Prosecutor disputes public defender's claim of staffing emergency

A San Francisco prosecutor attacked the credibility of Public Defender Manohar Raju on Monday, telling a judge there was "no emergency" in his office's staff resources that required the court to start releasing pretrial custody defendants two weeks ago.

Assistant District Attorney Ana Gonzalez's comment that Raju had "a record of misleading the court" brought a retort from Judge Harry Dorfman, referring to "sharp attacks on DA [Brooke] Jenkins' forthrightness."

At the hearing into the continuing unavailability of deputy public defenders, Gonzalez spoke for the whole allotted hour and told Dorfman that there is "no emergency" at the public defenders' office that prevents defendants from having pretrial hearings within the permitted 45-day period.

"This is for the public defenders' office to appropriately manage its resources. The raw data globally does not support an emergency," Gonzalez said.

The public defender's office gets its chance Tuesday to respond to Gonzalez's comments. Hearings are scheduled to continue for the rest of the week. "I haven't put an arbitrary end on these hearings," Dorfman said.

Raju's office claims felony filings have risen 40% since 2019, misdemeanors 57%, and the total number of active cases by nearly 50%. His deputies began declaring unavailability two weeks ago.

Judges started releasing defendants from jail who had been there 45 days, to abide by constitutional protections of habeas corpus and speedy trial.

Gonzalez sought to pour cold water on the public defenders' claims that their caseload had increased. She said case filings are down and Raju's office is not taking on as many cases as it says it is.

Gonzalez pointed to court data that show from 2016 to 2019, felony filings and motions to revoke probations were higher than the last six years. The court's data show a peak of 424 felony filings in January 2019. Jeff Adachi, public defender until 2019 "did not need to call an emergency despite the higher caseload and probably fewer lawyers," Gonzalez said

Gonzalez said the claim that Raju had "a record of misleading the court" in cases where he had erroneously cited the wrong statutes or used incorrect case law to make points "becomes relevant if the court wants to go down this road" of releasing defendants.

Dorfman then warned Gonzalez against being "aggressive."

"You need to be careful," Dorfman told her. "I imagine the public defenders' office could turn the tables on you. I know there have been sharp attacks on DA Jenkins' forthrightness."

Gonzalez was approached for comment after the hearing and said, "I don't talk to the press."

District Attorney Jenkins was contacted for comment, but her office did not respond on the record.

The public defender's office emailed a statement saying, "ADA Gonzalez's allegations about Public Defender Mano Raju are completely baseless. Judge Dorfman warned Gonzalez today to be careful in making such allegations, given that District Attorney Jenkins' truthfulness has been questioned publicly in other instances. Earlier this year, the State Bar ordered Jenkins to complete a diversion program to address ethical lapses. Judge Dorfman has said repeatedly during this multi-day hearing that our office is working in good faith with all parties to find a workable, fair solution to this situation."

Dorfman, who oversees felony arraignments, has been holding hearings since Oct. 27 with representatives across the city's legal system to address the public defender's complaints of a lawyer shortage.

Last Wednesday, Dorfman asked counsel in the courtroom to explore whether he could order Bar Association of San Francisco attorneys to take on clients and ease pressure on the public defenders' and the Conflicts Panel, which says it has also run out of lawyers to assist indigent clients.

Julie Traun, director of court programs at the Bar Association of San Francisco said there were 48 cases of attorney unavailability for the Conflict Panel going into this week.

"Theoretically the court has the power to force lawyers to represent indigent people," Gonzalez said on Monday, citing the Sixth Amendment that guarantees the right for a criminal defendant to have an attorney.

"I don't know what the mechanism could be," Gonzalez added. "It's never been done. ... There are situations in which an emergency rope can be pulled."

Asked by the Daily Journal whether a judge can order a private attorney to represent an indigent criminal defendant, State Bar Public Information Office Rick Coca emailed last Wednesday, "The State Bar is not aware of a statute or rule of professional conduct that would provide authority to direct a private attorney to accept representation of any particular client or type of client."

But Gonzalez stated that it was not the court's role to "run the public defenders' office."

"The PD's office is asking you to say there's an emergency, but we don't know how they're staffing their office. There's no way for this court to do what the PD's office is asking," said Gonzalez.

"I agree," Dorfman responded. "I'm never going to tell the public defenders' office how to allocate resources and budget. I have no authority to do it, and I won't do it."

In a series of letters and filings submitted to the court, Raju and his leadership team argued that they are required to decline new cases to protect clients' Sixth Amendment rights to a speedy trial.

"The reality is that the courts and defense attorneys would not be so overwhelmed if the district attorney's office weren't filing so many frivolous and unsubstantiated cases," Raju said in a recent statement. "The DA's office has increased the number of cases filed by nearly 60% since 2021. This has had predictable results: filling our jails to overcapacity and increasing our caseloads to a breaking point."

Raju said his office continues to represent 75-80% of the people charged in San Francisco, but on a budget that is roughly 60% the size of the district attorney's.

The district attorney's office's own analysis show there are 7,800 combined felony and misdemeanor cases in front of the court and the public defenders' office is handling 67% of those cases, "at most," Gonzalez said

She added that the public defenders' jobs became easier once court diversion programs for low-level offenders became law.

"In 2021, the Legislature changed the law relating to misdemeanors. Court diversion became the law -- everything is diversion eligible. There are no probation matters to violate," Gonzalez said.