forms

A new commission made up of legislators, public defenders, academics and advocates seeks to push California — one of just two states that don’t pay for basic public defense — to begin providing resources and enforcing minimum standards for county public defender systems.

The California Independent Commission on Public Defense includes three assemblymembers and two senators — among them Jesse Arreguín and Nick Schultz, chairs of the Senate and Assembly Public Safety Committees — as well as chief public defenders from several counties, retired judges, the directors of criminal justice nonprofits, and the heads of organizations representing thousands of defense attorneys in the state.

“We have discussed the problem of our public defense system for years,” said Schultz, a Democrat from Burbank and former prosecutor who has sponsored legislation to improve public defense.

The goal is to “move past discussion and study, and come up with an actionable road map of what we need to do to really build out the robust public defense infrastructure that Californians are rightfully entitled to,” he said.

The commissioners plan to develop a five-year plan to phase in state funding, along with enforceable standards like caseload limits and access to defense investigators.

A CalMatters investigation last year found that criminal defendants across the state are routinely convicted without anyone investigating the charges against them, significantly increasing the likelihood of wrongful convictions. Many California counties do not employ a single defense investigator who can interview witnesses, review police reports, visit crime scenes and retrieve video surveillance footage. CalMatters also found that lawyers in some rural counties are handling caseloads that far exceed even the most permissive standards, making them less likely than other defense attorneys to challenge the prosecution’s evidence in legal motions and take their cases to trial.

But the state has resisted stepping in. After a proposed bill that would have created an official state commission to address the issue was abandoned, two advocacy groups, the Wren Collective and UC Berkeley’s Criminal Law and Justice Center, decided to form an independent commission and began assembling participants who could develop and act on reforms. These types of commissions, which have facilitated significant improvements in other states’ public defender systems, are usually established by the governor.

“It became clear that this was an issue that was not a high priority for Sacramento, especially during a budget crisis,” said Chesa Boudin, the Berkeley center’s founding director and a former San Francisco district attorney. It also became clear, Boudin said, that “there was a tremendous gap between what experts understood to be the crisis and the public perception of California government as a kind of progressive leader in the country.”

In the decades since the U.S. Supreme Court established the right to an attorney in state court criminal proceedings, California has saddled its counties with the responsibility of providing lawyers to poor people accused of crimes. Many of those counties have opted for the cheapest path: paying private lawyers and firms a flat fee to represent indigent defendants, regardless of how many cases they handle or how much time they spend on each case.

“You’ve got some offices that have an incredibly high caliber of representation that they can provide, and you have other offices that are doing these flat-fee contracts where the quality has been documented to be pretty bad,” said Eve Brensike Primus, a law professor at the University of Michigan.

Primus is the only member of the new commission from outside of California. She was asked to join because of her extensive research and writing about the structure of indigent defense.

An indigent defense commission in Michigan, which was formed by the legislature in 2013, has led to significant reforms and a substantial influx in state funding.

The California commission’s work, Primus said, can serve “as a catalyst for political actors to do the right thing and start to fund and improve indigent defense delivery, or as fodder for lawsuits that then can try to get the judiciary to push the political actors to do what is necessary to provide for effective representation.”

The commission is scheduled to hold its first in-person meeting, which will be open to the public, in Berkeley in October, with additional meetings planned for Los Angeles, the Central Valley and Northern California over the next 12 months. Commissioners say they will work in subcommittees in between these quarterly sessions to develop a concrete fiscal plan for the state, draft legislative language, and establish minimum standards for how counties should structure their public defender offices, compensate their attorneys, provide access to experts, and report on their work.

Anat Rubin writes for CalMatters.

One year and four months ago, Jeremy Strohmeyer followed little 7-year-old Sherrice Iverson into a casino ladies’ room. His friend, David Cash, followed after them. There, Strohmeyer kidnapped, sexually assaulted and strangled Sherrice to death while Cash, according to his own testimony, watched the assault begin and then left without notifying authorities. Strohmeyer pleaded guilty to all the crimes, facing a lifetime in prison, and Cash remains at UC Berkeley. The disparate legal treatment of two young men who both appear so morally culpable has raised a lot passions, causing even a noted criminal defense attorney, Strohmeyer’s own Leslie Abramson, to call angrily for some retribution against Cash.

