TO THE JOHN S. DIGIACINTO

Transcription

1 ANNUAL REPORT FISCAL YEAR TO THE BOARD OF SUPERVISORS SAN MATEO COUNTY SAN MATEO COUNTY BAR ASSOCIATION PRIVATE DEFENDER PROGRAM JOHN S. DIGIACINTO CHIEF DEFENDER

2 TABLE OF CONTENTS PREFACE... 1 FOREWORD... 3 THE PRIVATE DEFENDER PROGRAM... 5 A Brief History... 5 Administration and Structure... 6 Appointment and Assignment Who Are the Lawuers of the PDP? How the PDP Lawyers Accomplish Their Mission Juvenile Services The Investigation Division THE IMPORTANCE OF RELATIONSHIPS The Superior Court Pathways Veterans Treatment Court APPOINTMENTS IN FISCAL YEAR THE BUDGET PERFORMANCE BENCHMARKS Attorney Training Resources Outside the PDP Attorney Evalulation Evaluation Standards How Performance is Monitored and Evaluated Annual Surveys Results of the Evaluations Client Relations Attorney Caseloads Initial Client Meetings Community Outreach APPENDICES Appendix A Endnotes Appendix B County Contract Appendix C PDP Case Counts Appendix D PDP Budgets Appendix E PDP Fee Schedule Appendix F Evaluation Standards Appendix G Attorney Caseloads FYE 2014

3 PREFACE This year marks the 45 th anniversary of the operation of the San Mateo County Bar Association s Private Defender Program. We are happy to once again be celebrating the longevity of the relationship we formed with the County of San Mateo and the commitment we made together to those members of our community who, due to their poverty, are entitled to the appointment of counsel at public expense. While the pages that follow describe the operation of the Private Defender Program for the fiscal year ending June 30, 2014, we hope that the detail enhances rather than obscures how we have been and continue to be guided by the commitment articulated in our Mission Statement: The Mission of the Private Defender Program is to provide high quality legal representation to every indigent person whose case has been entrusted to us by the San Mateo County Superior Court. We are dedicated to the vigorous protection of the fundamental rights of our clients in criminal, juvenile, mental health and in other cases for which the appointment of counsel at public expense is provided by law. While acting as strong and ethical advocates for those facing loss of life, freedom or family, we strive to preserve the dignity of the individuals we represent, to keep them and the communities in which they live safe from wrongful convictions and unjust outcomes, and to enhance the integrity of the criminal justice system in San Mateo County. OVERVIEW This is the 12 th Annual Report of the Chief Defender of the Private Defender Program to the San Mateo County Board of Supervisors. On June 4, 2013, the County of San Mateo (the County) and the San Mateo County Bar Association (the Association or SMCBA) entered into a two-year agreement to provide legal representation to indigent persons entitled to the appointment of counsel at public expense (the Agreement). (The Agreement is attached as Appendix B.) Paragraph 10.h. of that Agreement calls for the submission of this report within 90 days of the end of the fiscal year, and requires that it detail the Private Defender Program s performance with respect to the items described in Paragraphs 10.a. through 10.g. of the Agreement, and that it include the annual budget of the Program, setting forth the costs of the operation of the program for the year, including fees for attorney s services, investigation and other ancillary defense services as well as the cost of administration. The Agreement between the County and the Association addresses concerns that go beyond the crucial issue of providing adequate financial resources. For the past 45 years, the County and the Bar Association have shared a commitment to the people of our community. That commitment has been and continues to be the provision of high-quality legal representation in a cost-effective manner to the members of our community who cannot afford to hire their own counsel. During contract discussions, a considerable amount of time was devoted to discussing ways in which we could effectively evaluate how that commitment was being met. The County and the Association concluded that an annual report on certain performance benchmarks and the budget of the Program would serve to achieve that goal. It is thus that this 12 th Annual Report is submitted.

4 NEW ELEMENTS There are some new elements that we are pleased to include in this year s Annual Report. We have included in the Client Relations segment of the report results of our client satisfaction surveys that were a part of the new Agreement with the County seeking the clients views of their lawyers. We once again include mini-biographies of two Private Defender Program lawyers and one investigator whose diverse experience and backgrounds contribute mightily to our clients and to this community. PDP attorney Kevin Allen s dedication to the population of people the PDP serves began in his early life and helped pave his way to becoming the great advocate that he is today. Despite the lumps and bumps that this type of work inevitably produces, he has maintained an unwavering good attitude and cheerful spirit, which make his excellent legal work all the more effective. Richard Fischer, who has been serving PDP clients as an investigator for the better part of 37 years, brings a wealth of skills gathered from a background that is rather unusual for an investigator. His ability to remember details of cases and people, as well as his knack for finding the un-findable, have benefited countless clients in a myriad of cases. Another PDP attorney whose expertise has added incredible value to the Panel and the community is Rebecca Ross. Coming from a background dedicated to the understanding and betterment of youth, Rebecca has applied a holistic approach to her juvenile delinquency practice, which is helping to address the issues underlying minors delinquency in an effort to short-circuit future criminal acts. Prominently featured again in this year s Annual Report is the PDP s Investigation Division. Chief Investigator John Maness has built a dynamic team that has transformed the Investigation Division into what we believe to be the finest indigent defense investigation team in the nation. Applying his vision of teamwork, strategic spending, and comprehensive training opportunities for PDP investigators has made the Investigation Division a model of cost efficiency and excellent performance. As an adjunct this year, we also provide a small biography of John Maness, whose love for his job began when he was just a young boy committed to becoming a police officer. The skill, knowledge and experience he has gained over his years working cases on both sides of the podium have given him the perspective necessary to profoundly alter the PDP Investigative Division such that it has been thriving under his leadership for the last five years. We received positive feedback from the change in the layout of the Annual Report that we initiated a number of years ago, and thus we repeat it here. While the information contained in the detail-laden footnotes remains an integral part of the Annual Report, we have kept this information at the end of the document (as Endnotes in Appendix A) in the hope of making it easier for the casual reader to peruse. 2

