Pleading for Justice
California Lawyer

Pleading for Justice

As the L.A. public defender's office enters its second century, one lawyer does her best to free a client from jail.

April 2014


Related Articles

Plea Bargaining Demystified April 2014

Comment



Print

Reprint

The first thing Marcus saw when he got out of his car was a pair of guns pointed at him.

"I thought it was a gang and that I should run," he said. "Then I heard them say they were the police."

Supposedly, Marcus had run a stop sign. But the police didn't pounce until he pulled into a liquor store parking lot a few blocks later. With guns drawn, the officers told Marcus (not his real name) to put his hands up and ordered his two passengers - a woman and Marcus's best friend - to get out of the car. Almost immediately, an officer asked Marcus if he was on probation. When he answered yes, the police legally searched the car and quickly found a handgun under the driver's seat.

This was in 2011, and Marcus, then 20, was working part time at a grocery store and going to community college. He lived in a poor, frequently violent neighborhood in South Central L.A. - the kind of place where carrying guns is common and it's a question of when, not if, black youths like Marcus will be stopped by the police. So after his best friend showed him a handgun and later asked for a ride, Marcus made him a deal: If the cops stopped them, his friend would have to take responsibility for the gun, but Marcus wouldn't rat him out. To an outsider, the arrangement might sound unusual. But to hear Marcus tell it, scenarios like this are just a part of growing up.

"He was my best friend and we were raised together, so really he was like my brother," Marcus explains when I ask if he'd trusted his friend to stick to his word.

Their plan, however, quickly unwound. During a 15-minute police interrogation at the local stationhouse, Marcus insisted the gun wasn't his, and that he hadn't put it in the car. But he "played it cool" and stuck to his end of the bargain, he says, refusing to roll over on his friend. In another room, meanwhile, the friend was telling police it was Marcus's gun.

Marcus was booked and taken to the county jail in downtown Los Angeles. Two days later, he was shackled and transported to the Clara Shortridge Foltz Criminal Justice Center, an aging tower on West Temple badly in need of a remodel and thorough scrubbing. In that building - named for the first woman admitted to practice in California and an early champion of public defenders - Marcus was arraigned with countless others in an assembly-line process that took only a few minutes.

Like virtually everyone does at this stage of a criminal proceeding, Marcus entered a plea of not guilty. And like all other indigent criminal defendants since the U.S. Supreme Court's landmark decision in Gideon v. Wainwright (372 U.S. 335 (1963)), counsel was assigned for Marcus from the county public defender's office.

Each year the Los Angeles County Public Defender's Office - created 100 years ago as the nation's first - handles about 120,000 felonies, 300,000 misdemeanors, and 40,000 juvenile cases. More than 700 trial lawyers work out of 39 offices in communities from Lancaster to Long Beach - along with 78 investigators, 55 paralegals, and 17 psychiatric social workers. In 2012, approximately 10,500 inmates in the county jail were scheduled for trial, making the Los Angeles office the largest and busiest in the nation.

The charge against Marcus - carrying a concealed firearm in a vehicle - was a wobbler, meaning it could be prosecuted as either a felony or a misdemeanor. Because Marcus was already on probation following a vandalism conviction in 2008, the arraignment judge denied him bail as a matter of routine. Marcus's criminal record also triggered another charge - unlawful possession of a firearm by a convicted felon.

A short time later at the county jail, Marcus met his lawyer for the first time. Looking through the security partition, Marcus saw a white woman with dark, shoulder-length curls and a disarming smile. Through a telephone receiver, public defender Elena M. Saris introduced herself, explained the charges, and made it clear that she was there to fight for him no matter what. She also asked how he was holding up, and if he needed anything.

In those first minutes, Saris made an impression. Inside jail, court-appointed lawyers are commonly known as "public pretenders," the subjects of skepticism and derision - which can make it hard to earn a client's respect. "I heard all that stuff about public defenders," Marcus said. "But right away, I knew I had a good lawyer."

