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
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