5 The reader will also find throughout the Annual Report thoughts of Private Defender Program attorneys and investigators. We hope their contributions help paint the picture of just how intensely these lawyers and investigators care about what they do. It is, after all, not just a job to them. FOREWORD On March 18, 2013, our country marked the 50th anniversary of the United States Supreme Court s landmark decision in Gideon v. Wainwright. 1 Gideon established that any person accused of a crime who is too poor to employ an attorney has a constitutional right to the appointment of counsel at public expense. 2 In so ruling, the Supreme Court recognized the right to appointed counsel as a fundamental guarantee of the Bill of Rights and as immune from state invasion as the freedoms of speech, press, religion, assembly and association. Writing for the Court, Justice Black noted: [R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public s interest in an orderly society. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. 3 San Mateo County is perceived to be a very prosperous place. The median price of existing single-family houses is more than twice that of the rest of California. 4 Economic indicators, including income figures, routinely identify this as one of the wealthiest counties in America. But there is another story here. While only 7.4 percent of the estimated 747,373 people who live here are beneath the federal poverty threshold ($11,892 estimated 2013 weighted average for an individual), 5 our Court determined that accused people were without the means to employ counsel over 20,000 times during the year. 6 The faces of poverty are not all to be found beneath poverty lines drawn by demographers. They are found in families all over San Mateo County struggling to keep their heads above water in a place in which the cost of living is staggering. Chief Justice Warren Burger 7 spoke of the defense function in a criminal case as critical to the administration of justice in America. He likened the roles of prosecutor, judge and defense lawyer to a three-legged stool. If one leg is weak, the stool will collapse, and the promise of equal justice under our Constitution falls with it. 8 If an appointed lawyer is without the skill, experience 3

6 and resources to defend a poor client properly, our Constitution and the system of justice it defines is trivialized and exposed as an elaborate lie. If there isn t equal justice, there is no justice. There are many reasons why my work in the PDP is important to me and which make me want to continue my service. The practical reasons are pretty much a given: I earn money. I keep busy. I keep out of my wife's hair most of the time. But I could do those things in just about any sort of law practice. There are other reasons. Let me mention a couple of the altruistic ones (the Gideon v. Wainwright seminar has focused my attention): I suspect that it's mostly the altruistic reasons that make me want to keep me working for the clients of the PDP in my practice area. My clients, like all PD clients, need help. Often, because they have disabilities, they have a difficult time finding counsel. We are there for them. Often, they are the victims of the unscrupulous. We protect them. I believe they are better off because of our work and their lives are a little better than they would have been otherwise. Because they function better, we help make society function better. But I also benefit in intangible ways. My work is endlessly fascinating to me. I am never bored, I meet a lot of very interesting people. When we succeed for our clients I feel better. Finally, I believe that being able to work in our court system, with the members of our program, our bar, and our bench, is a privilege in an honorable profession. I appreciate that. Being able to serve in the PDP makes me proud but paradoxically humbles me. Thank you, John Digiacinto, for all that you do for our program, and for including me in the work of the PDP. I will always be grateful. PDP Attorney Bob Brady Fulfilling the promise of Gideon is not inexpensive, and it can hardly be suggested that funding indigent defense from dwindling resources is high on the priority list of most taxpayers. But the leaders of our County, along with our Court and the San Mateo County Bar Association, have recognized, by deed as well as word, that a promise is a promise. They have also recognized that the promise of Gideon is not a promise only to the poor. It is a solemn promise to all the people of San Mateo County that the criminal justice system here - their criminal justice system will accurately reflect their belief in equality as promised by their Constitution. Defending the poor accused of crime has never been just a job it is a vocation. We hope that the pages that follow will provide a glimpse at the context within which the men and women of the Private Defender Program answer their calling. We hope, too, that the information that follows will help the leaders and citizens of San Mateo County feel assured that the promise of Gideon is being kept in their community. 4