Saris, too, got a good feeling about Marcus. With his almost boyish features, his smile lit up the room, even in that grim setting. "He struck me as scared," Saris said. "But right off the bat, he was just unfailingly polite and genuine. That's the kind of person he is."

That brief meeting marked the beginning of a three-month odyssey as Marcus's case moved through a maze of preliminary hearings, status conferences, and plea negotiations. At each turn, Saris confronted seemingly insurmountable facts that damaged her client. The car where the gun was found, for instance, was registered in Marcus's name. He had been driving, and his prints were most likely on the weapon.

Proving that the handgun hadn't been in his possession, however, would be difficult. As soon as Saris got a look at the prosecution's case, she knew that her client's friend had betrayed him. "I was hurting when I found out what my friend had said," Marcus recalled. "That felt like a knife in the back."

Spend a little time in the elevators and crowded corridors of Foltz and you quickly learn to spot the public defenders - or at least tell who isn't one. Unlike the prosecutors, they don't wear American-flag pins on their lapels. And unlike the private defense lawyers, they usually have multiple clients on the court's docket. But there's also an esprit de corps about the PDs, a palpable attitude of lawyers committed to making a difference, big or small.

The public defenders I talked to say they do the job for a variety of reasons. Some cite a commitment to social justice; others say they just like sticking up for the little guy. One lawyer who primarily handles drug cases says he thinks that most of the time, he and his clients hold the moral high ground.

"Public defenders are a pretty self-selecting bunch," says Kelly G. Emling, chief deputy public defender at the office's 19th-floor headquarters. "If there's a common denominator, it's that we genuinely care about helping people. We're also all trial lawyers, because you can't be an effective public defender if you don't have trial skills."

Jobs at the public defender's office are hard to come by. Recent hiring data shows that only 10 percent of applicants make the cut. And while pay for the most experienced lawyers like Saris tops out around $150,000 a year, Emling says retention is strong, in large part because the office places a premium on career development. New lawyers start with a one-year trial skills program, and all public defenders are offered extensive and ongoing training. Thirty-eight managing attorneys supervise various sections that break down by the type and location of offense. Often supervisors are on hand to mentor younger lawyers through trials. Combined experience in the office adds up to 7,000 years' worth of institutional knowledge, according to the public defender's website.

"What people often fail to appreciate is that public defenders are an elite, talented group of criminal defense lawyers," says one public defender with 20 years of experience.

(Nearly all the public defenders I interviewed for this story spoke anonymously, citing concerns that for-attribution comments might hinder their ability to represent clients effectively.)

Saris is one of 93 felony trial lawyers working out of Foltz headquarters. The walls of its lobby are drab and unadorned - in stark contrast to the District Attorney's Office just one floor below, where centuries of local law enforcement are documented in colorful displays.

Behind the 19th-floor security door, narrow hallways connect a warren of offices where public defenders often share space. The place is usually bustling, especially near Saris's small office. There, lawyers frequently drop by to talk strategy, seek advice, or get help putting together trial exhibits.

After more than 20 years at Foltz, Saris has distinguished herself as a mentor. Several colleagues say she lives and breathes her public defender job - the only one she ever wanted since graduating from Whittier College law school in 1992. She handled one of the office's most complex and high-profile cases - the defense of motocross promoter Michael Goodwin, who was tried and in 2007 convicted of murder after an 18-year investigation into the contract killing of race-car driver Mickey Thompson and his wife. Saris also served four years as president of the county's Public Defenders Employees Association, which represents the office's trial lawyers. But when her coworkers are asked about Saris, they invariably mention one client's gesture of thanks.

A decade ago, Saris represented a man accused of murder. Her client maintained he was innocent, but the evidence against him - including fingerprints on the murder weapon - was strong. So Saris challenged the forensic science behind the findings. She won a hung jury in the first trial, and acquittal in the second. It was a big victory. Weeks after his release, the former client returned to her office, rolled up his sleeve, and showed Saris a new tattoo - her name in script, and the date of his acquittal. It was, she says, was one of the "proudest and most humbling" moments of her career.

