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Public Defenseless
495 | Will a Severe Budget Deficit in Santa Clara County Require the Public Defender to Stop Taking New Cases? w/Damon Silver
01:16:51
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- [00:00]
A
Foreign. Welcome back to Public Defenseless with Hunter Parnell as we explore the rot in the criminal justice system and what we can do about it.
- [00:18]
B
Hey there everybody.
- [00:19]
A
Welcome back to another fantastic episode. Today. I was joined by David Damon Silver. Damon is the chief public defender of the Santa Clara County Public Defender Office out in the state of California. And what are we talking about today? Well, folks, today's episode is all about the real crisis that his office is facing due to a massive budget deficit happening in his county right now. And Damon has lost close to 10% of his office in in the past year. And as a result of that, workloads are genuinely reaching a breaking point where the people in his office are far and away exceeding the limitations imposed by the National Public Defender workload study. And this is one of the many offices in the state of California that appears prime to have to go unavailable as a result of excessive workload. And Damon joins to explain how we have got there. So some of the policies from the state, policies from the county and the real two big takeaways that I have for today's episode. One is a more meta point. I make it in the episode, but I want to bring it up to the front. The story of Santa Clara county is remarkably infuriating because as you probably know, Santa Clara county is home to Silicon Valley, home to some of the richest and most powerful people in the United States of America, companies that have bent our society to their will, many companies who have stood behind President Trump, who has cut funding to the local level that is in part responsible for the budget deficit Santa Clara county faces. And these titans of industry, they are nowhere to be found to solve the problem in their very backyard that their support for this administration have caused. That, folks, if I don't know if there's a county more representative of the absolute failings of this country, I think Santa Clara County's story is so tragic for that exact reason, because the very people who have the resources to solve this problem would rather dedicate their resources to crippling the very county that they call home. They do it without any regard for the consequences of it. Number two, as a result of this system, Santa Clara county is clearly incapable of funding public defense in the manner that it needs to to provide ethical and constitutional representation. I think Damon says it multiple times through the show. It's not that his funders don't care. It's not that they don't want to. It's that they genuinely don't have the money to do it. There are budget cuts happening across departments. And you know whose fault that is? State of California. We have discussed this on every single episode with the various chiefs around the state who are all facing similar crises. People are leaving the office, the workloads are becoming unbearable. There is not enough money at the county level to solve this problem. All of this points to the same exact conclusion that we have every single time that the state of California must start taking its obligations seriously to fund public defense at the state level. I do not know what system will work best in the state of California. My idea is probably that it looks something like the state of Michigan, but these counties and the and the unavailability crisis that comes with the lack of funding, but these counties cannot fund these systems. That's very obvious. And all of the offices that need to go unavailable, that have to put limits on the workloads, accepting new cases and leaving people unrepresented. That falls at the feet of the California Legislature and the Governor of the State of California who have not met their constitutional obligations. And until they do so, the types of crises that you hear on today's episode, they will only become more prevalent throughout the state. As always folks, if you're liking the show, like subscribe 5 star rating 5 star review Feel free to reach out to me on Twitter, Instagram, via email or on Blue Sky. If you are liking what you're hearing and you would like to contribute to the ongoing cost of production for the Public Defenseless podcast, you can go down below in the show notes to PayPal, Patreon or Stripe where you can contribute for as little as $5 a month or as much as you feel you can afford to give. As a reminder folks, I take no sponsorship money. I do no advertising reads. This show is funded predominantly from the generous contributions of listeners like yourself and and out of my own pockets. So if you'd like to support the show, maybe throw me a little support where I am studying for the bar. I encourage you to go down below in the show notes and subscribe on Patreon today. If you do so, you will gain access to the video versions of the show. You will get the episodes a day early and both of those things mean you will get to see my adorable co host, my miniature Dotson puppy beans who has once again been scooped up from his mid introduction. Nap folks, he is fighting to stay awake. He is a professional and obviously does not want to be caught on camera sleeping on the job. And if you want to see the struggle that he is engaged in to try and keep his little peepers open. I encourage you to go below and subscribe on Patreon today. And now, without anything more from me, let's get to the Episode Fences podcast. How are you doing today?
- [05:49]
B
I'm doing well, Hunter. Thanks for inviting me on.
- [05:52]
A
Of course. Excited to talk to another chief public defender out in the state of Colorado, Colorado, California, to get some idea of sort of the struggles that counties are facing because of the lack of funding provided by the state. As always, though, before we get rolling into the details of today's episode, introduce yourself who you are, why public defense and ultimately, why did you want to be a chief public defense?
