LAKEPORT, Calif. – The Board of Supervisors on Tuesday directed county staff to begin negotiating a new public defender contract with a local partnership.
The board gave unanimous consensus to have staff work with Lake Indigent Defense, led by David Markham and Andrea Sullivan, on the terms of a new contract. Supervisor Jim Steele was absent for the discussion.
That direction overrode a staff recommendation that instead favored a proposal put forward by Shasta County attorney Joseph Ahart.
Ahart had bid $1.3 million on the contract, just $20,000 less than Lake Indigent Defense, with the plan to have all of the work handled by seven attorneys, half of what is offered under the current contract.
Lake Indigent Defense also has proposed to have 14 attorneys – seven for felonies, five for misdemeanors and two for criminal juvenile matters – in addition to attorneys for conservatorships, family law, appeals and writs, and veterans court.
Another bid for more than $1.4 million had been made by the Madera County-based Richard A. Ciummo & Associates, which offers public indigent defense services in several counties.
County Administrative Officer Carol Huchingson said the contract has been in effect for a number of years in a variety of forms, with the current contractor, Lake Defense Inc., giving notice, with the last day of the contract on May 6. She said the county is constitutionally mandated to provide public defender services.
She said she, County Deputy Administrator Jeff Rein and County Counsel Anita Grant interviewed the applicants and made the recommendation to the board.
Going over the proposals, Huchingson said Richard A. Ciummo & Associates offers similar services in counties including Madera, Amador and Modoc. The firm intended to hire the current attorneys, put them on salary and provide them a retirement program.
However, the cost was about $200,000 above lowest proposal, which Huchingson said is the cost of four county positions at a time when the county is pressed for money.
Lake Indigent Defense is a new entity that’s based on the impending partnership of Markham and Sullivan, who have both worked under Lake Defense.
Huchingson said the proposal had originally been disqualified because Sullivan is just two months short of the county’s required five-year minimum for having a bar license.
Staff also had concerns about a “timeshare” plan that Markham and Sullivan had put forward to rotate who would administer the contract between them on a weekly basis. Huchingson said staff would want Markham to oversee and be the final decision maker over the contract’s three-year period.
Ahart’s proposal offered assurances that the county would bear no additional costs, and also offered a compensation plan to pay attorneys a little more than they currently are in an effort to attract more qualified candidates.
Sullivan and Markham spoke to the board about their proposal, with Sullivan explaining that as of June 1 she would have had her bar license for five years. She has worked for three years under the current contract, handling significant cases including homicides, armed robberies and vehicular manslaughter. Additionally, she has a busy private practice.
Markham said he was happy to take the lead on the contract and make final decisions, and be the point of contact for the county. He grew up in Lake County. “This is my home, this is where I’m going to stay.”
Markham said they wrote the proposal with the concerns of the county and citizens in mind. He was admitted to the bar in 2000, worked for a time in the District Attorney’s Office and also in private practice and in the defense contract. He was mentored by the late Steve Tulanian.
He praised Sullivan for her abilities and her passion for the job. “She has a lot more to offer than the average attorney who’s been practicing five years,” he said, adding he has no question about her abilities and that she’s the only partner he would have chosen.
Ahart, who has been an attorney for more than 10 years, currently is on the conflict panel for Shasta County’s public offender, and has two homicides in his caseload. For the past three years, he’s also served as an administrator in Shasta County’s juvenile dependency actions.
He said Shasta County has a far higher case filing volume, and he planned to bring professionalism to Lake County. Ahart said there are issues with Lake County’s public defender system, including what he said are a high number of conflicts. He planned to bring in a chief public defender to be on site who currently is a supervisor at the Shasta County Public Defender’s Office.
During his comments, Ahart said Lake County had 763 felonies filed last year, including six homicides.
Brown said those numbers didn’t add up. Based on numbers for the 2016 calendar year he received from the court executive officer, Brown said there were 945 felonies filed last year, and 2,362 misdemeanors, for filings totaling 3,307. He said 90 percent were public defender cases.
The main concern Brown raised with Ahart’s proposal – which would be echoed by others during the meeting – was that he wasn’t offering enough attorneys to handle the caseload. “It just can’t possibly happen.”
He said he was glad to hear Markham and Sullivan had worked out an alternative to the timeshare approach, noting it had been used in the past and was confusing.
Regarding Sullivan’s experience, Brown said the minimum standard for experience can’t always be measured in time, but should be looked at through intensity of caseload. Had she applied for the contract on her own, Brown said he wouldn’t have had a problem with her doing it, based on her ability.
“She’s been baptized by fire in Lake County and Lake County is a whole different animal,” he said.
He added, “There’s no way possible that you can get by with the number of attorneys that are being proposed by Mr. Ahart at this point.”
Brown suggested that, moving forward, he wanted to re-implement meetings of the Public Defender Oversight Committee for a six-month period.
During public comment, the board heard primarily from attorneys supporting Markham and Sullivan, and faulting Ahart’s proposal for its lack of staffing.
Sterling Thayer Jr., who has worked as a public defender on the contract for nearly three years, went over attorney caseloads and the guidelines established in the law profession for how many cases public defenders should carry.
