Grand jury urges the creation of a public defender’s office in light of money being spent on prosecutions

Panel sees use of private contractors to handle indigent defendants as a financial calamity

REDWOOD CITY >> San Mateo County has been spending a lot more money to prosecute suspected criminals than to defend them, according to a San Mateo County Civil Grand Jury report.

To even the playing field, the grand jury is recommending that the county thoroughly review the program’s effectiveness with an eye toward bolstering its budget or consider ditching it in favor of creating a public defender’s office.

Unlike most counties in the Bay Area and the country, San Mateo County doesn’t have a traditional public defender’s office of staff attorneys to go up against prosecutors. Instead, it contracts with the San Mateo County Bar Association to provide criminal defense for indigent clients through 114 attorneys who work as independent contractors.

But without dedicated public funding, the grand jury report says, the private defender program has languished under tight budgets over the past decade, bringing into question the quality of legal representation low-income people get.

Since 2014, the private defender program’s budget of $19.6 million has increased by about 6%, while the District Attorney’s Office budget grew by half and totals $45.2 million this fiscal year, up from $29.4 million in 2014, the report said.

With that money, the DA’s office is able to field 137 full-time employees — 60 attorneys and 67 staff members, paralegals

and administrators. By comparison, about half of the defense attorneys who make up the private defender program work part-time and are asked to do their own research and investigations on cases.

Though he thinks the program “does a good job with what we have right now,” its managing attorney, Scott Sherman, said money definitely would help.

Sherman said defense attorneys have to deal with more and more complicated cases involving immigration status or clients suffering from mental health issues. Meanwhile, they’re also dealing with new challenges like sifting through hours of body camera footage.

“In the ever-changing world of indigent defense, there’s always more we can do,” Sherman said in an interview Friday. “It’s important to adequately fund indigent defense providers so they’re able to provide the quality representation they deserve. A lot of it is a question of equity in the system. People shouldn’t just get better representation because they have the money to afford a full-on defense.”

Since the program’s inception in 1968, the county has never independently reviewed it to see how it stands up against national defense standards, the grand jury report said. The program doesn’t have any performance benchmarks and the San Mateo County Bar Association lacks the resources to oversee and study the quality of attorneys’ representation.

As a result, the grand jury recommended that the Board of Supervisors impose greater oversight of the program, call for an immediate audit of every contract the program has with the county and raise the program’s budget to the level of the DA’s office.

The report also said the county should replace its performance benchmarks to comply with state and national defense standards and provide defense attorneys with more opportunities for career development.

If the changes aren’t made, the grand jury said the county should “develop a new legal defense model.”

Asked about the report, three supervisors offered a mixed reaction.

“The funding gap is concerning between the money we spend on prosecuting the accused and defending the accused,” Supervisor David Canepa said. “I believe that the county should align itself with how most of the rest of the state works and that is through the public defender.”

Supervisor Don Horsley said he wouldn’t support a switch to the traditional public defender’s office but agrees that “substantial changes” are necessary. He said he wants to give the program an opportunity to “weigh in on what ought to be done,” and invited the chief defense attorney to come up with a plan for change and present it to the board.

Supervisor Dave Pine said he agrees with the grand jury that a thorough performance evaluation of the program is overdue and the program’s funding, which has been “essentially flat for a number of years,” likely should be bolstered, but not until the budget season, which recently passed for this new fiscal year.

“I think more funding is warranted,” Pine said. “But that additional investment should allow for more performance assessments, more oversight and training for the attorneys. The first thing is to do a thorough performance evaluation of the program before moving to any judgement about whether it should be fundamentally changed.”