UP FROM THE BASEMENT

A Concise History Of Alameda County’s Office Of The Public Defender,

The First 70 Years (1927-1997)

 

 

Introduction

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:

 

 

 

Alameda County Public Defender

Diane Bellas, Public Defender

Attention: Harold Friedman, Chief Assistant Public Defender

1401 Lakeside, STE 400

Oakland, CA 94612

 

 

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 January 18, 1927, Willard W. Shea was given a temporary appointment by the Alameda County Board of Supervisors as the County’s first Public Defender.   The duties of Shea’s position were set out in Section 27 of the new County Charter.   D.A. Earl Warren,[4]  who maintained a cordial and supportive relationship with the County’s first Public Defender, had advocated for the creation of a Public Defender’s Office to “replace the police court hanger’s on who solicited clients among the poor and then preyed upon their distressed relatives for fees they could ill afford without regard to whether the prisoner had any defense.” 

            Willard Shea, who was described as “a very fine gentleman and friend of Warren’s,” was an attorney who had earned his law degree the old fashioned way, without attending law school.  Shea served in the U.S. Civil Service Commission and was employed as a deputy by the District Court of Appeal.  As Shea later related, the Public Defender’s first office was “the Sheriff’s dining room in the jail at 5th and Washington.”

            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 Los Angeles model (L. A. County having established the country’s first Public Defender’s office in 1914), Shea investigated his own cases without the help of a field investigator.  His entire staff consisted of a stenographer. 

            The establishment of the Alameda County Public Defender anticipated Gideon vs. Wainwright[6] by 36 years.  Although, most California counties now have  Public Defender’s Offices, the Alameda County Public Defender’s office was the second of its kind.  As Shea later recalled, “After the first week I didn’t have to look for a client.  The number ran to about 50% of the jail population.” 

            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 Los Angeles  model, the Alameda County Charter authorized representation in certain civil cases, but Shea avoided this area of practice, as have all of his successors.  Shea’s decision, driven partly by limited resources, was that civil cases should be handled by the Legal Aid Society attorneys[8] or public interest volunteers. 

            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 County of Alameda since your appointment under the new Charter.  I had no idea, however, that you were handling so many cases, and I hardly see how you can accomplish this amount of work with the limited staff attached to your office.”

            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 August 4, 1941 from:

 

 State of California

Legal Department

Dear Willard:

            Thank you for the report of your office for the year ending June 30, 1941.  It is a fine record, and you are serving the public, as well as the unfortunate people whom you represent.

            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,  Livermore attorney Raymond A. Ferrerio was named Shea’s first Assistant Public Defender.  Many followed.  Over Shea’s extraordinarily long tenure, he furthered the career of many highly regarded attorneys who started as Assistant Public Defenders.[9]

            In 1938, the Public Defender and his tiny staff moved to the new Alameda County Court House at 1225 Fallon Street by Lake Merritt in Oakland.  Built as Federal Emergency Administration of  Public Works Project 2461 in 1936, the court house was to be the Public Defender’s “home office” for the next six decades.  Between 1938 and 1955, the Public Defender’s office would remain in the basement of the court house, in Room G58, (sometimes called Room 10), now occupied by the Registrar of Voters.

            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 December 31, 1949.  He had served as  Public Defender for longer than any Public Defender since: 23 years. Willard Shea was succeeded by a lawyer from the District Attorney’s office, George Nye.

            A graduate of Stanford University and Columbia Law School, Nye had served three years as an investigator with the Federal Treasury Department in San Francisco, practiced law privately in Palo Alto, and was an Assistant District Attorney in Alameda County.   When, in 1950, George Nye was appointed Public Defender by the Board of Supervisors, two of the three Assistant Public Defenders resigned the office for private practice.  This left Martin Pulich with a staggering caseload. 

            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: September 20, 1951

 

            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 Hayward with partners James Hooley[14] and Robert Dunivan.