7 THE PRIVATE DEFENDER PROGRAM A BRIEF HISTORY The Supreme Court s decision in Gideon compelled state courts and county governments across America to move quickly to comply with its mandate. The San Mateo County courts established what could best be described as an ad hoc system for appointing counsel. Each judge controlled the appointment of lawyers in his courtroom for all eligible cases that were set there. 9 Some judges had a list of lawyers from which appointments would be made. Other judges would simply call on a lawyer who happened to be present in the courtroom at the time an eligible defendant appeared in court, appointing the lawyer on the spot, at times without regard to that lawyer s experience in criminal law. Each judge also had the responsibility for reviewing the billings of appointed counsel before ordering payment by the County. As a matter of routine, some judges approved billings exactly as submitted by lawyers, and others felt compelled to slash billings for reasons not readily apparent. Needless to say, it was a system that didn t work well. It created uncertainty for the County since it was essentially impossible to know what the cost of indigent defense would be for any given fiscal year. It created uncertainty for lawyers appointed by some judges since slashed bills rendered their efforts for the client essentially donated time. It also created frequent mismatches of attorneys with cases because skill and experience levels were not always considered in the appointment process. In 1967 and 1968 the Board of Supervisors undertook the task of evaluating how best to provide mandated lawyers for accused indigent persons. County staff at first recommended that a public defender s office be considered. Asked for its input on the subject, the Board of Directors of the San Mateo County Bar Association voiced objection to the proposal after studying it thoroughly. The Association objected because the proposal included a funding recommendation that would create a department without the resources necessary to meet the demands that would be placed upon it. The Association presented an alternative proposal to the County. Recognizing that it had a wealth of solo practitioners and small firms with established expertise in criminal law, the Association proposed to establish and administer the County s indigent defense program. That proposal was accepted in late The San Mateo County Bar Association s Private Defender Program (PDP) began operations in February, In 1968 the Association entered into its first contract with the County of San Mateo for the provision of indigent defense services for a six-month period at a cost of $500,000. The staff consisted of an Administrator (now retired Superior Court Judge William Lanam) and a single secretary. It was new territory for the County and the Association the beginning of a relationship between county government and the private non-profit sector that has grown in strength during the past 45 years. 5

8 ADMINISTRATION AND STRUCTURE The Private Defender Program is operated by the San Mateo County Bar Association, a non-profit corporation governed by a 15-member Board of Directors. The Private Defender Program Committee is a standing committee of the Board of Directors. It makes recommendations to the Board about the operation of the PDP, and it meets regularly to discuss problems that arise in the criminal justice system and to propose solutions. John Digiacinto is the Chief Defender of the PDP and is responsible for the overall operation of the Program. He also serves as the Executive Director of the Association and reports directly to its Board of Directors. He graduated from Lincoln University School of Law in 1977 and was admitted to the Bar that same year. In private practice he served indigent clients as a PDP lawyer for 12 years. He handled the complete range of criminal and juvenile cases, beginning his career with misdemeanors and advancing to the defense of the most serious of felonies, including capital murder cases. He has taught trial advocacy to public defenders and assigned counsel from around the country by invitation of the Institute of Criminal Defense Advocacy in San Diego. He became the Assistant Chief Defender of the PDP in October 1989 and the Chief Defender of the Program in July John maintains an active role in indigent defense community leadership organizations, seeking cutting edge ways to maintain the PDP as a model assigned counsel program. He is a member of the National Legal Aid and Defender Association s American Council of Chief Defenders, and its Leadership Development and Training and Best Practices Committees. He was appointed to the ten-member commission tasked with revising the Indigent Defense Guidelines for California, promulgated by the State Bar of California in He is a member of the California Public Defenders Association and its California Council of Chief Defenders. He is also a member of the California Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers. I joined the PDP for three reasons: 1) The PDP's resource policy of providing investigation and expert assistance to every client; 2) the one case-one client concept that gives every PDP client their very own lawyer for the duration of the proceedings; and 3) John Digiacinto's daily commitment to keep up the high quality of our program. PDP Attorney Paul DeMeester Myra Weiher became the Assistant Chief Defender of the PDP in April She assists the Chief Defender in the overall operation of the Program, and reports directly to him. She also acts as the Assistant Executive Director of the Association. After graduating from the University of California at Davis and then Hastings College of the Law, Myra was appointed to defend her first case for the PDP in During the 41 years that she has defended the indigent people of San Mateo County, Myra has handled virtually every kind of criminal case. She is a veteran of many murder trials, and was the first woman to act as lead defense counsel in a death penalty case in San Mateo County. In addition to homicides and 6

9 serious felonies, she had a special interest in representing clients whose cases were related to mental health issues, including Sexually Violent Predators, people involuntarily confined to mental hospitals under the terms of the Lanterman-Petris-Short Act, and those who have been hospitalized after being found not guilty by reason of insanity. Myra is a member of the National Legal Aid and Defender Association s American Council of Chief Defenders, California Attorneys for Criminal Justice, and the California Public Defenders Association. Among her many accomplishments, Myra was awarded the PDP s highest honor, the Dennis L. Woodman Memorial Award, in Richard Halpern is the Managing Attorney of the PDP s Juvenile Court operation. He began this position in 2012 upon the retirement of Gerard Hilliard. He is responsible for the delinquency and dependency caseloads of the PDP at Juvenile Court as well as the Lanterman- Petris-Short Act (mental health) caseloads for the Probate Court. Rick was admitted to the California State Bar in Prior to joining the Private Defender Panel in 1972, Rick worked as a Deputy Public Defender in San Bernardino County where he represented both juveniles and adults. During his 42-year tenure as an attorney on the PDP, Rick handled all levels of adult and juvenile cases from minor misdemeanor matters to serious felony cases, including numerous Three Strikes and homicide cases. As a participant on the Juvenile Panel, he handled all levels of cases as well. Rick has always been actively involved with the PDP, serving as a mentor for a number of attorneys both on the adult and juvenile panels. He has been on the Private Defender Committee of the Bar Association as well as being a past chairman of that committee. He also was a member of the San Mateo County Bar Association Board of Directors. In 2003, Rick was awarded the PDP s highest honor, the Dennis L. Woodman Memorial Award. I am on the PDP because of the collegial atmosphere on the Panel, the variety of cases, and the knowledge that I have the support to do high quality work representing parents and children. PDP Attorney Sherrie Friedman Eric Liberman joined the Private Defender Panel administration as Managing Attorney of the Adult Division in August of After 31 years as a PDP attorney trying misdemeanors to murder cases, Eric has great experience that he shares with the younger PDP attorneys he mentors and monitors. While the position of Adult Division Managing Attorney was a new role added to the PDP administration and is therefore evolving, Eric has taken on various responsibilities, including spending one or two days a week observing PDP attorneys at various calendars, hearings and trials, as well as assessing the general happenings of the court. His day-today tasks include reviewing fees of and assigning cases to Panel attorneys, and assisting PDP clients and the public with their issues and questions. As part of the legal community, Eric participates as a judge in the yearly San Mateo County high school mock trial competition, and he coaches students in Marin County on improving their mock trial skills. After graduating from Colgate University in Hamilton, New York, Eric moved to San Francisco to attend Hastings College of the Law, from which he graduated in Eric came to 7

