Courts

Saturday, March 18, 2017

Alleging Public Defender is Already Failing Clients, Attorney Asks to Fast Track Lawsuit

Posted By on Sat, Mar 18, 2017 at 3:40 PM

FILE
  • file
Eureka attorney Patrik Griego is asking a judge to expedite the process of determining whether newly hired Humboldt County Public Defender David Marcus meets minimum state qualifications to hold the post.

Griego, who filed a lawsuit earlier this month challenging the county’s controversial hiring of Marcus, is asking a Humboldt County Superior Court judge to allow him to serve subpoenas immediately, forgoing the 20-day waiting period usually required in similar cases. In a motion filed with the court Friday, Griego argues it’s imperative that the case be resolved quickly, alleging Marcus is already making mistakes that compromise his clients’ rights.

“He has appeared in court unprepared and has failed to secure continuances for clients based on a failure to follow court rules,” Griego writes in the motion, adding that “attorneys working for Mr. Marcus are gravely concerned about the well-being of the office and the indigent clients it serves.”

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Friday, March 10, 2017

Griego Files Suit Challenging Public Defender Hire

Posted By on Fri, Mar 10, 2017 at 1:29 PM

David Marcus - SCREENSHOT FROM THE LASSEN COUNTY TIMES DIGITAL ARCHIVES
  • Screenshot from the Lassen County Times digital archives
  • David Marcus
Local attorney Patrik Griego followed through this morning on his threat to file a petition with the Humboldt County Superior Court asking a judge to step in and block the county’s recent hire of David Marcus as its next public defender.

The petition for a writ of mandate, filed as a public interest lawsuit, alleges that Marcus does not meet the minimum qualifications for the position required by the state as outlined under Government Code Section 27701. The code specifies that a public defender hire must have spent the year preceding his or her appointment as a practicing attorney in all the courts of the state.

Marcus served as Lassen County’s public defender from 2005 to 2011, when he left, reportedly to take a job as CEO of a dental clinic. In his resume submitted to Humboldt County, he indicates he worked for the Walnut Creek law firm Cella, Lange and Cella from 2012 through 2016 as a contract attorney while living in Florida. But it’s unclear exactly what he did for the firm, and Griego alleges he doesn’t meet the minimum qualification of having been a practicing attorney in all the state’s courts for a year prior to his hire.

Specifically, Griego alleges Marcus has not practiced in any criminal, juvenile, family law or conservatorship court — or any other in the state — since his departure from Lassen County.

After meeting in closed session Tuesday to discuss Griego’s threat of litigation, the Humboldt County Board of Supervisors issued a press release touting Marcus’ more than 20 years of experience in criminal law — in Lassen County and as a deputy public defender in San Bernardino — and stating that he “has significant criminal law experience and meets all statutory requirements for the position.”

In his filing, Griego points to a letter of opposition the California Public Defender’s Association submitted to the state Legislature back in 2011, when it was considering a bill that would allow superior court judges to be eligible for public defender appointments.

“While each office of the public defender in California is unique, two things are consistent,” the quoted portion of the opposition states. “Entry level deputy public defenders are not assigned cases for which more senior level public defenders are more adequately qualified and every chief public defender has at a minimum several years of practicing in criminal cases immediately prior to being appointed or elected chief public defender. These consistencies are not coincidental, bur rather necessary to ensure that indigent defendants we are tasked with representing are providing zealous advocacy required by the Constitution.”

Griego’s petition is filed on behalf of John Does 1 through 10, unnamed people currently represented by the public defender’s office. Unless the board of supervisors is “compelled to comply” with the government code, Griego argues, the petitioners will be deprived of their due process rights and right to counsel guaranteed under the 14th and Sixth amendments to the Constitution.

Attempts to reach Marcus for this story were unsuccessful.

If Griego's suit is successful, the county could be deemed liable for his attorney fees.

See past Journal coverage of Marcus’ hire and the controversy surrounding it here. And find a copy of Griego’s court filing here
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Tuesday, March 7, 2017

Supes Support Marcus, Face Lawsuit by Week's End

Posted By on Tue, Mar 7, 2017 at 4:25 PM

FILE
  • file

The Humboldt County Board of Supervisors is standing by its newly hired public defender, even if it’s a stance that will soon land it in court.

