On a Wednesday morning in August, Gerald arrives at the downtown San Diego County courthouse to face his penalty for getting caught sleeping on a bench in Balboa Park. He's the only homeless guy in arraignment court today, and his appearance gives him away--scruffy beard, ruddy face, too many layers of clothes for the weather and a small knapsack that he's mounted on a metal frame with wheels. Most illegal lodgers don't bother to show up for arraignment for fear of being slapped with a fine they can't pay and banned from returning to wherever they were caught.
Gerald takes a seat with 40 or so other arraignees on the right side of Department 1, the largest courtroom in the courthouse, and waits for his name to be called.
Melissa Tralla, 31, a public defender assigned to misdemeanor arraignments, pulls Gerald's file from the top of a stack she's picked up from the court clerk and calls him over to one of five small cubicles that line a wide hallway outside the courtroom. She's already counseled two shoplifters, a guy who swore the cup he was carrying at Petco Park contained only Coca-Cola and three marijuana-possession cases. Of the pot defendants, all three agreed to the deal offered by the prosecutor: an infraction for disturbing the peace and a $139 fine--a penalty that's the norm for getting caught with less than an ounce of marijuana. “Cool,” says one college kid when he finds out he won't have a drug charge on his record.
Tralla scans Gerald's file and notices he's been convicted for illegal lodging four times prior. “Is there a cumulative deal?” he jokes. “Ten and you go to San Quentin?”
“Have you tried any shelters?” she asks.
“Most of the time I check, they're full,” he tells her.
She looks back down at his file. “I think I can win it,” she tells him. Her confidence catches him off guard. “No one else ever thought they could win it,” he says.
“Necessity defense,” Tralla explains--he's homeless and if the shelters are full, he has nowhere to go but outside.
Tralla sighs. “Taking up the system's time, taking up my time,” she says. Her comment isn't directed at Gerald; rather, she's commiserating with him.
Gerald decides he doesn't want to fight the charge after Tralla tells him he'll have to show up to court at least one more time. He would, however, like to ask the judge to consider some mitigating circumstances: he doesn't have the money to pay the $120 fine and the city attorney has included as his punishment an order that he stay away from a certain part of Balboa Park.
“Can I get an exclusion to pick up cans in the whole park?” he asks. On a good day, he can make around $8.
Tralla promises Gerald she'll take care of it, and about a half-hour later, she puts her files aside and walks into the courtroom to argue his case. Normally, it's an intern who reads each case to the judge, but Tralla wants to make sure Gerald gets his request.
The deputy city attorney protests, but Tralla convinces the judge to let Gerald have the run of the park to pick up cans. “You're not allowed to reside by sleeping overnight or sitting around,” the judge warns Gerald. “You're allowed to go to the source of the cans, extract the cans and leave.” He suspends the $120 fine on the condition that Gerald heeds his instructions and does 24 hours of volunteer work at a local homeless shelter. Tralla wishes him luck as he pulls his knapsack on wheels down the room's long center aisle and out the double doors.
Gerald's is one of close to 80,000 misdemeanors that will be filed in San Diego County courts this year. For at least 90 percent of those cases, a public defender will advise the misdemeanant, and in a fraction of those cases, represent that person in a trial. Misdemeanors comprise nearly two-thirds of the county public defender's entire caseload.
Misdemeanors, like any crime, range in severity. There are “wobbler” offenses like weapons possession, domestic violence or DUIs that could just as likely be charged as felonies. There are the cases that probably shouldn't be taking up courtroom time, such as a husband charged with domestic violence for throwing a potholder at his wife, or the pier fisherman who violated Fish and Game regulations when his shrimp trap scooped up more than he's allowed.
There are also the more nuanced cases: the woman caught driving on a suspended license on her way to work-she works so she can pay child support, and her license is suspended because she's behind on child-support payments. Or the guy charged with possession of drug paraphernalia because he was carrying a needle and syringe-he needs the needle and syringe because he takes medication intravenously, but he's also HIV positive and can't, by law, dispose of the sharps just anywhere. Regardless, he's ended up in court more than once.