10 the PDP with no criminal experience and worked his way up through its ranks to eventually defend some of the most serious cases, including a lengthy and complicated capital case. Eric knows the PDP clients, cases and interworkings well because he has worked nearly exclusively on over ten thousand PDP cases for his entire career as a criminal defense attorney. While still practicing, Eric was the trial attorney who raised an issue of parolees rights in the only criminal case from San Mateo County that has been heard and decided by the United States Supreme Court. 10 The two character traits which best serve a criminal defense attorney are a thick skin and empathy. PDP Attorney James NcNair Thompson Chief Investigator John Maness has completed his fifth full year with the PDP managing the Investigation Division. The Private Defender Program s Controller, David Alves, brings a wealth of experience as a certified public accountant, who has advised both large and small corporations. David, along with Senior Bookkeeper Elaine Finn and Bookkeeper Richard Qureishi tend to the fiscal aspects of the operation in the Accounting Department. The PDP suffered a great loss during the year when Office Manager Mary Basco lost her battle with cancer. Known by one and all as Mother Mary for the compassion and care she shared with all of us and our clients, Mary spent the past 37 years keeping the good ship PDP afloat in good times and bad. In addition to her husband Milton and her four adult children, all of us shared the good fortune of being her kids. We have all been the beneficiaries of her relentless work ethic and love for this Program. After Mary s passing, Assistant Office Manager Susanna Guevara, was promoted to PDP Office Manager, and she and her staff Terri Cuellar, Edelmira Lopez and Sally Rodriguez handle all of the administrative responsibilities surrounding the assignment of cases to the PDP lawyers. Suzanne Ury, among many other tasks, supports the Investigation Division as the Executive Assistant to the Chief Investigator, as well as the Association as the Human Resources Coordinator. After getting a very favorable result in a murder trial for a PDP client last year, I got a wonderful thank you card that means more to me then any amount of money I have made in this business to date. PDP Attorney Geoffrey Carr Except for the PDP lawyers, investigators and other professionals with whom they regularly interact, this superb staff labors in relative obscurity. Beginning with the Annual Report for the FYE June 30, 2005, we have been trying to change that by including a brief sketch of one member of the staff each year. This year we are proud to provide more background about Chief Investigator John Maness. 8

11 For the Love of the Job Private Defender Program Chief Investigator John Maness loves the thrill of investigating cases like no one else. It is that passion for pursuing every lead that has made John not only a skilled investigator in his own right, but an exceptional leader of what is now a cohesive yet diverse unit of incredibly talented professionals. John s interest in investigation began when he was a young boy vested in becoming a police officer. He was fortunate enough to have the inspiration of his uncle, Oakland Police Captain George Franks, who allowed John to ride along in police boats and squad cars. Once of age, John worked as an emergency medical technician in the East Bay and as a dispatcher for the San Mateo County Sheriff s Office. John was a cadet with the Oakland Police Department, and then attended the police academy, where he earned awards for best overall performance and Top Gun, before becoming a Half Moon Bay officer at the age of 21. After joining the Half Moon Bay Police Department, John rose through the ranks quickly, eventually achieving the title of Lieutenant (the second-in-command) before the age of thirty. While serving as Lieutenant was certainly prestigious, John relished the two years he was a police detective and felt that it was the best job in law enforcement that he had. He also enjoyed being on patrol during the graveyard shift because it was busy and that s when the bad guys come out. John always found it disconcerting when regular people would start emerging in the morning at the end of his shift because it meant the action was over. Missing the joy of actually investigating cases and yearning to return to that line of work, John sacrificed the exceptional stability of a steady salary, benefits and a retirement package that came with his lieutenant post in order to join the PDP as an investigator in John recalls that as they were moving his desk into his tiny Half Moon Bay office, his brother asked him, Are you sure you know what you re doing? Undaunted, John felt that it was the right decision for him and his family. Chief Defender John Digiacinto added, It certainly worked out for this organization. He continued, As the PDP s Chief Investigator since 2009, John Maness has transformed a group of disgruntled, unhappy people who did not feel like they were part of an organization into a team whose talents are recognized and better utilized. John has brought a phenomenal change, particularly in the camaraderie of the investigative unit, which has been an incredible boon to the PDP and the public. In addition to forming a committee to provide training to investigators and address quality control issues (discussed, infra, in the section entitled The Investigation Division ), one of the best changes John instituted when he became Chief Investigator, according to John Digiacinto, was moving the investigation office to the same floor as the other PDP administrative offices. This allowed the investigators to become more a part of the organization where they could routinely mingle with the attorneys and each other. 9