The board met in closed session this morning to discuss a local lawyer’s threat that he would ask a Humboldt County Superior Court judge to step in and block the county’s hiring of David Marcus as its new public defender unless the board backed away from the hire or proved Marcus meets the state’s minimum qualifications for the post. Immediately after adjourning from closed session, the board sent out a press release defending Marcus and his qualifications.

“Mr. Marcus has significant criminal law experience and meets all statutory requirements for the position,” the board stated. “We look forward to working with him as our public defender.”

Marcus' hiring has come under a spate of fire from local defense attorneys, who first criticized the hiring process — in which the board sought input from an advisory panel made up primarily of law enforcement officers and the county’s chief prosecutor — and later took aim at Marcus’ resume. Marcus, who served a controversial tenure as Lassen County’s public defender, has not practiced criminal law in five years, during which time he reported working as a contract attorney for a Walnut Creek firm while living in Florida.

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Fart Smell to Linger in Elections Material

Posted By on Tue, Mar 7, 2017 at 3:47 PM

McClure holds a prop as he waits for his case to be heard. - LINDA STANSBERRY
  • Linda Stansberry
  • McClure holds a prop as he waits for his case to be heard.
Judge Timothy Cissna ruled this afternoon that the phrase "insert fart smell here," will remain in special elections material to be distributed to Southern Humboldt voters this spring. The phrase was written by Scotty McClure as a rebuttal to arguments in favor of Measure W, a parcel tax intended to fund the rebuilding of the Jerold Phelps Community Hospital in Garberville.

Representing the county elections office, Deputy County Counsel Joel Ellinwood said the county registrar of voters, Kelly Sanders, found the language inappropriate to be distributed to taxpayers with taxpayer money, and was asking the court to rule on whether or not the phrase could be deleted.

"A ballot pamphlet is not an unobstructed forum for free speech," argued Ellinwood. "It is a limited forum."

Ellinwood cited state elections code section 9380, which says a judge may issue a "peremptory writ of mandate or an injunction ... upon clear and convincing proof that the material in question is false, misleading, or inconsistent."

Ellinwood then attempted to convince Cissna that the phrase "insert fart smell here" met that criteria.

"Mr. McClure's rebuttal ... is a vulgarity that expresses contempt for the whole process," Ellinwood said, explaining that McClure's original statement against Measure W, which cited a history of over-taxation in Southern Humboldt and dismay at the measure's 45-year shelf life, could stand alone. The fart joke, he says, does not add anything to the process, and it was unfair to ask the elections office to distribute pamphlets using taxpayer money that had the word "fart" in them.


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Friday, March 3, 2017

Supes to Discuss Threatened Public Defender Lawsuit Tuesday

Posted By on Fri, Mar 3, 2017 at 4:29 PM

David Marcus - SCREENSHOT FROM THE LASSEN COUNTY TIMES DIGITAL ARCHIVES
  • Screenshot from the Lassen County Times digital archives
  • David Marcus
The Humboldt County Board of Supervisors will convene in closed session Tuesday to discuss its newly hired public defender, whether he is qualified to hold his post and whether it should brave the threat of a lawsuit in order to keep him.

As we reported Wednesday, local attorney Patrik Griego sent the county a letter threatening litigation if it doesn’t prove that David Marcus is qualified to hold the position of public defender or remove him from it.

Marcus, who was appointed to the post Feb. 7 and started work Monday, has come under fire from members of the local defense bar who think the process used to hire him was tainted and are concerned about several aspects of Marcus’ resume. (Read more about this in past Journal coverage here.)

Now, Griego has raised the question of whether Marcus is legally qualified to hold the post. California Government Code Section 27701 holds that a person is not eligible to take the office of public defender unless he or she “has been a practicing attorney in all of the courts of the state for at least the year preceding” his or her appointment. As we’ve reported before, it’s not entirely clear what Marcus has been doing since leaving his position as Lassen County’s public defender in 2011. He has retained his active California bar license but has been living in Florida and apparently not practicing criminal law.

Despite numerous requests from the Journal, County Counsel Jeff Blanck has not returned calls seeking comment about Marcus’ qualifications or Griego’s threat. Griego declined to comment when contacted by the Journal today, but said earlier this week that if the county doesn’t show that Marcus is qualified or let him go, he intends to ask a Humboldt County judge to intercede and block the appointment.

Read more about Marcus and the threat of litigation in past Journal coverage here.

