Wednesday, March 8, 2017
[Humboldt County] New public defender set to start amid questions about hiring process
Blog note: this article references a Lassen County grand jury report that mentions the new public defender.
The new Humboldt County public defender, whose hiring has raised questions in the local legal community, said he is ready to start working this week. And he is responding to the criticism levied in his direction.
David Marcus, the Lassen County Public Defender from 2005 to 2011 who has spent the past five years working as the CEO of a dental company and a contract lawyer on the East Coast, said he’ll be in town Wednesday.
“The first thing I’ll do is to really get to know the people in the office,” Marcus said. “I need to see what’s important for them to get their job done.”
The Humboldt County Board of Supervisors announced the hiring of Marcus on Feb. 7 following Kevin Robinson’s retirement last month.
A week later at the next Board of Supervisors meeting, Robinson — who could not be reached for comment on this article — and four other criminal defense attorneys told supervisors their hiring process was “flawed” because the board’s expert advisory panel was made up of mostly law enforcement and the district attorney.
“That’s like having the New England Patriots make draft picks for the Atlanta Falcons,” said Greg Rael, a criminal defense attorney in Eureka, who was also one of the speakers at the Feb. 14 meeting.
According to the county Human Resources Department, the five-member advisory panel was made up of District Attorney Maggie Fleming, Undersheriff William Honsal, Chief Probation Officer Bill Damiano and one representative each from Child Welfare Services and the Department of Health & Human Services.
Rael said having a panel “skewed” with current adversaries provided potential for them to pick a weak public defender. What is just as bad, he said, is that defense attorneys were not invited to join the advisory panel.
Dan Fulks, the county human resources director, said his department began searching for a pool of applicants to fill the anticipated vacancy months ago, about the time Robinson announced he would retire.
Fulks said he picked the panel members himself, which is his role as the department’s director, creating what he called a subject matter expert panel with high-level officials from county agencies that interact the most with the public defender’s office. He rejected claims the panel was skewed in anyone’s favor.
“We wanted folks that have regular interaction with the Public Defender’s office,” Fulks said. “We went to the very best of the best for this.”
In total, the county received 19 applications from prospective public defender candidates; six were invited to interview. Ultimately, five candidates were interviewed separately for the job by both the Board Of Supervisors and the advisory panel during a series of interviews that lasted all day, according to Fulks.
At least three of the applicants were from the county’s defender offices, according to multiple sources familiar with the application process.
When asked why he did not invite private criminal defense attorneys to serve on the expert panel, Fulks said he doubted they would want to serve on the panel for free.
“It’s my belief, based on experience, that asking someone from the private sector to come in and volunteer the entire day with no pay — that no one would do that,” Fulks said.
Rael, and local attorneys Beorn Zepp, Zachary Curtis, David Nims and Patrik Griego each said they would have served on the panel pro bono had they been asked.
“We would have been happy to serve without pay,” Rael said. “I know others that have served on hiring panels before — for nothing. It’s bogus. They just had to pick up the phone and call a few volunteers.”
Griego, a criminal defense attorney with Janssen Malloy LLP in Eureka, said he had served on two other advisory panels during the past three years. He made recommendations to the county for its pick of an investigator and another administrative position in the county’s defense offices.
Fulks said he could not recall a private defense attorney serving on an advisory panel.
Barry Pollack, president of the National Association of Criminal Defense Lawyers in Washington, D.C., said there was little uniformity among states and counties in how they hire public defenders but it “makes absolutely no sense” that the chief prosecutor would be involved in hiring a public defender while the local defense bar is left out.
“They shouldn’t have any role much less that they would have a role to the exclusion of defense counsel,” he said.
Pollack said the ideal panel would not have included any acting prosecutors of standing judges.
“The referee should no more be deciding draft picks than your opposing team,” Pollack said.
Hiring process elsewhere
Ernie Lewis, the director of the National Association for Public Defense and the state of Kentucky’s former public advocate, said judges and prosecutors are not involved in the hiring process of the public advocate, that state’s equivalent to a public defender at the state level. He said the position is nominated by a 12-member advocacy commission.
Still, Pollack with the National Association of Criminal Defense Lawyers said often times judges and prosecutors are placed on panels to hire public defenders but not without a significant balancing of defense attorneys.
“This clearly gives an appearance of lack of independence,” he said. “Even if they made a terrific selection for public defender that person would be subject to skepticism because they were selected through a process that I don’t know why anybody would think is appropriate.”
Rael said he thought Fleming should have known there was conflict by her serving on the panel and she should have recused herself.
Fleming disagrees calling the idea illogical.
“The suggestion that having someone from the DA’s office participate in interviews of public defender candidates is a conflict of interest makes no sense to ethical prosecutors because our duty is to serve the public and achieve justice,” Fleming said in an email.
Spirit of cooperation
The district attorney said she accepted the invitation to serve on the panel because she thought her knowledge and perspective would be useful. She added her office had an incentive to pick the most effective public defender because the opposite could lead to unnecessary and time-consuming appeals.
“While we obviously have an adversarial justice system, cooperation between prosecutors and the defense benefits both the public and the accused,” Fleming said. “Mutual respect and effective communication result in greater efficiency and better outcomes. For example, public defenders willing to share information with the prosecution early in the process can shorten cases to everyone’s benefit.”
Marcus said he didn’t think the panel was trying to prejudge whether or not they could beat him in court. He said despite the adversarial role between prosecutors and defense attorneys, they need to collaborate.
“There is a lot of interaction that take place outside of the courtroom,” Marcus said. “Health services, the sheriff, DA; we all come out of the same budget. We have to serve together or we’re all competing for dollars.”
Fleming added that her only input was to provide comment to the Board of Supervisors.
Second District Supervisor Estelle Fennell confirmed that was the case.
“We accepted input from the subject-matter experts but we didn’t weed anyone out because of them,” Fennell said. “It was purely a decision of the Board of the Supervisors.”
She added that the makeup of the panel was purely the decision of the county human resources department and that the board had received input from Robinson separately.
He said during an interview in October he would make recommendations to supervisors of attorneys at the public defender’s office.
Fennell declined to comment on the interview conducted during a closed session meeting but said, “Mr. Marcus fit the bill for what we were looking for.”
She defended the board’s decision to appoint Marcus during this week’s Board of Supervisors meeting too.
“There were no surprises with us,” she said. “We had a frank discussion with Marcus and had a background check that satisfied any questions.”
The years Humboldt County’s new public defender spent in Lassen County also left some lingering questions.
According to a grand jury report from the Lassen County courthouse, Marcus was alleged to have only spent “an estimated 30-40 percent of the day at work.” The report further alleged Marcus was “not actively engaged in the caseload other than for felony preliminary hearings.”
Marcus said the findings were not clear in the report, saying he had been attending graduate school to earn a master’s degree in public administration. He said the county supervisors approved of his return to school.
A second allegation reported by the Lassen County Times in 2011 claimed Marcus had avoided hiring a local defense investigator and hiring a defense investigator from Reno after taking advice of the district attorney’s office in Lassen County.
Marcus said the decision to hire an out-of-area investigator was based on price. He said he asked for the district attorney’s advice because he was looking for the most effective investigator.
Marcus says he is ready for the challenges that await in Humboldt County.
“I think I’ll earn the respect of the community once we get things moving forward,” Marcus said. “If I can find out how to focus the office then we’ll have no problem meeting our obligations to our clients.”
February 18, 2017
By Manny Araujo