12 Another important change John instigated was routinely educating PDP attorneys about what investigators can offer on cases and what investigation entails, as well as reinforcing best practices. He explains, Some of the attorneys needed to understand that investigators don t just knock on a door and a witness talks to them. Although that can happen, a lot more is usually involved. Also, while PDP attorneys can select which investigators they want to use on a case, they are given information about the availability of investigators and, as necessary, information about special skills or strengths different investigators can provide to particular types of cases or issues. John knows each of his investigators well enough to ensure that each PDP client for whom investigation is requested has an investigator or investigators adequately addressing all of the issues the case presents. Yet another aspect of the PDP into which John has extended the reach of the investigative unit is juvenile cases, including dependency cases. John remembers feeling frustrated when he would be investigating a case where a defendant s past mattered, and he would find juvenile delinquency cases where investigation could have helped reach a better result for the client, and in turn, those cases might not have had the negative impact on the adult defendant that they were. As a result, John has worked with the juvenile branch of the PDP to educate the attorneys on the availability of investigators for even minor delinquency offenses. While his contributions as the leader of the investigative unit of the PDP are exceptional and unending, John still finds time to occasionally investigate PDP clients cases. Doing so not only helps John maintain his own skills and satisfies his basic need to be the investigator he is at heart, but it helps him stay connected to the people he manages and monitors. It has and always will be important to John that he not be one of those leaders who is disconnected and doesn t deal with the same things our investigators do. John wants to experience the frustrations that the PDP investigators do himself, including waiting in line and coping with difficult people in the system. It is this humility and pure dedication to being an investigator that makes John such an invaluable part of the PDP. APPOINTMENT AND ASSIGNMENT At the time of arraignment 11 in the Superior Court, a person who wishes to be represented by a court-appointed attorney completes a financial declaration form and submits it to the Court. If the Court determines that the defendant is eligible for court-appointed counsel, the Private Defender Program is appointed. Every day, at every arraignment calendar, there is a PDP lawyer present to represent each person for whom counsel is appointed. He or she will generally enter a not guilty plea on the client s behalf, will seek to secure the client s release on his or her own recognizance or affordable bail, and will set dates for future court appearances. The client will be advised via a written form how to reach the PDP office to learn the name and telephone number of the lawyer who has been assigned to his or her case. The same lawyer represents a PDP client from the beginning to the end of his or her case. The calendar lawyer reports the relevant information on the cases to which the PDP has been appointed that day to the PDP staff, and the staff assigns the cases to lawyers, almost always within two days. In Juvenile Court, the attorney who will be assigned to the child s case appears with the client at the first court appearance. 12 This makes it possible for the child to meet with the lawyer who will be handling his or her case throughout its pendency from the outset of the Program s appointment. 10

13 Cases are assigned to attorneys based on their ability, training and experience, their availability to appear on the dates set for a particular case, and an assessment of the attorney s current caseload. 13 The Office Manager and her staff assign routine adult cases. Before the most serious cases are assigned, the Chief Defender or Assistant Chief Defender will review them to assess seriousness and complexity, and will direct the assignment to particular lawyers. A similar procedure is followed in juvenile cases. The Juvenile Managing Attorney conducts an assessment of each case before assigning it. All homicide cases, adult and juvenile, are assigned directly by the Chief Defender or Assistant Chief Defender. WHO ARE THE LAWYERS OF THE PDP? All of the lawyers to whom cases are assigned are in private practice in San Mateo County. Presently, there are 114 lawyers on the PDP panel. Each was accepted to the PDP only after a thorough application process was completed. Attorneys who seek admission to the PDP must submit an application that details their background and experience, and provide references. The Assistant Chief Defender performs a detailed background check of the applicant. She checks not only the references provided by the applicant, but also seeks out and consults other people within the criminal and/or juvenile justice community with whom the applicant could be expected to have had contact. The Assistant Chief Defender then conducts a thorough interview and makes a recommendation to the Chief Defender concerning admission. If that recommendation is positive, the applicant will then be interviewed by the Chief Defender, who will make and inform the applicant of his decision. All admission decisions, of course, are preceded by an assessment of the need of the Program to add attorneys based on an analysis of current caseloads and projections for the future. While skill and experience are certainly high on the list of factors considered in admission decisions, they are only starting points for an evaluation of an applicant. Since we believe that defending the indigent accused is more a vocation than an occupation, an evaluation will be made of the devotion of the applicant to the representation of the poor as opposed to a desire to simply create or supplement cash flow. For the less experienced attorney applicant, we will also assess the likelihood that he or she will strive to and will achieve a level of excellence that will enable him or her to handle serious felony cases in the future. One of most rewarding things for me is to have put your best effort into a difficult case, whether it be a jury trial, arguing a motion or a contested sentencing, losing and then getting a letter from prison thanking you for your effort and praising your work. Knowing how difficult as it must be for such clients to still look at you in a positive way after they lose but still being able to acknowledge your efforts is as satisfying as it gets for me. PDP Attorney Peter Goldscheider Contrary to a common perception of the public, most of the work of defending people accused of crimes involves negotiation rather than the visible confrontations that take place in courtrooms. Successful negotiation is preceded by thorough case preparation, and lawyers 11

