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Saturday, Dec 14 2013 09:00 PM

Public defender's office bleeding veteran attorneys

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    By The Californian

    Kern County Public Defender Konrad Moore acknowledges many public defenders have left the agency but says the drain has slowed to a trickle. He counted one concern expressed to The Californian from former attorneys in the office: that the office operates with a quota system that's not always best for the clients served.

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    By Casey Christie / The Californian

    Bakersfield attorney John Hamilton has multiple criticisms of the Kern County Public Defender's office, including that there's a quota system in place that can put attorneys' interests ahead of those of the clients served. Hamilton used to be a public defender.

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BY STEVEN MAYER Californian staff writer smayer@bakersfield.com

Veteran criminal defense attorney John Hamilton had nearly 24 years of experience under his belt when he decided last June that it was time to leave the Kern County Public Defender's office.

It was not an easy decision. At 55, Hamilton was not ready to retire. But he felt he could no longer remain a part of the county department.

He is hardly alone.

Lawyers have always come and gone from the public defender's office through the usual means: retirement, moving on to other jobs, or even death. But many say the office has seen an "exodus" of talent and experience in recent years, a brain drain of sorts that some contend could place clients at a disadvantage against the powerful and aggressive Kern County District Attorney's office.

When comparing the office's roster of attorneys in 2009 with an updated list in 2013, the numbers speak for themselves. Thirty-three of 61 defenders on the 2009 roster -- more than half -- were no longer working at the office in 2013. The hemorrhaging seems even more pronounced when examining just the downtown Bakersfield office, which experienced a 57 percent turnover rate during the same four-year period.

By entering the names of each lawyer into the State Bar of California website, The Californian was able to determine when each obtained his or her license. It quickly became clear that the average experience level for attorneys in the office has fallen.

In 2009, the office's criminal defense attorneys had about 13 1/2 years of experience, on average. By fall 2013, that average had dropped to 9.9 years.

But maybe more importantly, the chance for defendants to draw an attorney with fewer years of experience appears to have increased dramatically.

According to the department's roster of employees, 22 of the office's 61 attorneys had five or fewer years' experience in 2009. Four years later, that number had shot up to 35, representing well more than half the attorneys on staff.

"Nobody wants a surgeon who doesn't have a few gray hairs," Hamilton said. "It's the same with lawyers."

While there are many traits that help make a good lawyer, experience is a must, he said.

Richard Terry, a 20-year veteran attorney who resigned from the Kern County Public Defender's office in June 2011, was a top performer who handled complex, high-stakes cases, including first-degree murder. He is death penalty-certified and has made the transition to private practice.

"There has been something of a brain drain," Terry said of the PD's office. "A lot of experienced people have left."

Retired Kern County Superior Court Judge Jerold Turner agreed that there has been a "significant exodus."

"As several people leave, you have a vacuum," he said. "That's a given."

"I cannot explain the exodus," he added.

Several former deputy public defenders -- including a few who would only speak privately -- laid the cause at the feet of Kern County Public Defender Konrad Moore and those who served before him.

 

QUOTA?

While Moore acknowledged the office's high turnover rate, he said the flow has slowed to a trickle in 2013.

"During the first nine months of this year, four have left, exclusive of retirement," Moore said. "In the preceding 18 months, 20 attorneys left, exclusive of retirement."

"There was a period we experienced a big turnover rate," he said, "but that has dramatically fallen."

Moore took over as interim public defender in fall 2012 following the death of Art Titus. He was appointed to the permanent position at the beginning of this year.

While some attorneys with decades of experience have left, some may not have been as valuable as their years of service might suggest, Moore said. He also suggested some former deputy public defenders are "disgruntled" because they sought advancement that they did not achieve.

Experience is important, Moore said, but there are many additional components that must be considered.

"Experience," he said, "does not equal talent."

Hamilton, who in November filed a claim against the county, a necessary prerequisite before filing a lawsuit, wrote in his claim that Moore employed "illegitimate and misleading criteria in an effort to distort and mischaracterize my job performance as part of his continued and ongoing effort to force me out of the office."

