The California Independent Commission on Public Defense is seeking to push the state to provide funding and set enforceable standards for county public defense systems. California is one of only two states that does not contribute money for basic public defense services, leaving counties to shoulder the responsibility.

The commission includes three Assembly members and two state senators, including Sen. Jesse Arreguín and Assemblymember Nick Schultz, who chair the Senate and Assembly public safety committees. Schultz, a Burbank Democrat and former prosecutor, has previously carried legislation aimed at improving public defense.

“We have discussed the problem of our public defense system for years,” Schultz said, adding that the commission’s work is intended to move beyond debate and toward a practical plan for building the kind of defense system Californians are entitled to under the Constitution.

Commission members plan to develop a five-year proposal for phasing in state funding. They also intend to recommend minimum standards that could include limits on attorney caseloads and guaranteed access to defense investigators.

The effort follows reporting by CalMatters that found defendants in California are often convicted without any defense investigation into the allegations against them. In many counties, defense teams lack investigators who can interview witnesses, examine police reports, visit crime scenes or collect surveillance footage. CalMatters also found that in some rural counties, defense attorneys carry caseloads far above even the loosest professional standards, making them less likely to file motions challenging prosecution evidence or take cases to trial.

Despite those findings, the state has not taken broad action. A proposal to create an official state commission was dropped, prompting two advocacy organizations — the Wren Collective and UC Berkeley’s Criminal Law and Justice Center — to establish an independent panel. Similar commissions in other states have often been created by governors and have helped drive major public defense reforms.

Chesa Boudin, founding director of the Berkeley center and a former San Francisco district attorney, said the issue has not been treated as a top priority in Sacramento, particularly amid state budget problems. He said there is also a disconnect between expert views of the system’s shortcomings and California’s public image as a national leader on progressive policy.

Since the U.S. Supreme Court recognized the right to counsel in state criminal cases, California has assigned counties the job of providing attorneys for people who cannot afford them. Some counties operate public defender offices, while others rely on private attorneys or firms paid flat fees to handle indigent defense cases, regardless of workload or time spent on each client.

Eve Brensike Primus, a University of Michigan law professor and the commission’s only member from outside California, said the quality of representation varies widely across the state. Some offices provide strong defense services, she said, while flat-fee contract systems in other places have been shown to deliver poor results.

Primus was invited to join the commission because of her research on indigent defense systems. She pointed to Michigan, where a legislatively created indigent defense commission in 2013 led to major changes and a significant increase in state funding.

In California, Primus said, the commission’s findings could help motivate lawmakers to fund and improve public defense. They also could provide support for litigation aimed at forcing action if elected officials do not respond.

The commission is expected to hold its first public, in-person meeting in Berkeley in October. Additional meetings are planned over the following year in Los Angeles, the Central Valley and Northern California.

Between quarterly meetings, members will work in subcommittees on a fiscal plan for the state, proposed legislation and baseline standards for county public defender systems. Those standards may address how offices are organized, how attorneys are paid, whether defense teams have access to experts and how counties report on their work.

Any reforms recommended by the commission would still require approval from the Legislature.

Original source: CalMatters

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Early explorers believed California to be an island, and while its physical attachment to the rest of North America eventually became evident, it nevertheless has sought to forge an island-like cultural and political identity – a “nation-state” in Gov. Gavin Newsom’s description.

There are, however, limits. Legally, California is still just one of 50 states and thus is subject to federal law, including the U.S. Constitution. California politicians sometimes ignore that basic fact of civic life in their zeal to lead the parade. But when they cross the legal line, as defined in federal law, they get their comeuppance. For instance, the federal appeals court that oversees California recently overturned an ordinance passed by city leaders in Berkeley, one of the state’s more adventuresome jurisdictions, to ban natural gas service in newly constructed buildings.

The 2020 ordinance, cheered by environmentalists as a gesture to reduce greenhouse gases, was challenged by the California Restaurant Association for violating federal authority to set energy efficiency standards. A federal trial judge upheld the ordinance but the 9th District Court of Appeals declared that federal law did, indeed, preempt the issue so Berkeley could not strike it out on its own. California’s governors and legislators are also prone to enacting new laws that run afoul of the U.S. Constitution, federal law or, in some cases, the state’s own constitution.

Chris Micheli, a lobbyist who is also a student of legislative procedure and teaches at the University of the Pacific’s McGeorge School of Law, has assembled a lengthy list of legislative decrees that later fared poorly in the courts. They include such recent laws as those mandating female and members of “unrepresented communities” on corporate boards and prohibiting doctors from making politically incorrect statements about COVID-19.