14 accomplish it with tenacity, self-confidence and with the credibility that comes with a reputation for taking cases to trial. An evaluation of an applicant s ability to work within the San Mateo County justice community is also important, particularly in view of the unique and valued relationships that exist between the PDP and the other justice agencies with which we regularly interact. The most important single factor in evaluating an applicant is his or her reputation for honesty and integrity in all segments of the criminal justice community. A lawyer s word is his or her most precious asset. Without impeccable credibility, a lawyer cannot hope to successfully serve the clients entrusted by the Court to the Private Defender Program. As the chart below suggests, the PDP is able to bring a wealth of experience to the defense of the clients we are appointed to represent. 14 PRIVATE DEFENDER PROGRAM MAKEUP OF CRIMINAL/JUVENILE PANEL Experience Level of Criminal/Juvenile Attorneys Number of Attorneys Percent of Total Panel 5 Years & Under 6 5.3% 6-10 Years % Years % 16 Years & Over % Total % Institutional Experience* Former Deputy District Attorney % Former Public Defender % Management 2 1.8% Total % * Some attorneys fit more than one of the above categories. The PDP has been very fortunate to retain highly skilled and experienced lawyers and to attract such talented lawyers from private practices and from other institutional defender and prosecutorial agencies. While the reasons for this are as diverse as the PDP lawyers themselves, attorneys have pointed to elements of the structure of the Program as important to their decisions to apply and remain. Defending the indigent accused of criminal conduct is a rewarding profession. At times it is also one of the most difficult, thankless, and stressful career paths that an attorney can elect to 12

15 travel. Providing opportunities to minimize burnout in the practice of criminal law has been and continues to be one of the strengths of the PDP. We have found that the opportunities for lawyers to diversify their practices, to control the size of their caseloads, to choose the types of cases they handle, and to have access to adequate resources to properly defend their clients are keys to the avoidance of burnout. This County is small enough that you get to know all the players. It's big enough so that you don't have to play with the same people every day. PDP Attorney Paul DeMeester The average PDP lawyer devotes 84 percent of his or her time to the representation of clients assigned to them by the Program. 15 These lawyers are free, of course, to fill the remainder of their time representing retained clients in any field of law in which they have an interest. There are some PDP lawyers who choose to devote all of their time to the representation of clients assigned to them by the PDP. On the other hand, there are some who choose to make the representation of PDP clients a much smaller part of their practices. For example, we have some highly skilled lawyers who choose to handle only fraud cases for the PDP because such cases are closely related to the white-collar cases they regularly handle in the balance of their practices. There are other highly skilled lawyers who choose to handle only one or two serious PDP cases at a time. Because we have such a large pool of death penalty and homicide-qualified lawyers on the Panel, we are, as a general rule, able to assure that no PDP lawyer has more than one murder case pending at any given time. PDP lawyers with the training, experience, knowledge and skill to defend murder cases and other very serious crimes are not confined to the defense of such cases simply because they are qualified to do so. The stress associated with defending serious felonies exclusively can be enormous. You will thus find homicide-qualified PDP lawyers announcing their readiness to try petty theft and DUI cases on the misdemeanor trial calendar on any given morning. PDP clients benefit from the choice of such skilled and experienced lawyers to diversify their practices. At the same time, the freedom to choose the types of cases that he or she will defend tends to keep PDP lawyers fresh and enthusiastic. The most rewarding thing for a defense attorney is giving somebody their freedom. As simple as that. PDP Attorney Kevin Nowack There is no such thing as the typical PDP lawyer. Their backgrounds are widely diverse, and they come from nearly every corner of our country and, in the case of a few PDP lawyers, from other countries. The PDP includes 19 lawyers who are members of racial minority groups, 42 women, and 14 lawyers who are fluent in Spanish. We also have lawyers fluent in other languages, including Cantonese, German, Hebrew, French, Russian, Ukrainian, Italian, Byelorussian, Polish, Catalan, Dutch, Tamil, Hindi and Czech. 13

16 There is another kind of diversity within the Private Defender Program that is not well known to the public. The indigent people of our County who are entitled to the assistance of court-appointed counsel are not to be found only in the criminal trial courts. PDP lawyers bring a wide range of experience and skill to a variety of cases, including the representation of abused and neglected children, people with serious and disabling mental illnesses and elderly people who can no longer tend to their affairs. Trial lawyers representing clients in capital and other complex felony cases also need the crucial assistance of appellate specialists to help them protect their clients rights and lives. While the diverse work of PDP lawyers and investigators is performed daily in open courtrooms, the perception of some members of the public, and even some of our clients, is that these men and women are virtually anonymous parts of the system. Over the past year, after not having added any new attorneys for several years, the PDP welcomed eight new lawyers. Joan Tillman joined the Panel in the Juvenile Branch and is handling dependency cases. Francoise Espinoza, known to many as a former courtroom clerk, graduated law school and has joined the Adult Panel. Also joining the Adult Panel are Brandon Douglass and Lauren Potter, both recent law school graduates with solo practices in San Mateo County. Additionally, we welcomed four former public defenders with a wide variety of experience. Elsie Wanton came to us from Wisconsin and is handling both Juvenile and Adult cases. Thomas Greenberg, Neeva Tassan and Gaby Guraiib came to us from a variety of California public defender offices and have all been added to our Adult Panel. With the happy addition of new attorneys, we also had to bid goodbye to two of our lawyers. Charles B. Smith left the Panel to devote himself full-time to his private practice. Anjuli Fiedler left her trial practice to take a position with the California Commission on Judicial Performance. We will miss them both and wish them luck in their future endeavors. The Dennis L. Woodman Memorial award is presented annually to a private defender program lawyer who heedless of opposition and with ceaseless determination fights for those whose liberty or lives are in peril. The award recipient is selected by the Private Defender Program Committee, and is thus truly an award whose value is all the greater because it is made by one s peers. No member of the private defender program committee nor the private defender program staff is eligible for the award. This year, John Halley received this prestigious award. Since 1993, the private defender program lawyers who were winners of the award were: Phil Barnett Geoff Carr Kathy Jacomb Gordon Rockhill David Goldstein Peter Goldscheider Gary Merritt Richard Keyes Bill Johnston Ed Pomeroy Richard Halpern Steve Schaiman Myra Weiher Pat Concannon Savas Loukedis Charlie Robinson Dek Ketchum Bonnie Miller Steve Chase Connie O Brien John May John Halley 14

