UP FROM THE
BASEMENT
A Concise History Of
The First 70 Years (1927-1997)
July, 1997
“A great deal
of time is being wasted by calendar clerks and attorneys searching for open
files from the file cabinets and retained by attorneys exerting some
proprietary interest in those files.
This loss of time and consequent loss of control affects the interests
of our clients adversely.” (From a 27 year old memo by Public Defender James C.
Hooley to “All Attorneys”)
Some things never change.
But others do. As I key in this document, I sit in a modern
office using a Pentium Windows 95 computer.[1] Next to me, most of the records and
documents reviewed for this history are
yellowed with age, having been typed on an old mechanical typewriter, making a
standard “carbon” copy. As of this date,
there is a whole new generation of P.D.’s who have never used a regular
typewriter or carbon paper, and who did not sit around a battered table after
court drinking whisky with some of the toughest, most memorable trial lawyers
in the world.
The following history is necessarily
incomplete.[2] It is a work in progress to be supplemented
and corrected by future contributions.
As brief as it necessarily is, we think you’ll find that even an
overview of the history of one of the great criminal defense institutions of
our times makes very interesting reading.
I am grateful for the contributions
of the Martin Pulich family, as well as Judge Michael Ballachey, Judge Dean
Beaupre, Jim Jenner, our law clerk, William Turner (who took time away from
995’s[3] to contribute research and
text), of my secretary Mrs. Phyllis Edwards, who, approaching her well-earned
retirement, provided the fascinating half century old documents from which much
of this story is reconstructed, Thomas J. Rauch, Phil Schnayerson, Clif Taylor,
the staff of the Oakland Public Library, and of the many current and former
members of the office too numerous to list here.
As I indicated, this project is an
ongoing one. If you have additions to
the record, corrections, stories, comments, you are invited to send them by
mail to:
Attention:
Harold Friedman, Chief Assistant Public Defender
1401
Jay B. Gaskill
Public Defender (1989-1999)
////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////
In
1926, Alameda District Attorney Earl Warren drafted a “home rule freeholder’s”
Charter for the County. That Charter,
adopted by the voters later the same year, created the position of Public Defender. On
Willard
Shea, who was described as “a very fine gentleman and friend of
In April 1927, Shea’s temporary
appointment as Public Defender, then a Civil Service position, was made
permanent, subject to a probation period of six months. Shea’s salary was fixed at $4,000 per year and he was provided with a
small office area in the old Hall of Records on Broadway.[5] Following the
The establishment of the Alameda
County Public Defender anticipated Gideon
vs. Wainwright[6] by 36 years. Although, most
The County Charter charged the
Public Defender, not only with the duty of defending felony cases, but also
misdemeanor cases, anticipating the United States Supreme Court’s landmark
decision in Argersinger vs. Hamlin[7] by 45 years. Shea, however, due to his overwhelming felony
caseload, lack of assistance and the multiplicity of courts in which he had to
appear, restricted his practice primarily to felony preliminary examinations
and trials. Following the
Between January and June of 1927,
when the Public Defender’s First Annual Report to the Board of Supervisors was
issued, Shea tried sixteen jury trials, five of which resulted in not guilty
verdicts.
In a later letter to Shea, D.A. Earl
Warren complimented him:
“...you have done a splendid work for the
In 1941, Shea’s Annual Report showed
that the Public Defender and his two assistants had made 1,812 court
appearances in the preceding twelve months, 1,412 consultations with imprisoned
defendants, 1,282 with defendants in the office. Of the various trials reported, Shea devoted
a small section to
Insanity trials
(criminal):
Found sane....................1
Found
insane..................2
Found sexual
psychopath.......1
Folded into Shea’s copy of his
Annual Report to the Board of Supervisors, is a letter dated
State of
Legal
Department
Dear Willard:
Thank you for the report of your office for the year
ending
With best wishes, I am
Sincerely,
Earl Warren
Attorney
General
When Shea retired in 1950, Earl
Warren, then Governor, wrote:
“It is hard to believe that the time
has come for your retirement; certainly you have earned it by your service
beyond the call of duty. Your able and
earnest defense of the poor and friendless, the way you ran your office,
established a standard for the work of public defenders everywhere. It was always a personal satisfaction for me
as District Attorney to know that every accused person whose defense was
entrusted to you had the best counsel.”
In September 1927,
In 1938, the Public Defender and his
tiny staff moved to the new Alameda County Court House at
Martin Pulich, a brilliant,
charismatic lawyer, started with Shea in 1947.
At that time, Pulich, who later became Public Defender, was one of only
three lawyers who served as Shea’s Assistants.