            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 Manila Chronicle (on 7 August 1960, pages 24-27), without credit to the famous photographer.  (See  Dorothea Lange, Archive Of An Artist by Tsujimoto, © 1995 Oakland Museum).    Lange’s original Public Defender photos remain archived in the Oakland Museum.   From the article:

            “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 California

            “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 MENTOR OF THE SUPERIOR COURT

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 Golden Gate Law School.  He had worked in the Alameda County Probation Office before joining the Public Defender’s Office. 

            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 Hamilton, supra.  Such misconduct must be deemed to have been deliberate. Inasmuch as the assessment of appellant's character comprised a major part of the prosecutor's argument for demanding the death penalty, the prejudice is obvious.

            The Publication in the "Oakland Tribune:

            “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 Lakeside Plaza Building.

              Investigator Tom Rauch, a former Marine, Park Ranger,  and Juvenile Hall officer, with Police Academy and criminology training, began working at the Public Defender’s Office in 1965 as a field investigator.  During 1968, staffing difficulties caused Tom Rauch alone to be given all investigation work for all thirty plus trial lawyers in the office.  Rauch managed the crushing caseload by working seventeen hour days for the rest of the year, until help finally arrived.  As Chief Investigator, Rauch now supervises nearly as many investigators as there were attorneys assigning him work in the bone crushing year of 1968.[19]

            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 Idaho

                        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 San Francisco’s Mission District, graduated from U.C. Berkeley and Boalt Hall School of Law.  Before working with the Public Defender’s Office, Hooley was a First Sergeant in the U.S. Army, serving in the trenches in World War II. 

            Almost immediately, Hooley was faced with a monumental defense task.  The Berkeley campus was a war zone.   Tear gas drifted up Strawberry Canyon behind campus as mobs of students faced  lines of officers in riot gear.  Before civil order had been restored, hundreds of students had been arrested and charged with various offenses, including loitering, resisting arrest, and vandalism.  And the defense of these cases was the responsibility of the Public Defender.  Hooley approached the problem with characteristic ingenuity, practicality and humanity.  Groups of defendants were tried together.  Public Defender lawyers took on nearly all the cases, winning all but a handful before sympathetic juries.  Ultimately, Hooley engineered a massive series of legal motions that resulted in dismissals of the remaining cases.

            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 8:00 A.M., collected their cases, checked out county cars from the pool, and made their daily rounds. 

            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 Lang Building, formerly at the intersection of 6th and Washington Street[22]

            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 Hayward courthouse (in a basement area of the Southland Mall office building); this was followed by small offices at the probation center,  near juvenile court, then in the Fremont court, at Juvenile Hall and in Berkeley.  The days when attorneys ferried stacks of files every day from the Oakland court house at 12th and Fallon to six municipal courts were finally over. 

            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 Alameda County, would be charged as felonies in other parts of the state.

            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.[31] In 1985 the Office was awarded two National Association of County Organizations Achievement Awards for programs carried out in 1983.  One was for the Office’s pioneering efforts in gaining financial recoupment from certain classes of clients, increasing revenues.  The second award was for establishing a privately funded computerized citizen/officer witness coordination program.  This program saved time for subpoenaed peace officers and other citizens, freeing them from having to waste time sitting around courtrooms unable to accommodate them. 

            Under James Jenner’s leadership, general salary parity was achieved in 1982.  Parity in pay with the District Attorney’s Office had been an ongoing issue from the inception of the Public Defender’s Office in 1927.  Originally the difference in pay between the Public Defender, Willard Shea, and the District Attorney, Earl Warren, was 33%.  Warren’s salary for the year 1927 was $6,000 and Shea’s was $4,000.  Although, in 1974 the gap had closed to a difference of approximately 15%, at that time general parity seemed out of reach. 

