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The supervisors unanimously voted to issue a Request for Proposals (RFP) or other means for a public defender services contract to be brought back during the next supervisors meeting scheduled for March 12 and to create a public defender oversight committee.
The decision comes after a report by the state finds people represented by the public defender firm contracted by the county are not being sufficiently served. The department has a high turnover rate, and in some cases departures are related to ethical issues, the report said.
Several members of the public expressed concern that the department is causing a disproportionately negative impact on people of color and suggested more Spanish language assistance.
Ashanti Mitchell, an attorney at the Indigent Defense Improvement Division with the Office of the State Public Defender said 67% of surveyed felony clients in the county reported speaking with their attorneys for less than five minutes. In addition, 52% of those surveyed reported not speaking to their attorney while incarcerated. Indigent Defense provides representation to those who can not afford an attorney to represent them in court.
“It’s not working for the attorneys, it’s not working for the court and it’s not working for the clients,” Mitchell told the San Benito County Board of Supervisors on Feb. 27.
He said the county’s public defense system lacks structured leadership, transparency, accountability and funds, and cited frequent attorney turnover, high caseloads and low litigation as examples of why the current “contract system is not working.”
Mitchell said one of the main issues for the county to address is ethical issues and the turnover of attorneys.
“I think as alarming and troubling as the fact of the turnover is, that three of those attorneys were either moved or removed from San Benito County because of professional or ethical issues,” Mitchell said regarding the departure of seven attorneys.
“So, this is incredibly problematic. It causes huge delays.”
Mitchell continued to say that the high turnover rate causes uncertainty for a client and creates a situation where incoming attorneys have to pick up the leftover caseload.
From 2022 to 2023, the county’s contracted indigent defense firm, Fitzgerald, Alvarez, and Ciummo Law Firm, saw over 200 felony cases and over 800 misdemeanor cases, Mitchell said. With two attorneys assigned to the county, they were each taking on over 500 cases in one year, Mitchell said.
Of those cases, very few involved litigation or motions that could aid the client by challenging the charges against them, Mitchell said.
According to the report, a lack of litigation by defense attorneys is an indicator that they may be encouraging their client to plead guilty too quickly because the attorney does not have time to litigate for each client.
Mitchell said that in San Benito County, only 10 motions of suppression were filed among 1,500 cases in a one-year period. A motion to suppress is usually made to ask the court to exclude evidence from a trial.
Another issue in the system, according to the report, is the level of funding for public defender services.
In 2022-23 the county allocated no funds from AB 109 —a law enacted to reduce prison overcrowding, costs and reoffending—to indigent defense. Of the $2.8 million available, various departments including the Probation Department received $932,919, the Sheriff’s Department received $747,936 and the District Attorney’s Office received $265,145.
In 2021, the supervisors approved a three-year contract with Fitzgerald, Alvarez, and Ciummo. The county paid the law firm a monthly rate of $49,583 from May 1, 2021, to April 30, 2022; a monthly rate of $50,327 from May 1, 2022, to April 30, 2023; and a monthly rate of $51,082 from May 1, 2023, to April 20, 2024.
Mitchell said the situation could be improved by creating a public defender’s office or a regional public defender’s office in the county and equalizing the funds going to the indigent defense system.
After Mitchell’s presentation, Supervisor Mindy Sotelo, who sits on the Community Corrections Partnership, an advisory board that provides direction to the adult and juvenile criminal justice system, clarified that the partnership reviews AB 109 funding. She said the lack of funding to public defenders is not intentional.
Sotelo said departments such as the District Attorney’s Office or the Sheriff’s Department go to the committee asking for funds and “unfortunately there hasn’t been a lot of participation from the public defender.”
During public comment, 11 speakers expressed a desire for better indigent defense support.
Jeanette Neal, a parent education coordinator and organizer with Youth Alliance, said she works with parents who say communication with public defenders is sparse. She also spoke about the importance of AB 109 funds being allocated to public defense.
“I want to remind everyone that because of AB 109, the realignment is to provide restorative practices to our community with justice-involved people,” she said. “So when we don’t have enough public defenders and we have more prosecuting staff, we aren’t following what we want to do.”
Israel Salazar shared that he was incarcerated for almost 20 years and said he considers himself a system expert, serving on executive committees and groups at the Board of State and Community Corrections, which provides leadership to adults and youth in the criminal justice system.
“It is very clear to me that we need the necessary investment in our own public defender office in order to fulfill your moral obligation to the U.S. Constitution, which the Board of Supervisors is morally obligated to maintain, sustain and defend,” Salazar said. “I’m appalled to read about the impacts of the current structure to people of color. This structure feels very much like a set-up.”
Other commenters said that Latinos in the county are affected by the Spanish language barrier between public defenders and clients, which causes inadequate representation for the largest ethnic group in the county.
According to the U.S. Census, 62% of the county’s population is Hispanic or Latino and 41.8% of the population 5 years or older speak a language at home other than English.
San Benito County Sheriff Eric Taylor also spoke during public comment.
“I agree with what many of the people have said today and I think we are all deserving of a proper defense in the criminal justice system,” Taylor said.
He also said that a strong public defense challenges police officers and strengthens law enforcement. He explained that a lack of motions to suppress evidence does not challenge law enforcement.
“If we’re doing our job correctly, then we prevail on those motions and if we made a mistake, we’re doing our job incorrectly and we’re held accountable for that. And that’s something that I haven’t seen happen here,” Taylor said.
The supervisors all agreed that the county’s indigent defense system needs improvement.
Supervisor Bea Gonzales was passionate about the topic. She shared that she taught GED at the county jail and saw firsthand how a lack of public defense affected incarcerated people.
“In a perfect world, I would love to see a public defender’s office—a fully fledged public defender’s office in San Benito County—funded to the degree that the DA’s office is funded, receiving funds from AB 109 and the community correction partnership,” Gonzalez said.
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