In 1947, the Public Defender’s caseloads were heavy, and training was the classic “sink or swim”
method. Pulich’s first jury trial was a
lying in wait murder case; it came a month
after starting work..
Shea was 67 when he hired
Pulich. Three years later, Shea
announced that he would retire on
A graduate of
George Nye had been a supporter of
the Public Defender’s Office from the beginning. Later, Nye reflected on the birth of the
office:
“At the time there had been
considerable criticism of the traditional system of assigning the cases of poor
people to such young and inexperienced attorneys as were willing to work for
nothing except experience. While a good
job was sometimes done under these conditions, this was not always true. Critics argued that a golden key was needed
to unlock the courtroom door; and pointing to the easy convictions sometimes
reached in poverty situations they claimed that it was not possible to convict
a million dollars. Regardless of the
degree of safety from justice enjoyed by the wealthy, it had certainly become
true that the prosperous and the poor were receiving different treatment in our
courts, despite the good faith and earnest attention of the judges and
attorneys who tried their cases. The
logical way to correct this injustice was to set up a professional, full-time
defender office which would serve as the counterpart of the public prosecutor.”
When Nye assumed office, there were
only four lawyers working in the Public Defender’s Office serving a County
population just under 750,000. Between
1950 and 1958, the population in the county expanded by well over 100,000 and
the number of applicants for the services of the Public Defender’s Office more
than tripled.
In 1951, Nye hired the Public Defender’s Office’s first full time investigator, Clifford Wixson, Jr, an experienced law enforcement investigator. This was a second career for Wixson who had been working as an inspector in the District Attorney’s office. Until the time Wixson was hired, trial attorneys did all field investigation for their own cases. Wixson would serve as Chief Investigator until 1966. As Tom Rauch, who was hired in 1965, describes him, “Cliff was tough and hard to work for, nothing I did seemed to be right and no matter how hard I tried I just couldn’t please him.” Rauch also credits Wixson with setting up many of the investigation forms and systems that are in use today. “Cliff also followed a strong ethical and professional standard that set the tone for the division in the years to come.”
In the meantime, ex-public defender
Willard Shea had continued his own second career, becoming Attorney Manager for
the Alameda County Employees’ Association, and remaining very active in bar
matters until his final retirement at the age of 80.[10]
In 1957 Martin Pulich was named as
the first Chief Assistant Public Defender. The same year, the Public Defender’s
office moved out of the basement to the Mezzanine (Room 112) facing 13th
street, near the current Sheriff’s Department space. It would remain there until 1966.
In 1958 only 1.5% of cases were
rejected for conflict of interest[11]. In that era, it was still the practice for
Public Defenders to represent multiple defendants in the same case. Multiple representation diminished over the
years until it was formally abandoned by Public Defender James Hooley, well in
advance of most of the rest of the criminal defense bar and the U.S. Supreme
Court which condemned the practice in 1978
(Holloway vs. Arkansas, 435 U.S. 475).
During Nye’s eight year tenure, the
Public Defender’s Office was consistently cited for its outstanding legal
proficiency and ethical practices by the legal fraternity and law enforcement
officials on a local and national scale.
This excerpt, one of Nye’s early policy pronouncements, deals with a
classic, vexing, recurring problem, as to which defense attorneys and judges
may still disagree. Nye’s careful
resolution gives a flavor of the quality of his work and the level of practice
of his office:
USE OF WITNESSES OF DOUBTFUL
VERACITY
While no member of the office has or
would use a witness he knows to be contemplating perjury, a more difficult
question arises with respect to the witness who insists that his story is
truthful but whose version of the events in issue is so far fetched as to be
probably false, although possibly true.
Leaving aside tactical questions
which might eliminate the witness, and confining ourselves to the situation
where the witness ought to be called, if professional ethics allow it, it is
our policy to use the witness unless we know his testimony to be false. In other words, an honest doubt about the
veracity of a witness presents a jury question and not an issue for final
decision beforehand in our office....
George
Nye, PUBLIC DEFENDER
Dated:
In addition to Inspector Wixson, Nye
hired a number of distinguished lawyers.
Among them: Robert Byers, who was
initially hired as an investigator (Byers was subsequently admitted to the Bar,
served as an Assistant Public Defender, and later became Superior Court Judge);
John Nunes (who became Public Defender); Howard Jewell; Rudy Michaels; Don
Chapman (who became a judge in 1975); James Hooley (who served as Public Defender from 1970 to
1980); Enid Weissman (reportedly the first woman attorney to be hired[12]); Tom Ryan; Steve
Shaughnessy; Chris Gasparich; and Spencer Strellis.
About the work of the Office, Nye
said, “Society is not really protected unless every individual in it is given
the full protection to which he is entitled.