            In the late seventies, the Board of Supervisors gave Public Defender James Hooley salary  parity with District Attorney Lowell Jensen, but disparity remained for line attorneys, field investigators, and other staff.  In 1982, the key classification for salary purposes became Deputy County Counsel, to which salaries of Deputy District Attorney and Assistant Public Defender III were tied.  Full formal salary parity for all county attorneys was finally achieved.

            The year 1982 was also noteworthy as the beginning of the elimination of the California Constitution as an independent source of procedural rights and remedies for criminal defendants.  Proposition 8, having been enacted by a decisive vote of the electorate, was upheld by the Supreme Court in Brosnahan v. Brown (1982) 32 Cal. 3d 236.  Justice Mosk ended his dissent, lamenting, “[t]he Goddess of Justice is wearing a black arm-band today, as she weeps for the Constitution of California.”  This proposition would have a profound effect on criminal justice in the state.  And the job of the Public Defender became even more difficult. 

            Also in 1982, Colston Young, a brilliant trial attorney who had served with the Alameda County Public Defender from 1973 was named Public Defender of the Year by the California Public Defenders’ Association.[32]  One of Young’s cases involved a murder at Santa Rita jail.  The testimony was that Young’s client, a certifiable crazy, was found by a deputy in a locked cell together with the victim, who was dying from a beating.  No one else was in the cell.  No one had been in the cell.  An open and shut case?  Young’s argument that there wasn’t enough time for the crime to have been committed by his client led to a legendary courtroom demonstration in which the prosecutor, now a Superior Court judge, attempted to beat a life sized dummy to “death,” while racing against the clock.  Before his death, Young was fond of telling the story of how he sat calmly at counsel table while the prosecutor, sweating in his three piece suit, beads of sweat dripping from his nose, tried to “beat the crap out of exhibit A.”  After two hung juries, the defendant was finally acquitted.  For some, the case remains unsolved.

            In the period between 1978 and 1987 the new case files handled per attorney per year had grown nearly 40% — from 354 to 485.   But because of the post-Proposition 13 County budgets, total Public Defender staff during that time increased only 18%, a fraction of  the raw caseload increase.  At the same time, the number of complex cases greatly increased.

            Then, eighteen months before Public Defender James Jenner would retire, the defense community awoke to face an old nemesis.    By end of 1986, the effective fourteen year hiatus in death penalty prosecutions brought on by People vs. Anderson (fn 21 above ) had ended: After a long appellate battle, the death penalty had been fully restored  in California.[33] Chief Justice Rose Bird and three fellow justices were swept from office in the November 1986 election.  The death penalty floodgates were open.[34]

            In 1978, the office had a single death penalty case.  By mid-1987, that number had suddenly grown to twenty three cases pending in various stages of readiness for trial.  It had been about fifteen years since any defense lawyer in Alameda County had tried a death case.  Suddenly, the game had changed.  There was a real risk that more of the pending death cases could be forced to trial than there were lawyers prepared to try them.  Training and staffing issues loomed.

            In 1983, Assistant Public Defender Robert Betzenderfer, a gravel voiced trial lawyer who had worked in the Legal Aid Society, private practice, and as a Deputy district Attorney in Contra Costa before being hired in 1970 at the age of 39, tried the Burris death penalty case.  The result was an acquittal, a result probably unprecedented in Alameda county for a death case, and not since duplicated.  “Betz” left the office for solo private practice at the end of 1983.

            After Jenner retired in 1989, Jay Gaskill, a Boalt Hall graduate who had been hired as an Assistant Public Defender by John Nunes in 1969, was appointed Public Defender.[35]  Beaupre´[36]  continued as Chief Assistant.  When Gaskill was appointed Public Defender by the Board of Supervisors in May, he was midway in a seven month jury trial on the Wimberly death penalty case (an alleged serial killer).  Beaupre´ conducted the day to day operations of the office until the trial was ended, in the late fall, by an eleven  to one hung jury (favoring death).[37]

            Within months of taking office, Gaskill re-established regular training programs and set up a special unit to assist trial lawyers in handling death penalty cases.  This “death penalty unit” consisted of Assistant Public Defender Susan Sawyer[38], Investigator Dennis Barley, and a contract psychologist, Lorelei Sontag. Working overtime, they reviewed every pending case in a full court press to coordinate limited resources, bringing to bear the best, most informed, most effective defense where it was needed most: to spare a client’s very life.[39]  The same year, Gaskill established a “homicide team,” a select group of trial lawyers tasked to provide concentrated expertise in the defense of the office’s most difficult cases.  James McWilliams, an outstanding trial lawyer, was assigned to head the unit.      

