the not too distant future.”

Sheldon Krantz, dean of the University of San Diego School of Law, also urged reconsideration of the proposed staffing levels.

“To try to get two agencies to compete at clearly inadequate levels does justice to no one,” said Krantz, who organized the county’s blue-ribbon commission. “If the county decides now to look for the cheapest way to do this, it’s going to end up, I’m afraid, repeating a lot of the mistakes made over the last few years which forced the blue-ribbon commission to be created in the first place.”

The Board of Supervisors will discuss Harmon’s proposal at its meeting June 2.

While the public and community defender plans slug it out in the center of the ring, an array of contenders are lurking in the corners--and their promoters are wheeling and dealing outside the spotlight.

In North County, Vista Presiding Municipal Court Judge Runston Maino has written a letter to the supervisors arguing that the existing contract system--or a return to direct judicial appointments of defense lawyers for the indigent--would be cheaper and as effective as a countywide defender program.

At Juvenile Court, Supervising Superior Court Judge Judith McConnell has written a letter of her own, asking that a court-run appointment program established a year ago, amid the ruins of an overburdened contract for representing parties in child-abuse cases, be allowed to continue no matter what else the supervisors decide. The program, she said, is better staffed and less costly than that proposed by Landon, which in turn has 19 lawyers to the four in Harry’s plan.

As a bench, Superior Court judges have taken no position on any of the alternatives. Their official stance is only that the county should not spend a disproportionate amount of money on indigent defense. The district attorney’s office takes the same position.

Presiding Superior Court Judge Thomas Duffy and Steve Casey, a spokesman for the district attorney’s office, both reject the view of some judges and defense attorneys that those stands reflect opposition to the entry of a well-financed, influential defense organization into the county’s criminal justice system.

“To suggest the district attorney is opposed to fighting somebody on equal terms is simply not so, and is a disservice to the district attorney,” Casey said. “That said, however, what some people would call fully funded others would call obese.”

Meanwhile, the least likely contestants for the county’s defense business--the much-maligned contract lawyers--see the ongoing debate as a chance to resurrect a role for themselves in the equation.

Attorney Thomas Sauer, whose firm contracts to represent indigents charged with misdemeanors in San Diego Municipal Court, contends that contracts such as his have saved the county hundreds of thousands of dollars while providing satisfactory representation. Critics, including the authors of last year’s blue-ribbon report, had only anecdotal evidence of problems with the contract system and ignored the success stories, he said.

“If it was such a crisis, why have we been able to go along with contracts for another year, and we’re not hearing complaints about it?” Sauer asked.

Few Complaints by Judges

In fact, while the supervisors anguish over the future of the county’s defense system, few judges seem to have complaints about the existing hybrid of contracts and public defenders. Duffy--along with presiding judges in the Vista, El Cajon and South Bay municipal courts--report no outstanding problems. San Diego Municipal Court is divided on the best future for indigent defense and has taken no official position.

One downtown municipal judge on the firing line, however, says the existing system remains cursed by its tradition of asking too few lawyers to do too much work for too little money.

Judge Lisa Guy-Schall, who has presided for six months over the assembly line of the court’s trial-setting department--where 150 to 200 cases are heard each day--admires the hard-working defense lawyers who ply their trade before her on behalf of indigents. But too many clients complain that the lawyers have no time for them, and some of the lawyers have clearly spread themselves too thin, she said last week.

County officials, Guy-Schall said, “are opening themselves wide open to lawsuits for failure to provide more people in the system.”

She shuffled through the day’s calendar, noting one attorney with seven or eight cases set for trial at once. She recalled a lawyer a few weeks back who had 75 cases scheduled for one afternoon court session.

“The practicality is that you get what you spend,” Guy-Schall said. “We don’t have to be crazy about it. But we’ve got to spend the money to get more attorneys.”