Balancing the Scales of Justice Between the Prosecution and Defense in San Mateo County Issue | Summary | Glossary |

R6

The Board of Supervisors should require the PDP to develop an implementation plan, timetable and resource requirements that reflect new processes, systems and performance tracking measures to enable the PDP to provide proper oversight and assume accountability for the quality of legal services provided to indigent clients. This should be completed by May 1, 2021 for review and approval by the County Manager and Board of Supervisors no later than June 1, 2021, and in any event prior to the date by which a new contract with SMCBA for PDP services must be approved for Fiscal Years 2021-2023.

R1

and R4. 4 https://sixthamendment.org/the-right-to-counsel/effective-assistance-at-critical-stages/ 3 System,” details specific requirements to assure the quality of public defense representation. One of the principles set forth by the ABA is that there should be “parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system.”5 Since 1968, San Mateo County has contracted with the San Mateo County Bar Association (SMCBA) to provide attorneys to represent indigent defendants, youth appearing in juvenile court (both in delinquency proceedings as well as dependency proceedings), and those with mental health issues through the SMCBA’s Private Defender Program (PDP).6 Twenty-three counties in California contract with legal firms or individual attorneys for legal services for indigent residents7 due to the expense of a Public Defender Office for a relatively small number of cases in these counties. San Mateo County is the only county with a population over 500,000 that does not have a Public Defender Office.8 The current contract between the County and the SMCBA covers the period July 1, 2019 through June 30, 2021, and is renewable by the County for an additional two years.9 At a cost of $19.6 million per year, the PDP contract is one of the largest service contracts executed by the County and is managed by the County Manager.10 Current Makeup of the PDP The PDP has 15 employees led by a Chief Defender who oversees operations and reports to the SMCBA’s Board. The current Chief Defender was appointed in December 2019, after serving as the Assistant Chief Defender for two years. Other key staff include an Assistant Chief Defender, a Managing Attorney, and a Chief Investigator. Accounting staff are shared with the SMCBA. The approximately 100 PDP attorneys (the Panel) contract with the SMCBA as independent contractors. Cases are assigned to Panel attorneys by PDP staff. The majority of PDP attorneys have 11 or more years legal experience, and the average PDP attorney devotes 76% of his/her time to the representation of PDP clients. During the fiscal year ending June 30, 2019, about half of the 100 attorneys on the Panel worked almost exclusively for the PDP, each with a case load between 90% and 100%.11 The Panel, as a whole, has an annual caseload of approximately 20,000 cases, approximately 80% of which are misdemeanors.12 California legislation, AB 5, effective January 2, 2020, will impact employers who use independent contractors.13 PDP staff indicated this law may further limit what they perceive as the PDP’s ability to oversee individual attorneys.14 5 American Bar Association, Ten Principles of a Public Defense Delivery System, February 2002. Agreement between the County of San Mateo and the San Mateo County Bar Association, June 2019. The County of Santa Cruz currently contracts with one law office but will be migrating to a Public Defender Program by 2022 according to County of Santa Cruz, Our Public Defender System: Anticipating Structural Change, June 21, 2018. California Commission on the Fair Administration of Justice, Report and Recommendations on Funding of Defense Services in California, April 14, 2008, p 2. Agreement between the County of San Mateo and the San Mateo County Bar Association, June 2019. Grand Jury Interviews. San Mateo County Bar Association, Annual Report Fiscal Year 2018-2019 to the Board of Supervisors San Mateo County, p.7. Grand Jury interviews. Now Labor Code Section 2750.3. Grand Jury interviews. The County of San Mateo and the PDP may also be impacted by the settlement of an ACLU lawsuit on January 9, 2020, regarding the inadequate funding by Fresno County and the State of California for the public defense of indigents.15 The lawsuit alleged that Fresno County’s public defense system was not “capable of putting the prosecution’s case to meaningful adversarial testing” so that “courts cannot ensure that their decisions, judgments, verdicts and punishments are rendered fairly and accurately.”16 Fresno County agreed to increase funding of public defense by $10 million per year to close the large funding gap with its District Attorney’s Office (DA’s Office) starting in fiscal year 2019-20, a 75% increase over fiscal year 2018-19; implement six new operational requirements and nine new policies, procedures and performance guidelines; and provide extensive quarterly, semi-annually and annual reports to the ACLU beginning April 1, 2020. In addition, the State of California agreed to additional funding of indigent legal defense in the State.17 2015 Evaluation and Follow–Up Following the release of the 2014-2015 Grand Jury Report, the County Manager contracted with a retired San Mateo County judge and a former county counsel to conduct an evaluation of the PDP to determine whether the PDP remained “the most appropriate model for providing indigent defense services in San Mateo County.”18 The evaluation focused on the “historical and current structure of the PDP and contrasted it with other indigent defense models, focusing on the adequacy of representation, financial accountability, proper utilization of public funds, and the objective characteristics of the program as a business model for the provision of a required publicly funded service.”19 The evaluators issued a report on December 8, 2015. That report, however, expressly noted that the evaluation “did not undertake a detailed analysis of the quality of representation provided by individual attorneys, nor perform a financial audit to determine how the PDP funds were disbursed and utilized.”20 The evaluators did not recommend that the County transition to a Public Defender model based on:  Anecdotal discussions with current and former judges, prosecutors, and criminal defense attorneys who indicated that the overall quality of representation was adequate,  The evaluators’ high cost estimate of developing a County Public Defender Office, and  Their conclusion that the operation of the Private Defender Program was in compliance with the American Bar Association and State Bar of California’s standards and principles. The evaluators did, however, make a number of recommendations regarding the administration of the program and the need to: 15 Carolyn Phillips et al. v State of California et al., Settlement Agreement, Fresno Superior Court, Case No. 15CECG02201, January 9, 2020. Benjamin, Marc, The Fresno Bee, ACLU lawsuit says Fresno County public defense is inadequate, July 15, 2015. Supra, Note 13. Zerne P. Haning and Thomas F. Casey, San Mateo County Private Defender Program Evaluation, December 2015. Ibid, p1. Ibid, p2. 5  Address inherent conflicts of interest between the PDP and the SMCBA;  Conduct an independent review of the PDP’s finances;  Establish more appropriate oversight of the program by both the SMCBA’s Board of Directors and the County.21 To address financial concerns raised by the report, the County Manager requested that the Controller’s Office conduct a financial review of the Private Defender Program. The Controller’s initial audit report was issued on September 1, 2016,22 the same day the County Manager issued a memo and its own assessment of the PDP to the Board of Supervisors.