One entire class of California laws, those imposing sometimes unique restrictions on private gun ownership, has fallen prey to constitutional challenges in recent months, thanks to the U.S. Supreme Court’s expansive interpretations of the constitutional right to bear arms. While gun organizations have been challenging California’s array of gun control laws for years, the Supreme Court’s landmark Bruen decision last year, invalidating New York’s almost total ban on the carrying of personal weapons, opened the door.

One by one, California’s laws are being invalidated. Just last month, for instance, a federal judge in Southern California overturned the state’s law prohibiting the sale of handguns that don’t meet stringent – and technically unworkable – safety requirements, declaring that it runs afoul of the Bruen decision. Even before the Bruen decision, a San Diego federal judge, Roger Benitez, had tossed out California’s ban on magazines holding more than 10 rounds, the state’s ban on assault rifles, and a law requiring background checks for ammunition purchases.

Another law that fell recently was one dreamed up by Newsom and the Legislature as a symbolic stunt – authorizing lawsuits against some gun manufacturers with conditions that made defense almost impossible. It was patterned after a Texas law making it easier to sue those who performed abortions, and Attorney General Rob Bonta didn’t even try to defend it when the inevitable lawsuit challenged it. Undeterred by the serial invalidation of California gun laws, Newsom and legislators are working on another measure that, they say, would fit within the constraints of the Bruen decision.

Senate Bill 2 would create new standards for the issuance of concealed weapons permits and list a number of new places where carrying weapons would be prohibited, even by those having permits. Whatever emerges from this year’s session would face new legal challenges, and given the state’s recent record, would also likely be shot down in court.

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RIVERSIDE – The continued spread of COVID-19 has had sweeping impacts on the function of the criminal justice system, including Riverside County, but hope is on the way in the form of a vaccine that Monday will be delivered to all parts of the U.S.

Until the vaccine takes hold, it’ll be difficult—as a Riverside judge explained here, noting a major outbreak in the Riverside courts that have sidelined numerous judges and staffs.

Judge John Molloy was set to hear arguments on the resentencing of defendant Yolanda Bourassa here in Riverside County Superior Court Friday, but immediately after counsel stated their name and the purpose of the hearing for the record, Judge Molloy sighed and laughed, stating, “Of course you are, marvelous.”

He then said that he could not remember if he had read the briefs prior to the case, claiming, “I can’t tell you that because I have had a complete memory wash because of current events.”

Since the initial outbreak of COVID-19 in March, Riverside County has had over 111,000 positive cases of COVID-19 and of those numbers 1,551 people have died.

In three Riverside County detention facilities, there has been a total of 3,624 positive COVID-19 cases—146 from Ironwood State Prison, 1,778 from Chuckawalla Valley State Prison, and 1,700 cases in the California Rehabilitation Center.

Judge Molloy spoke about the impact these numbers have had on the courtroom, stating that the increase in positive cases has “caused further area of concern to the litigants and the court in general.”

He also stated that there has been a “workplace outbreak” that has led to, within the last 24 hours, a loss of “four courtrooms and five judges and the staff that go with them.”

Despite being slightly unfamiliar with the case, Judge Molloy did allow counsel to argue whether or not sentencing transcripts should be allowed in evidence and taken into account when deciding if resentencing is necessary.

However, Judge Molloy admitted, “There is no way that I will get to it today. I have a meeting in 30 minutes, I have a meeting in two hours, and I guarantee you there will be a meeting between those two meetings, and a meeting after those meetings. It sounds like I am joking, I’m not…I wish that it was a joke.”

Judge Molloy apologized to both counsel and the defendant for being unable to appropriately rule on the hearing set for the day, noting, “I apologize to you…normally you should be able to expect [the court] to be ready. I just had too many crises happen in the last 72 hours. I apologize to all of you.”

Unfortunately, the impact of COVID-19 on the criminal justice system extends beyond Riverside County Superior Court. Many defendants across the nation are unable to attend hearings virtually due to contracting COVID-19 while incarcerated.

In addition, detention facilities across California are unequipped to handle a pandemic, leading to a total of 26,885 positive COVID-19 cases and 96 deaths across all CDCR facilities.

However, there does appear to be hope on the horizon. According to Governor Gavin Newsom, California is expecting to receive the first batch of the Pfizer COVID-19 vaccine this weekend and 672,000 doses of the Moderna vaccine in the following few weeks.

“Hope is on the way” Governor Newsom tweeted, and for the incarcerated population, not just in California but nationwide, that hope cannot come soon enough.

Lauren Smith is a fourth year student at UC Davis, double majoring in Political Science and Psychology. She is from San Diego, California.

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