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August 5, 2009

"Citing Cuts, Public Defenders Refuse New Cases"

The title of this post is the headline of this new article from San Francisco's legal newspaper, The Recorder.  It provides yet another window into how tight budget times are impacting criminal justice systems and also how dysfunction the justice system has become in the nation's most populous state. Here is how the piece starts:

Alameda County, Calif.'s public defenders on Monday stopped taking many out-of-custody misdemeanor and probation violation cases, citing the expected loss of 14 attorneys through layoffs on Sept. 4.

Public Defender Diane Bellas confirmed in an e-mail that her attorneys have started declaring conflicts of interest "based on overload."  The move is part of a "transition plan," she said. Bellas told county leaders that could shift more than 10,000 cases to a panel of private attorneys over the next year.  " ... The public defender is barred from undertaking representation in cases when it knows it has neither the necessary resources nor capacity," Bellas wrote.  "And ... the public defender will not abandon existing clients. Accepting new referrals through Sept. 4, 2009, when attorney staff will drop from 102 to 88, would result in a violation of both of these recognized canons and, operationally, give rise to an unmanageable caseload on Sept. 8, 2009."

Bellas informed Alameda County leaders of the plan in a July 13 memo. County Administrator Susan Muranishi was in meetings and unavailable to talk about the public defender's office Monday, a spokeswoman said.

Bellas' actions reflect the dire choices public defenders around the nation are facing as government budgets shrink.  Across the bay in San Francisco, Public Defender Jeff Adachi said his office started declining complex, time-intensive cases in March and has since referred about 20 defendants to private counsel.  And even though the Board of Supervisors restored $950,000 of the proposed cuts his office was slated to take, Adachi said he's certain he'll have to refuse representation "in an even greater number of cases." "When your staff is already working beyond capacity, there is no way to absorb those cases," he said.

In refusing to take new cases, attorneys are citing a March decision by California's 1st District Court of Appeal, In re E.S., 09 C.D.O.S. 3042, that said public defenders who can't effectively assist their clients because of overwhelming caseloads should do everything they can, including declining new cases, to ease their burden. "That really was the first case to acknowledge that, not only does the chief defender have a moral and professional obligation to declare unavailability" but they must do so or risk being held responsible "for failure to represent clients," Adachi said.

August 5, 2009 at 10:03 AM | Permalink


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Be aware that the case you cite, In re E.S. (2009) 90 Cal.Rptr.3d 564, has been granted review by the California Supreme Court.

P.S. I am a county prosecutor & read your blog daily.

Posted by: Blake Gunderson | Aug 5, 2009 12:54:49 PM

Blake Gunderson, you are only half right. The Supremes granted review of the original decision (171 Cal.App.4th 1219) and remanded back to the First District with directions for the court to "reconsider" its decision -- clearly an attempt to bully the First into changing its mind. Five days later, in what can only be interpreted as a big "F You" to the Supremes, the First re-issued and published the exact same decision (173 Cal.App.4th 387). That opinion is still on the books.

Posted by: Cal Defender | Aug 5, 2009 2:14:33 PM

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