            On June 5, 1990, voters enacted Proposition 115, another example of the growing trend in California to employ ballot measures to enact changes in the criminal practice more drastic than the Legislature itself had been willing to adopt through the regular process.  Immediately, Proposition 115 profoundly altered the role of defense investigation by requiring “reciprocal discovery.”[40]  In the past, defense investigators from Cliff  Wixson on were able to conduct full and private defense investigation of their cases, secure in the knowledge that their entire effort was confidential. Gaskill implemented a careful approach that would preserve the credibility of Alameda County Public Defender investigators reports, which in many instances have been accepted by prosecutors who have dismissed charges based on defense investigation.  This balanced approach is increasingly being adopted by defense investigators across the state.

            Gaskill’s honeymoon period was brief, indeed.  Twelve years after the enactment of Proposition 13, the Jarvis-Gann tax revolution, the State of California reversed the stream of  tax   revenue that had sustained county government, setting the stage for the worst series of budget cutbacks in Alameda County’s history.  The trouble was to begin in fiscal Year 1990-91.

            In the 1989-90 fiscal year, Public Defender attorneys, investigators and support staff  were working harder than at any time during the previous 21 years.  Calendar 1990 was an extraordinary year during which the Public Defender’s intake of new cases exceeded 60,000.  And 1991 brought more of the same. 

             In the Public Defender’s 64th Annual Report (made to the Board in 1991, covering the prior year), Gaskill wrote:

            “The American system of justice requires that every accused person in this county, irrespective of financial means, receive a constitutionally proper defense.  That is the essence of the mission of the Public Defender -- to see that the poor, who make up the vast majority of all persons brought before the gate of justice, are not denied a competent defense because of poverty or lack of means.  The social order depends not only on the rule of law but on the perception -- and the fact -- of justice.  In a very real sense, the attorneys, investigators and support personnel in my Department are the guardians at the gate of justice.”

             Six months after those words were written, the delayed impact of Jarvis-Gann hit the District Attorney and Public Defender’s offices like a tidal wave.  Budget cutbacks in fiscal year 1991-92, and the three following years, forced lay-offs in both offices.[41]  Unlike the layoffs on 1978, where State money enabled many positions to be restored, these positions were really lost.  Even as the criminal case intake decreased slightly,  the slight workload decline was swamped by the effects of the budget driven “downsizing.”  In a short time, the Public Defender’s Office went from an authorized attorney staff of 126 full time lawyers, to fewer than 104.  Reluctantly, on November 2, 1992, Gaskill was forced to disband the Death Penalty Unit,[42] but the Homicide Unit was retained.

            Public Defender attorneys reeled from some of the highest individual caseloads in office history.  In some instances, judges were forced to replace overloaded public defenders with private counsel.

            In all budget talks and appearances,  Gaskill helped forge a common front with the other criminal departments, the Sheriff, District Attorney, and Probation, advocating adequate funding for public protection and criminal justice.  Gaskill argued that these four departments, together with the courts, form an interacting system, all parts of which should be protected from the impact of Proposition 13 as much as possible.  

            In spite of the cutbacks and downsizing, from 1989 forward, the recruitment and hiring of attorneys and investigators continued, supporting a steady trend toward an increasingly diverse mix of highly competent, motivated professionals. 