Prosecutors argue that a tough line on misdemeanors keeps a city's overall crime rate in check-it's the broken-window theory that suggests crime begets more crime. Defense attorneys argue that prosecution of low-level crimes is sometimes done with blinders on.
“What we want is a balance between punishment and rehabilitation,” Tralla said. “We don't want them to re-offend, but we don't want to ruin their lives. So let's find something where if there's rehabilitation needed, they're getting rehabilitation, and if they're getting punished for it, [it's] to where their lives in the future aren't ruined, because most of these people are unlikely to re-offend.”
Tralla has been with the public defender's downtown central misdemeanor unit since 2001. Misdemeanors are supposed to be where novice public defenders cut their teeth for a couple of years before moving on to felonies. But county budget cuts, which hit the public defender hard this year, have put a temporary hold on professional growth. To absorb a $1.1 million cut, the public defender laid off seven attorneys (two were later re-hired) and demoted 21. Some of those demotions knocked felony attorneys back down to misdemeanors where they will stay until the people above them retire or quit. In March, Tralla was told she'd be transferred to the South Bay felony unit. She had an office waiting for her, she said, but on the Friday before her move, she was told she'd be staying downtown working misdemeanors indefinitely.
Tralla's teammates--attorneys on the misdemeanor unit work in teams of three--have similar stories.
Troy Britt, 32, worked felonies for the federal defender for two and a half years until a spot opened up with the public defender in 2001. He was told then he'd be working misdemeanors for 18 months. In October 2003, he got a nine-month taste of felonies before he was transferred back to misdemeanors in June.
After working for the Riverside public defender for two years, in 2000, Solomon Rouston, 33, got a job with the San Diego County public defender and worked misdemeanors downtown for two years. In April 2002, he was transferred to Vista to handle felonies. This June, he was transferred back to the central misdemeanor unit and worked with Tralla and Britt for a week. He was then sent back to Vista for six weeks and in August was moved back downtown and again assigned to the same team.
Rouston takes a commuter bus to work, a three-hour roundtrip from his home in San Marcos. It's a fact that was punctuated when a young woman he was counseling vowed, despite his warning, to keep driving on her suspended license. “What am I going to do,” she shot back at him, “take the bus?”
Mel Epley, who supervises the central misdemeanor unit, understands his young attorneys' frustration.
“Those people want to advance, and we want them to advance,” he said. “Problem is the county has taken a number of our positions away. All of our good, young talent has nowhere to go, so they leave. We need more attorneys, but we also need them to open up this top tier so there's advancement.
“If you want good attorneys to stay in the office,” he added, “then you have to give them a place to go. If you don't want the talent to leave, then you better have some upward mobility. And that's something the county has to deal with.”
Rouston said he hopes to be transferred back to Vista soon. A former co-worker in Riverside who started at that office the same time as Rouston is now doing murder trials, but Rouston tries not to draw comparisons. “I don't do the job for the glory; there's no glory in misdemeanor work,” he said. “I do this job because I like this job. I plan on doing this for awhile; I'll be doing felonies sooner or later.”
Tralla can count off attorneys from her office who, frustrated with heavy caseloads and budget cuts, jumped ship for private law firms. She hesitates to say whether she's leaning in that direction, but says she loves what she does.
“I get a lot of satisfaction out of my work,” she said. “I like the clients; generally they treat me with respect and I give them the same.”
Britt says he can't see himself doing any other type of work, though he admits that being sent back to misdemeanors didn't do his morale any good. When asked about posing for photos to run with this article, he suggested a picture of the three of them with their heads up against a brick wall, but then apologized for the cynicism.
Sticking with a career in indigent criminal defense requires one to remain a true believer, he said.
