OAKLAND, Calif. (CN) - Contra Costa County illegally throws indigent defendants in jail until a public defender "deigns to come to court," two men claim in a federal class action. John Farrow and Jerome Wade sued Contra Costa County Public Defender Robin Lipetzky. Contra Costa County, a wealthy county north and east of Berkeley, includes Mount Diablo and the cities of Richmond, San Pablo, Orinda and Walnut Creek. Farrow claims Lipetzky followed the county's "policies, practices and customs" of withholding counsel "as a matter of written policy," and they "languished" in jail as a result. "Indigent, in-custody defendants in Contra Costa County are customarily left in jail without counsel, after their first court appearance, for 5 to 13 days," the men say in the complaint. "Although the first court appearance is dubbed 'arraignment,' no plea is taken, bail is not examined and counsel is not appointed, as required by California law. "The Public Defender withholds counsel to detainees as a matter of written policy. "Pursuant to this written policy, an in-custody, indigent criminal defendant's request for court-appointed counsel triggers a 'referral to the Public Defender' and an automatic continuance for 'further arraignment.' "The automatic continuance is imposed regardless of whether a juvenile is charged as an adult, whether it is a misdemeanor or felony complaint, whether the defendant suffers from a developmental disability or other infirmity, whether evidence of misidentification requires immediate investigation, or other exigent circumstances." Farrow and Wade separately told courts they could not afford counsel in September and November 2012 respectively, they say. Farrow says he waited 13 days for counsel to show up. Wade, 17, who was arrested at high school, says he waited for 7 days. "Although the automatic continuance is customarily between 5 and 13 days, depending upon where the case was filed within the county, defendants are never informed of their statutory speedy trial rights prior to the imposition of this automatic continuance," the complaint states. "California's statutory speedy trial scheme adamantly states that both the criminal defendant and the People are entitled to preliminary hearing and trial at the earliest possible time. California's statutory speedy trial time limits, however, are only engaged once a defendant has entered his plea. Therefore, given that the court does not ask for a plea until counsel arrives, plaintiffs' statutory speedy trial rights are suspended till the Public Defender deigns to come to court. "Under California law there is no remedy, in the criminal context, for flouting California's statutory speedy trial scheme in this manner. California Civil Code section 52.1, however, provides plaintiffs with a remedy for the Public Defender's forcible interference with their statutory rights. "The Public Defender's policy also denies indigent defendants their federal and state rights to the assistance of counsel at the first appearance in court, or a reasonable time thereafter. "This policy further effectively denies these defendants their right to apply for bail in the 5 to 13 day period of the Public Defender's absence. "Additionally, this policy forces in-custody, misdemeanor defendants to give up their statutory right to an immediate probable cause hearing. "Plaintiffs in this action are all clients of the Contra Costa County Public Defender, the Contra Costa County Alternative Public Defender's Office, and private conflicts-counsel, who are, have, or will languish in jail due to the Public Defender's policy of deliberate indifference." Farrow and Wade estimate that the class has more than 1,000 members. They seek injunctive relief requiring Lipetzky to appear "at the first appearance" of all indigent, in-custody criminal defendants; class certification; and nominal, statutory and punitive damages for violation of the Sixth and 14th Amendments and the California Civil Code. They are represented by Christopher Martin, of Point Richmond, and Michael Dietrick of Petaluma.
↧