“Since human life, liberty and reputation are beyond price, it is impossible to state in dollars what the value to the community was of cases in which the conviction of innocent clients was prevented. There were such instances.”
It was probably Nye who started the
office tradition of the “bottle party”[13] in which courtroom
acquittals were honored by an after hours gathering of trial lawyers around a
bottle of whisky. The victorious
attorney was expected to buy and share a bottle of Jack Daniels (or its
equivalent) with colleagues, who sat around a battered wooden conference table,
drinking whisky, often without ice, always in paper cups.
In 1958, the total cost of operation
for Nye’s Office was $118,704. One of
the most notable administrative achievements was the acquisition of “punched
card” equipment. Each year of Nye’s
administration, the caseload pressure increased in volume and seriousness.
Disparity in pay between those who
are in comparable positions in the Public Defender’s Office and those receiving
higher pay in the District Attorney’s office was raised as an issue (without
success) by Nye in his 1959 Annual Report to the Board of Supervisors. Nye then left the office to form his own law
firm in
Chief Assistant Martin Pulich was
appointed to succeed Nye as Public Defender in 1959. Pulich graduated from University of the
Pacific and Boalt Hall School of Law.
Seasoned by 12 years as a trial lawyer, Pulich was mentor, legal guru, and leader. Tough, eloquent, incisive in his legal
analysis, brilliant in his command of the field of criminal law, Pulich later
served as one of the area’s foremost
judicial officers.
During 1956 and 1957, while still
Chief Assistant, Pulich (then 36) became the subject of an extended photo
session by the famous photographer Dorothea Lange, who followed him to court
and jail for months, depicting the “day” of a typical public defender. Originally intended for Life magazine for May, 1956 in honor of Law Day, the magazine
decided against the article at the last moment.
The article and photo series was distributed by the Federal Bureau of
Information for distribution abroad. The
first (and possibly only) general publication of the article was in the
“This man has a flair for the
courtroom. Ordinarily inconspicious,
slightly stoop shouldered as though from years of bending over legal tomes, at
the bar he takes on dimension and definition.
His eyes, under heavy brows, penetrate, appraise, and dominate. His sharp jaw juts forward. He makes his points – staccato – with
originality, persuasion, and logic. In
cross examination, that special corner of the battlefield where merely good
lawyers are soon separated from the brilliant, he can be remorseless.”
Here is an excerpt from Pulich’s
annual report to the Board of Supervisors for 1962:
“It
was only a week before Christmas. Harry
had long been fighting a running (not from but toward) engagement with the
bottle. In fact, he had that day
completed a term of 80 days in the county jail (service incurred, of course)
for drunkenness. But the season moved
him strongly and he bought a bus ticket to go to the home of his family in
southern
“The season continued in its influence, and the next
morning he stood in the municipal court charged with drunkenness. In his time he had known many such
mornings. Harry pleaded guilty. He then spoke with feeling of family ties, of
the bus ticket, of his good intentions, and of Christmas. The judge suspended the sentence of 180 days.
“Not unreasonably, Harry’s head was falling off. Leaving the court room, he met Jo-Jo, an
erstwhile companion of his former evil days in the county jail. Jo-Jo solicitously recommended the hair of
the dog and further that the bus ticket be turned into useful cash. Harry’s resolve stood firm and strong, but he
went along to a room occupied by a friend of Jo-Jo’s. There he took a pill they offered for his
headache. Removing his coat, he went
into the bathroom and shaved. When he
came out, his friends were gone. The bus
ticket, of course, was gone. Harry ran
to the bus depot where he reported the theft.
He left the depot and on the street he became dizzy; his legs failed
him; he thought of the pill; everything turned (yes, black).
“And the next morning (it was now only six days before
Christmas) he stood in the municipal court charged with drunkenness. Harry looked at the same judge. He thought of the events of the last twenty
four hours. Frankly, he couldn’t believe
them. And as for the judge? “Guilty,” Harry said and started serving his
180 days.
“In a week, though, Harry wrote the whole story in a
letter to the judge. And the judge, an
open-minded man, if there ever was one, asked the Public Defender to have his
Investigator look into the case. When
the investigation was complete, the judge set aside Harry’s plea of guilty and
held a trial. During the course of the
trial, it was proved:
1. That Harry really had a bus ticket;
2. That Jo-Jo, now back in jail, had a receipt
issued by the bus company for the ticket;
3. That the bus
company refused cash to Jo-Jo because of the suspicious circumstances under
which he presented the ticket.
“And Harry this time at a trial in which he was
represented by the Public Defender told his story to the judge, who found him
not guilty.