“Someone that... believes in what we do,” he elaborated. “Someone that believes that our clients deserve zealous advocacy irrespective of income. Someone that believes that our job is to fight for the client even when the client does not want to fight for him or herself. Someone that fights to make sure the government or system do not trample on the clients' rights.”
It's that latter point that seems to keep Rouston, Britt and Tralla going. A consequence of keeping ambitious attorneys in one place for too long is that they see the system's flaws. They know what they'd change if they could and how they'd do it: reform the way the city attorney prosecutes misdemeanors; find a better way to handle homeless issues; go a little easier on non-violent, first-time offenders; stop dragging people into misdemeanor court for things like pot tickets, which are automatically reduced to an infraction, and driving on a suspended license, which Tralla says should be handled in traffic court.
The three acknowledge there are some judges and prosecutors who wish they'd back off a little when it comes to advocating for their clients. As indigent-defense attorneys, the people they defend are often underdogs--homeless, non-English speakers, young adults who've made some bad choices. Regardless of a person's culpability, a public-defense lawyer is legally mandated to provide that person with the most vigorous defense possible.
“It would be malpractice to not point out possible defenses,” Epley says, “and discuss all the possible consequences so they know what's going to happen if they plead guilty. Even with doing that, we still have 78 percent of cases settle [at arraignment]. A lot of people don't value what we do, but what we do is quite important. We're making sure the wheels of justice are working in the right way and not just rolling people over.”
The San Diego County public defender's office was formed with cost-saving in mind. Sixteen years ago, the county decided to scrap its previous system of contracting with private attorneys to provide indigent defense, a system that resulted in hugh cost overruns to the point of national embarassment. “A Cadillac defense program,” as former county Supervisor Brian Billbray once put it.
It wasn't until 1997 that the public defender's budget equaled what the previous system had cost the county in 1989--$27 million.
Joe Kownacki, who heads the central misdemeanor unit, and who's been with the public defender's office since its start, charted the growth of the county's four public-safety organizations: the public defender, district attorney, probation and sheriff. In 1986, the public defender's office and district attorney's office had budgets that were nearly equal.
During the past 18 years, the sheriff's budget has grown by 452 percent, probation's budget grew 408 percent and the district attorney's budget increased 380 percent. The public defender's office, meanwhile, has seen a 97-percent increase.
“It's the stark reality of the mentality in government and among our elected officials,” said Kownacki, “that they keep throwing more and more money into prosecution and sheriff and police-they keep overloading that one side of the scale,” he said.
The lack of balance is also reflected in an increasingly punishment-focused criminal-justice system.
“Back in the '70s we used to always say it was about rehabilitation,” said Epley. “The criminal-justice system was about rehabilitation. They actually wrote the laws now to say it's not about rehabilitation; it's punitive. Our whole goal is to punish. We're no longer dangling the carrots trying to help you find a way.”
So that they don't burn out, public defenders assigned to misdemeanors work a seven-week rotating schedule: three weeks in arraignment hearings, one week spent deciding which cases will go to trial and the remaining three weeks are reserved to prep cases and take them to trial. Out of roughly 100 cases an attorney sets for trial each year, only five to 10 of those actually end up before a jury.
As Epley points out, nearly 80 percent of misdemeanors settle before trial; in other words, the defendant pleads guilty and either takes the deal he's offered or, like in Gerald's case, a public defender is able to convince the judge to ease up on the penalty. Gerald's case is counted as a conviction, a victory for the city, but Tralla considers it a win for her side--Gerald still gets to collect his cans in Balboa Park.
The other 20 percent of cases either go to trial or are dismissed somewhere along the way, often the day before, or even the day of, the trial.
One issue repeatedly brought up by public defenders in the misdemeanor unit is that the city attorney imposes penalties that exceed what the crime deserves and then doesn't give its deputies the authority to negotiate a more reasonable penalty at arraignment.
“Before [city attorneys] can settle something, they have to clear it with their supervisors,” Kownacki explained. “Our deputies have total discretion in their cases as far as what they should settle for.”