- [06:18]
B
I am the chief public defender in Santa Clara County. I've been a public defender. I like to always share all of but 16 days of my legal career. I was offered my first position, extra help about 16 days after passing the bar. I was one of those, I guess, weird kids who about in third grade decided I wanted to be a lawyer. My parents sometimes say it was probably because I like to argue a lot. My mom was a teacher and my dad was a social worker, both for about 25 or 30 years. So they were very much involved in public service, although they didn't really preach that to me. But I certainly got the sense that there was something important to them being their work, being involved in something bigger than themselves. As I kind of moved through middle school and junior high or high school, I had a fortunate experience of a really important middle school teacher for me. Oftentimes think about it now in the context of my clients and these aces analysis and protective factors. And he just had an incredible effect on me because we didn't have mock trial ultimately in my high school. But he was really into the idea. And so I also like to share that the first client I represented was actually Harry Truman when I was in eighth grade in a war crimes trial, which for dropping the atomic bomb, which is a little bit ironic based on my current, you know, politics as well as my brother or one of my brothers, has spent his almost entire adult life living in Japan. But that certainly cemented me into the idea that I really wanted to be a litigator. I think kind of the watershed moment or moments or where it really crystallized for me was in college. I'm going to date myself right now, which is I was in college during the first Gulf War and really it was the first war since Vietnam. And we had a lot of questions as to whether there was going to be a draft. And I got a front row seat to see, you know, what communities were called to sacrifice in response to that war. And it was also the time of the Rodney King police beatings and then the subsequent riots after their acquittal. And for me, it really just crystallized in a way that, that I had seen and intuitively kind of understood. But in a real. It really kind of hit home that our society works quite differently for different people in different communities. And there really is a position of privilege parts of our society operate in, and it's not purely based on socioeconomics, as I think sometimes is the narrative. So that, you know, I think really set me on course to be interested in particular in public defense beyond just litigation. And then the final step really was when I was in law school, I was able to do my first internship in a public defender office. And as I say now, even as someone who gets to help recruit into the office, either fall in love with the clients or you don't. And that really is where I felt like these were my people, this was my tribe. And it's not to kind of sugarcoat it. Certainly our clients have experienced a tremendous amount of trauma and hardship, and they're navigating real stressful lives beyond just the court system. But you either kind of have this passion to work with them, and as I just described it, you kind of fall in love with them. And that's where I knew there was no question that public defense was really going to be my career. And I suspect, you know, some people say this isn't true. I really had no particular interest as a young attorney of being in supervision or necessarily leadership. I really wanted to be. I envisioned myself as kind of a lifetime litigator in the courtroom. I wanted to do really high end, complex litigation. And I had some opportunity to do that. But what eventually happened is I realized that there was going to be an opportunity to have a broader impact, I thought, in terms of how the office took on issues as well as a systemic opportunity to attack some of the bigger reasons why people were in the criminal legal system. And that really attracted me and kind of got me fired up in a way that I had felt in particular early in my career when I started litigation. So it was really an evolution and almost kind of a. A call to this new aspect of the work, because there still, I'll say this, and I think most litigators will get this. I do not miss waking up at 2am on a Monday morning knowing that I've got a really difficult week of trial work ahead. That part of it I don't miss, but I really do miss the work in the courtroom, the work directly with clients. And I've always said that both positions are stressful. But I found if stress is shaving days off my life, shaving days off my life for the stress of trial work, I felt is far more value added than some of the stress I experience as a chief. I'm not sure I value the stress I absorb the way I did as a litigator. But it did feel like it's an important job, it's an important role, and I'm, you know, honored to be given the opportunity and frankly honored that the staff has really rallied around me in leadership.
- [12:13]
A
Fantastic. So now we're going to transition to learn a little bit more about the county that you serve. So tell us kind of in broad strokes the geography where in California, the demographics, who is the general clientele, and then we'll talk a little bit about sort of the politics of this county after that.
- [12:30]
B
Yeah, so Santa Clara county is just south of San Francisco. So we're, we're not the contig county south of San Francisco, that's San Mateo County. But we're kind of at the southern end of the bay. We're considered part of the Bay Area. And we are about the sixth most populous county in California. We're the most populous county. So in the sense, if you want to say the biggest, we're the biggest populous county in Northern California. San Jose is our biggest city. That's about the third, or I believe it's the third biggest city in California. It's about the 12th biggest city in the United States. So it's a significant urban population. I think we're probably best known as the home of Silicon Valley. So we've got Apple and Facebook and Google. We at times live among both billionaires, but I live through the dot com bubble and that bursting. And so we would talk about kind of of those desktop or investment fund millionaires, but there's actually tremendous amount of diversity in our county. Before IBM and Hewlett Packard originally, I think set the seeds for the tech and Silicon Valley in the county. This was an agricultural county. And there's still, in our southern part of the county is still strong agricultural population or industry. We're still known, I think worldwide for the garlic industry and the garlic we grow. And there still is ag in our county. This means that there also is, for all these reasons, a lot of economic and racial and ethnic diversity in the county. For instance, we're about 25 to 30% Latino. Now, keep in mind 50 to 55% of my clientele is Latino, while we're about 25 to 30. While they're about 25 to 30% of the population. We have a huge Asian population, very diverse Asian population. You know, Southeast Asian in terms of. For instance, our Vietnamese population is the largest Vietnamese population outside of Vietnam. Santa Clara county was one of the counties that welcomed the refugee population in the 70s and 80s. But we have a big East Indian population, a draw to the tech industry. We also, while we only have about 2 to 3% of an African American population, again, they're 12% of my clientele. So you can see the disproportionality. And then we're about under 20% Caucasian. So that's kind of the demographics of the county. We. Which means. And I think some people outside of the area have heard this is. It's very expensive to live here. In part because of all the employees at Facebook, Apple, Google, that whole tech industry. Very modest houses go for millions of dollars. So we have a significant working poor population, in fact, working poor who are homeless as a result of how expensive it is. You know, teachers, firefighters, law enforcement oftentimes cannot live in our community. They actually, a vast majority of them, my senses have to commute in unless someone else in the household is making a significant income. So there is a lot of economic diversity and frankly, a lot of poverty because of the cost of living of where we live.
- [16:22]
A
Yeah. And it reminds me so much of the dichotomies you have in New York City. You have the Bronx up there, which has been really left behind. And then you have the heart of Capitol Wall street in Manhattan, and you can take a train to get the two of them. And you can see the two different worlds that exist here. And in many ways, your county is the exact same version, the west coast version of it, where you have the titans of industry, some of the richest companies in the world led by some of the richest people in the world. And next to them are people who are struggling to make ends meet. And that I am curious about. How does that impact the politics of this county? Right. It's a. It's still blue, but a different kind of blue than some people might think. So tell us a little bit about that.
- [17:09]
B
Absolutely. And don't let me forget to comment about our county Board of Supervisors, because they are actually incredibly supportive of. Of my office. And they are one, I think, complexion of blue. But the reality is, is we are like a bubble that is inside of a bubble and maybe even a bubble inside of two bubbles. Right. Which is California obviously leans blue. Not, not a big mystery. There's red areas of California, but we're, we are a blue state. We are in, I am in a blue part of the state and in some ways, you know, in the Bay Area, very, very liberal to a certain extent. Right. Which is, I think now I'm no expert in politics, but I don't think it's particularly viable to label yourself as a Republican in a lot of the area or in the broader, probably Santa Clara county area and necessarily be successful. But as you kind of reference, I think similar to some very deeply read states, states, not all liberals are necessarily created cast out of the same mold. And what I'd give an example is one of our local mayors. While he's a Democrat, he's also advocating for rolling back criminal legal reform to charge people. He supported Prop 36, which is, you know, charging, returning to charging people with substance abuse and low level theft offenses as felons. He's pushed for policies of increasing the, or increasing the rate of charging and prosecuting kids as adults because we had reform years ago, about five, seven years ago in California regarding that. So increasing the age and returning to direct filing by the prosecution. And he's advocated for a policy of arresting homeless people who refuse to go into shelters. So that gives you a sense of you can be a Democrat but advocate for those type of policies.