            In the early 1990's, under resourceful leadership of Chief Investigator Thomas Rauch, the Public Defender Investigation Division ameliorated the impact of funding cutbacks by generating revenue from special services for two other county units, Risk Management and Central Collections,  generating cost savings for those departments in the bargain.

            In 1990, attorney training was reinvigorated, when Gaskill placed the responsibility under the direct control of Assistant Public Defender Harold Friedman.[43]  By 1991, the Alameda County Public Defender was in the first group of providers certified by the State Bar to conduct classes that qualified for Minimum Continuing Legal Education.  Since that date, many of these programs have been made available to members of the local Bar who are active in the court appointed program representing indigent defendants.  When Beaupre´ was appointed to the bench in 1993, Gaskill appointed Harold Friedman as his Chief Assistant. Friedman, remains in overall charge of office training, among his other responsibilities.

            November 2, 1993, was a pivotal date for criminal justice in Alameda County and the State.  The voter initiative, Proposition 172, and the companion local county proposition, Measure A, would provide a sales tax derived revenue stream for “public protection” which, in Alameda County, included District Attorney and Public Defender.  In an unprecedented effort, the Public Defender, his staff attorneys and investigators joined with law enforcement in support of Proposition 172 and Measure A.  As a result of the electorate’s action in passing both 172 and A, the subsequent budget years, beginning in fiscal 1994-95, gave the County the opportunity to repair some of the damage wrought by the State in earlier years.

            Also in 1993, the California State Public Defender’s Association named Judy Browne, one of Alameda County’s senior Assistant Public Defenders, as Public Defender of the Year. Judy Browne’s final jury arguments, particularly in identification cases, have become classic training models for other trial lawyers.

            In 1994 the Legislature also enacted “Three Strikes.”  By 1995,  there were almost as many pending non-murder cases with potential life in prison exposure as murder cases with the same exposure.   Of the effect of the “three strikes” law on the office in general, Gaskill wrote:

            “This places new stress and strain on an already burdened criminal justice system.  Our defense task would have been impossible but for the good working relationship enjoyed by members of this department and the other members of the criminal justice system.  This is a spirit of cooperation that we can trace all the way back to this department’s origin in 1927.  The mission of the Public Defender is to see that the poor, who make up the vast majority of all persons brought before the gate of justice, are not denied a competent defense because of poverty or lack of means.  I am pleased to report that my department successfully carried out this mission under very difficult conditions.”

            In 1994, the investigation division began using revenues generated from the services to Central Collections and Risk Management to supply laptop computers to field investigators.  The service arrangement with Risk Management was terminated by Gaskill in 1996 in order to meet the priority demands of criminal investigations.  But Rauch’s laptop program, having proved itself, continues with the goal of ultimately equipping the entire investigation staff with this tool.

            In 1996, Assistant Public Defender Allan Hymer was assigned to defend Charles Rothenberg, one of the most hated men in Northern California’s recent legal history.  Rothenberg,  charged with the attempted murder of an Oakland man, was notorious because, thirteen years earlier, he had set his then six-year old son on fire. 

               The case provoked a firestorm of national media attention.  In the arraignment court, Rothenberg  refused any Public Defender, demanding that the court appoint Wyoming lawyer Gerry Spence or talk show host Geraldo Rivera.  After Rothenberg was found not guilty by the jury, he thanked Allan Hymer, his public defender.  Hymer, one of the best trial lawyers in the state, served with the Public Defender’s Office from 1968 until 1997 when he was appointed to the bench of the Oakland Municipal Court.

