What Price Justice for the Poor? : Jurisprudence: Increasing costs of defending indigents prompts a county review of how it ensures that they have a fighting chance in the courts.

With criminal defense costs for indigents climbing to a near-record total of $29 million during the last fiscal year, Orange County leaders are planning a complete review of their system for delivering legal services to poor people.

Some officials question whether the job performed by private attorneys, who contract with the county to handle cases the Orange County public defender’s office cannot, could be accomplished at less cost while still fulfilling the constitutional requirement to provide free legal representation to indigent defendants.

“It sounds to me like the county is spending a disproportionate amount of money for defense cases,” said Dist. Atty. Michael R. Capizzi. “I’ve always questioned this and I think the taxpayers should question it.”

Private defense attorneys handle criminal matters--at taxpayer expense--when the public defender has a conflict of interest, such as cases that involve numerous defendants. They are paid set fees, depending on the type of case involved and the time involved.

These “alternate defense” attorneys and other services cost county taxpayers about $11.4 million for about 6,200 cases in the 1992-93 fiscal year that ended June 30. During the same period, the public defender’s office handled about 63,400 cases--more than 10 times as many--with a budget of $17.9 million. Both budgets include the price of expert witnesses, investigators and other necessary costs.

With the county facing $80 million in budget cuts and the number of cases expected to continue increasing, a review of defense costs is needed, said Supervisor Gaddi H. Vasquez.

“We are always reviewing the cost of indigent defense, but we have to be vigilant about saving money where we can,” Vasquez said.

“I don’t think we can rule anything out,” said Board of Supervisors Chairman Harriett M. Wieder, who believes many contract attorneys do a good job. “But in these days of less resources, we can’t just rely on business as usual.”

Defendants are provided attorneys at public cost when they cannot afford to hire one. A confidential economic disclosure form is reviewed by the court, and if approved, an attorney is appointed, said supervising deputy public defender Thomas Havlena.

The debate over defense costs arose last month when Public Defender Ronald Y. Butler ordered his deputies to refuse criminal cases on a limited basis in anticipation of deep budget cuts. The plan was used once, on June 16, when deputy public defenders refused to represent about 100 indigent defendants at their first court appearances.

Last week, Butler agreed to place the plan on hold until the county budget is finalized later this summer. But his action caused some officials to raise concerns about the high price of the private attorneys who supplement the work of the public defender’s office.

Other areas that have been alarmed by rising defense costs, including San Diego and Contra Costa counties, have taken the controversial step of creating a second public defender’s office. The second office uses salaried attorneys, paid by the county, and avoids conflicts of interest by keeping operations independent.

Officials in those counties say the move has saved millions of dollars. Until 1988, San Diego’s system of providing legal defense for indigents was widely considered one of the worst in the state. Private lawyers were paid by the hour and the cost of hiring them was always on the rise.

“There is just no way that private attorneys contracting with the county can provide cheaper legal services over a salaried attorney,” said San Diego Public Defender Frank Bardsley.

In Contra Costa County, the second public defender’s office saves the county about $1.5 million annually, said Public Defender Charles James.

In both counties, there is still a need for some cases to be handled by private attorneys in cases where there is a conflict for both offices, but officials say that is infrequent.

In Orange County, many say a switch away from private attorneys does not make fiscal sense, would hurt the private attorneys financially and might deny the court system the independent viewpoint of outside counsel.

“I don’t think you can do this cheaper,” said Robert M. Matherly, a Superior Court senior auditor. “There are overhead costs that aren’t involved in contract cases.”

“People have this opinion that we’re getting rich at the county trough and it is just not true,” said Santa Ana attorney Christian Jensen, who handles criminal misdemeanor and felony cases as part of a contract with Orange County Municipal Court in Santa Ana.

Jensen noted that attorneys like him rely on contract cases to supplement--not support--their practices. In some complex cases, contract attorneys just break even or wind up losing money, he said.

If all defense attorneys were public defenders, it would undermine the independence of the judiciary and unfairly impact criminal defense attorneys, said Rowan Klein, chairman of the legislative committee of California Attorneys for Criminal Justice, the state’s largest association for public and private criminal defense attorneys.

“You need vigorous representation and independence in the courtroom. You don’t want everyone to be a county employee,” he said.