- [19:29]
A
Yeah. Which is, you know, quite frankly, on this show we are accustomed to that. There is still a large part of the Democratic Party that for all intents and purposes never learned lessons from the tough on crime era, from the war on drugs. And that is a big problem of Prop 36, something we might talk about on today's show. That happened in a blue state and it happened with pretty clear support from the general public that this is a state despite many of the way that it is painted around the country, that when it comes to the criminal legal system is still not very progressive and when it comes to public defense is one of the worst when it comes to funding it at the state level. So like that is always. That's why I pick on California so much, because the gap, I believe in the stated principles and at least when it comes to criminal justice policy, the gap is massive between stated principles and the actual principles that we act on. Now. Tell us a little bit about your office, how many people, what kind of staff you got, and then we'll talk about some of the challenges that you all are facing.
- [20:38]
B
Yeah, and just to briefly comment or reflect on your last comment, you're Absolutely right. I mean, we, as a great example is we led the way on three strikes law, you know, and the shameful impact on that. And, you know, I'm still not convinced it was ever rolled back out of for moral reasons. I believe it was ultimately rolled back because it was bankrupting the state. That that was finally what did it. So you're absolutely right as us being a very interesting microcosm of the logic and the politics behind both a liberal ideology, but how it's put into practice in the broader context of politics. Let me tell you a little bit about my office. So we are an office. We were an office two years ago of 303 employees, full time employees. We're now down to 270. And I can talk a little bit about that in a second. But we have social workers on staff. We certainly have an investigation unit. We have a paralegal unit. We are also, we have what I'll call our sister office, which is our alternate defender office. It is ethically walled off from us and it is run by one of the assistants, a member of my executive management team. So technically the office reports into me, but it does. But it's completely ethically walled off in terms of its cases and its execution of supporting and representing clients. So we have a fairly robust staff in terms of kind of the diversity, diversity of work that we can do in the office. We also are quite proud of. We were the third office in the state to have a dedicated Racial justice act attorney. We were one of the earliest offices to actually add social workers to our holistic defense model. We have a dedicated and fully comprehensive post conviction team to try and implement all the criminal legal reform that happened in California over the last 10 years. And we have been a leader in the area of prearrangement work, which is trying to meet our clients before we go in at their first court date and advocate for their release. And we're really proud of that. We've welcomed offices from across the state and even across the country to come look at how we had built that model, even though it's been under siege as a result of the budget crisis that we're encountering.
- [23:25]
A
Yeah. So let's talk a little bit about that budget crisis because that's really the acute issue that y' all are facing is I understand it, you're looking for at a $270 million deficit just at the county level. And overall you are facing a loss of a billion dollars due to federal spending cuts under the president. How has that impacted your office, Your Attorneys, your ability to grow to meet your workload demand.
- [23:55]
B
Yeah, it's been, you know, pretty devastating. I think it's in the sense that I think it is been in some ways very kind of emotionally devastating. As we felt like we were making so much progress in some of these spaces, in particular in our pre arraignment representation. We also had started and I believe are one of a few offices across the state that we actually had community outreach attorneys. So we were going into schools and trying to work upstream in the pipeline. We were going directly into homeless camps and working with our homeless population to reconnect them into, into the criminal legal system so they weren't being arrested and kind of sent on that, that cycle of in and out of the, of the jail system. And for instance, our community outreach team unfortunately has been completely eliminated at this time. We're trying to keep the pilot light on for our pre arrangement services and our post conviction team has been substantially reduced. What it meant in a very practical level is over about an 18 month period, we lost 33 positions and that included 14 attorneys. And I think as you know, through all the work you've done, there has been historic and chronic underfunding of defense services for, you know, since the Gideon vs. Wainwright decision. Frankly, I mean this is not a new challenge, but I think it's become acute for a couple reasons and one of which is we're getting a more transparency on how acute it is because of the great work by the RAND National Public Defense Study. We also have seen just the complexion of the work change so dramatically in recent years in part because of the technology revolution. You know, and as a young attorney, an average case would be, you know, at best like a half inch thick. You know, might have a five to 20 page police report, but now we have hours and hours of body worn camera. I'll just give one example. In 2017 is when we were able to launch a shared platform with us and the district attorney where they were loading it with discovery to be exchanged with us. It was actually an efficiency step forward, you know, not getting a bunch of DVDs and all this downloading and time consuming staff exchange. At that time we had 1100 hours of video. When we launched that in 2017, in 2025 we had 49,000 hours of video alone. I mean even people who don't understand the work, we do understand that that number, the delta between 1100 hours and 49,000 hours is staggering.
- [26:54]
A
Yeah. And to be clear, to like really put a bow on that, because when we talk about these, these hours, people who do this work, they know that you're not watching that video one time, you're watching it two times, three times. If it's going to trial, there's segments of that video. You're not watching the whole thing every single time, but there's segments of that video that you're watching a dozen plus times just to make sure that you're not missing any details. So that 49,000, you can multiply that by two or three total hours that you need to truly dedicate just to the video. Before we start talking about cell phone and emails and social media and all of the other treasure trove of data that has now been thrust upon.
- [27:45]
B
You're exactly right. And I'll make kind of two short comments. As a young attorney, when I was using audio tapes, and honestly the audio cassette tapes generally in my county were only used in homicide cases, I can remember multiple times in trial where I knew stuff that was on the audio tapes that the police hadn't gone back and listened to or that the prosecutor had not gone back and listened to. And the power of having that information and being able to confront people with it is hard to quantify. It was a 10x magnitude when I could whip out a transcript and confront people with what was really said. And now every case has it because of the availability of body worn camera. And then, you know, as your point about the trove of digital evidence as a result of us carrying around cell phones, you know, I'm also of that generation before those existed. And the talk about us being tracked and being surveilled. And I have to admit that I never thought that we actually would voluntarily turn ourselves in or sign ourselves up for mass surveillance because what people to this day, clients are stunned and the public is stunned. That like deleting that from your cell phone, it's not deleted, it's there. And we have all signed up for mass surveillance as we stick that iPhone in our pocket, which, you know, in some situations with our cases really helps us shed light on, you know, people who are making accusations and whether it's the truth or not. So they're powerful for the prosecution, but it's incredibly powerful, I think, for the defense. Because, you know, a lot of these cases I think tend to play out from the prosecution's perspective of race to the police who got to the police first, who tells their narrative. And I think that law enforcement has their, their own bias and their own stress of the weight of the work they have to do that that tends to be the narrative they adopt without the ability to start really critically analyzing and looking at all that that evidence. And it tells us a tremendous about what truly happened in these cases.