“The Public Defender believes and trusts that Harry
arrived at the family home a little late for Christmas but early within the New
Year. Afterward, the Public Defender and
the judge remembered Harry and considered more wisely and more patiently the
accounts which other men gave of themselves.
“Now, you may say that the Public Defender really didn’t
prove that Harry was not drunk on the day that he lost the ticket. This may be.
“But you must bear in mind that this is a Christmas
story. And Christmas stories should be
taken with a little faith.”
During the time Pulich was Public Defender, approximately 60% of persons accused of felonies put in applications to be represented by the Public Defender. Revisions in Juvenile Court law by the Legislature increased the volume of cases involving indigent minors and their parents before the Juvenile court to such a degree that a full time attorney had to be assigned there for the first time.
Pulich had become something of a
courtroom legend in the early 60's, when he opposed an equally legendary
prosecutor, Frank Vukota, defending convicted wife-killer Thomas Purvis, who
was then accused of murdering his girlfriend.
Purvis’s case lasted six years and three complete jury trials[15]. Purvis was convicted, but ultimately was
spared a sentence of death as a result of the combined efforts of Pulich,
George Nye (on the first appeal) James
Hooley, (all trials and appeals) , Thomas Lyons (second appeal), John Nunes and
Steve Shaughnessy (last appeal) .
In 1963, Pulich was elected as a
judge in the Oakland Municipal Court, in a campaign managed by his wife, Helen
Pulich (the “War Department”). Pulich
was later elected to the Superior Court Bench in 1975 where he remained until
his retirement.
Pulich is remembered as a
relentlessly interventionist trial judge, who frequently took the litigation of
cases away from those whom he perceived to be less able and experienced trial
lawyers, (i.e., all trial lawyers in his court), questioning jurors and
witnesses alike. Peering over his
glasses with a sharp, penetrating glare, his feet up on the bench, smoking a
cigarette while presiding, Judge Pulich was absolutely impartial: he struck
terror into the hearts of district attorneys, public defenders and other
defense lawyers alike. Beloved by
bailiffs, court personnel, and all who appeared before him, at core a full
blooded humanitarian, Pulich came to be
fondly known as “Mad Marty.”
There is a plaque on the wall in the
Court House at 12th and Fallon outside Department Ten. It reads:
MARTIN N.
PULICH
1919-1992
THAT
INDEFATIGABLE OFFICER
JUDGE
AND
1974-1986
PRESIDED
HERE
1983-1986
For the same years that Pulich was
Public Defender, John Nunes was Chief Assistant Public Defender. Nunes, a gruff, highly literate, pipe smoking
man with a singular, salty eloquence, succeeded Pulich as Public Defender in
1963. Nunes graduated from U.C. Berkeley
with a Masters in English and a law degree from
In this same period, James Hooley,
who would later serve as Nunes’ Chief Assistant and then as Public Defender,
faced prosecutor Frank Vukota in third and final retrial of the Purvis murder
case. The following passages from the
Supreme Court’s opinion, give a flavor of the rough and tumble advocacy of the
era:
“To aggravate the error, the
prosecuting attorney used each of these three items in his closing argument as
proof of the fact of Purvis' brutality.
Thus, the deputy district attorney was guilty of the very same
misconduct for which he had been reversed on the last appeal in this case, and
for the very same misconduct for which he had been reversed in
“The
Publication in the "
“This specification of error centers
around the publication by the Oakland Tribune, ... of an article quoting
certain extrajudicial comments of H. P. Gleason, then the Sheriff of Alameda
County. Gleason had not been a witness
at the trial. Appellant ... contends that the act of Gleason, in making
the public statements about the pending trial, and of the prosecuting attorney
in directing the attention of the jury to them, and of the trial court in not
instructing the jury to disregard the statements in the paper, constituted
prejudicial misconduct. We agree. These actions, in our opinion, deprived
appellant of the fair and impartial trial to which he was entitled.
“On the following day (Monday, May
14th) the prosecutor started his closing argument. After a few preliminary remarks he made use
of the Tribune article in the following manner:
"Mr.
Vukota: Should the defendant be treated
lightly, a fellow that has murdered twice?
As we know, there was an article in the Oakland Tribune as of yesterday,
and--
"The
Court: Now, Counsel, there is no
evidence in the case that there is an article in the Oakland Tribune.
"Mr.
Hooley : May I have Your Honor cite this
as misconduct?
"The
Court: It is not misconduct because we
don't know what the article says.
"Mr.
Vukota: Well, may I quote some
authorities to the Court, that I will ask the Court to read, with reference to
legitimate argument?"