Michelle A. Reinglass, president of the Orange County Bar Assn., said she expects a lot of opposition from the private Bar toward any attempt to take away indigent defense cases.

But defense attorney Milton C. Grimes, who is on the panel of attorneys who handle homicide cases under contract to the county, said he is only concerned that changes to the system could hurt defendants.

“If a second public defender’s office is the more economical way, so be it,” Grimes said. “Just don’t sacrifice competence.”

Grimes said court officials review costs for contract attorneys and that he is frequently called to justify his requests for expenditures.

“They do all they can do--they are always checking, always scrutinizing these billings,” Grimes said, adding that he sometimes believes they try to scrimp too much. “Just because we ask for it doesn’t mean we get it.”

The Los Angeles judicial district is also leaning toward forming a second public defender’s office, said Joel Bellman, aide to Los Angeles County Supervisor Ed Edelman, who has proposed the move.

The switch to a second public defender’s office was studied in Orange County as recently as 1991. County officials concluded that they could not justify the daunting start-up costs of a second public defender’s office because they could not accurately predict long-term savings.

The State Judicial Council, however, this year recognized Orange County for innovation in the way it controls the cost of outside counsel in homicide and death penalty cases by requiring set fees for their services.

Contract attorneys are paid $324 for each misdemeanor case, $423 for felony cases that settle in Municipal Court and $1,044 for felony cases that settle in Superior Court. If a felony case goes to trial, the attorney is paid $324 for each day of the trial. Only Municipal Court in Newport Beach does not use contract attorneys, but it pays local attorneys similar fees for the same services.

Fees for homicide and death-penalty cases are negotiated at the start of each case and cannot change without court approval.

Only an estimated 2% of the cases ever make it to trial, Dist. Atty. Capizzi said. Jensen said such statistics indicate that contract attorneys are not trying to drag cases out, but are trying to settle the case in their clients’ best interests.

Alan Slater, the Superior Court’s executive officer, said the bidding process that attorneys must go through also keeps them honest because their contracts won’t be renewed if they are suspected of attempting to bilk the system.

Capizzi noted that his office prosecuted all 98,000 of the county’s criminal cases last year for $28.5 million, about the same amount as was spent on indigent defense cases alone. Indigent defense cases account for about 65% of the county’s total criminal caseload. The remaining 35% consist of defendants who hire their own attorneys.

On an average basis, the cost of providing private attorneys, investigators and other legal services cost the county $1,838 per case during fiscal 1992-93. The public defender averaged $282 per case.

“We’re much more cost-effective,” said Butler, who declined to discuss his feelings about establishing a second public defender’s office.

Slater, however, said the average cost per case cannot be accurately compared because the public defender’s budget includes the price of support staff, benefits and other costs. Private attorneys must pay for their own overhead costs.

So-called conflict cases are often more complex, Slater added, requiring additional legal work. The public defender also handles a larger percentage of misdemeanor cases.

Further complicating a comparison, Matherly said, are differing systems of keeping track of cases, which could skew caseload figures.

“It’s like comparing apples and oranges and you get apple-orange juice,” agreed Ron Coley, a manager with the County Administrative Office.

William R. Mitchell, president of the Orange County chapter of Common Cause, a government watchdog organization, said he also sees problems trying to compare the cost of the public defender’s office to contract attorneys and said a detailed study is needed.

“It’s a battle that communities are facing everywhere, with the emphasis on (privatizing) government work to save money, now there are questions about whether the government can do it cheaper,” Mitchell said.

Justice Costs

Orange County officials plan to review the cost of providing defense services for those too poor to hire their own attorneys. When the Orange County public defender’s office cannot handle criminal cases due to a conflict of interest, the county pays private attorneys to do the job.

Public Defender’s Office

Fiscal Cost per Year * Budget ** Cases case 1990-91 $16.6 59,100 $280.88 1991-92 18.2 61,700 294.98 1992-93 17.9 63,400 282.33

Contract Defense

Fiscal Cost per Year * Budget ** Cases case 1990-91 $12.1 6,300 $1,920.63 1991-92 12.1 5,400 2,240.74 1992-93 11.4 6,200 1,838.71

* Millions of dollars

** Rounded to the nearest 100

Source: Orange County public defender’s office

Los Angeles Times