The issue appears on the supes' agenda as a conference with legal counsel regarding threatened litigation.
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Wednesday, March 1, 2017

Attorney to County: If New Public Defender is Qualified, Prove it or Face Lawsuit

Posted By on Wed, Mar 1, 2017 at 1:17 PM

THINKSTOCK
  • Thinkstock
A local attorney is threatening legal action if the county of Humboldt doesn’t remove newly hired Public Defender David Marcus from his post or prove that he’s qualified to hold it.

After a controversial hiring process, the Board of Supervisors appointed Marcus to the post Feb. 7 and his first day on the job was Monday. But on Tuesday, local attorney Patrik Griego, of the firm Janssen and Malloy, hand delivered a letter to county counsel’s office alerting it to the fact that Marcus’ hire may have violated California Government Code Section 27701, which lays out the minimum qualifications for a public defender in the state.

The Journal emailed County Counsel Jeff Blanck about the code section as it relates to Marcus’ hire on Friday afternoon and then followed up with phone calls Friday, Monday and Tuesday but has so far received no response.

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Tuesday, February 28, 2017

Settlement Next Step in Magney End-of-Life Care Case

Posted By on Tue, Feb 28, 2017 at 9:00 AM

Dick and Judy Magney around the time they met in 1992 - PHOTO COURTESY OF JUDY MAGNEY
  • Photo courtesy of Judy Magney
  • Dick and Judy Magney around the time they met in 1992
A scathing appellate ruling that found officials with the county of Humboldt overstepped their bounds and misrepresented evidence to the court when they interfered in a Carlotta couple’s end-of-life medical decisions became final yesterday.

That sets the stage for attorney Allison Jackson, who represented Dick and Judy Magney in the case, to begin settlement talks — a process that she said will start with a letter being sent to the board of supervisors this week “in order for them to understand the gravity and significance of this decision.”

Almost exactly two years have passed since Adult Protective Services began a March 2015 investigation into never pursued or substantiated reports of possible caretaker neglect after Dick Magney — then 73 and in failing health — was admitted to the hospital.

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Tuesday, February 21, 2017

Defense Attorneys Urge Supes to Scrap Public Defender Hire, Start Over

Posted By on Tue, Feb 21, 2017 at 2:03 PM

THINKSTOCK
  • Thinkstock
It’s very hard to say exactly what recently hired Public Defender David Marcus has been doing for the last five years since his controversial tenure leading Lassen County’s defense services for the indigent came to a close.

The resume Marcus submitted to the county indicates that, since leaving Lassen County in 2012, he has worked for the firm Cella Lange and Cella as a contract attorney, doing transactional real estate and property loss consulting. But that seems to raise more questions than it answers.

Google the firm’s name and you’ll find plenty of listings — on directory sites like lawyers.com — indicating the firm has a Walnut Creek address, but you’ll be hard pressed to find anything more. The firm has no website, and doesn’t seem to come up in any news stories or legal filings on the web. Google the firm’s name and Marcus’ together and you’ll get zero hits.

In an effort to find out more about the firm and Marcus, the Journal called it directly, twice, telling a receptionist we were hoping to speak with someone who’s worked with Marcus or supervised him. No one returned the call. We called back saying we simply wanted additional information about the firm — things like how many attorneys it employed, how many offices it has and what areas of law it specializes in — and the receptionist said there was no one there who could answer those questions. Pressed, he said the firm specializes in “civil law” before assuring someone would return the Journal’s call. No one did.

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Saturday, February 11, 2017

Journal News Editor Wins Freedom of Information Award

Posted By on Sat, Feb 11, 2017 at 10:51 AM

THADEUS GREENSON
  • Thadeus Greenson

The Society of Professional Journalists Northern California officially announced yesterday that Thadeus Greenson, the Journal's news editor, won a James Madison Freedom of Information Award. It's an award Caroline Titus of the Ferndale Enterprise took home in 2016, and the Journal's then staff writer and editor Hank Sims and Emily Gurnon won in 2005.

Greenson is being recognized for his "years long battle with the city of Eureka over the release of police camera footage of an arrest." (That arrest by then Eureka Police Sgt. Adam Laird and the departmental drama that followed it are, coincidentally, the subject of next week's cover story on stands Wednesday.) The end result of Greenson and the Journal's pursuit of the video, in Humboldt County Superior Court and then in the California First District Court of Appeals, was a state precedent-setting opinion that kept the city — and any others in California — from treating police camera footage as confidential officer personnel records.