When another lawyer grabbed a camera to record the event, Saris intervened out of concern for the man's privacy. But he wanted her to have the keepsake photo, so eventually the two worked out that he would pose with only his tattooed shoulder in the frame.

Saris barely smiles when telling the story, pleased to have made a difference in her client's life, but adamant about respecting his dignity and best interests. It's a theme that carries through her work. Early in her career, she saw to it that the office's supply of proper clothing for clients' trial appearances was well stocked and organized by size. In the courtroom, a top annoyance for Saris is hearing bailiffs order "bring the body up" when in-custody clients enter court. "They're not a body, they're a person," she says of her clients.

At trial, Saris displays the mannerisms of a fierce advocate. Yet with a friendly hand on her client's shoulder, she asks how he's doing, and if he needs anything. Between appearances she buys her clients books - usually contemporary fiction. (One defendant, who had never owned a book, received a copy of To Kill A Mockingbird.)

That level of dedication appears to be common among other lawyers in the L.A. office. "A lot of public defenders put their own money on their clients' jail accounts so they can buy snacks," she says. "We know they don't have anyone else who will do that."

Although Saris is unusually outspoken about her job, she shares her colleagues' concerns about putting the clients' needs first. But she has an outgoing, public personality: In her off hours, she's dabbled in stand-up comedy, and last year she launched a series of monthly podcasts called Trial Lawyer Confidential to help counter misconceptions about public defenders and the criminal justice system.

Saris is one of the county's 129 capital-qualified public defenders, whose caseloads generally are lower than others'. Caseloads frequently are used as a benchmark for the quality of public representation - with the implication that larger numbers mean little justice. But a snapshot of the typical caseload in Los Angeles County can be misleading, as it may vary widely between individuals and fluctuate dramatically with the arrest rate.

Less experienced lawyers, for instance, often have the heaviest caseloads, sometimes numbering in the hundreds - but those cases tend to be misdemeanors. As Saris explains, "There's only so much complexity to a DUI, or a gypsy cab case." The lawyers who do the work see the numbers differently: "We are the best at what we do precisely because we have so much experience," one veteran public defender says.

Being really good, however, is not the same as winning. "Prosecutors like to think in terms of a win-loss record, and that's how many of our clients see it, too," Saris says. District attorneys and private defense lawyers, she points out, can tailor their trial records by choosing cases based solely on their likelihood of success. Public defenders don't have that luxury.

With a plea bargain, on the other hand, both sides can claim victory. "A deal is a win for the prosecutors because they put someone away," Saris says. "That same deal can also be a win for the public defender, because we brought the client's [sentencing] exposure down dramatically."

And in a real sense, focusing on trial conviction rates is beside the point: Nearly all criminal cases filed in the United States are resolved through negotiated pleas. In companion cases decided two years ago by a split U.S. Supreme Court, Justice Anthony M. Kennedy acknowledged as much:
"[C]riminal justice today is for the most part a system of pleas, not a system of trials," he wrote for the majority. "Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas." (Lafler v. Cooper, 732 S.Ct. 1376, 1388 (2012); Missouri v. Frye, 132 U.S. 1399, 1407 - 08 (2012).)

In Lafler, the Court affirmed a defendant's constitutional right to effective assistance of counsel during pretrial negotiations, if prosecutors offer the defendant a deal. In dissent, Justice Antonin Scalia argued that the majority ruling "elevates plea bargaining from a necessary evil to a constitutional entitlement. It is no longer a somewhat embarrassing adjunct to our criminal justice system; rather, as the Court announces in the companion case to this one, 'it is the criminal justice system.' " (Lafler, 132 S.Ct. at 1397.)

Critics of the plea system - including Michelle Alexander, a law professor at Ohio State University and author of The New Jim Crow (The New Press, 2010) - question the fundamental legitimacy of this process. In her book and in recent articles, Alexander argues that widespread plea bargaining unfairly shifts power from judges to prosecutors, undermines a defendant's right to trial, and effectively fills the nation's prisons with young black men from inner cities.