R6

The Board of Supervisors should require the PDP to develop an implementation plan, timetable and resource requirements that reflect new processes, systems and performance tracking measures to enable the PDP to provide proper oversight and assume accountability for the quality of legal services provided to indigent clients. This should be completed by May 1, 2021 for review and approval by the County Manager and Board of Supervisors no later than June 1, 2021, and in any event prior to the date by which a new contract with SMCBA for PDP services must be approved for Fiscal Years 2021-2023.

R7

The Board of Supervisors should begin to address the large funding disparity between the defense of indigents and their prosecution, in fiscal year 2021-2022.

R5

By May 1, 2021 the Board of Supervisors should have the County Manager:  Replace the “performance benchmarks” section in the 2021-2023 SMCBA contract with national and state defense performance criteria and benchmarks that are audited annually by the Controller for PDP compliance;  Review the independent review report findings and recommendations to determine which should be adopted and on what time schedule;  Work with the Chief Defender to identify best practice processes, systems and resource needs so the PDP can address the new performance standards;  Require the PDP to report legal defense performance analytics in its Annual Report to the Board of Supervisors. If the SMCBA does not agree to these contractual changes, the County should consider providing SMCBA with a two-year notice to terminate the contract and begin developing an alternate legal defense model. 20

R5

By May 1, 2021 the Board of Supervisors should have the County Manager:  Replace the “performance benchmarks” section in the 2021-2023 SMCBA contract with national and state defense performance criteria and benchmarks that are audited annually by the Controller for PDP compliance;  Review the independent review report findings and recommendations to determine which should be adopted and on what time schedule;  Work with the Chief Defender to identify best practice processes, systems and resource needs so the PDP can address the new performance standards;  Require the PDP to report legal defense performance analytics in its Annual Report to the Board of Supervisors. If the SMCBA does not agree to these contractual changes, the County should consider providing SMCBA with a two-year notice to terminate the contract and begin developing an alternate legal defense model. 20

R2

The Board of Supervisors should require the PDP to translate descriptive information about the PDP and relevant written materials important for clients and their families to understand the judicial process, into multiple languages on the website to address the language needs of County residents. This should be completed

R3

The Board of Supervisors should recommend that the Chief Defender review Public Defender Offices in other California counties to understand the scope and breadth of indigent legal services programs, the resources that are required to establish and measure performance and how quality oversight is conducted. Likewise, the PDP should discuss with the DA’s Office its professional development and career advancement programs for staff as well as processes, systems and resources. These reviews should be completed

R4

The Board of Supervisors should authorize a comprehensive, independent and impartial review of the PDP by an organization with legal, management and accounting expertise to evaluate the program against national public defense requirements and estimate costs for improving the PDP model or implementing an alternative system. This evaluation should be completed by March 31, 2021, and made publicly available.