Off-balance?

Public defenders have a tough job. Philip Heithecker would know—he’s been one for 17 years. As attorneys, they represent defendants who cannot provide their own counsel, many of whom are repeat offenders or are charged with more than one crime. In court, they face off against lawyers in the District Attorney’s Office, who, according to the 2013-14 Grand Jury Report, have more resources and staffing, leaving the public defenders to fight an uphill battle.

“It’s a very difficult job and this particular group of clients can be difficult to work with,” Heithecker said. “They’re people who have been in and out of prison, who know the system very well, and a few who are able to manipulate the system.”

In Butte County’s courts, the cards are stacked against public defenders like Heithecker and over the past two years things have gotten increasingly worse, the grand jury concluded. With the recent addition of a fourth felony court, case loads are now near capacity, attorneys are often expected to be in multiple places at the same time and they aren’t equipped with the same resources—such as meeting spaces and law databases—as their DA counterparts.

“A number of attorneys commented about being ‘under resourced,’” the report states. “As one attorney put it, ‘We are not on an equal footing with the District Attorney’ in terms of staffing and support.”

The way the public defense system works in Butte County is each attorney—there are 20 of them, though some work only part-time—has an individual contract with the county. Together, they form a consortium, with an executive director (Heithecker) who serves as liaison between them and the county. They meet to discuss various issues they face, but maintain separate offices with separate staffs. In addition to being paid the same annual salary regardless of experience ($138,324 for full-timers), the attorneys in the consortium are able to share the services of seven investigators, paid by the county. Any additional supplies, support staff, equipment or resources are paid for by the attorneys themselves. They get no sick leave, vacation pay or retirement benefits.

The DA’s Office is a whole other beast. With 23 attorneys in the criminal division overseen by an elected official (District Attorney Mike Ramsey), the office also benefits from the services of legal secretaries, investigators and technical support. Resources like law databases are provided, as are benefits packages, confirmed county Deputy Chief Administrative Officer Andy Pickett.

“We are independently contracted lawyers going up against a county department,” Heithecker said. “Certainly the grand jury is correct—we’re outnumbered and outgunned.”

But comparing staffing levels between the DA’s office and the public defender consortium isn’t entirely fair, Pickett said. Ramsey agreed, explaining that his office handles much more than the public defenders do. For example, before anybody even goes to court, the DA’s office investigates crimes to determine whether to file charges—about 15 percent of cases that land in the DA’s office are dismissed before they go to court, Ramsey said. Then, of the cases that do reach court, about 70 percent of those clients are represented by public defenders—the rest seek private counsel.

“The only thing I disagreed with [in the grand jury report], was a couple places where they said public defenders aren’t on equal footing as the DA’s office,” Ramsey said. “They shouldn’t be.

“We do a lot more work, as is the nature of the criminal justice system. Equal footing is not contemplated, nor would it be practically effected.”

Heithecker countered that, saying he believes if the county ran its own public defender office, rather than contracting with independent attorneys through the consortium, staffing levels would be more even.

The grand jury seemed to agree with Heithecker. In several places, the report points a finger at the county for making certain decisions—including staffing and using a consortium rather than departmental model—for financial reasons rather than because they made better logical sense.

The grand jury makes several suggestions for how to move forward, many of them regarding review processes and databases for tracking public defender cases. Heithecker is wary of such moves—especially one recommendation that asks that the executive director review each public defender—because he believes it turns the consortium into more of a department.

“Performance by individual attorneys is evaluated in court every day,” he said. “As independent lawyers, they don’t want me going through their files and criticizing their performance. Then I’m more of a supervisor.”

Ramsey agreed that performance is reviewed in court and praised the public defenders for competently defending their clients.

“It’s very important for the criminal justice system to have good, dedicated, experienced public defenders,” he said. “There’s nothing worse than working on a case and doing all the work that we do—we’ll say we’re overworked and under-resourced also—to have a case returned by an appellate court due to ineffective assistance of counsel, either because of lack of experience or lack of time or just not doing a good job. I can’t remember the last time that happened with a public defender.”

Heithecker and Ramsey agreed with the grand jury that the consortium model is a way to eliminate conflicts of interest that would occur in a department.

“We’ve had a number of cases that have many, many codefendants,” Heithecker explained. “For example, we have a case out of the casino right now with 30 codefendants. Earlier this year, there was a fight downtown, there must’ve been 14 codefendants. If you had one [public defender] department, that department could only represent one of those individuals.”

Ramsey remembers a time when Butte County did use what he calls a “quasi-public defender’s office,” before the consortium model was created in 1990. Part of the reason the consortium was created in the first place was that office “started collapsing under its own conflict weight,” he said.

Regardless of how the public defender system works in Butte County, one thing everyone did agree on is a general lack of funding and resources in the face of increasing workloads.

“The public defense attorneys reported that their caseloads are increasing,” the grand jury report states. “The Grand Jury heard comments such as ‘caseloads are nearing maximum capacity,’ ‘we are beaten down by cases,’ and ‘we need more lawyers.’ The caseload information provided by the attorneys to the Grand Jury indicates a 10 percent increase from 2011 to 2012 and a 22 percent increase from 2012 to 2013.”

The county is required to respond to the grand jury and will do so in the next couple months.