- [30:01]
A
Yeah. So I want to talk about real specifically about how these cuts and the drawdown you around a 10% staff loss that you've had. And I'm also imagining that you are not carrying a 100% capacity in your FTEs like there are some that are unfilled. So assuming then you have north of 10% of your allocated positions either cut or empty, that's a. That's a very big impact on your ability to do your job. Reporting from the San Jose Spotlight what I'm going to read a paragraph and I'm going to ask some questions about it. They wrote around 46 felony attorneys had to handle a total of more than 6,400 cases last year while 19 misdemeanor attorneys were forced to take on 13,545 cases. According to data released by your office. That equates to 139 cases per felony attorney and 713 cases per misdemeanor attorney. Obviously this goes without saying. Everybody listens to this shows know that is well above the National Public Defender workload study standards. When you hear that those data, when you see that data, when you share that data I want you to tell me like what do you think you as a leader need to do to address this issue and given the fiscal constraints that we've talked about that you were in.
- [31:17]
B
Yeah, let's start with that is a staggering number and in many ways I think the misdemeanors is. Is really most staggering and alarming. I think that I'm concerned both about the clients we serve. I shouldn't say both. I'm Sir, I'm concerned about the clients we serve and ensuring that they're not just getting competent representation but they're getting quality representation. I'm concerned about the communities that they come from because these communities have been disproportionately mistreated and left behind in the past. And I do not want my office playing a role in moving that treatment forward, especially in something as potent as the criminal legal system. And I'm concerned about the health of my office and the people I work with. And it's not just the attorneys. It's collectively us as a team. I always want to emphasize that nothing happens in my office without all of us working together. And every member of the team is incredibly important. And so that weight is certainly sitting on the attorneys. But it's actually sitting on the entire staff that we're wrestling with. We're doing our best to be frankly, as creative as we possibly can. Looking at every opportunity to bring in help in different ways. I think there are some band aid solutions that we have used in terms of adding fellows and ramping up our student participation. We went, for instance, we created a body worn camera watch team where we actually in recent years have added, we traditionally didn't have a lot of undergrads in our office. We have an army of undergrads who come in and help review body worn camera for us. So we're trying to be as kind of creative as we can, putting a band aid on the situation and trying to help the county navigate through some very serious budgetary challenges. And I don't think it's a value judgment where we are, in fact, part of what got the county in the challenge they are in is the heavy investment in a public hospital system which treats the same clients who are my clients. And so it's not, from my perspective and at least from my board of Supervisors, my perception of them. It's not that they don't value our office because I've got a number of data points to, to demonstrate that I think they do, but I am also sounding the alarm bells, which is now we have some indicators of where we should be in terms of workload and reasonable workload to deliver on our, our ethical obligations as attorneys, but also our constitutional obligations. And I think that, you know, this is not sustainable, that we have got to address this the other. And this is the first place we had to look. And the county understood this is. We started reducing non mandated services. So that's why, you know, I love our community outreach team. It was really a project that I helped launch and helped build. Those were the first three. We had three attorneys in those positions. Those were the first three positions to go. Because if I had to compare that work to adding more crushing caseload to our misdemeanor attorneys or our felony trial attorneys, that wasn't an option. We had to reduce our mandated services. That's also why our prearrangment work has been reduced, which is we're absolutely mandated to be in the courtroom and accept representation and advocate for people to be released at that first appearance in court, were not necessarily mandated to meet them a couple days before and develop a safety release plan and talk to the family and build, you know, build a better, stronger and frankly, safer pitch to the court as to why, you know, I think there's, I think we will get to the point where that really will be mandated because I think recent decisions in California are certainly leading us in that direction. But if I have to reduce those services, which we have again to manage those type of caseloads and to try and reduce those type of caseloads, that's what we're doing. So we're making very, very difficult decisions. I think I've heard this used sadly in the county a number of times. We're no longer cutting to the bone. We are cutting into the bone. And that's very troubling.
- [36:17]
A
Yeah. And the saddest part about this whole thing is that the programs that you were describing are so often the ones that actually reap the best public safety benefit, like they are the most impactful for public safety. And if we as public defenders are going to be a part of the public safety conversation, these are the things that we need to be able to do. And yeah, you're 100. Right. Like these are non mandated. It makes sense. Right. If the, if you can't meet your constitutional obligations, the first thing they have to go are the things that aren't necessarily your constitutional obligations. But these budget cuts, they are so devastating to public safety because they cut the things that we have wrongfully, I think determined, aren't necessary, that are just so much more impactful to public safety. And I do have to mention, I think of all of the counties in the country that I am most disgusted by, the fact that these budget cuts have to happen. Silicon Valley, where a number of those CEOs, billionaires went and stood behind that president and said we're going to support you destroying the federal government's ability to help counties. To have this happen in the county where so many of them are headquartered and them not step up to the plate to solve the problem that they are in many ways largely responsible for to me is so infuriating and disgusting. But of course, because of the economic that they bring into the county, I'm sure it can be difficult for people in the county to point this obvious fact out that they are very responsible for this fact. So I'll do it because I don't live there. So the question that I have very directly is just north of Mano Rigueux we look at the workloads San Francisco public defender has significantly lower than yours. And yet still Minow determined that it was time to go unavailable in not all cases, but in a certain subset of cases. We have discussed the litigation going on in his office, how it's going, where it'll go next. I'm watching it very closely. Are you close to that decision? Is it something that is on the table and if so, what will that look like in your county?