A 1970 bar survey suggested no more than 400 misdemeanors per year and no more than 100 felonies. In 2015, a study that came out of the Texas Legislature suggested a maximum of 220 misdemeanors and 125 felonies, he said.
Based on a calculation of local court cases assuming a 90-percent acceptance rate, and pointing to the 2,000 misdemeanor cases that were accepted last year, Thayer said that would mean 667 cases per attorney per year based on Ahart’s proposal. If 900 felonies were accepted, it would mean 225 cases per felony attorney.
Thayer pointed out that attorneys would have far less time for each client. Brown followed up by pointing out that the grand jury had faulted the county’s public defense contract more than a decade ago due in part to not enough time being spent with defendants. Doubling caseload would raise that concern again.
Edward Savin, who has worked under the current contract for three years and is an attorney with 29 years’ experience, said there currently is a huge caseload. “The idea that there would be fewer attorneys is unfathomable to me.”
He called Sullivan “a superstar” and a dynamic leader who even before she became an attorney was a legal secretary. “She’s the most capable person I can think of.”
He added, “This is a new opportunity, and new opportunities bring new ideas.”
Mary Heare Amodio, who works as an attorney in conservatorships, also voiced her confidence for Markham and Sullivan, adding she supported local management and leadership.
Mitchell Hauptman, who has been practicing law in Lake County for almost 40 years – with about 30 of those years in the public defender system – said both Markham and Sullivan are eminently qualified to handle anything the court system can throw at them. “Their skillset is without fault.”
District Attorney Don Anderson also weighed in, explaining that, over the last 10 years, his office has filed between 900 and 1,000 felony cases per year.
He said he read the three proposals and checked into Ahart’s background, finding that Ahart has a good reputation in Shasta County and is known for high ethics and being a hard worker.
Anderson said the same can be said of Markham and Sullivan. “Both of them have a very high respect in our office.”
He recounted Markham’s successful effort in 2014 to bring to the District Attorney’s Office evidence about a man being wrongfully held in a case. That man later was released thanks to Markham’s work.
The main problem Anderson had with Ahart’s proposal centered on the lawyer numbers. “There is no way in the world seven criminal attorneys can do the work we have in this county,” he said.
Anderson said the result would be an enormous number of appeals that defendants would win based on the allegation of ineffective counsel.
“Only having seven attorneys is going to be an injustice to the criminal defendants,” Anderson said, adding that he expected the state Supreme Court or Court of Appeals would respond by stepping in with a mandate to fix it.
He also pointed to the Ahart proposal’s exclusion of cases that are extremely complicated or have a high number of hours required.
Anderson said the current case going on the Clayton fire arson – Damin Pashilk is being prosecuted for setting that fire and several others – is extremely complicated and time consuming. That case currently is being handled on the contract, with Markham acting as the defense attorney.
If that case goes to trial – which Anderson said he expects it will – he said that under Ahart’s proposal it could cost the county as much as an additional $150,000.
He said Ahart’s proposal also calls for having one attorney each week handling either the felony or misdemeanor calendar. “That’s not going to be a workable situation. There’s going to be backlogs the court.”
Attorney William Conwell, who has worked on the defense contract for three years, also offered his support for Markham and Sullivan.
He questioned Ahart’s proposal. “I do not see how you could cut the staffing in half,” noting that the number of felonies going forward is “enormous.”
When the matter returned to the board for further discussion, Brown said he appreciated the discussion and staff’s review of it. “Everybody agrees. We just want the best system available as required by law.”
He agreed with Anderson on the matter of ineffective assistance of counsel. “That’s a concern. That’s what we don’t want.”
Brown recommended giving staff direction to work with Lake Indigent Defense along with the direction to reestablish the Public Defender Oversight Committee. He said he wanted to see a seamless transition.
Supervisor Tina Scott, who also is assigned to the committee, agreed with Brown’s recommendations.
Scott, who also serves as a juvenile justice commissioner and a court-appointed special advocate for juveniles, said she’s seen judges in the juvenile court have to wait for attorneys. She said she couldn’t imagine the impact of cutting the number of attorneys down to seven.
Supervisor Moke Simon agreed that having the best representation for defendants was key, and that he wanted to keep the contract based locally.
Board Chair Jeff Smith also agreed with directing staff to negotiate with Markham and Sullivan, adding that he didn’t feel Sullivan being two months short of the bar requirement made a difference.
Brown asked for consensus to direct staff to negotiate with Lake Indigent Defense, which he received unanimously.
In a followup interview with Lake County News, Sullivan said she hadn’t been certain about the outcome. “I thought we had a good shot but I definitely didn’t think it was guaranteed.”
Next steps, she said, are for the county to begin negotiations with she and Markham for a contract to take back to the supervisors for approval.
With the existing defense contract set to end May 6, time is of the essence. However, Sullivan said she believes a new contract can be in place with no interruption in service to clients, as she and Markham are using the existing defense contract infrastructure as a basis for the transition.
She was encouraged by Tuesday’s outcome for the proposal she and Markham have put forward.
“It’s really great to see the amount of community support there was for our organization and the public defenders,” she said.
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Board of Supervisors opts to negotiate with local partnership for public defender contract
- Elizabeth Larson
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