“Thereupon, although the court had
ruled in his favor, the prosecutor read some 14 citations to which he added his
personal interpretations indicating that his conduct was correct. Each such citation dealt with the propriety
of arguing facts which were not in evidence when those facts were a portion of
the general body of common knowledge.
"Mr.
Hooley: May I, Your Honor, cite this as
misconduct?
"The
Court: There is no question about
this. But how could a newspaper that was
written yesterday when the evidence closed Thursday or Wednesday be considered
in evidence? Now, there is no question
you can refer to matters that have been referred to in the trial. ...
"Mr.
Vukota: They [referring to his
citations] referred to the Alger Hiss case.
I would like the Court to read it.
It [People v. Purvis] states right in there they argued about the Alger
Hiss case, and it wasn't even mentioned at the trial. In that case it is held that we can refer to
facts of other cases and anything that is of–Let's see here, now. Here it is.
... (Discussion off the record.)
"Mr.
Vukota: May I proceed, Your Honor?
"The
Court: Yes, go ahead, Counsel.
"Mr.
Vukota: I believe I informed the Court
as to the extent of my argument on this article. I have informed the Court just exactly what I
was going to state.
"The
Court: Not exactly. In general terms, yes. ... And without
any reference to the Purvis case.
"Mr.
Hooley: May I, Your Honor, interject an
objection to the use of this article at all by the District Attorney in his
argument on two grounds. One, it is
improper argument on the basis of referring to something outside of the
evidence. And, secondly, it is improper
argument on the basis that it exceeds the scope of the argument of Counsel and
therefore is not proper closing argument in that respect. And I ask that the remarks of the District
Attorney previously addressed to the jury in relation to this article be
stricken, that it be cited as misconduct and the jury admonished in that
regard.
"The
Court: Well, the article to the extent
it might contain any reference or facts of this case, I have talked to Counsel
about it, and he is not going to go into that.
.....
"Mr.
Hooley: Thank you.
"Mr.
Vukota: Now, through all this furor the
only thing I was going to mention out of this article, and I did mention it to
His Honor, was the fact that there was a report in the Oakland Tribune
yesterday entitled, 'Crime and the Citizen, A Special Report.' And then there was stated remarks about the
parole system which should in itself impress upon you jurors that those outside
that are not part of this jury have their eyes focused upon you just to see
what you are going to do with a man who has been convicted in a seven- year
span of two murders.
"Mr.
Hooley: I will object to this, Your
Honor, on the basis of misconduct as though there were something directed by
publicity or by something of that nature toward the jury. I believe it is prejudicial argument in that
effect. I cite it as misconduct, and I
ask the jury be admonished to disregard it and the remarks be stricken.
"Mr.
Vukota: May it be stated for the record
I am not stating that in that article there are any remarks about the entire
society of the State of California watching these fourteen jurors. This is my analysis of who is observing and
what it was going to do for law enforcement.
In other words, he is saying that I am inferring it is in the article,
and that is not true.
"The
Court: You are correct. This is actually a situation in which you
have picked up, shall we say, you have used yesterday's newspaper to give you
sort of a timely opening sentence for an argument.
"Mr.
Vukota: That is correct, Your Honor.
"The
Court: Rather than actually referring to
the article in the paper at all.
"Mr.
Vukota: That is correct.
"The
Court: Yes."
“Whereupon, after addressing the jury in criticism of Mr. Hooley for having twisted his words, the district attorney turned to other portions of his argument. He consumed the balance of the day.”
This was high drama, only partly
captured in the dry record: a client’s life at stake, an aggressive prosecutor,
and an equally determined defense lawyer in a textbook response to
prosecutorial misconduct.
In the five years between 1962 and
1967, the number of client applicants to the Public Defender’s Office more than
doubled to over 10,000. The number of
attorneys also more than doubled during that period, totaling 27 in 1967. In
1966 Nunes hired Robert Boags, an effective trial attorney and fondly
remembered colleague.[16]
From 1963 to 1965, Donald Chapman served as Chief Assistant Public Defender to John Nunes, leaving the Public Defender’s Office in 1965 for private practice. Chapman, who was elected to a judgeship in the Santa Clara Superior Court in 1975, was succeeded by James Hooley who was Chief Assistant for the remaining years of Nunes’ administration.
In 1967, the Supreme Court’s
landmark decision in the case of In Re
Gault[17] suddenly gave juvenile defendants
the right to representation. Overnight,
Nunes was faced with the prospect of a whole new practice area. Seven new attorneys were added to accommodate
this need over the next two budget years.[18]
In late 1968, the office moved from
the small mezzanine space on the first floor of the Courthouse to Room 212,
next to the Law Library. The Public
Defender still retains a presence at Room 212, in addition to its impressive
new offices on the third and fourth floors of the
Investigator Tom Rauch, a former Marine, Park Ranger, and Juvenile Hall officer, with
The last three years of Nunes tenure
were increasingly affected by the Vietnam war, the student demonstrations on
the U.C. Berkeley campus, and his own deep philosophical disagreements with
many of his own lawyers who had begun to march with the demonstrators.