            Hymer’s achievement is not untypical of the level of trial practice attained by experienced trial lawyers in the Public Defender’s office.  Nor was Rothenberg’s attitude unusual. All too often, some poor, incarcerated defendant is heard to ask the court, not for a Public Defender, but for a “real lawyer. ” Such requests are rich with irony, since it is generally conceded that the trial representation provided by the Alameda County Public Defender’s Office to the poor is as good or better than any wealthy defendant could buy, Spence and Geraldo included.[44]      

            The seventieth year finds the office of the Public Defender still in a process of rebuilding, following four years of budget cuts.  Yet the Public Defender’s Office is still the professional home of some of the most talented and dedicated criminal defense lawyers in the state.  And this year, the Public Defender was able to re-establish the Death Penalty Support Unit, to restore resources to attorney training, and to continue to recruit and hire some of the most savvy and resourceful criminal defense lawyers anywhere. 

            In its seventieth year, the basement offices of the Public Defender, the offices used by Willard Shea, George Nye, and Martin Pulich, are gone.  In their place, the Public Defender’s staff occupy seven office locations, including the new, well-appointed facilities at Lakeside Plaza.  There, looking down at Lake Merritt from the third and fourth floors, the men and women attorneys of the Public Defender’s office work on some of the most difficult and challenging criminal cases in the country.  The impression is inescapable that Shea, Nye and Pulich are somehow looking on, proud of these lawyers and proud, too, of their new, “up town” office space. 

           

“About time,” they would say. 

////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////   

 

 

ALAMEDA COUNTY PUBLIC DEFENDERS

 

Willard Shea                 1927 - 1950

George Nye                 1950 - 1959

Martin Pulich                1959 - 1963

John Nunes                  1963 - 1970

James Hooley               1970 - 1980

James Jenner                1980 - 1989

Jay Gaskill                    1989 – 1999

Diane Bellas                 1999-   Present

 

 

CHIEF ASSISTANT PUBLIC DEFENDERS

 

Martin Pulich    1957 -1959

John Nunes                  1959 - 1963

Donald Chapman          1963 - 1965

James Hooley               1965 - 1970

William Hoffman           1971 - 1975

James R. Jenner            1975 - 1980

Dean A. Beaupre        1980 - 1993

Harold G. Friedman      1993 - present

 

 

 

CHIEF INVESTIGATORS

 

Clifford Wixson            1951-1966

Irving Tallman   1966-1967

Thomas J. Rauch          1968-1998

Trevor Patterson           1998- Present

 

 

CONTACT INFORMATION

 

Alameda County Public Defender

Diane Bellas, Public Defender

Harold Friedman, Chief Assistant Public Defender

(510) 272  6622

 

Suite 400

1401 Lakeside

Oakland, CA 94612



[1] The Alameda County Public Defender now has a web page which can be accessed at the address: http://www.co.alameda.ca.us/defender.  The web page features a profile of the office,  address, telephone & fax numbers, mission statement, and other information provided by the current Public Defender Diane Bellas, who succeeded me in 1999.

[2] In particular I regret the omission of many important names and stories.  But I hope I have captured some of the flavor and major events of the early days of the office.

[3]  Criminal practitioners will of course recognize this reference to motions to dismiss felony charges per Penal Code Section 995.

[4] In 1927, the District Attorney also acted as Alameda County’s civil attorney, duties now performed by the office of County Counsel.

[5] Which, reminiscing at his retirement, Shea later described as “cubby holes.”

[6] Gideon, (372 U.S. 335), decided by the U.S. Supreme Court in 1963, extended the right to appointed counsel for indigent defendants to felony cases, is also the name (GIDEON) of the Public Defender’s case tracking software that is used to generate and track new case files.

[7] Argersinger,  407 U.S. 23 (1972) , extended the right to appointed counsel to indigent defendants charged with a misdemeanor faced with possible incarceration for six months or longer.

[8] Shea later served on the Board of Directors of the Public Defenders and Legal Aid Association of California.

[9] Among them, Rupert Crittendon (who became a Berkeley Municipal Court Judge and a Superior Court Judge) and the unforgettable Martin Pulich.  

[10] Along with Cecil Mosbacher, Judge Ralph Hoyt and members of the Alameda County District Attorneys Office, Shea contributed to the revisions of the California Penal Code in 1953.  Shea, a veteran of the Spanish American War, lived to age 93.  Given the stresses of the position of public defender in modern times, this may stand as a record for some time!