17 There was Never a Question From the time he was in high school, Private Defender Program attorney Kevin Allen knew precisely what he wanted to do with his life. While the dreams of some young men focused on being a firefighter, a professional athlete, a famous actor or a physician, Kevin knew not only that he wanted to be a lawyer, but that he wanted to be a public defender. Kevin grew up in both Daly City and San Francisco. He attended Discovery Center Grammar School and Lowell High School in San Francisco. After graduating from high school, he attended the University of California Santa Barbara and then, beginning in 1994, Golden Gate University School of Law. At the age of 15, he interned at the San Francisco Public Defender s Office, one of the finest offices in the country. Calling the experience scary it nonetheless fanned the flame of his resolve to make defending the indigent his vocation. During his first two years of law school, Kevin worked at a singles bar in San Francisco (called Johnny Love s ) and a strip club called Centerfolds as a bouncer. While those of us who know him and his gentle, joyous spirit will find it difficult to picture him as a bouncer, we are nonetheless certain that his powerful physique served him well in that role as a deterrent to those predisposed to mischief. When he passed the bar examination, he initially worked at the San Francisco Sheriff s Prison Legal Services Office. While he was not involved with the criminal cases of any of these inmates, he learned a great deal from the stories they told him about their lives and experiences that he would take with him as he moved on to his chosen vocation. Nine months later he was hired by the San Francisco Public Defender s office. One of the things he learned in law school was that studying law is studying lives and he immediately found the value and truth of that concept as he began his career as a deputy public defender. He absolutely loved his work at the SFPD s office. He found his fellow defenders to be like a sports team pulling together to make sure the process works. As a defense attorney, he noted, you wear many different hats: defending, advising, counseling and evaluating all angles of a case. It was, he said, a special kind of crazy. Kevin had what he called a love affair with the San Francisco Public Defender s office, but when the tenor of the office changed, he moved on. He next held the incredibly difficult job of Director of the Sheriff s Office of Citizen Complaints. He held this position for four years, but yearned to go back to criminal defense work because it was what he always wanted to do. When he was with the SFPD s office, he worked with Paul DeMeester (now a Private Defender Program attorney) and Leland Davis, III (a former PDP lawyer and now a Judge of the Superior Court of San Mateo County). Judge Davis, who had become a mentor to Kevin, strongly encouraged him to apply to the San Mateo County Bar Association s Private Defender Program, which he joined in June He described the camaraderie at the PDP as similar to that of the SFPD s office, but without the home base of a single office. He said that it could be a little lonely at first. He 15

18 has high praise for the PDP Listserv where panel attorneys are always willing to share and help each other. He describes the PDP as a tight group. He also finds the investigation division to have been greatly enhanced by Chief Investigator John Maness innovation and energy. At a very young age, Kevin set out to involve himself in his community by trying to make it a better place to live for everyone. Leadership comes naturally to Kevin, starting as president of his eighth grade class and moving forward to his involvement in Lowell High School s student government. He began his long history of coaching kids in swimming and track when he was still in high school himself, acting as a volunteer swim coach. He took on a daunting wall of politics and bureaucracy to persuade the school district to let him start a swim team for students at Westmore High School in Daly City. He has coached swimming and track for years at high schools and community centers. His community involvement continues unabated to the present. Kevin has co-coached the San Mateo High School Mock Trial team for three years. He also coached the Mission High School track team from A single father, Kevin currently coaches his 10-year-old daughter s school track team and hopes to be a positive influence on the kids. There is no question in anyone s mind that he will be. His penchant for leadership continued after his graduation from Golden Gate University Law School where he became a member, and eventually President, of the Law School Alumni Association Board of Directors, which also required him to sit on the Board of Trustees. He also served on the Private Defender Program Committee of the SMCBA, devising and planning training for PDP lawyers, as well as several trainings that were open to members of the District Attorney s office. Additionally, he has served the members of the Association at large by, for example, helping to organize a Celebration of Women on the Bench in San Mateo County. In 2012, Kevin served as a member of the Association s Diversity Committee and in 2013 he served as Chair, facilitating the debate between Dean Johnson (U.C. Davis Law School Dean) and former U.C. Regent Ward Connerly regarding race-based requirements in university admission. Last year, due in no small part to Kevin s efforts, the Diversity Committee received the California State Bar Award for diversity awareness and contributions from a county bar association. family. We are extremely proud to have Kevin as a member of the Private Defender Program A Mind Like a Steel Trap Private Defender Program investigators must have a wide variety of skills, from a keen sense of character to a knack for resourcefulness. One quality that makes an investigator truly great is an ability to remember details of facts and people a trait Private Defender Program Investigator Richard Fischer possesses in abundance. Except for a relatively brief hiatus, Rich has been providing investigative services for Private Defender Program clients for over 37 years, including helping to secure acquittals in an impressive seven first-degree murder cases. In that time, Rich has worked on everything from 16