To outsiders, the way a system of plea bargaining actually works is a mystery. Bargaining is conducted mostly behind the scenes. Little detail surfaces in open court beyond the defendants' names, the charges they ultimately plead to, and the sentences they receive. Some pleas take up 20 minutes of court time; others might be accepted in less than 2. Usually, there is no public record of pretrial negotiations, or of what pressures drove prosecutors and defense counsel to make a deal.

Defendants who have been arraigned may opt for "fast track" proceedings in early-disposition court. There, pleas move so fast the judge usually tells the defendants they may remain seated. Lawyers mill about, defendants free on bail wait restlessly, and judges race through boilerplate waivers. When Alexander writes about the staggering volume of human souls being pumped through the criminal justice system, this is what it looks like.

In Los Angeles County, the District Attorney's Office reports that last year public defenders represented clients in 530 felony and 172 misdemeanor cases prosecuted via jury trial to verdict. But chief deputy PD Emling insists that any estimate of the number of jury trials is misleading, since her office also defends clients in misdemeanor cases brought by city attorneys in the county's largest cities, as well as clients in juvenile and mental health matters.

"One thing the public often misses," says Saris, "is that for many clients a plea is often the best result."

During the two months Marcus was incarcerated while she worked his case, he lost his job and was billed about $600 in impound fees for the car police had seized. Marcus also turned 21 in jail - a birthday he describes as "the worst day of my life." He slept in a dorm cell crammed with nearly 100 other prisoners, worried about potential fights, prayed, exercised, and tried to prepare for his defense.

At a preliminary hearing early on, Marcus got a first look at his "exposure." If denied probation, he faced a minimum of 16 months in jail. A mid-range sentence was two years; the max, three, plus a $10,000 fine.

"I would have been OK with it if the gun was mine - you do the crime, do the time," Marcus says. "But three years for a gun that's not mine? I was like, 'No way.' "

Saris knew it would be tough to get Marcus acquitted of possessing the handgun found in his car. But the decision to pursue a plea deal wasn't about taking the path of least resistance. Rather, it was about limiting the consequences for Marcus. Almost instinctively, public defenders consider the max; it shapes how they think about their cases. And minimizing the damage is a big part of the job.

At trial, the only way for Saris to rebut prosecutors would be for Marcus's friend to admit that he possessed the gun or had placed it in the car. But that wasn't going to happen; such a confession would almost certainly mean jail time for his friend, who already had a criminal record. Saris could argue that the location of the gun indicated it likely belonged to the friend. Pressing the ownership issue, however, might prompt the DA to test for fingerprints - and Marcus had handled the gun when his friend showed it to him.

The fact that Marcus was on probation at the time of his arrest posed an even bigger problem for Saris: A judge could find, based on only a preponderance of the evidence, that Marcus had violated the terms of his release simply by having access to the gun. Marcus didn't have any good options.

"Even if we won [at trial on the weapons charge], we would have lost," Saris says. "The probation issue effectively extinguished Marcus's right to a trial." Enter the deal.

Plea bargains, by their very nature, require trial advocates to adopt a quasi-cooperative approach. "Going in, both sides assume that a case is probably going to plea," said Dmitry Gorin, who served twelve years as a deputy district attorney in Los Angeles before joining the criminal defense firm of Eisner Gorin. "As a prosecutor, I had a narrow focus in crafting my offer, and I looked primarily at the victim and the crime."

Prosecutors also receive guidance on negotiated offers from DA policy and from individual supervisors, who often must approve deals. Those policies and procedures are meant to foster uniformity and make the plea system fair. But in practice, much of what happens depends on the chemistry between specific prosecutors and public defenders, according to Kim Santini, a Del Mar criminal defense lawyer who spent 15 years as an L.A. County prosecutor.

"There's a party line from the DA's office about how pleas are supposed to work - and then there's the reality," Santini says. "Some prosecutors are like persecutors. But some public defenders can be equally hard to deal with. You learn that there are defense lawyers you can trust, and there are those you can't."