[11] For the last two decades, that number has hovered around 11%.

[12]   It seems unremarkable today when the number of woman Deputy and Assistant Public Defenders is 40 and growing, but when Ms. Weissman started, women professionals were very rare in the criminal justice system.                

[13] Reportedly, Shea did not drink.

[14] Jim Hooley, disenchanted with private practice, later returned to the office under Martin Pulich.   After Nye retired from the Public Defender’s Office, he was named to a Ford Foundation national advisory committee to set up a model Public Defender’s program for the nation.

[15] Purvis was tried and reversed by the Supreme Court three times because of the misconduct of Prosecutor Francis W. (Frank) Vukota.  (See People vs. Purvis (1959) 52 Cal. 2d 871, People vs. Purvis (1961) 56 Cal. 2d 93, People vs. Purvis (1963) 60 Cal. 2d 323.)  James Hooley assisted Pulich in all three trials,; he later told the story of how Pulich, in frustration and rage over the prosecutor’s unchecked misconduct stormed out of the courtroom during the DA’s argument in one of the trials, leaving  Hooley to take over until Pulich recovered his composure! 

[16] An historian might note that “Bobby” Boags was the first of many excellent lawyers hired by the office who also happened to be racial minorities.  Robert Boags resigned from the Alameda County Public Defender’s Office in 1969 to enter private practice, but, like most P.D. alumni, he remained in close contact with his old colleagues until his death.   

[17] In re Gault (1967) 387 U.S. 1

[18] Allan Hymer and Jay Gaskill were among the lawyers hired by Nunes in the wake of Gault.

[19] But with a caseload intake for the office exceeding 4,500 new cases a month, Rauch’s investigators are still very, very, busy.

[20]  Nunes, an avid hunter and outdoorsman, died near the Bitterroot Mountains where he had retired.  Shaughnessy’s poem was first delivered several months later in his honor at a gathering of Public Defender lawyers and the legendary Esther Erickson, Public Defender secretary and de-facto office manager.

 

[21] In People vs. Anderson (1972) 6 Cal.3d 628     

[22] Jay Gaskill was the first attorney assigned to run that branch, assisted by Phil Schnayerson, who together initiated a number of practice changes as the first major P.D. branch office developed new procedures, including pre-assignment of misdemeanor jury trials to individual lawyers and ongoing review of open and closed files.

[23]Ironically, the success of line Public Defender attorneys in getting to the bargaining table was not matched by success at the actual bargaining. A few years later, P.D.  attorneys accepted an offer, brokered by Public Defender Jenner and Chief Assistant Beaupre´, to join management, giving up collective bargaining in exchange for management benefits and salary parity with District Attorney lawyers.  See the discussion below re salary parity in 1982.

[24] A staffing number that proved far too small, given the caseload, as the first eighteen months of the trial staff proved.

[25] As he later said, “so I could tell which dark haired guy with the mustache was on the phone to me.”

[26] Statutes 1976, Chapter 1129

[27] E.g., Initiative (Proposition 7) enacted at the November 7, 1978 General Election; Statutes 1979, Chapter 944; Initiative (Proposition 8) enacted at the June 8, 1982 Primary Election.

[28] Generating its own experts: first Jay Gaskill then Harold Friedman carried on the task of producing and updating The Trial Lawyer’s Guide To The DSL, a comprehensive training manual now exceeding 90 pages.

[29] Docket No. 53331 (Barger) and No. 59147 (Little/Remiro)      

[30]  Beaupre´served from 1980 to 1993, when he was appointed to the bench.  As Chief Assistant, he was primarily responsible for the design of office’s computer system. Special software named GIDEON, which was adapted for the P.D.’s office, enables support staff to set up case files in coordination with the county’s CORPUS software, to identify possible conflict of interest problems before clients are interviewed, and to help generate caseload information.  Beaupre was involved in the office’s conversion to CORPUS and the development and implementation of GIDEON in the early 1980's.