The Bottle Party tradition didn’t
die with the Nunes retirement, but it did not survive the explosive growth of
staff and cases that followed. An Assistant Public Defender from 1959 to 1965,
Stephen Shaughnessy, wrote a poem in remembrance of those times. In Salute to John Nunes, Public Defender,
Shaughnessy’s poem[20] recalled the era when
attorneys would sit around a large wooden table, drinking whisky and
complaining about judges:
Six months dead already, in the wilds of
where you retired from court house wars,
half blind and enfeebled at the end,
still you reflected an inner steel we loved.
We sent you death notices of judicial
tyrants,
thirty years after their injustices were
done.
You wrote back:
“Another judicial light (10 watts) has
failed.
The SOBs think they are immortal
notwithstanding proof to the contrary.”
We remember you
Sipping Jack Daniels from a paper cup
While celebrating our legal victories.
You were right about the SOBs.
We salute you John Nunes,
Your memory has outlived you by six months.
James Hooley succeeded Nunes as
Public Defender in 1970 in the middle of the internal and external turmoil
caused by the war protests. Hooley, who
had grown up in
Almost immediately, Hooley was faced
with a monumental defense task. The
As of 1969, the Public Defender was
still coordinating all defense services from a single office in the Alameda
County Courthouse. It was from Room 212
in the Alameda County Courthouse that a
beloved clerical employee, Roylene Eastabrooks, a diminutive, tough, woman (the
former office manager for a trucking company) would arrive before first light
each working day, light a cigarette, then set out all of the hundreds of case
files headed to the county’s various criminal courtrooms: Oakland, Berkeley, Fremont, San Leandro,
Hayward, Livermore, Pleasanton, all file folders rubber banded in neat piles,
together with hand prepared appearance sheets. Attorneys then arrived at
Hooley’s tenure as Public Defender was marked by a rapid expansion in attorney and investigation staff and by the creation of the Branch Office system, where a Public Defender Branch Office was located at or near each court house in the county.
From 1971 to 1973, the Public
Defender’s Office experienced significant changes in the nature of the
practice. As the overall criminal
caseload increased, the scope of Public
Defender legal responsibilities were expanded by the courts and legislature,
expanding representation in Juvenile
Court, dependency cases, and mental illness cases. Then, in 1972, the Death Penalty was held
unconstitutional by the California Supreme Court[21], heralding a respite from
the demands of these grueling cases that would effectively last until 1988-89.
Throughout the seventies, Jim
Hooley’s vision of a system of Branch Offices began to crystallize. A tiny Branch office was established on the
fifth floor of the Oakland Municipal courthouse in 1970, under the supervision
of Paul Trudell. Too small to house
support staff, it was later replaced by the first real Branch Office operated
in leased space in the Casalina and
The
growth in caseload and staff was staggering:
more attorneys were stationed in the Oakland Branch than were in the
entire office for the first 28 years of its existence. Another branch was established near the
In 1972, the Alameda County Public
Defenders’ Association established status as a bargaining unit with the success
of Alameda County Assistant Public Defenders
Association and Western Council of Engineers v. County of Alameda. The Association sued for official
recognition, but lost in the trial court.
Assistant Public Defender Dean Beaupre´ authored the appellate brief
which persuaded the Court of Appeal to grant
recognition of the Association as a bargaining unit.[23]
William Hoffman served as Chief
Assistant Public Defender for the first half of Hooley’s tenure as Public Defender, from 1970 to 1975. Hoffman began working for the Alameda County
Public Defender’s Office in 1962 and resigned in order to go into private
practice.
Between 1971 and 1972, the workload
for the Investigation Division doubled.
The staff of Chief Investigator Thomas Rauch managed this impressive
increase with hard work. That year,
Hooley wrote of the Investigation Division, “It is in just such an
investigation division that the adversary process does become a means of
sorting out the true and the false.”
During the same period, Hooley established the first felony trial staff. Prior to that time, felony cases had been handled in Superior Court by a team of senior calendar attorneys headed by Assistant Public Defender Michael Ciraolo, who appeared in the master calendar court on all cases until it was evident that a jury trial was required. Then the practice had been to call in the attorney who had done the preliminary hearing (who by then was working in a Branch Office) to take the trial. The conversation, usually by phone, would go something like this:
Ciraolo “Remember Jones, that pistol whipping robbery PX you did
last month?”
