When a colleague decided to change careers and started law school years ago she asked me a question raised in one of her classes: If you decide you want to be a litigator, are you drawn more to the prosecution or the defense? The question was a kind of personality litmus test designed to help fledgling law students think about whether they were more comfortable charging and putting away defendants or refuting those charges so their clients can go free. It’s a decision recently appointed Mendocino County Public Defender Jeffery Aaron made early on in his career.
Aaron grew up poor in Los Angeles with a single mother and three siblings. “I’ve always been for the underdog,” he said. He made one foray into a private firm in Riverside (still defending clients) when his wife got sick and he needed more money. But other than that he’s been a public defender – both state and federal – all the way.
If you’re a public attorney of either stripe and money is your top priority, Mendo may be more of an early pit stop than a lifelong career. Turnover is high. “My longest-serving defense attorney has been here for only eleven years,” Aaron said, adding that, to be fair, staff turnover is high on both sides of the courtroom aisle. Part of that turnover is about comparatively low pay. Charges that the county underpays its prosecutors and defense attorneys are nothing new. Twelve years ago 30 prosecutors and defense attorneys in Mendo, supported by half the courtroom staff, went on strike seeking wage increases equal to 93 percent of the average wage in eight nearby counties. Today, many counties still pay more. Aaron wrote that in Sonoma County, for example, public defenders make from $86,282 to $104,878 for Deputy Public Defender I and from $122,806 to $149,271 for Deputy Public Defender IV. In Mendo those salary ranges are from $54,371 to $66,081 and from $84,386 to $103,022, respectively, for those categories. (Figures are rounded to the nearest dollar.) Aaron said that low wages make it hard to get lawyers “in the middle” (neither right out of law school nor close to retirement) since those lawyers are frequently starting families and need more money.
With the county the sole holder of the wage purse strings, Aaron said he’s looking for other ways to improve the working environment for his dozen or so defense attorneys – like offering more training opportunities, for one. “They have opportunities to get training and become better lawyers,” he said. “I’m gonna try to have one event a month for training.”
Caseload is another perennial issue, even with 80-90 percent of cases settled out of court. “It’s manageable,” he said, but added that lightening that load is one of his goals as he settles into the first year of his new job. “Our defense attorneys work really hard,” he said, “and I want to make this a fun place to work.”
But money isn’t everything for everyone. Aaron said a fair number of his public defenders have local ties or just plain like living here. He could say the same for himself.
“I love it here,” he said. ‘It’s very welcoming, it’s beautiful, and I can walk my dog outside.” “Northern California is kind of a fluid place,” he added. “Some [of our attorneys] are from the general area but not necessarily from this county.”
So what’s Aaron looking for in the new hires he’s seeking to fully staff the office? “I look for intangibles,” he said. “Do they really want the work and want to defend the underdog?” A personal commitment to defending the underdog – more often than not a bedraggled, impoverished repeat offender – is critical. Defense attorneys have to face the reality that many if not most jurors have a conscious or unconscious emotional bias for the prosecution. Defense attorneys have to fight the unexpressed belief by jurors that defendants are probably guilty – that the cops who arrested them and the Grand Jury that indicted them must have done everything right so, ergo, their conclusions and judgments must be right, too.
Everyone knows philosophically that the American standard of justice is “innocent until proven guilty.” But despite efforts over more than two centuries to cull personal biases from our judicial system we are all in the end fallible humans who bring the totality of our life experiences to the jury box. The defense is further hobbled by its standards of representation with respect to privacy. “We can’t divulge the same information [as the prosecution],” Aaron explained.
As an example, during the ubiquitous press briefings on the courthouse steps after a verdict, a defense attorney can basically only repeat what’s been reported in the media. Even discussing court testimony, technically public but short of the standard of “widely available to the public,” is off limits to the defense unless personally permitted or offered by the defendant.
For Aaron, a major issue is the waiting-around time common to rural courts. If, as one example, a trial is expected to last more than a week in Fort Bragg’s court (where there is one defense attorney), the case is typically sent over the hill to Ukiah. It’s about an hour and twenty minutes from the coast, a factor that Aaron says contributes to a lot of waiting around to get everyone together in Ukiah.
Then there are the administrative responsibilities that often get postponed or pushed aside by pleadings and other case-related activities that fill up the day. “I’m both a defense attorney and a public county official – a position of public trust,” Aaron said. Part of that is making sure that the defense side of the court runs efficiently, things like improving the calendar and updating the office manual, which hadn’t been updated since 2004. “I got a group of employees to work on that,” he said.
Though prosecutors and defense attorneys both represent the county court, there are institutional as well as ethical barriers to separate them. As an example, each side has its own investigators dedicated exclusively to either the prosecution or the defense. “You can’t be for the prosecution one week and the defense the next,” Aaron said. “There are some things that are common to the system that we agree or disagree on. We just have to respect our boundaries.”
The Sixth Amendment to the United States Constitution granted and guaranteed rights for the accused, including “the assistance of counsel for his defense.” (Gender-neutral language wasn’t around in December of 1791.) But those rights pertained only to felonies in federal court. It wasn’t until the landmark 1963 U.S. Supreme Court decision Gideon v. Wainwright that the high court unanimously ruled that states are also required under the Sixth Amendment to provide, in criminal cases, an attorney to defendants who are unable to afford them. Subsequent decisions since that landmark decision have additionally expanded what states professionally require of their public defense attorneys – things like education, certification, and training.
Despite the high drama of some issues before American courts over the past two centuries, court rulings are generally cool and cerebral, couched in the flat legalese intended to tamp down the raw emotion of the day that could, unchecked, quickly descend into vigilantism. The system’s not perfect; it was, after all, created and subsequently maintained by human beings locked in the issues and values of their own times. But however precise and rational the language, those laws ultimately determine the fates of all-too-human defendants, where the laws’ day-to-day application in actual courtrooms can seem crazy.
I had a front-row seat during a crazy, bad-old times period of 18 years here in California. That was the draconian period between the overwhelming passage of Prop 184, commonly known as the “three strikes” law, back in 1994, and before 2012, when Californians came to their senses and voted to confine the “third strike” to “serious or violent” felonies. During that period, any ol’ felony would do to impose mandatory minimum sentences of 25 years to life for a third strike.
It was my first trial as a juror. The offense: a homeless man altered a state lottery ticket, depriving California’s treasury of a whopping 40 bucks. Because the lottery ticket was a government document, the charge was a felony. We, the jury, had no idea that the bewildered, scraggly-looking defendant already had two strikes against him. We were admonished by the judge to not be moved by pity while assessing the charges against him, that our decision had to rest solely on the hard evidence of the case and nothing else. The evidence left no doubt that the defendant did it, so after much hand wringing in the jury room, particularly by one juror who was a social worker, in the end we voted unanimously to convict him. I remember like it was yesterday that the young public defender started to cry. I was jury foreman at that trial and that verdict haunts me still. I know it’s wrong in the eyes of the law but I regret that verdict and, given a second chance, would not have voted to convict that defendant. Our decision was technically correct, by the book. But it wasn’t just.