In a system where personalities heavily influence case outcomes, the assignments of prosecutor and public defender can be just as important as the facts in the file. In a recent podcast on plea bargains, Saris says, "I know [private] defense lawyers in the courtroom where I work who everyone knows are never going to trial. ... They're not going to reject the plea bargain; they're going to talk their client into it."

For public defenders, striking a deal can be further complicated by the ingrained biases of their clients, who may believe that their appointed lawyer is too chummy with the DA to cut a decent bargain, or not good enough to win at trial.

"Client bias against PDs can be a major hurdle to our job," says one public defender with six years of experience. "If you can afford Clarence Darrow, then get him. Otherwise, know that private lawyers may not have the same level of training and experience as we do - and they have a profit motive to plead as quickly as possible."

Saris emphasizes that part of her job is "active listening" - paying attention to what her clients are saying, and letting them know they have been heard. "When a plea is the best option, they need to feel that there is some benefit to accepting one," she says. "We need to give them the ability to save face, to have an out," rather than watch them reject an otherwise favorable offer.

In the end, the kind of deal defenders can strike may come down to the custody status of the defendant. In Los Angeles County, bond is $1,000 for bail that starts at $10,000 for even minor felonies, and it's hard to see how indigent clients could possibly afford that. The prohibitive cost means most defendants remain in jail pending disposition of their case.

"Not being able to make bail definitely makes people more apt to [plead] - especially in misdemeanor cases - because often you can [plead] and be released soon after," Saris says. "In felony cases, the inability to make bail puts all kinds of stresses on clients."

Many public defenders I spoke with expressed tremendous concern that they had represented clients who took a deal just to get out of jail. But when I asked former prosecutors if they thought a defendant's inability to make bail gave them unfair advantage, some were unsympathetic.

"It's true ... that having a defendant in custody gives prosecutors leverage in forcing a plea bargain," says former deputy DA Gorin. Still, "I do not believe many innocent people plead guilty just to get out of jail."

"Economic inequality is a philosophical issue," Santini says. "It's not a problem the criminal justice system is meant to deal with." She notes that many defendants choose to delay going to trial - whether they're in custody or out on bond - because criminal cases often weaken over time. "It's a perfectly valid and common defense tactic," she says.

That being in custody provides leverage might be an understatement. Richard La Fianza, a deputy public defender in San Bernardino, wrote last year in the Los Angeles Daily Journal: "While your trial will probably start within 90 days, it could take up to twice as long, especially if your case is dismissed and re-filed. ... Because people do not want to lose their jobs, their homes, their credit; because they do not want their children taken from them; because they have sick parents who need their support, innocent persons are routinely pleading guilty to felonies" if they can't post bail.

In her podcast on pleas, Saris describes a 2012 study by two law professors that was designed to replicate the pressures and choices defendants may face. (Lucian E. Dervan & Vanessa A. Edkins, Plea Bargaining's Innocence Problem, 103 J. CRIM. L. & CRIMINOLOGY 1 (2013).) Accused of cheating on a psychological test, dozens of Florida college students in the study were offered two choices: Admit guilt and forgo compensation, or proceed to a disciplinary trial and risk academic punishment. More than 90 percent of the students who cheated took the offer - but so did nearly 60 percent of the students who hadn't cheated.

"A lot of people believe they would never confess to something they didn't do, no matter what," Saris says in another of her podcasts. But having reviewed the many studies on false confessions, she adds, "Some defendants get to a point where they think, 'I'm going to say what you want me to say so I can go home.' I've heard that quite a bit in my career."

Rather than focusing on legal arguments about who was in possession of the gun in Marcus's car, Saris kept her client's prospects at the forefront. She gathered favorable affidavits from Marcus's employer, and from a college guidance counselor. She also marshaled support from Marcus's family - something public defenders say makes a crucial difference, though few clients have people willing to show up on their behalf.

Over several weeks, Saris built a case for the prosecutor that Marcus was a "good kid" who'd made the mistake of helping a friend.