Tracy Rogers, a trial supervisor for the San Diego city attorney, said that's not necessarily how it goes. “Our attorneys have complete discretion until the day of trial.... They're to take it to trial unless I make the decision otherwise.”
She said a deputy city attorney might go to a supervisor for a second opinion. “The deputies often call to say, ‘Hey, the public defender or [private] defense attorney is telling me whatever the story is, would this be a reasonable disposition,' rather than being too afraid to make any changes.
“It's easy for the public defender to say [deputy city attorneys] have to get approval from their supervisor when maybe they're just getting a second opinion,” she said.
Tralla's team disagrees. “We try to negotiate in arraignment and the deputies tell us several things: ‘You know I don't have any discretion'; ‘I'm sorry I can't do anything for you; you'll have to ask my supervisor'; ‘I would love to give you that offer, but if I do, I'll lose my job,'” Tralla said.
“The majority of cases settle [before trial] for the same offer we requested at arraignment,” she said. “No new evidence is obtained, just someone with some authority looks at the case.”
Tralla says this sort of process clogs up the system and ends up costing taxpayer's money. “We have to push cases through the system just to get a fair offer,” she said. “They won't negotiate until the day before trial. These are misdemeanors--most of these people aren't career criminals, nor do we want them to be. These people should be getting a break.”
On her last trial rotation, a resisting-arrest case Tralla had been working on for nine months was dismissed by the city attorney's office on the day of trial.
“I interviewed six or seven witnesses, subpoenaed 12 or 13 people, spent over $100 on photos. A good four or five months of constant thought where [the case] never really went out of my mind. Hundreds of man-hours, excluding my investigators and everyone else.
“What was unnerving for me was that if they had looked into the case months ago, they would have seen the same thing they saw at the end,” she said. “There was no reason for it to be dismissed now versus six months ago.
“The courtroom should be reserved for cases that cannot be resolved,” she said.
To prove a point, Britt kept stats from his last trial rotation. At arraignment, he set 24 cases for trial-an unusually high number. Twelve of those cases ended up with better deals for his clients than what they were offered at arraignment. Seven cases were dismissed. Only two cases ended up going to trial and the other three settled for the same deal offered at arraignment.
One of the cases Britt set for trial involved a 60-year-old man with heart disease who was caught shoplifting a power cable from Frye's. He knew that before the case made it to trial, a judge would take a look at it.
“[The city attorneys] basically weren't making him any kind of an offer, and so I knew that if I took it upstairs to a judge, I could get a better deal for him and that's basically what happened,” Britt explained. “Sixty, with no criminal history, an extensive medical history, a one-count complaint and they hadn't made him any kind of offer. He ended up pleading [guilty], but with the judge, I think we only did a year of probation. [The city attorney was] offering him three years probation and all the fines.”
On his last trial rotation, Rouston set nine cases for trial; six of those were dismissed by the city attorney on the day of trial.
“Since I've been a lawyer here back in 2000, we've always told the city attorney to put someone with authority at arraignment court to streamline those cases from the get-go,” he said.
An issue in the upcoming election for city attorney is whether the District Attorney's Office should absorb the city attorney's misdemeanor unit. San Diego is the only city in the county where the city attorney handles criminal matters. A study done by the fiscally conservative Performance Institute, as part of it San Diego Citizens' Budget Project, found that the city could save as much as $14 million by handing misdemeanor prosecution over to the DA. City Attorney candidate Leslie Devaney, currently second in command in that office, has said she opposes that change. So, too, does her opponent, Mike Aguirre. “The DA should be moving up the food chain, bringing more complex cases, not moving down to do what the city attorney does,” he said.
“I think we wouldn't be setting these cases [for trial],” if the DA handled misdemeanors, Rouston said. “I think the DA would look at [certain cases] and dismiss them--this case shouldn't be happening, this case shouldn't be here in the first place, instead of having to make three or four court appearances. I don't know how much that costs the county.”