- [38:20]
B
Yeah, absolutely. And I am, I'm so proud to be a chief among chiefs like mono and a number of other others across the state who have made the real difficult decision of saying, listen, we cannot sustain on this course. And so we are going to basically declare unavailable. And that's been a candid conversation that I've had with the decision makers in my county, which is we are really at the precipice. What I have explained to them, and this is, I think, the benefit of fortunately being in a county that's been collaborative up to this point, because we have achieved a tremendous amount through collaboration not only with our county administration, but frankly, I'm gonna say this with our district attorney's office in many areas. A lot of our post conviction work, we're not having to run, for instance, time consuming and work intensive habeas writs. Almost all of our releases have been achieved through negotiation and stimul. And that's because of a lot of organization we have done in investing and building our post conviction team, but also working with the district attorney and saying, hey, listen, these are the menus of options in terms of getting this person released. And you can choose what option you want, whether you want it to be the Racial justice act or other types of reform. But let's agree that this sentence was unjust and let's do something about it. And they've actually been incredibly collaborative in that way. And, and that's just one example where we're trying to, I'm trying to leverage that history of collaboration to be candid with everyone and say, listen, we're at that point and for that reason, one, we cannot reduce any further. And I think that that was taken into account during this current budget cycle where in essence, no additional significant reductions in staff were assigned to my office as recommended by the county administration to the Board of Supervisors. And we were one of the few departments to be in that situation as they're absorbing massive cuts. But I've also talked about if we get to that point, I'm not planning on walking over to the courtroom and just dropping a grenade and saying, listen, today we're not taking any more cases. You know, my number one goal and focus. And I'm not, and let's be clear, I'm not suggesting anyone else did that either. But my number one focus and goal is really the service of clients. And so if we're going to have to basically turn the faucet down in terms of the cases entering our office, I want it to be done in an organized fashion where people know that it's coming and so that we have a plan in place. So I'm, for instance, working with our independent defender office, if you understand. Give me a second here to explain that. Obviously, we have the main public defender office, we have our sister office, the first level of conflicts, which is the alternate defender office. And then we have what's called the independent defender office, which is in essence kind of an administrative shell that manages a series of contracts with private attorneys. That office is led. Their director is a former public defender, is a longtime old friend of mine, and we've maintained a good relationship. And so I've been speaking to her about, like, hey, listen, this is what may come. Let's talk about how you can best absorb this if we have to go down that, that route. And so I, my goal is to really try and work collaboratively with all the partners and use it as a system or a tool to reduce the steam or the pressure on the office so that we can ensure we're doing high level, competent and quality representation and not necessarily be perceived as just throwing sand in the gears because, you know, we've been chronically underfunded, you know, in general. So that's, that's in essence how we're approaching it. But it is a real conversation. And I'm talking to the other chiefs across the state about how they have approached it. I know that you spoke to a friend of mine who, when she was a young attorney, had, and as a law student worked in our office, the leader of the San Joaquin office, Judy Ann Vellotto, and, and she had a different approach to doing it in terms of. With their homicide cases. So I'm, you know, I'm also in the process of really kind of taking a survey of how this is being approached and executed. I'll leave it with this, though. I believe that public defender offices deliver the highest quality representation to clients in the criminal legal system. And there's a variety of reasons. I believe that. And it is not a judgment on the private bar. I think there is just a power in our office both in terms of what we do and can do together and the force we carry into the courtroom and into the local criminal legal system that I believe we get the best outcomes for our clients. And for that reason, I am loathe to lose a single client and push them onto another agency. I really want to keep every single client I possibly can because I think I can do the best for them.
- [44:03]
A
Yeah, and a couple things to build on there. One, I mean the, the reality that I think no matter how much you do that coordination, we look around the country and eventually that those, those private independent, they run out of capacity too. And like this speaks to how not just the public defender community, but the people who do the conflict council for us on the private side, that we don't have enough people to do this right now with the demands that we have. And that I hope that people in Santa Clara County, I know that they are in the financial situation that they are in. But you know, when I've spoken with Minow very quickly, the private bar also reached capacity and that there was a lot of back and forth. I'm sure you've had those discussions and that's probably why you're doing the coordination that you're doing. Because there are people in the private bar up there I know who felt like, ah, we weren't prepared for this, we weren't ready for this. Which, you know, I disagree with. There wasn't enough notice. But put that aside for a second. The other part here that I think is always the sentiment you just described I find to be very common about public defenders feeling like that they can always do the best job compared to the private bar for a number of reasons. And I think that the question we always have to ask ourselves in those scenarios is can we do the best job if we have 743 misdemeanors? Right. Is that structurally possible? Is the benefits that we have as an office, are they there when we have that type of workload? And I think that that's why unavailability is oftentimes even if that leaves people with other counsel or no counsel that can be better than the veneer of the public defender's office because of the workload. So I know that y' all are going to have to navigate this in, in the way that, you know, whatever seems best. And I wish you the best of luck in it because I know it is not easy. I want to talk on one state based external pressure that I'm sure has not helped this situation. We have done it with all of our public defender agencies since the introduction of Prop 36. Your story is a little bit different than Tracy Olson's story up in yolo County. Her Da Love Prop 36 and he was a big fan of it. One of the Vocal advocates your DA was not. So I am curious, how has Prop 36 in its implementation, despite the fact that you had a DA who wasn't a big fan of this, how has that impacted this workload crisis that y' all are facing?
- [46:35]
B
Yeah. And let me say, just as an aside, I have so much respect for Tracy and the leadership she's delivered to that particular office. And I think she's been a leader across the state with the chiefs and I have great fondness for her office in any event as well, because that's where. That's the office that first hired me. I went to school up near the Yolo county office. And so that's where I got to cut my teeth the first couple years before I joined the office down here in Santa Clara County. You raise a really interesting question because you're right, my district attorney was one of two district attorneys across the state who actually opposed Prop 36 because I think he looked at it with clear eyes and intellectual honesty and said this is not actually, there's no funding to do what they want to do, which is all this treatment. And we don't actually believe that. We believe most in particular the substance abuse component. We believe he has stated clearly he believes that is a public health issue, that really the criminal legal system should be the last stop in trying to address that and had created some pretty progressive policies. Even in the prosecution of those cases of substance abuse cases prior or leading up to Prop 36. This was where the county ended up or where his office ended up. He says, listen, I don't believe in the law, but I am, you know, I am a servant of the electorate. And they, they in some ways overwhelmingly voted in support of it. So I am tasked with the implementation of it.
