Monday, April 4, 2016

[San Mateo County] Defender program under fire: Evaluation of indigent defense services recommends program be severed from the San Mateo County Bar Association

Blog Note: this article references a 2015 San Mateo County Grand Jury report on the subject.
San Mateo County’s Private Defender Program needs a complete revamp to avoid possible financial and material conflicts of interest among the lawyers who run it, according to Judge Zerne Haning.
Haning evaluated the PDP, run by the San Mateo County Bar Association, to compare it to other public defender programs and contract systems in the state.
He recommends the program be completely severed from the Bar Association and that the county take over its operation.
Deputy County Manager Reyna Farrales has requested feedback from the PDP by April 15 as she prepares a report for the Board of Supervisors whether to follow Haning’s recommendation.
She is expected to make any recommendations to the board related to revamping the program in August or December.
A San Mateo County Civil Grand Jury report last year critical of the program prompted the county to conduct a current evaluation of the program.
Although Haning does offer praise for the program for the service it provides criminal defendants who cannot afford to hire their attorneys, he says the local Bar Association is not the right group to oversee it.
Haning, in his report, suggests the county hire a chief defender and oversee management and administration of the program.
The chief defender now, he says, “lacks the necessary objective autonomy to protect either the county or the PDP’s best interests since he is hired by and also serves as executive director of the SMCBA, many of whose members also serve on the PDP and derive income therefrom.”
John Digiacinto, the current executive director of the program, did not return calls from the Daily Journal Thursday to comment on the recommendation.
Since the local Bar Association runs the program, some lawyers sit on both the Bar’s board and the PDP panel.
Haning interviewed judges, present and former Bar board members, PDP panel members and other attorneys who all said the Bar Association’s board of directors “is failing in its responsibility to manage and oversee the operation of the PDP.”
The program is also not meant to be a sustainable source of income for its panel members.
“The original intent of program was to spread responsibility for indigent criminal defense among as many qualified bar members as possible who were willing to accept a limited number of PDP cases at the scheduled rates with the understanding that their willingness to do so would not result in their being overburdened with such work,” Haning writes in his report.
He discovered, however, that “several PDP panel members appear to be working nearly full time on PDP matters.”
It may be an efficient way to do business, he said, but inhibits the growth of expertise new lawyers should develop.
It can also lead to conflicts of interest, he said.
“When panel members who sit on the SMCBA’s board of directors earn significant income from the PDP, the potential for serious conflicts of interest are obvious. We were repeatedly told that the board fails to provide any significant oversight of the program to eliminate such conflicts and that some individual board members can be abusive and engage in self promotion vis-a-vis the PDP. For an organization that is providing a very important public service and entrusted with the management of substantial public funds, this is unacceptable,” Haning wrote in the report.
Most counties in the state have their own public defender programs staffed by county employees similar in structure to a district attorney’s office. Other counties use a contract system with a private law firm to represent criminal defendants.
Private defender programs use a pool of lawyers who are essentially independent contractors. San Mateo County has contracted with the local bar association since 1968 to provide the service. The current contract this year between the county and bar association is $18.5 million.
It is estimated the contract with the bar association saves the county about $1.5 million a year versus having its own public defender program.
In July, the San Mateo County Civil Grand Jury reported that the PDP program lacks proper evaluation and that it cannot prove it meets with state and federal guidelines to provide competent counsel for poor defendants.
San Mateo County is the only in the state with a population of more than 500,000 that utilizes a public defender program.
According to the civil grand jury report, the agreement with the Bar and county allows for contract evaluations at any time but none were conducted for nearly a decade between 2003 and 2012.
Last year’s report prompted the county to conduct the current program evaluation.
“To [e]nsure that the PDP’s sole function is limited to the provision of indigent defense services, guarantee its independence and provide financial accountability for the county we recommend that the selection of the chief defender be made by the county,” Haning wrote in the report.
He does not recommend the county to go the public defender route like most other large counties or to contract with a private firm. Instead, he wants to maintain the PDP essentially as it currently operates but under the county’s oversight rather than the bar association.
Haning also offers some recommendations if the county continues to contract with the bar association which include a periodic, independent review of the program’s finances. Another criticism of the PDP panel is that it has been “closed” or limited in numbers. Haning recommends that the panel be open to all qualified members of the local bar association.
He also reports that the PDP is overstaffed.
Haning submitted the evaluation to the county Dec. 8, 2015, but the Daily Journal did not obtain it until Thursday.
April 1, 2016
San Mateo Daily Journal
By Bill Silverfarb


No comments: