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Protecting Indigents

By Michael P. Judge

      The Los Angeles County public defender protects the life and liberty of indigent adults and children in matters having penal consequences. The public defender's mandate is to ensure equal treatment within the justice system by safeguarding liberty and upholding the rights of individuals.
      Long before the United States Supreme Court's decison in Gideon v. Wainright, 372 U.S. 335 (1963), established indigents' right to be represented by counsel, the Los Angeles County public defender provided free legal representation to those who could not afford it. The public defender's office opened for business Jan. 9, 1914, and it has constituted a regular department of Los Angeles County government. The idea has spread to many other cities and states, and the public defender is a well-established concept, servicing courts throughout the United States.
      The objective of this article and the accompanying self-study test is to introduce readers to the basic workings of the public defender's office and to develop an understanding of it as an integral part of the community's criminal justice system. By reading the article and taking the test, readers will learn how the public defender decides who to represent, the extent to which courts participate in that process, the types of cases for which representation is provided, the scope of representation, and the qualifications for being a deputy public defender.
      Although not covered here, similar rules regarding representation apply when the public defender declares a conflict of interest or otherwise declines representation and the alternate public defender or bar panel is appointed by the court.
      Determination of Indigency
      Under both the United States and California constitutions, the public defender's office is allowed to represent only people who are indigent. Gideon v. Wainright, supra, 372 U.S. 335.; Cal. Const. Art. I, Section 15. Nonetheless, there are some important differences between representation under the federal and state constitutions.
      In contrast to their rights under the United States Constitution, indigent defendants in California are entitled to representation in both felonies and misdemeanors, regardless of the amount of punishment the defendant faces. Cf. In re Johnson (1965) 62 Cal.2d 325 [defendants entitled to counsel for all felonies and misdemeanors], with Scott v. Illinois (1979) 440 U.S. 367 [defendants entitled to counsel only if incarceration is imposed]. In California, defendants are entitled to representation even if charged with possession of less than an ounce of marijuana, a misdemeanor for which the maximum sentence that can be imposed is $100, with no incarceration permitted. See Tracy v. Superior Court (1978) 22 Cal.3d 760.
      The determination of whether a defendant qualifies for representation is made by the public defender in collaboration with the court. The public defender's office makes the initial assessment of whether the person is indigent, but the judge is allowed to reject this finding, provided that he or she does so very early in the process.
      This procedure is the result of the enactment of Government Code Section 27707, as explained by Roswall v. Municipal Court (1979) 89 Cal.App.3d 467. Under Section 27707, "[t]he court in which the proceeding is pending may make the final determination in each case as to whether a defendant ... is financially able to employ counsel and qualifies for the services of the public defender." However, if the court wants to disqualify a defendant from being represented by the public defender, "it must do so at the earliest opportunity, in almost all instances before or during the first court appearance of counsel." Roswall v. Municipal Court, supra, 89 Cal.App.3d 467, 475. "[O]nce the court has made its determination that a defendant is financially eligible for legal assistance at public expense and has appointed counsel to represent him, it may not thereafter, without the defendant's consent, remove that attorney on grounds of financial ineligibility. ... At that point the court's sole remedy for enforcing a financially able defendant's burden of paying the cost of counsel will be a hearing into the matter at the conclusion of the criminal proceedings." Roswall.
      The standard used by the public defender, as well as the court, to determine indigence is a flexible one that examines all the financial issues regarding the defendant and his or her case. See People v. Ferry (1965) 237 Cal.App.2d 880. The inquiry delves into the defendant's financial circumstances and the amount of outstanding debt. No specific dollar figure makes a person ineligible for the services of the public defender. For example, individuals who are in custody and are unable to post bail are presumed to be eligible for public-defender services. On the other hand, if they can afford to post a large amount for bail, they might not be eligible. If they have enough financial assets to afford private counsel, they are not eligible to be represented by the public defender.
      Under California law, every person who is represented by a court-appointed attorney, which includes the public defender's office, may be asked to pay a registration fee of up to $25 to the county of Los Angeles. This usually happens at the conclusion of the representation.
      Types of Cases
      Under the Government Code, the public defender is required to represent certain indigent individuals and is given discretion regarding representing others. The public defender is permitted to represent individuals only as provided by the Government Code. Littlefield v. Superior Court (1993) 18 Cal.App.4th 856.
      When the court orders it, the public defender must represent any person who is charged with any offense or contempt (Gov. Code Section 27706(a)), any person subject to probate or conservatorship proceedings (Gov. Code Section 27706(d)), any person subject to juvenile delinquency proceedings (Gov. Code Section 27706(e)) and any person faced with capital charges (Gov. Code Section 27706(f)).
      The public defender is allowed to but does not have to represent indigent people in a range of situations. The public defender must represent people in prosecuting collection of wages not exceeding $100, but only "where, in the judgment of the public defender, the claim urged is valid and enforceable in the courts." Gov. Code Section 27706(b). The public defender must represent people in civil litigation, but only where, "in the judgment of the public defender, the person is being persecuted or unjustly harassed." Gov. Code Section 27706(c). The public defender is given the discretion of deciding whether to represent people regarding the nature of detention, confinement or punishment in juvenile and adult cases. Gov. Code Section 27706(g). Finally, the public defender is allowed to represent people on appeals to higher courts "where, in the opinion of the public defender, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction." Gov. Code Section 27706(a).