P.D.: “I don’t think so.”
Ciraolo: “You will. Your
trial date is in a couple of weeks. Come
pick up the file.”
The first trial staff consisted of
only nine attorneys.[24] These attorneys were assigned all incoming
felony cases in Superior Court. Their
caseload levels were crushing (often exceeding forty actual pending trials in
addition to scores of other cases without trial dates), and stress levels were
high. Among that first group of trial lawyers were Douglas Rigg (a former San
Quentin Warden, who became a Juvenile
Commissioner), Andre La Borde (later in private practice in San Francisco), James
Keeley (later an Insurance Company CEO), Jay Gaskill (later Public Defender),
David Goyne, Gary Sirbu (later private practice in Oakland), and Gordon Van
Kessel (later a law professor at Hastings College of the Law).
In 1973, when many traffic cases
became infractions (for which there is no right to a public lawyer), the Public
Defenders’ traffic practice consisted almost exclusively of drunk driving and
suspended license misdemeanors. Because
in the prior year the Legislature had authorized certain felony crimes to be
charged as either misdemeanors or felonies, the number of misdemeanor cases
actually increased 39% in 1973. And the
charged “misdemeanors” were far more serious than the traffic violations that
had made up most of the former misdemeanor caseload. It remains true today that many
misdemeanors, particularly in the core urban parts of the
Hooley singled out 1973 as a year
that “reflects a new image of justice and the end of an attorney era.” Hooley saw a marked shift of emphasis from
jury trials to pre-trial. It seemed to
him that there were written motions
filed by the defense in every conceivable situation. Hooley expressed his fear that “the computer will inevitably replace law
clerks and attorneys as the scope of research in criminal cases becomes clearly
defined through repetition.” The goal of
a criminal case had gone through a metamorphosis resulting in a creature which
largely resembled civil pre-trial: settlement at a level acceptable to all parties
and preferably to the clients’ advantage.
This signaled quite a different era than the preceding one where case
and law were cultivated and delineated in jury trials, in the bullpen or in
deliberation in judges’ chambers, after hours, over whiskey.
Hooley warned: “A Public Defender Office must provide a system that will protect the client from the attorney who hides minimum competency under blankets of preparation and expressions of concern for the client. The public defender who believes that the criminal justice system is a market place, creates an unreviewable reputation of ‘competence’ when he obtains ‘good deals’ for his clients.”
Even though the extent to which plea
bargaining was beginning to be used at this time was a significant development,
it was not a novel tool. As Willard Shea
had written in his 1928 annual report, “[i]n a majority of cases in which pleas
of guilty are entered, the defendant has been charged in two counts and the
plea of guilty is entered to the lesser count, the greater being dismissed.”
Hooley loved people and had a
genuine, affectionate regard for each of the 100 plus attorneys in his office;
he kept a photo display on the wall near his desk, with every attorney’s
individual picture.[25] Of them, he wrote in a report to the Board:
“They are unanimously idealistic,
although many disguise their idealism with a veneer of cynicism.
“They respect integrity.
“They are overworked and frustrated
by a yearly average caseload of 380 cases per attorney.
“They are often angered and
frustrated by the mechanical nature of the legal system. They are concerned that their clients be
treated as human beings so that mutual respect can be developed within the
legal system.
“They have been in private practice;
have served as law clerks for appellate justices; have come from prosecutors’
offices, or directly from law school.
“Many were honor students. Some studied law as a virtual sideline to
full-time employment. They are graduates
of Boalt, Michigan, U.S.F., Yale, Santa Clara, Golden Gate, Loyola, Harvard,
Oklahoma, Hastings, Stanford, St. Louis, Northwestern, San Francisco, Davis,
Chicago, McGeorge, Lincoln, St. John, Wayne State, Wisconsin, Oregon, Columbia,
U.C.L.A., George Washington, Virginia, Ohio State and N.Y.U. law schools.
“They have come from middle-class or
professional families; few have experienced poverty or prejudice first-hand.
“They are just not interested in
being prosecutors; a few may decide to become judges at some future date.
“They agree with the office policy
that prohibits the taking of a guilty plea from an innocent defendant, but they
remain enamored by the advantages of a good “deal.”
“They are smooth-faced,
clean-shaven, mustachioed, bearded, long-haired, close-cropped and bald.
“They are ego-centric as the most
talented of actors or actresses; each is properly certain that he, in company
with a few others, is a great trial attorney.
“They love trial work.
“They are independent by nature;
they relish independence in the handling of their cases, but remain concerned
about our office’s lack of supervision and direction.
