Private defender program will retain most of its independence


Most people have seen accused criminals being read their rights in TV dramas so often that they know the words by heart, including: "If you cannot afford an attorney, one will be provided for you."

Just how San Mateo County provides those attorneys to poor defendants has been under scrutiny for more than a year, after a county civil grand jury issued a report in July 2015 on the county's Private Defender Program.

The report suggested that while no specific problems had been found with the program, the county's oversight might be lax. It suggested, for starters, that the county make sure the program met state and federal standards for representing indigent defendants. The report also proposed that the county review the program more often and include the public in such reviews.

In response, the county asked retired judge Zerne Haning and retired county counsel Thomas Casey to review the private defender program. The county also asked its controller's office to look at the private defender program's finances.

The Board of Supervisors on Sept. 20 considered suggestions for changes that came out of the Haning-Casey report, including that an oversight committee be created to, among other things, choose the private defender program's top official, known as the chief defender.

The private defender program has operated since 1968, when the county began contracting with the San Mateo County Bar Association to represent poor criminal defendants. The program, which has represented as many as 30,000 people in a year, uses private attorneys who spend some or all of their time defending indigent defendants.

In the 2013-14 fiscal year, there were 107 attorneys in the program, handing 2,254 cases, the county's staff report says.

The contract, at around $19 million, was the county's single largest contract last year, deputy county manager Reyna Farrales told the supervisors at their Sept. 20 meeting.

After hearing recommendations from Ms. Farrales for changes to the program, the Board of Supervisors unanimously voted to increase oversight, but declined to limit the program's independence by creating a committee that would choose the program's top official, the chief defender, and set the program's priorities.

Those recommendations drew a crowd of lawyers to the meeting, with more than a dozen speaking.

The private defender program "doesn't need to be fixed it's not broken," attorney Steve Chase told the supervisors. "We have resources to work with. This is a great program."

Attorneys said that because the program has its own investigators and other resources, they are able to well represent their clients.

Attorney John Halley said the program gives attorneys "what we need to do the job right ... so we can practice at the highest possible level."

Attorney Joan Tillman said recommendations to change the program's financial practices are fine, but the program must remain independent.

"I have no problem with auditing, I have no problem with someone coming in and saying how does the PDP spend its money," she said. "But I do have a problem with someone coming in and screwing with our autonomy."

The grand jury report said San Mateo County is the only California county with a population of more than 500,000 to not have a public defender's office representing poor defendants. It is also the only county in the state to contract out all legal representation for poor clients to a bar association, the report said.

The grand jury said it had not received any complaints about the program, and pointed out that the program has won national honors and been used as a role model for providing superior legal services to clients who cannot afford their own attorneys.

The Haning-Casey report listed several perceived conflicts of interest, including that the chief defender was also the head of the county bar association and that some bar association board members who made decisions about the private defender program were also program attorneys.

The controller's report pointed out a number of record-keeping and other financial discrepancies.

The program's current chief defender, John Digiacinto, told the supervisors that a number of changes have been made to address those problems. He is no longer chief executive of the bar association, and board members who work in the program can no longer vote on issues affecting the program, he said.

He said the program has clarified its fee schedule and is putting two new staff members in place to oversee financial matters.

Supervisors said they think the program is a good one. "This review is not a knock on any of the work that has been done or the service provided," Supervisor Adrienne Tissier said. "I clearly am not looking to micromanage."

"I've always been very impressed with the work they do and their advocacy for their clients," Supervisor Don Horsley said. "It really needs to be independent. We don't choose judges, we don't chose the DA, we don't choose the sheriff. We should not be choosing the chief defender," he said.

In addition to requiring more stringent financial controls, the supervisors agreed to recommendations for closer monitoring of the program, to make the application process for attorneys open and visible to the public, to solicit feedback from clients, and to set up a way for clients who have complaints to be able to share them with someone outside the program.

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Like this comment
Posted by SteveC
a resident of Menlo Park: Downtown
on Oct 11, 2016 at 1:06 pm

SteveC is a registered user.

What is the expertise of the Civil Grand Juriors? Is this another area that has out lived there usefulness. Reccomends, no authority to take any kind of actions.

Like this comment
Posted by Apple
a resident of Atherton: other
on Oct 11, 2016 at 4:16 pm


Civil grand juries can be thought of as another branch of the fourth estate. They provide oversight of government operations by the People. This right is enshrined in the California Constitution.

And just like the press, civil grand juries have no authority to take action. Since grand jury members are unelected, we don't necessarily want their recommendations to have the force of law. They can only report their findings to the public. It is then up to the public to demand change if change is desired.

This is a government of checks of balances. We usually think of it in terms of executive, legislative, and judicial branches checking each other. However, there exists checks and balances among the central state government, county governments, and people.

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