      Authority splits regarding whether the public defender's office can be appointed as "standby counsel." This issue arises when a defendant exercises his or her constitutional right to self-representation in a case. See Faretta v. California (1975) 422 U.S. 806. A self-represented defendant occasionally asks for an attorney to advise him or her, or the court may want an attorney present in case the defendant decides midtrial not to be represented by an attorney. There is no constitutional right to such standby or advisory counsel (People v. Crandell (1988) 46 Cal.3d 833, 864), and a judge has wide discretion on whether to appoint such counsel. People v. Bigelow (1984) 37 Cal.3d 731, 742.
      The Court of Appeal in Brookner v. Superior Court (1998) 64 Cal.App.4th 1390 found that a public defender's office could be appointed as standby counsel for a self-represented defendant. However, two Courts of Appeal have held that Government Code Section 27706 does not permit a judge to appoint the public defender as standby counsel over the public defender's objection. Dreiling v. Superior Court (2000) 86 Cal.App.4th 380; Littlefield v. Superior Court (1993) 18 Cal.App.4th 856.
      The position of the Los Angeles County public defender is to refuse appointment as standby counsel. As the Court of Appeal in Littlefield explained, "[t]he court's authority in appointing the public defender is limited to appointments to defend a person charged with a crime, or at least to assist in the defense of such person. A standby counsel represents no one. Like an understudy in a play, his or her task is to wait in readiness to play a role should the occasion arise. Standing by is not defending." Littlefield v. Superior Court, supra, 18 Cal.App.4th 856, 860.
      Scope of Representation
      "[W]hen the public defender is appointed to represent a defendant accused of a crime, he becomes the attorney for said defendant for all purposes of the case and to the same extent as if regularly retained and employed by the defendant." People v. Mattson (1959) 51 Cal.2d 777, 788. "[E]ven when a defendant represented by the public defender expresses the desire to plead guilty, it is his counsel's task to investigate carefully all defenses of fact and of law which may be available to the defendant and confer with him about them before he permits his client to foreclose all possibility of defense and submit to conviction without a hearing by pleading guilty." Id., at p. 791.
      In addition to representing individuals in court, the public defender engages in a wide range of duties. Two notable duties are the availability of the public defender's office for immediate consultation by individuals in custody and the office's investigatory capacity for people who allege police misconduct in their cases.
      Regarding in-custody representation, before an individual who is in custody may be questioned regarding a crime, the law requires the police to inform that person of the right to remain silent and the right to counsel. If the person does not waive the right to an attorney, the police must arrange for the presence of an attorney before questioning can take place. See Miranda v. Arizona (1966) 384 U.S. 436. Likewise, if the police want to place an arrested person in a lineup, that person has the right to the presence of an attorney at the lineup. United States v. Wade (1967) 388 U.S. 218.
      The public defender has attorneys on call to serve those functions. An attorney who responds to the police station or jail serves as the person's attorney in the same way as if the attorney had been retained to represent the person. The attorney represents the client, not the police.
      Regarding police misconduct, the public defender's office has created a public integrity assurance section that reviews cases involving public defender clients who may have been unjustly convicted because of the actions of corrupt police officers. When attorneys from that section learn of these cases, they take appropriate legal action in order to correct these injustices. Possible courses of action include those lawyers moving to vacate a conviction or withdraw a guilty plea and referring a case for possible prosecution with the district attorney's office.
      Standards for Employment
      Deputy public defenders not only are "real lawyers" but also must meet standards and training beyond those required of regular members of the profession. Representation by the public defender is of the highest quality, with the added bonus that deputy public defenders are familiar with court personnel and procedures, ensuring smooth relations with judges, prosecutors, clerks and bailiffs.
      In order to be eligible to become a deputy public defender, an individual must be a citizen of the United States; resident aliens do not qualify. The individual must be licensed to practice law in California and must take a Civil Service examination.
      The exam is graded in three categories: communication skills, understanding of the role of the public defender, and legal knowledge. The examination is an interview with two senior lawyers within the office. The interview lasts 30 minutes and usually involves the use of two hypothetical situations that a deputy public defender might encounter in his or her work delving into ethics and evidence, among other topics. The person's score is the average of the two scores assigned by the two interviewers.
      On being hired as a deputy public defender, the individual is not allowed to conduct the private practice of law outside the scope of the office. Los Angeles County Charter, Section 55; Gov. Code Section 27705. Further, in addition to an extensive training regimen when hired, all attorneys are required to continue their legal education throughout their careers as deputy public defenders by attending regular classes and seminars regarding any advances in the practice of criminal defense law.
      The public defender's office strives to prevent injustice and to protect the rights of individuals. The office provides the highest level of criminal legal representation and fully serves all indigent people in need of assistance.
      Michael P. Judge is a public defender in Los Angeles County.

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