The same thinking applies to custody arraignments. If you're jailed on a misdemeanor, it's usually because you have a prior record, a warrant out for your arrest or you've violated probation. If you're a felon--either wanted or on probation--and picked up for a misdemeanor in San Diego, the district attorney will handle your felony and the city attorney will prosecute your misdemeanor.
“If it was just the DA, they would have one [prosecuting] lawyer on the case with the felony and the misdemeanor,” said Rouston. “[The defendant] would be in front of one judge who'd handle the felony, and the misdemeanors would just trail along in the same court.”
With one agency prosecuting a case, if the felony is serious enough, misdemeanors will usually get dismissed.
“If I have a client who's going to sign up for five years in state prison and he has three tickets for illegal lodging, do you think the DA cares? Do you think I care? Do you think the judge cares? No one cares,” said Rouston. “The way we do it [in San Diego], we have to bring that guy back and forth to court. He's making extra court appearances when he doesn't need to, and that costs money.”
Rouston said that roughly half the clients he counsels in jail are felons who've been picked up on a misdemeanor. Of the other half, the majority are homeless.
Custody arraignment takes place on the fifth floor of the downtown jail. It's where Britt, Tralla and Rouston spend one week out of their seven-week rotation. Three desks with floor-to-ceiling dividers between them back up against a windowed office with security monitors. The desks face a walkway lined with two large holding cells for inmates who, for certain reasons, need to remain separate from the others.
On this particular day, a guy who came in as a transvestite stares out from an isolated cell, muttering to himself. “You should have seen him all dolled up,” quips a sheriff's deputy.
Inmates are brought in, two or three at a time to talk to a lawyer. They're handcuffed and ordered to keep their hands stuffed down the front of their loose jail uniforms. When it's time to talk to a judge, the inmate is brought into a small room with a video-conferencing unit that's linked up to a courtroom a couple of blocks away.
One of those inmates was Jesus Caudillo, a 70-year-old homeless Vietnam veteran and a chronic alcoholic. Police found him sitting in a private parking lot downtown with his legs resting on a public sidewalk. He was arrested for being drunk in public and, since police reported he had urinated on himself, he was also charged for public urination. He'd been picked up 12 times before for public intoxication.
Britt took the case to trial because police failed to run any tests to prove Caudillo was intoxicated. Caudillo maintained he wasn't drunk when he was arrested and was willing to wait in jail until his trial.
On Sept. 3, a judge found Caudillo guilty of drinking in public, being drunk in public and urinating in public. For each charge he imposed jail time-a cumulative sentence of 18 months, longer than some people spend in custody for felony convictions, Britt said. Caudillo was also banned from downtown and lost his Fourth Amendment rights, which means the police have the right to stop and search him without probable cause. The judge stayed the jail sentence--it would be imposed only if Caudillo was re-arrested on the same charge. He would, however, receive three months' credit for the time he spent in jail awaiting his trial. Britt expected his client, with his chronic drinking problem, would be re-arrested within a week of his release.
“This is how the city of San Diego handles a social problem,” Britt said in an e-mail to CityBeat shortly after the verdict. State law says a person found to be drunk in public is supposed to be taken to a detox center, not arrested, Britt pointed out. That, he said, is the larger issue underlying this case.
“My client cannot be taken to [the city's] detox center because he is labeled ‘chronic' and therefore rejected,” said Britt. “Because of the rejection, he is taken into custody and held.” Britt filed an appeal on Caudillo's behalf, largely to protect him from extensive jail time. “It's just not just to give someone 15 months for being drunk in public,” he said.
Last week, the same judge ruled on Britt's appeal and overturned Caudillo's sentence. The prosecution, in this case, sided with Britt and convinced the judge to limit Caudillo's stay-away order to only the spot where he was arrested--not all of downtown.
Britt's still focused on the big-picture issue: getting the city to open a detox center for the homeless rather than tossing them in jail.