Particularly in our current climate, with heightened awareness of police misconduct and the potential abuses of power, that ruling in favor of transparency is a win for journalists throughout the state, the public and those police departments working toward trust in the communities they protect. We could not be more proud of Greenson's work on this story and in every issue of the Journal.


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Wednesday, February 8, 2017

Why Some Feel the Deck was Stacked for the Prosecution in HumCo's Public Defender Hiring

Posted By on Wed, Feb 8, 2017 at 8:54 AM

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  • Thinkstock
After a process that some perceive as deeply troubling, the Humboldt County Board of Supervisors announced Tuesday that it is tapping David Marcus, a Florida attorney, to be the county’s next public defender.

The three-month search to replace recently retired Public Defender Kevin Robinson, who packed up his briefcase in December, caused controversy in local defense attorney circles because of its reliance on input from a prosecutor, police and others who traditionally find themselves in adversarial courtroom roles with the public defender’s office. And the hiring of Marcus seems unlikely to allay the concerns of some who believe the county stacked the deck.

“It’s absolutely appalling,” said Arcata defense attorney Jeff Schwartz about the makeup of the panel, which included District Attorney Maggie Fleming, Undersheriff William Honsal and Probation Chief Bill Damiano but not a single defense attorney. “It’s the fox watching the hen house. It wasn’t a fair process. It’s a sad day for criminal justice in Humboldt County.”

Marcus’ last stint as a public defender in Lassen County was shrouded in controversy, a large part of it centering around what was perceived as an overly cozy relationship with the district attorney’s office.
If you look at national guidelines for public defense work, you’ll find that independence is a guiding principle. The American Bar Association lists “professional independence” as one of its core standards for criminal defense work and its single most important principle of public defense work.

The concept is integral to citizens’ constitutional protections, explained Ernie Lewis, executive director of the National Association for Public Defense, a 15,000-member national organization.

“The public defender stands between a person accused of a crime and all the mighty power of the state,” Lewis explained, adding that if a public defender loses his or her independence from the prosecutions’ office then the entire system is rigged against a defendant.

In Lassen County, a rural area home to about 32,000 people east of Redding where Marcus served as public defender from 2005 to 2011, some felt he failed to live up to this awesome responsibility.
Just prior to Marcus’ arrival in Lassen, his predecessor, Toni Healy, filed a legal challenge against Lassen County Superior Court Judge Ridgely Lazard, alleging he was biased and prejudiced against Healy and the public defender’s office. A visiting judge ultimately heard the case and ruled in Healy’s favor, finding “court records, transcripts of recorded arraignments, official transcripts, court minutes, sworn statements of defendants and others, all of which indicate that Judge Lazard actively prevented the public defenders from properly representing clients entitled to representation,” according to an Aug. 23, 2011, story in the Lassen County Times. The decision disqualified Lazard from hearing any cases involving the public defender’s office but, just about a year after taking over Healy’s job, Marcus agreed to let Lazard once again preside over those cases.

Marcus later sparked a controversy by contracting with out-of-state defense investigators, telling the Lassen County Board of Supervisors he did so because the district attorney’s office felt local investigators in Susanville lacked credibility. Local investigators were outraged.

“The public defender seems to have lost sight of the fact that his office’s primary responsibility is to assist public clients and not facilitate the district attorney’s prosecutions,” one local investigator, Ron Wood, told the board of supervisors, according to a 2011 report in the Lassen County Times. “Why should the district attorney be consulted concerning the hiring of the public defender’s investigators? The truth is a less than rigorous public defense investigator benefits the district attorney but doesn’t always serve the public or justice.”

The dissension surrounding Marcus extended beyond his relationship with prosecutors. In its 2010-2011 report, the Lassen County Civil Grand Jury issued a scathing report on Marcus, saying he “appears to only spend an estimated 30 to 40 percent of the day at work.” Further, the grand jury alleged Marcus was not actively engaged in the office’s caseload other than handling felony preliminary hearings. The report also alleged that Marcus used funding allotted by the board of supervisors for continuing education for his office solely on himself, forcing his deputy public defenders to pay out of pocket to attend trainings, seminars and courses to keep them abreast of changes in the law and developments in legal theory.