Moore, he said, has used a quota system to increase the number of trials litigated by deputies. Likewise, he said, there are quotas on the number of motions attorneys must file.

Just the suggestion of imposing quotas is enough to cause outrage among members of the defense bar. Many argue that the practice could create a conflict between an attorney's desire to advance his career and the attorney's sacred duty to always place the interests of the client first.

Despite the sensitive nature of the accusation, it's not hard to find lawyers who agree with Hamilton.

"It was always implied," Terry said of quotas. "I was doing trials anyway. Plenty of trials."

Nevertheless, the push for trial and motion quotas would be reflected in comments from supervisors and sometimes in performance reviews.

"It was sort of an unwritten rule," he said.

Craig Elkin, an attorney with 36 years' experience, left the public defender's office in 2011, he said, for a variety of reasons. But Elkin specifically recalled having been called on the carpet for not filing enough motions.

"I hadn't done enough Pitchess motions," he remembered. "I found Pitchess motions to be mostly a waste of time."

A Pitchess motion is intended to provide defense attorneys with access to information about alleged misconduct or dishonesty connected to law enforcement officers.

Elkin said there were also quotas on jury trials, a policy he found morally objectionable.

"It's not about us or about Konrad Moore's statistics," he said. "It's about due process. It's about the client."

 

NUMBERS VS. INTANGIBLES

Michael Lukehart, one of the most highly respected criminal defense attorneys in Kern County, won the statewide defender of the year award in 2002 from the California Public Defenders Association.

Lukehart left the public defender's office five years ago and launched his own private practice. He said a definite change in management philosophy was taking place at the public defender's office when he left.

"There was an emphasis on things that can be measured vs. the intangibles," he recalled.

It was a change that ran against his grain.

"What an attorney thinks may be good for an individual client may run into the policies of the office," he said.

But Lukehart was trying a lot of cases and he doesn't recall ever being subject to quotas. On the other hand, he had the sort of clout that compelled supervisors to pretty much leave him alone.

Like Elkin, Lukehart said he could count on one hand the times a Pitchess motion bore fruit in his decades-long career. When asked whether Pitchess motions are filed too often by deputy public defenders, Lukehart's response was sustained, uproarious laughter.

The answer was a resounding yes.

For his part, Moore said quotas have no place in the defender's office.

"There are absolutely no quotas," he said.

At the same time, he said, he wants his deputies to be aggressive in defending clients. The criminal justice system is adversarial by its very nature, and it's a given the DA's office is not going to lay down.

"We have to match that level of ferocity, that spirited determination," Moore said. In the meantime, the office has recruited several brilliant young attorneys from some of the best law schools in the country.

As an accountant by background as well as an attorney, Moore makes no apologies for relying on metrics as part of the office's overall evaluation of attorney performance.

Aggressive defense of clients will naturally result in more trials, more motions, he said.

After being asked if he could produce any hard evidence related to quotas, Hamilton allowed The Californian to view a copy of his employee performance report for the period of June 8, 2012, to June 1, 2013.

Under the heading "Goals" and the subheading "Jury Trials," the review reads in part:

"Increase your jury trial productivity. Aggressive representation produces jury trials. Over the next year, a realistic goal would be to litigate at least four to six matters at jury trial."

That language, Hamilton said, clearly establishes a trial quota.

Under "Motion Work," the review continues in part:

"Work to aggressively identify and pursue pre-trial motions. Based on your caseload, if you are not bringing at least two motions to suppress and a similar number of Pitchess motions each month, you are probably missing issues and under serving clients."

David Torres, a longtime criminal defense attorney in Bakersfield who currently serves as trustee for the 5th District of the State Bar of California, said imposing quotas on trials runs counter to ethics standards required by the bar association.

"To put a quota on trials obviously puts a lot of defendants at risk," he said.

The interests of the client must be paramount. Pressuring attorneys to litigate more trials could shift the focus away from the client to the attorney.

"It's obviously unethical," Torres said. "No attorney should be subject to such a policy if such a policy exists."

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