- [48:25]
A
And just a quick question to that in particular because I want to make sure I understand this fully. Prop 36 doesn't require that people who fall into that category be charged with felonies. Right. It's, it's that you can, it is now an option, but it is not mandatory under the law to pursue those. Correct.
- [48:49]
B
Correct.
- [48:51]
A
So I don't like, I personally struggle to hear someone who took a courageous stand in opposition to this I think had the ability to see the short sightedness of it and then to turn around and pretend like you're obligated to do it when I don't know what the, you know, and this could be true that the Santa Clara county voters also supported this at the same level at the state. But to say that because the state of California voted a certain way, I as a county Official and obligated to do an optional thing. I don't know if that tracks, Damon. I don't know if that tracks for me. But tell us, what has the impact been?
- [49:38]
B
Yeah, well, and let me say, even though I'm a lifetime public defender, it is not my job to defend the decisions he's made in terms of implementation. I think you raised some very important points and I could, you know, add some other critiques I have in terms of implementation of it being locally, including there is an option for, you know, there's kind of two components. There's a theft related component of it and there's a substance abuse related component of it. There is a diversion in the statute. There's the ability for a diversion program for the theft related component that basically says the county is empowered to have a diversion program and there's been an election not to create such a program. So, you know, that, I think, speaks to your point about the implementation of the program based on and how that connects to the political position you took during the election cycle. Here's the practical reality, and it was quite interesting, which is within a month we had some projections of how many additional felonies and how many additional misdemeanors this was going to impact impact us. And we've had some back and forth at how it's impacted our jail population in that particular cost. But the bottom line is we quickly predicted there would be anywhere from about 800 to 1,000 new felonies. And I think it was in the neighborhood of about 300 new misdemeanor charges that would not have been charged before. And every time we check those numbers, our calculations have basically been quite consistent. What happened at the end of the year, though, and as we've, we've examined the numbers, so we have seen those increases, but there has been an offsetting decrease in some other filings. We don't exactly know why. There is some, I think, kind of informed speculation that because of some national immigration policies that we have seen certain communities that were reporting crimes, especially in our community, because there's been a tremendous amount of support, I think, across systems in our county to outreach to the immigrant community even, and in particular the undocumented community, to say, listen, if you're being victimized, you still need to come forward. There had been really, I think, focused efforts to build that relationship over the last 10 to 20 years. And there is, I think, concern that sadly that community has receded into the shadows because of everything else that's going on. And so filings potentially have gone down. Now, I have not seen that teased out and documented in numbers quite yet, at least that causation. But that's kind of the informed speculation, which means it's offset in some ways the impact of Prop 36. So instead of say 1,000 new felonies on our caseload, it's really been a couple hundred. But I continue to make this point. A couple hundred. You put it in the RAND study. You're still talking about a couple attorneys worth of caseloads that have been added.
- [53:05]
A
Exactly. That's exactly what I was going to say is that in an office that is simultaneously losing full time attorney positions to then say, even if it is only one or two or three, depending on the severity of these attorneys, that's an even bigger impact. And you know, to add some anecdotal support for your worry about a lack of reporting from certain communities in public defender agencies that I have spoken to that have large migrant populations that they serve, the one that comes to mind most the quickest is Carlos Martinez out of the Miami Public Defender office. He was saying like, yeah, man, our amount of DVs and FTAs both from the alleged victim and from our clients has gone up significantly as the Florida Highway Patrol has become little more than like an enforcement arm of ice. So I don't want to like the pursuit of those policies. The Prop 36, I think have to be taken on their own because there is no real way that the District attorney could look at the a thing like the lack of calls per se, if that, if that is the explanation and have any control over that. So the District Attorney at the time when the county is struggling with funding, at the time when the public defender is saying we are at breaking point, is making a choice to make that problem worse. And I think that that is what county officials need to see and understand that if and when you need to go unavailable, it is going to be very easy to blame the public defender as I think the District Attorney Brooke Jenkins in San Francisco has tried to do. And I think that Manobaju and his team has done an excellent job of pointing out that. No, no, no, no, no. Part of the problem is that you, Brooke Jenkins, keep bringing dog cases to trial and that's why you're losing 50 plus percent of cases. I'm never going to not bring that number up when I can because it's ridiculous. And it's the same thing here. Not to say that these are dogshit cases or meritless cases or shouldn't be addressed in some way, but that by choosing to bring them as felony cases, by choosing to use the power that Prop 36 gives you, you are making the problem worse. And I think that when we address public defender workloads, it cannot be omni causal. Oh, public defenders are just doing this because they don't want to work or they're trying to gum up the system. No, no, no. We are reacting to the inputs that are given to us by police, prosecutors. And in this instance the state of California is up permitting Prop 36 to exist now because we have a state level mandate impacting you like this. I want to end with some of the recent efforts you have been a part of to try and get the state of California to, I don't know, fund public defense, even a meager amount. So you have recently been up at the state capitol working on some, you know, really bringing attention to the lack of funding at the state level with Assemblymember Ash Kalra. He is from your office friend. He represents this community. Tell us a little bit about those efforts, what you were hoping to accomplish and what you think the state of California needs to do to solve a problem that no. And this is like to give credit to the county, a problem that the county probably can't solve.