So why hasn’t Cash been charged? Many in the African American community believe that the whole case is about race. South-Central activists were highly critical of the Nevada district attorney’s willingness to accept a plea offer from Strohmeyer, wondering if the prosecution wouldn’t have been more eager to seek the death penalty through a trial if the victim were white and wealthy. Maybe. As a former public defender, it seems to me that the deal was typical when a defendant faces a real possibility of the death penalty. Moreover, as an opponent of the death penalty, I agree with Sherrice’s father when he said, “Killing that boy won’t bring my baby back.”

But when it comes to Cash, I wonder. This is not Mississippi in 1963. There is no great racist plot. Indeed, the public unease and outrage against Cash is a multiracial affair with blacks and browns, whites and reds, yellows and “mixeds” all horrified by his actions and indifference. But is there a subtle, perhaps unconscious combination of racial and class privilege causing the authorities to balk at charging a young middle-class white man with a bright future at an elite public university? Would they be so hesitant if he were darker hued, had no high school degree and had the uncertain economic future that too many young, poor black and brown men face?

It is said that neither Nevada nor California can charge Cash because neither state has a “good Samaritan” law–and they should.

I disagree with the pundits who oppose such laws with concerns that range from the infrequency with which Vermont uses its law to the suggestion that these laws turn “us into informants on each other.” It doesn’t matter if the new law is rarely used. Ideally, we hope that all criminal laws will rarely need to be used. What matters is that we believe that the moral obligation to help under certain circumstances is important. If so, then we should have a law for whenever it is needed. And these laws have less to do with us becoming informants on each other and everything to do with what we should already be doing for each other: helping each other out in times of need, regardless of our differences, because we are all part of a community.

But what about the laws we already have? Both states have laws that make accessories to a crime guilty of a crime. An accessory is the crime of knowing a felony offense has been committed and helping the perpetrator avoid arrest or trial. Several Nevada attorneys have suggested that Cash could be charged as an accessory for two reasons: If Cash saw the sexual assault and lied about it, that would be interference with the state’s ability to prosecute, or if Cash told friends, as he did, to keep quiet when they recognized Strohmeyer and Cash in the televised casino surveillance tape that, too, would hinder Strohmeyer’s arrest and prosecution. These attorneys are right. And their examples are bolstered by the fact that when Cash’s father told Cash that the two of them would have to go to the police, Cash’s first move was to call Strohmeyer and tell him, “Do whatever you’re going to do, but do it now.” It was a warning designed to help Strohmeyer avoid arrest or trial.

Frankly, as new information is revealed, the case against Cash grows stronger. While Cash swore under oath that he only witnessed the young girl struggling with Strohmeyer, Cash consistently told friends that he watched Strohmeyer molest the half-naked, terrified Sherrice. It was then, according to Cash’s former roommate, that Cash asked Strohmeyer that stomach-turning question “Was she aroused?” not after Strohmeyer left the bathroom and said that he’d killed Sherrice as Cash claims now.

If instead of ineffectually trying to stop his friend and leaving while “fear[ing] the worst,” Cash, in fact, encouraged his friend’s sick, deadly assault, Cash sounds more like an aider and abettor–beyond an accessory and as guilty as the principal. Surely, Sherrice’s hopes must have died when, in the last moments of her life, she saw her sole avenue of escape blocked by the head of the man in the next stall chatting with her assailant while she was tortured. One wonders whether Cash didn’t wait outside the bathroom door to act as a lookout for Strohmeyer. Moreover, this uglier version of Cash’s acts is evidence that he may have lied. The fact that he lied is more than perjury or inhibiting a police investigation or even protecting Strohmeyer. The lies are also about the specifics of what Cash himself saw and did and reflect his own consciousness of guilt.

If the Nevada authorities can look at all this and find no crime, it’s important to note that the California authorities could also charge Cash. Although the main crime, Sherrice’s murder, occurred in Nevada, many of the accessory acts–intimidating witnesses, lying to authorities, warning Strohmeyer–occurred in California. So the Nevada and the California authorities can do what justice demands.

Many of Cash’s fellow students are morally outraged and have taken action accordingly; the student council wanted to throw him out of school. Both the Nevada and California authorities ought to reexamine Cash’s immoral and illegal behavior and also act accordingly.