The U.S. Department of Justice has investigated allegations of inadequate legal representation for indigent defendants in Washington and Tennessee in the past year, and a national advocacy group thinks Fresno County could be a candidate for such scrutiny.
A letter sent to the Fresno County Board of Supervisors by the Boston-based Sixth Amendment Center suggests that the Justice Department may be interested in Fresno County's issues, which came to light last month after public defenders wrote to county supervisors about their working conditions.
"In my 15 years of doing this, the caseload numbers, if they are true as alleged, are some of the highest I have seen," said David Carroll, executive director of the Sixth Amendment Center.
To meet national guidelines for caseloads, Carroll said, the public defender's office needs 139 lawyers — 88 more than it has today.
"Perhaps the thing Fresno County should be most concerned about is that the U.S. Department of Justice itself has begun to enforce the right to counsel," Carroll wrote in his letter, a copy of which he sent to the Justice Department.
The public defender's budget peaked at more than $15 million in 2006-07 and has shrunk to about $12 million each of the past four years. The number of employees dropped from 135 six years ago to 79 two years ago. This year's county budget proposes 88 positions. Meanwhile, the county's budget for indigent defense counsel — private lawyers who represent defendants — has grown to $5.1 million from about $4.8 million six years ago.
"We have shown diminishing funding in the public defender's office, so we shouldn't be surprised when we don't have a system that provides an optimum level of criminal defense for the citizens of our county," said Henry R. Perea, Fresno County Board of Supervisors chairman.
Justice Department officials declined comment on Carroll's letter but provided documents to The Bee detailing recent investigations that focused on caseload and defendants' legal representation.
In a document filed in August about a Washington State issue, Justice Department officials said they have the authority to intervene to ensure "that all jurisdictions — federal, state and local — are fulfilling their obligation under the Constitution to provide effective assistance of counsel to individuals facing criminal charges who cannot afford an attorney."
Justice officials investigated two Washington state communities where contracted public defenders had too many cases. The cities had hired contract lawyers to serve as public defenders for a flat fee. Each lawyer was carrying 950 to 1,150 cases in addition to their private clients. The lawyers allegedly failed to return calls or interview clients and the cities that hired the lawyers were not monitoring services for defendants, according to a civil complaint.
"Workload takes into account not only a defender's numerical caseload, but also factors like the complexity of defenders' cases, their skills and experience, and the resources available to them," the federal documents said.
The American Bar Association recommends an annual caseload of 400 misdemeanors and 150 felonies, but some Fresno County defenders have 1,000 misdemeanor and 650 to 700 felony cases yearly, public defenders' documents say.
"You can't be defending that many people and doing what you need to do in every single case," Carroll said.
In the Tennessee case, the Justice Department reached an out-of-court agreement in 2012 with Shelby County to overhaul its juvenile justice system after finding that the county had violated certain constitutional rights, including protection from self-incrimination and timely hearings.
Concerns also are being raised by other advocates, including a local American Civil Liberties Union leader who is worried about inadequate legal representation for defendants.
"There is a right to have competent legal representation and to have adequate time and resources to put on a case," said Pam Whalen, ACLU's lead Central Valley Regional organizer.
In addition, about three weeks ago Tim Young, chairman of the National Association of Public Defense, an organization that promotes the constitutional right to counsel, sent a letter to Fresno County supervisors.
Competent representation of the poor is "a core responsibility of government" and can't be provided without proper funding, said Young, director of the Office of the Ohio Public Defender.
"Under the current situation, clients whose constitutional right to counsel is being provided by the dedicated men and women who work in the Fresno County Public Defender's Office are having that right compromised as a result of excessive caseloads and the deteriorating infrastructure of the office," Young said.
Others are chiming in.
"It sounds like a system in crisis," said John Gross, indigent defense counsel for the National Association of Criminal Defense Lawyers based in Washington, D.C.
Among the most alarming issues, Gross said, is that 69% of inmates in Fresno County Jail are awaiting trial, which exceeds the percentage in most jails in the United States. When more inmates are in jail awaiting trial, it limits the number of new inmate admissions and pushes those not involved in violent crime back out on the streets.
"Pretrial incarceration is far more expensive than keeping lawyers in the courtroom," Gross said.
In Fresno County, the annual average to keep an inmate behind bars is $32,000, Sheriff Margaret Mims said. The average annual salary, not including benefits, for a public defender is $84,796. The cost for a prosecutor is slightly higher.
The problem in Fresno is too few lawyers — both defenders and prosecutors — and not enough judges and courtrooms, county officials say.
Until supervisors meet with the public defenders, they say, they won't know how to prioritize the office's needs.
In the 2013-14 budget, supervisors approved three new lawyer positions and one office position, raising full-time staff to 88.
Supervisor Judy Case agrees that Fresno County's criminal justice system needs more lawyers.
Many defendants "haven't gone to trial and I am definitely interested in seeing us move people through at a faster rate," she said. "The attorneys in Fresno County work very hard ... they are very talented and have a heart for what they are doing."
The situation also frustrates Supervisor Andreas Borgeas, a lawyer himself, because more inmates are in jail now as a result of prison realignment, more inmates are awaiting hearings and more attorneys are quitting their jobs in the public defender's and district attorney's offices. He calls it "an exponential perfect storm."
Dozens of lawyers have left Fresno County employment in recent years.
"If people were able to maintain a reasonable caseload without unreasonable hours and had some upward mobility, they would stay," he said. "We are reaching a crisis level where talent is departing."
The public defender's union president said the group's letter to supervisors last month was their formal grievance and a possible "prelude to legal action."
Public defender Scott Baly, Professional Association of County Employees president, said the group has hired a lawyer to assist them with their workplace issues.
"We're hoping the county will work with us, but we are keeping all our options open," he said.
The reporter can be reached at (559) 441-6166, email@example.com or @beebenjamin on Twitter.