“They remain with the office much
longer than they intended; they enjoy their work and find it rewarding.
“They possess a deep social
consciousness, but temper this with the realization that they must not permit
their particular causes to make martyrs of their clients.”
As his own words indicate, Jim
Hooley practiced a color and ethnicity-blind diversity in hiring that reached
out to collect talented lawyers united by a common sense of mission, bringing
great variety in background and personality.
In 1976, County employees struck for six full weeks. Assistant Public Defenders supported the cause of the striking county employees, but continued to work in the courtrooms and jails representing their clients so that the indigent would not spend more time in jail because of an economic dispute among county employees. Public Defenders continued to place their professional responsibilities as lawyers above merely personal considerations.
In 1977 the then newly enacted
Determinate Sentencing Law (DSL)[26] began to have a strong
impact on the practice. Over the next
several years, a simple sentencing reform became “Christmas Tree’d” with
additions.[27] Prison terms were increased dramatically as
crimes and enhancements were charged, adding to the maximum prison terms. Sentencing law became as complex as the tax
code.[28] As sentences ranging from 15 years to life
became common for non-capital crimes,
the need for intense preparation by trial public defenders increased.
And June 6, 1978 was election in
which “Jarvis-Gann”, Proposition 13, California’s property tax initiative, was
enacted by the voters. By limiting the
ability to raise property taxes, that
single measure would continue to have profound effects on local government for
years to come. The following fiscal
year, 1978-79, the first budget cuts hit criminal justice departments like a
sledgehammer. District Attorney, Public
Defender, and line law enforcement personnel were discharged. Proposition 13 caused the Public Defender
budget to be cut by 16%, resulting in the loss of 10 full time attorney
positions from nearly 100 to fewer than 90.
Two in-house programs, the witness coordinator and Project Crossroads
(aimed at facilitating rehabilitation of clients), were eliminated. The then full-time training officer (Jay
Gaskill) was reassigned to other duties, the position eliminated.
After a few weeks, the attorneys who
were laid off were reinstated, as
emergency State funds enabled counties to restore funding for vital
services. This began a period of roughly
ten years during which the full impact of Proposition 13 would be masked by the
substitution of State resources for depleted County property tax revenues.
James Jenner served as Chief
Assistant for the second half of Hooley’s tenure as Public Defender, from 1975
to 1980 when he succeeded Hooley as Public Defender.
James Jenner, a bearded, balding mountain climber, who resembled a young Mahatma Gandhi, was a brilliant, theatrical courtroom lawyer. Jenner graduated from U.C. Berkeley, Boalt Hall School of Law, and the University of Madrid after instruction in Advanced Law Studies. Before joining the Alameda County Public Defender, Jenner was an interrogator in Russian and Spanish in the U.S. Army, and was in private practice with the law firm, Marquard and Jackson.
While Chief Assistant under Hooley,
Jim Jenner’s trial defense in People v.
Sonny Barger (Hells Angel case) and People
v. Little and Remiro[29] (Symbionese Liberation Army case) had
attracted national attention. Sonny
Barger was the president of the Hells Angels from the early sixties and stood
charged with multiple murders. Barger
and his co-defendants were acquitted.
But in the Symbionese Liberation Army case, Little and Ramiro, who were
members of the S.L.A. which had taken credit for the crime, were both convicted
of murdering Marcus Foster, the Oakland Superintendent of Schools. District Attorney Lowell Jensen personally
prosecuted the case which was tried for several months in Sacramento County on
Jenner’s change of venue motion, under the glare of intense media attention and
tight security.
Assisting Jenner was a law clerk,
Julie Conger, who later served as Assistant Public Defender, a member of the
Berkeley law firm of respected criminal defense attorney Penny Cooper (who
herself had served as an Assistant Public Defender under Pulich, Nunes, and
Hooley), and, since 1983, as elected Judge of the Berkeley Municipal Court.
Jenner selected Dean Beaupre´to
serve as his Chief Assistant.[30]
Between 1978 and 1982 the office
sustained a total increase of approximately 38% in caseload with an overall decrease in staff. Between these dates, child dependency cases
increased 193%. As a result, Jenner’s flair
for demonstrative evidence and props was not confined to the courtroom. In one legendary appearance before the Board
of Supervisors during budget hearings, Jenner appeared holding a skull, showing
how “lean, and picked clean” his department had become.
The Office initiated and expanded the establishment of fee recoupment programs under Penal Code section 987.6, which allows attorneys’ fees and costs to be assessed (in reduced amounts based on ability to pay) at the end of a Public Defender client’s case. These revenues and an increase in Juvenile fees, garnered by the Office, increased substantially between 1978 and 1982.