[31] The success of the recoupment program would later attract imitators.  As Probation and other county functions were added, the Public Defender’s share of the “recoupment pie” began to dwindle.

[32] Young was the first openly gay attorney in any of the Alameda County law departments.  He served with the Public Defender until he died of Aids in 1992.     

[33] The 1977 death penalty act had been  upheld by the California Supreme Court in People vs. Jackson (1980) 28 Cal 3d 264.  That law was replaced the following year by the  “Briggs Initiative.”  The 1978 Briggs death penalty law was finally upheld by the California Supreme Court in People vs. Rodriguez (1986) 42 Cal. 3d 730.  The year 1986  was a watershed in the practice: the defense community was forced to face the fact that the death penalty was here to stay and that a steady stream of death penalty trials was inevitable.                                

[34]The floodgates were opened even wider in other jurisdictions.  Alameda County has pursued the death penalty more selectively than in many other counties in the state.

[35] Gaskill, like Hymer, Hooley and others, had enjoyed a varied litigation career in the Public Defender’s Office, punctuated by several years experience in private practice.   

[36] As indicated, Beaupre´ served as Chief Assistant from 1980 to 1993 when he was appointed to the bench.

[37] There were two more trials, where Wimberly was represented by appointed attorneys James Giller and former Assistant Public Defender Bill Linehan, each resulting in lopsided hung jury votes for death, until the defendant was spared by the D.A.’s decision not to seek yet another trial. Beaupre, himself a distinguished trial lawyer,  had earned national attention two years earlier when his defense of the Cromer case (the first prosecution under the racially motivated killing special circumstance) resulted in a life verdict.

[38] Susan Sawyer was later the Public Defender Honoree for 1995 by Women Defenders, a statewide organization.

[39] Regrettably, appellate lawyers, saddled with the task of attempting to persuade the Supreme Court to reverse death judgments on appeal, have tended to invent  allegations that trial counsel delivered ineffective representation.   These charges, leveled at trial attorneys who in many cases have devoted every last ounce of energy on the client’s behalf, have become the latest fad, the appellate issue of “last resort.”  The Public Defender has spared no effort to make certain that death penalty cases are properly and thoroughly investigated, prepared and tried.    

[40] Proposition 115 wrought other changes: e.g., the availability of the felony preliminary hearing as a crucible to test the prosecution’s case with careful cross examination of witnesses was curtailed.  Gaskill was among the lawyers who personally argued some of these issues before the Supreme Court, but to no avail.

[41] The District Attorney, John Meehan, was forced to lay off 12 attorneys, an absolutely unprecedented event.  While a comparable number of positions were cut in the Public Defender’s office, Gaskill managed to keep actual out-the-door layoffs  to three attorneys as a result of turnover and fiscally driven restraint in hiring.

[42]To date, since the re-enactment of the death penalty, Public Defender attorneys have tried thirty two death penalty cases to verdict, resulting in one not guilty, thirteen death verdicts, and eighteen life verdicts.  There has been one execution, the David Mason case, a “volunteer,” who abandoned his appeal.  At this writing there are a dozen Alameda County Public Defender clients on death row.

[43] In 1996, Harold Friedman received a County “Manager of the Year” award for public protection departments, in part for his work in re-establishing the Alameda County Public Defender’s training program as one of the finest in the state.

[44] From the Court of Appeals decision of the late Justice Robert Gardner in People vs. Benton, (1978) 77 Cal. App. 3rd 322, 334 n. 1: “It is almost a truism that a criminal defendant would rather have the most inept private counsel than the most skilled and capable public defender.  Often the arraigning judge appoints the public defender only to watch in silent horror as the defendant’s family, having hocked the family jewels, hire a lawyer for him, sometimes a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners and the ruling of the Supreme Court in Smith vs. Superior Court...”