The Lassen County Times reported that Marcus left the county’s employment to become the CEO of a dental lab company in Virginia. It’s unclear how long he stayed in that job, or what exactly he’s been up to since. The California State Bar website lists his practice’s address as a residence in Jacksonville, Florida. The answering machine there indicates the place is his family home, and makes no mention of a legal practice. Marcus did not return multiple messages left by the Journal in recent days, and we couldn’t find any indications online as to what he’s been up to since leaving Lassen County in 2011, other than settling in Jacksonville.

While Marcus’ resume likely only adds to concerns about the county’s hiring process, many maintain it would have been flawed no matter its outcome.

Robinson, now retired, said he was “somewhat aggravated” to learn a panel consisting of Fleming, Honsal, Damiano and representatives from Child Welfare Services and the county Department of Health and Human Services would be advising supervisors on hiring his replacement. Robinson — who is widely respected both as a defense attorney and for the public defender’s office he built up — said he was not consulted and, instead, actively reached out to the board to give his unsolicited input. He told the Journal back in October that he would recommend Greg Elvine-Kreis, his office’s supervising attorney and the current interim public defender, as his successor. Elvine-Kreis and Deputy Public Defender Kaleb Cockrum reportedly joined Marcus as the three finalists for the job.
Humboldt County Human Resources Director Dan Fulks said he personally put the interview panel together, dubbing it a “subject matter experts” panel. “These are subject matter experts, these are people that have dealings with the public defender on an ongoing basis,” he explained. Asked why there wasn’t anyone from the defense side of the courtroom involved, Fulks said he felt it would have been impractical to get a private defense attorney to take a day off work to sit through interviews.

But the county has done just that in the past. Local attorney Patrik Griego said he has happily served on two hiring panels for the county — one for a defense investigator and another for an office manager for the public defender’s office — including one about two years ago. Griego added that he did decline a panel invite in September of 2016 due to a planned vacation. He was not invited to participate in the public defender hiring process. “Private attorneys are willing to do this and have at least as much time as the DA to do this work,” Griego said.

Fulks said both the “subject matter expert” panel and the Board of Supervisors interviewed a batch of finalists culled down from the initial 19 applicants for the post. Then, Fulks said, the supervisors got a chance to meet with the other interview panel and “seek input on their viewpoints on the candidates.”

He disputed the notion that a panel laden with a prosecutor and law enforcement officers may have skewed the process. “They’re independent,” Fulks said of the supervisors. “You don’t tell the board what to do. They heard what they heard and made their own decisions from that.”

Supervisors Estelle Fennell and Mike Wilson declined to comment for this story when reached prior to Tuesday’s announcement of Marcus’ hire, noting the process was conducted in closed session. In an email, Supervisor Virginia Bass said the board had an “excellent pool” of candidates to choose from and dismissed the notion that there was any bias among members of the advisory panel.
“I believe that all members of the panel recognized how important the position of public defender is and put any adversarial bias aside,” she wrote, adding that after the interviews the panel members “spoke of the pros and cons they felt each candidate possessed based upon their interviews and provided us with a non formal ranking.”

Bass said "passion, integrity, professionalism, flexibility" and "an ability to think outside the box" were the most important qualities she was looking for in the county's next public defender, emphasizing "passion" as the most important.
For his part, Lewis, who directs the National Association for Public Defense, said there’s little uniformity across the nation in how public defense is provided, much less in how public defenders are hired. But he said there are standards — including that a hiring panel should never have a sitting judge or prosecutor included on it. Sometimes that standard is ignored, such was the case when a controversy erupted in San Diego County in 2009 when a sitting assistant district attorney sat on a public defender hiring panel, joined by probation officials, representatives from the superior court, a law professor and others.

But, Lewis said, Humboldt County’s panel being filled with people who “have an incentive to select a weak chief public defender” is “nothing like what we see across the country.”

“I’ve never heard of an advisory committee so skewed toward law enforcement,” Lewis said.

Editor's note: This story was updated from a previous version to include the comments of Patrik Griego.

Journal staff writer and assistant editor Kimberly Wear contributed to this report.

Thadeus Greenson is the Journal’s news editor. Reach him at 442-1400, extension 321, or thad@northcoastjournal.com. Follow him on Twitter @thadeusgreenson.

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