- [56:27]
B
Let me, you know, give a little bit of a backstory which is as you mentioned, Ash is a really an old friend of mine. He's an assembly member at, for our, one of our assembly districts up at the state of California. So he works up in Sacramento, but I met him, we were hired in the public defender office here within weeks of each other and in fact shared entry level attorneys. At that time we had like four desks in kind of a small conference room. We were all jammed in there and we worked together. So I've known Ash since the beginning of my career now closing in on 30 years and he's been, I think a great champion for the population in general that I serve, but in particular the criminal defense community. And so he has been looking at different ways. I mean he's also, as an aside, he's also one of the co authors of the Racial justice act in California. And that's a much longer conversation of its attempt to unwind the ridiculous analysis of the McCluskey decision, you know, from decades ago. But the reality is Ash had created has has a couple ideas in mind, but in particular began with CR. I want to say it's 159, it's ACR. It's basically it was a resolution and I would encourage anyone interested it's only 900 words. So, you know, all you have to do is Google California acr1 4
- [58:10]
A
and
- [58:10]
B
take the 3 minutes to read it. I'm not sure I've ever seen a more concise description of the importance of criminal defense and our role in society than this particular resolution. I mean, it talks about the chronic underfunding, it references the parity issues and the funding with prosecution. It addresses the, the impact on effective assistance to counsel. And if you give me just a second, there's one paragraph I've been reading to people over and over again after getting back. It says by protecting the constitutional rights of their clients in individual cases, public defenders also protect the constitutional rights of everyone, strengthening the rule of law, preserving civil liberties, and reinforcing public confidence in democratic institutions. It's like, do we need public defenders any more than at this moment in history? And so Ashut invited a number of really chiefs across the state to join him to bring this resolution forward. And it includes basically several, well, several references or actions, one of which was to acknowledge the importance of criminal defense. Secondly was to have a commitment to address the problem of chronic underfunding. Third was to develop an actual plan that the state would participate in. And then four was some particular steps of who needs to be notified, including the governor's office, about the critical situation we're all facing. And then there's some kind of related actions that are going on across the state that I think that even if they're not coming directly from OSH, are being supported, one of which is AB690. It's the attempt to eliminate flat fee contracts with defense providers. You know, in California, and I may not have this number exactly right, but I want to say a little over or a little under, half the counties in the state do not actually have a public defender office. And it's one of the reasons why, as much as there are challenges in my county, I am happy that there are a lot of good things happening in my county in terms of the existence of an actual public defender office, the existence of an alternate defender office, an office that actually is staffed with full time investigators, paralegals, social workers. I control all our funding in terms of authorizing money for experts. We don't go to the court to get that authorization. We have a robust case management system that's helping us do the analysis we need to do on caseloads. We don't operate in a legal desert. There are actually law schools and lawyers and young lawyers who want to, to come out and be public defenders. And join our agency. There are many things that I'm really happy and proud of about the county I work in and I worry about the rest of the state and this particular bit of legislation about outlawing. And in our county, we do not even our independent defender office does not have a flat fee contract model and outlawing that flat fee. That flat fee contract model. The other, the other assembly bill I like to flag is 2605, which is this obligation for us to collect states statistics and information, report into the state so that we can actually come to consensus of what counties need more support than other counties. Because as bad off as I feel in crisis, I feel we're facing, and it's not always an apples to apples comparison. Sometimes there's like, well, just compare yourself to another county. Are we doing better or worse? And give us a, you know, give us kind of a ranking list. And there's complexity in the analysis because legal cultures are different. Brook Jenkins is very different than the district attorney I'm dealing with. In fact, the district attorney understands that we may be on the precedent piss of declaring unavailable. And he actually in essence supports. I understand how stressed your staff is. My staff is incredibly stressed as well. So legal cultures aren't. Aren't the same. Geography isn't the same. I mean, San Bernardino county is about the same population as my county, but it is so spread out. The way they have to structure that office is much different. So there is, there is some need for, I think, statewide standards, but also understanding that it's not just a direct comparison one county to another county. And I think reporting that information in to follow up on some other important work, which was the state commissioning a study of the investment and support and needs of the public defender system in California. This is the next. A logical step.
- [63:31]
A
Yeah. My hope is that this project, you know, there's a lot of projects the state of California that sound very similar to this. We get resolutions about how big of a problem is, we get studies about what we need to do about it, and everybody just sits on their hands and they don't do anything about it. And I think this is a big critique lobbed at the way California is able to effectuate government policies in a number of areas, not just public defense. So this is a, an issue for policymakers in the state of California outside of just this role. But the big difference here, I think, between this issue and other issues is that you all can do something about it. Right. If you don't get funding, you can go unavailable. And I have said this in all of our recent episodes in California, you know, there have been individuals who have gone unavailable. But quite frankly, like, this wave is going to come if that decision. You know, I think a lot of people are waiting to see what comes of the appeals decision with Minow because they're going like, listen, if Mano's getting that flak in San Francisco of all places, and he's got political independence that I don't got, I could get fired. Like, if the state of California, if the, if the judiciary comes down with a favorable decision, I think the rate at which offices around the state are going to go unavailable and I think the big shoe to drop. I know Los Angeles is doing their workload study. You have Los Angeles, San Francisco, you see a couple other offices go. It's going to be a crisis point that the state of California can't do. The, oh, well, we'll study this and in three to four years we'll have a solution for you. It's going to have to happen rapidly. And I wish we didn't have to get to that point. Right. This is because of decades of underfunding, decades of neglect, decades of, you know, things like Gavin Newsom vetoing the independence for public defenders, like just doing little things like that that I can't rationalize in any other way. Then there is still, like we talked about the top with the politics. There is just still this belief even in a blue state that if we peer even slightly pro criminal defense or public defense, that we're going to be viewed as tough on crime and that's going to impact our electability. And I hope that that changes soon, because if it doesn't, we are going to see the impacts of the unavailability crisis that we've seen in Oregon, we've seen in Maine, that we've seen in Massachusetts where there's 1,000, 2,000, 4,000 people without representation. And now that you just got that, the pre trial, the cash bail decision that just came out, things could get real hairy real quick for the politicians in this state. With that pretrial decision coupled with the lack of attorneys and an unavailability crisis, oh man, we could see at a scale so much bigger than Oregon and Massachusetts and Maine the impacts of public defenders not being able to take cases. And nobody wants that. That I don't want that I don't long for it. But you know, at some point in time, if policymakers don't heed the warning, then it's on them, the catastrophe that comes for it. And I Want public defenders out there who might be listening, who are worried about it to know it's not on you to fix this. It is on the legislature, it is on the executive, it is on the judiciary to do something about this. And all we can do is raise the alarm and take the steps that we need to, to comply with our ethics and our constitutional obligations. You already got to my question that I ask every chief in California about what you think. I heard you say we should have some state standards. Ultimately, the kind of last question is, do you think in your world, if California is taking a bigger step into funding this system? What. Do you have an idea of what you would like a state system to look like if funding is coming? Is it a grant based system kind of like they have in Michigan? Is it a, you know, fully statewide system like we have in Colorado? What sort of things would you like to see?