"I just wish the DA had used some common sense," Marcus says. "I had two positive things going on in my life - work and school. [My friend] had five robbery charges hanging over his head. It shouldn't be that hard to figure out whose gun it was."

Ultimately, Marcus admitted to what he did - violate probation - and also pleaded no contest to a crime he didn't commit - possessing a gun as a convicted felon. When asked whether being in jail had influenced his decision, Marcus described his plea as "a very heavy experience." On the other hand, after two months in jail he "wanted to jump for joy" when he heard he'd soon be released.

Marcus was lucky. The deal was a good one for him, under the circumstances, and probably allowed him to hang onto his future. Instead of going to state prison for three years, he was sentenced to 180 days - effectively, a little more than time served - plus three years of probation and 180 hours' labor for Caltrans. Under the state's probation cost recovery law, Marcus also must pay $4,100 to cover probation costs for both his vandalism and gun possession convictions.

Marcus remains a felon, but eventually he can petition to have his convictions dismissed if he completes probation, pays all fines, and avoids further criminal charges. Even better, he has parted ways with the friend who put the gun charge on him. Marcus moved to a safer neighborhood, works two jobs, and he's back in school, studying culinary arts.

When I ask Marcus if he thinks he got a fair shake from the justice system, he says he doesn't know. "It's not what you know, it's what you can prove," he now understands. "It wasn't my gun. I just didn't think I could prove that. But that's not because of my lawyer - I love her."

In fact, Marcus says Saris did an outstanding job. He still keeps in touch, calling Saris periodically to let her know how he's doing. And when he sees her, Marcus smiles wide and gives her a big hug.

Michael Estrin is a Los Angeles-based freelance writer and attorney.

Reader Comments

Peter Erskine - April 2, 2014
Michael's insight to the PD process and terrifically clear explanation was interesting. Having to use a PD has always seemed a no win situation. Hearing of the dedication of Saris was heartening.
Bruce - April 4, 2014
I'm unsure of what is to be learned from this article. The case focused on required the assumption that the defendant in question was being entirely truthful and didn't address the nuances of possession. Therefore the plea bargain raised, for me, no fundamental issues regarding the criminal justice system. Where I see fundamental issues being raised daily is the manner in which the system discriminates against middle class defendants, not the poor or the rich. For example, charged with even a DUI, a poor person can proceed to trial with minimal financial exposure and virtually no sentencing exposure. So it is with the rich. A middle class person, however, denied access to the "free" services of the public defender must balance against the desire to present a defense the Ten or Fifteen Thousand Dollars a trial can cost - out of pocket and up front and in cash. These middle class defendants, therefore, face a very different imperative when it comes to deciding whether or not to take a prosecutor's offer than does a defendant from the other two economic groups. Ironically, the middle class defendant also pays the taxes necessary to fund the "free" defense of the purportedly indigent defendant. I also note that the fact that the writer, with access to so many public defenders, wasn't able to come up with a story of an objectively innocent person entering into a plea bargain. That failure seems to demonstrate that such an example must be close to impossible to find.
Charles - April 7, 2014
The writer fails to mention that the services of the Los Angeles County Public Defender are not free. At the end of the case you are financially assessed, and if you are found to have an ability to pay, you are required to reimburse the County for the cost of your defense. Ms. Saris' $150K annual salary has to come from somewhere, and it is not just from county property tax revenue. For a case like "Marcus" you will be paying the Public Defender's Office something like $80 per hour. And if you fail to pay, the court system will take your state tax refund. Also, "Marcus" did not have a typical experience. Instead of being personally assigned a top level Death Penalty qualified defender, the vast majority of defendants like him will be represented by one attorney at arraignment, a different one at early disposition, another one at their preliminary hearing, and yet another one for pretrial and trial. And they will not receive personal visits while they are in jail -- instead they will be given video conferences with "their" attorney.

We welcome your comments!

Name

E-mail: (will not be published)

By submitting a comment, you agree to abide by our comment policy.

Enter the characters on the left: