Public Defenders Take on Bigger Caseload : Courts: After restructuring, the county’s salaried lawyers will get more work as the budget for outside attorneys is slashed.

SANTA ANA —  There’s nothing like the biggest municipal bankruptcy in U.S. history to get government moving in a hurry.

No one knows that better than Deputy Public Defender Brian Ducker.

For nearly a decade, Orange County considered creating a second, smaller branch of the Orange County public defender’s office to save money by handling cases normally assigned to outside private attorneys.

Now, in the wake of a fiscal crisis that has Orange County’s leaders working at a frenzied pace to reduce costs, slash jobs, and generally do things differently, Ducker has been named to head the newly created legal unit.

The effort, hastened on Dec. 22, could save an estimated $3.7 million the county had expected to spend this year to hire private attorneys for indigent defendants.

Ducker’s unit has until Tuesday to begin absorbing much of the caseload normally reserved for private attorneys and is expected to be up and running by the end of the month with a staff of about a dozen lawyers. A third division made under the reorganization will start this month with only three attorneys.

“There’s not a moment to waste,” said Ducker, who is now titled alternate public defender. “This is all from scratch. We’re starting from the ground up. We’re talking about which forms to use and what our case files should look like.”

Segmenting the public defender’s office marks a drastic change in the way the county provides defense services to the poor, who have a constitutional right to free counsel when charged with a crime.

Typically, the Orange County public defender’s office handles the majority of indigent defense cases. In fiscal year 1993-94, the office handled about 61,000 cases with a budget of $20 million, Ducker said.

At the same time, private defense attorneys handled about 6,100 cases at a cost of about $12.2 million, Ducker said. The private bar’s budget was expected to be $12.7 million for the current fiscal year. While much of that has already been spent, cutting the budget is expected to save about $3.7 million.

Cases sent to the private bar are mostly felonies, and include many more complex cases, such as death penalty cases or cases with multiple defendants--factors that heavily increase legal costs. But critics say it is generally more expensive to hire contract attorneys and investigators--who get paid by the case or the hour--over salaried county employees.

Private attorneys and investigators are utilized when a “conflict” arises for the public defender’s office, such as when more than one defendant is charged in a case or a witness in a new case turns out to be a client in an old one.

Under the new organization, conflict cases will be sent to Ducker’s office. If the alternate public defender also has a conflict, the case will be forwarded to the new third unit, the tertiary public defender.

Private attorneys will be appointed only when the third office cannot handle the cases, and it is estimated only a few dozen cases will fall into this category.

“Clearly, we are going to save the county a ton of money because our lawyers are salaried and will be taking all the cases they are given,” Ducker said. “But we are also going to be stretched to the limit.”

Partitioning the office with a “glass wall” will require a delicate balancing act: The offices will be bound together by funding and some administrative issues but will operate on a day-to-day basis as independent agencies.

For example, Orange County Public Defender Ronald Y. Butler will remain in charge of the new offices. But ethics will bar him from discussing specific cases or details with his respective supervisors for fear of jeopardizing cases in which he has had a previous experience with one or more of the parties involved.

The offices will require separate computer systems, separate phone lines with different numbers, different office space, even clearly marked letterheads, case documents and file folders so there will be no confusion. Separate law libraries are also needed.

Orange County’s system will be similar to a program already used in Contra Costa, while counties such as San Diego have split the offices into autonomous departments with separate budgets.

“There’s no doubt that it’s saved a lot of money here,” said San Diego Alternate Public Defender Loren Mandel. “There is no way that private attorneys can do a cheaper job than salaried employees.”

The proposal has been considered in Orange County for at least a decade, but some have questioned whether start-up costs would outweigh long-term benefits.

But amid the county’s bankruptcy, the public defender’s office is being forced to do make the changes without any additional funding.

“I’m not sure congratulations are in order,” Ducker joked about his new job. “This is going to be quite a challenge.”

Superior Court Presiding Judge James L. Smith said he remains cautious about the new plan and fears overburdening the public defenders, whom he calls the “leanest, meanest” department in the county.

“The bottom line, when push comes to shove, (is) it’s the court’s responsibility to make sure indigent defendants get adequate representation,” he said. “That’s a job we can’t avoid.”

Smith said he worried that swamped public defenders would begin to regularly seek continuances, forcing he and other judges to order more expensive private attorneys to help ease the backlog. Other judges and attorneys said an increase in “three strike” cases, which normally cannot be negotiated and go to trial, would overwhelm the office.

“In the past six months they’ve been so overburdened because of ‘three strikes’ cases,” private defense attorney George A. Peters said. “They’re getting to the point where they just can’t get it done.”

Municipal Court Judge Pamela L. Iles said the public defender’s plan looks good, but that a true test will be the ability to handle a flurry of “three strikes” cases or any major serial crimes.

“We don’t know if it will work,” she said. “This is an experiment.” At a meeting of Alternate Defense Steering Committee last week, Chief Deputy Public Defender Carl Holmes reassured the panel of judges that if things got tough, office supervisors were ready to step in to try cases.

“If they’re not able to handle the caseload, we’ll pull from the management staff,” he said.

Ducker said attorneys in the public defender’s office have been put on alert that tough times are ahead, but are willing to do their part for the county.

“My team is excited about this, we want to show them we can do this,” he said. “Sure, there is some trepidation. But this is a time of crisis. This is not a time for people to be saying they can’t do more. We have to do our share to eliminate the problem. Our people understand that this is going to be painful, but we look at some other people in the county and think, ‘At least we haven’t lost our jobs.’ ”

Harbor Municipal Court Judge Margaret R. Anderson said she can’t think of a better person than Ducker, with whom she worked years ago in the public defender’s office, to head up the new office.

“I’ve watched him through the years become a great trial attorney,” she said. “He has common sense. He gets along with other people. . . . He gives 150% all the time.”

William R. Mitchell, head of the Orange County chapter of Common Cause, a government watchdog organization, said he has been amazed at how much Orange County government has accomplished--since it has had no other choice.

“Of course you look at all this and wonder why it wasn’t done years before, but people always want to extend their power and it’s a big political lie that Republicans want to reduce government,” he said.

“I hope the upside to all of this is it will cause a fundamental change in the operation of government,” Mitchell said. “Instead of analyzing, ‘What cuts do we need,’ we should start analyzing, ‘What services do we need to provide and what’s the most cost-effective way of doing it?’ .”

Times staff writers Anna Cekola and Tracy Weber contributed to this report.

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Profile:

Brian Ducker

New job: Heading second branch of public defender’s office

Age: 43

Born: Massachusetts

Resides: Orange

Education: Bachelor’s degree in criminal justice, Northeastern University, 1974; law degree, Pepperdine, 1976

Family: Wife (also a public defender in Orange County) and 5-month-old son

Professional background: Private investigator; more than 15 years with county public defender’s office

Professional pride: None of more than 30 murder clients received death sentence; just one got a life sentence without parole

Attitude: “I feel good about helping people that no one else wants to help. These are people that everybody hates.”

Source: Brian Ducker