- [67:48]
B
I'm not convinced a statewide system or moving us to a statewide system would be a good step at this point. And I know other statewide systems have worked, but you know, with a state that is as large as we are in, in some ways as kind of diverse, I do like a level of local control over how the offices are being run. But I think what I do think is important is setting some, in essence, some minimum standards. I'm quite interested in this idea of a statewide cap. In fact, I'm even more interested in an incentive based system if one could be created. I was looking a little bit, I want to say it was at Indiana maybe. That is, you actually are rewarded in some fashion for keeping caseloads under a certain cap. So encouraging investment in part in some counties that aren't investing in the way they should by keeping caseload caps and then getting money to you and then establishing statewide potential cap, I think there's a necessity to say, listen, if you're ever going to have a grant in California for prosecution, there has to be a fiscal analysis of the impact of all the other criminal legal partners, not actually just the defense community. It's everyone. We have a pretrial unit that helps us be able to argue for release of our clients. But if you're going to give money to law enforcement at the front end, you got to have some sort of equal analysis of what the cost is and the workload is going to be on the back end. So I think that there are a number of different things that can and should be done. And I worry quite a bit, and this isn't specific to me, but I do worry quite a bit. About those counties that either do not have a public defender office and are rural counties because I think that there are are different and even more amplified issues in those counties and I worry about their clients and how the systems are being operated. So I do believe that there needs to be some sort of special attention to counties that do not either currently have a public defender office and or are, you know, in facing the unique challenges of rural counties. So, you know, I could talk about what I want to help me, but I really want to think about our clients writ large across the state and across the country.
- [70:33]
A
Yeah. And I'll add, you know folks, I think the Indiana model you mentioned, the big, the concern I have is always that in Indiana the problem has always been the opt in, opt out solution and that they didn't fix the rate so that the rate of recompensation has fluctuated from 50% all the way down to 25% as a result, some counties opted out and therefore you have a real justice by geography. So I think that the Michigan model, which has the carrot, the big carrot, hey, we're going to set standards and we're going to help you get there. But you also got to have the stick because part of the reason why some of these counties underfund public defense isn't because they can't fund it, because they don't like public defenders. They don't want public defenders. So we do have to grapple with that political reality that in some places you are going to have to make some people do some things that they otherwise would not want to. The other thing to consider. Right for folks who are, you know, these skeptic, these concerns about what kind of representation is happening around the state where there's not public defender offices. Go back and listen to my episode with the not Rubin. Her coverage about the Walmart of public defense is alarming. And I think that policymakers in the state of California, if they are serious about the mantle that they claim is like being the progressive leader and being truly oppositional to the Trump administration, which I believe many of them claim to be, we can't have criminal defense operate like this. It just can't. It is completely incongruous with those ideas because at a time when we see massive amounts of government oppression from the federal government, to then neglect the very people that oppose government oppression shows same way with your DA in like enforcing Prop 36. It shows a level of either misunderstanding about the impact of your actions or just maybe a disingenuousness about opposing those things when you don't fund the thing that opposes government oppression. Damon, thank you so much for joining me today. I really appreciate you coming on. You explain the situation. I wish all the best of luck.
- [72:48]
B
Well, I got a question for you because I'm going to check off an item on a smaller item, but an item on my bucket list, which is I wanted to meet the. I guess again, I'm going to date myself like the, the. The Ed McMahon of podcasting. Beans. What's the deal?
- [73:08]
A
Oh, let me go grab him. Let me go grab him. He's sitting on the bed pouting because he's ready to go on his walk. Let me go grab him real quick. So here he is, folks, again. This is why you need to get the video version of the show. We have a rare drop in from Beans by request. As usual, he is licking my face, telling me that he does not want to be a prop on his father's podcast. But here he is in all of his glory, all 12 pounds of him. He's a real terrorist. This, these Datsuns, they don't warn you about it when you get them, but they are absolute terrorists.
- [73:38]
B
I love it. Yeah, this is, like I said, maybe I could say the Paul Schaefer of the podcast.
- [73:47]
A
He's the real brain trust behind this operation. People ask me how I do what I do, and it's honestly, it's all him. He's the one driving the boat here. He's the one who is most bothered by the injustices that he sees out there. Well, Damon, where can people contact you, learn more, read more, write to you if they got anything that they would like to know.
- [74:05]
B
Well, I'm going to be embarrassed to say that I still haven't got my IG up, but my kids are telling me that they're going to get me squared away. Certainly anyone who's interested in emailing me, I would welcome that. I'm a Silver. I'm going to give my long email address, but It's Damon Silver, SCCgov. You can learn a little bit about the office by just googling Santa Clara County Public Defender office. And we've got some great information up there. And Hunter, I want to just say to you, I want to thank you for inviting me on. This was a lot of fun. I look forward to listening to more of the work you do and I just appreciate the work you're doing in championing the issues for our community because I know a lot of people listen and your voices being heard. So I want to just take a second and thank you on behalf of all the public defenders across the across the country. And finally, I want to wish you good luck because I know you're about to go deep into the final hazing ritual of the profession.
- [75:19]
A
Yep, yep, folks, by the time this episode comes out, when you're listening to this episode, I want you to envision me not smiling happily with beans on my lap, recording a podcast, but just be on like hour 700 of relearning contract law, studying for the bar, and then know that you are having a better time than I am having while you're listening to this. So thank you for the kind words and the kind wishes, Damon, and best of luck to you. I hope to hear from you soon.
- [75:46]
B
Okay, take care, Honor.
- [75:48]
A
Thanks again everybody for tuning in today. If you like today's episode and you're liking the show, please remember to, like, subscribe, leave a rating, leave a review, and share with anyone who you might think is interested in learning more about
- [76:00]
B
our rotten criminal legal system.
- [76:02]
A
If you would like to contact me with any questions, concerns, feedback or potential guest recommendations, you can go to publicdefenselessmail.com and shoot me an email. You can also find more about the show at publicdefenseless.com or on Instagram at Public Defenseless Podcast or on Twitter @PDefenselessPod. As always, folks, thank you again for your support. If you have the means to do so, it would be great if you could go down to the Show Notes, go to Patreon and subscribe for as little as $5 a month where you can get access to the show a day early and the video versions of the show. Again, thank you all so much for the support and hope to see you soon.