19 jaywalking to murder, and he has an uncanny ability to remember the facts and even the names of the people involved in many of those cases (names and certain facts of the anecdotes related here have been omitted for privacy). One case that has remained with Rich is one in which an older African-American Korean War hero was being harassed by a white patron as he was sitting at a bar. The white man jumped the veteran, who fired a pistol he carried for protection into the air, which struck and killed a bartender. The man was acquitted of the homicide charges, and Rich remembers being proud of the just result. Rich often remembers the details of cases with even minor charges, and he investigates those cases with as much diligence as he does more serious ones because they also have such an impact on people s lives. For example, he recalls one instance in which a young man was charged with a misdemeanor arising out of a bar fight, and because of the conviction, the person could not fulfill either of his dreams of becoming a police officer or a coach because even convictions for minor offenses can give decision-makers a reason to reject an applicant. While Rich works each case he is assigned with gusto, he finds the scariest clients to be the ones who are factually innocent. He believes that it is much worse for an innocent man to go to prison than for five guilty guys to go free. Accordingly, Rich s biggest fear is that he will leave something undone and someone will be found guilty who would have been acquitted. That fear drives Rich to devote countless hours of his time and vast amounts of energy to his PDP clients cases. He is rewarded by being certain that for every client we represent, any point of view and any evidence that we can get to support him or her is gathered to be presented to a judge or jury. Another trait that Rich possesses that few other investigators can boast is his ability to find almost anybody. In one unusual instance, a man had been to a grocery store in Daly City three times and stolen frozen food without any attempt to hide his actions. He was charged with the crimes, but no one could figure out who he was because he had amnesia and could not speak or identify himself. Rich had the odd task of identifying the man and trying to interact with him. Eventually, Rich went to the press and convinced them to publicize the story with the man s photograph, from which he was identified. The case was eventually dismissed, though not before Rich was able to connect with the man by talking to him about chess. Rich is also exacting in his work. His biggest worry is that he will look like a fool or liar on the witness stand, which forces him to be exceedingly well prepared, even after his years of experience. He recalls one murder case in which one of the witnesses stated that she had seen the murder in the mirror of a car. Rich went to the scene of the crime on a clear night to recreate what the witness claimed to have seen. He could not see what the witness saw. In an abundance of caution, before testifying, Rich went for a second visit, this time on a cloudy night. The second time, the moon illuminated the white clouds, and he could see what the witness claimed. Needless to say, Rich did not testify and was thankful that he had taken the time and effort to recreate the scene again. The client was acquitted of multiple murder charges. Beyond a naturally good memory, Rich honed his investigative skills from a number of unusual sources. While many PDP investigators have law enforcement backgrounds, Rich gained his training from a smattering of unexpected endeavors in his early life. After receiving a Bachelor of Arts in political science and a Bachelor of Science in organizational corporate behavior, Rich took one year of law school and passed the mini-bar, which covered criminal 17

20 law, personal injury, contracts and ethics. He was an investigative reporter for the Hillsborough Boutique newspaper, which gave him both investigative and writing skills. Rich gathered experience working with people and their opinions by conducting market research for Royal Crown Cola. He furthered his people-reading skills thereafter by owning the Sandbar Cocktail Lounge at Poplar Creek Golf Course for four years, where he interacted in the friendly atmosphere with patrons who would often test his trivia knowledge. A longtime sports fan, Rich also hosted and produced a sports television show called Sportscope. The current voice of the San Francisco Giants, Jon Miller, was part of the show, which Rich says developed into something big except for Jon, not me. Far from owning a bar and hosting a sports show now, Rich still has enthusiasm for his job. Although he sometimes wakes up at three in the morning thinking about his cases, Rich loves his job and has a passion to continue his work for PDP clients. He is thankful that he knows the PDP administration has his back and can provide invaluable advice on the direction of his investigation of a case. The PDP is grateful that Rich uses his incredible skills for the benefit of its clients. Holistic Lawyering for the Future Rebecca Ross is not only an attorney to her juvenile clients; she also sometimes has to act as a social worker, a therapist and an education advocate. Rebecca s holistic approach to lawyering is aimed at reducing the chances that her young clients will reoffend when the odds are stacked against them because of their often-horrendous life circumstances. Rebecca firmly believes that it is her responsibility to make sure this kid gets the services he needs not to reoffend. If you are their defense attorney, you have an obligation to determine if their home life is meeting their needs, and is safe and stable. As a busy attorney with a full caseload and life, Rebecca sometimes feels the urge to move on to the next case as soon as the criminal charges are resolved. However, when her efforts in asking the right questions about a child s life and circumstances indicate a poor environment or continuing problem for the client, she makes an extra effort to ensure that the minor not only receives the best resolution to his charges as is possible but also that all of the minor s other needs are addressed, including a safe home, proper school placement, mental health treatment, immigration relief, or other court orders that assist the minor. These efforts are meant to put in place some other mechanism so that the kid is not back in the system in five days. She explains that in juvenile, their offenses become worse and you see behavior escalation. You can try to prevent that by addressing issues in their lives early on before they do something serious enough that they would be tried as an adult. Depending on the case, what those mechanisms are could be anything from filing petitions to have the client declared part of the child welfare system to ensuring that the client has an appropriate school environment to which to return. 18