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

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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.

We then reached out to the Contra Costa Bar Association with the hope someone there could tell us more about Cella Lange and Cella. The association’s communications coordinator, Carole Lucido, got back to us to say the firm isn’t a member of the association. Further, she said she checked with the association’s executive director and she’d never heard of the firm.

It’s also worth noting that Marcus doesn’t list the firm in his California State Bar profile. While it’s customary for lawyers to provide the bar with their firms’ addresses and phone numbers, Marcus’ listing includes his home address in Jacksonville, Florida, and his home phone number, which connects to an answering machine indicating callers have reached the “Marcus family.” Numerous Journal messages left there went unreturned.

Meanwhile, members of the local defense bar have voiced displeasure with the hire to the Humboldt County Board of Supervisors. At the board’s Feb. 14 meeting, a handful of local defense attorneys told the board its hiring process was deeply flawed and urged the supervisors to back away from Marcus’ hire and start fresh with a new — more balanced —process.

They seem unlikely to get their wish.

The biggest issue for the local defense bar seems to be that Humboldt County Human Resources Director Dan Fulks put together a “subject matter expert” panel to interview candidates and provide input to the board. The panel included District Attorney Maggie Fleming, Undersheriff William Honsal, Probation Chief Bill Damiano and a representative from the Department of Health and Human Services but not a single defense attorney.
“What should be done when it’s time to hire a new public defender?” Greg Rael, a local defense attorney with four decades of experience, asked the board on Feb. 14. “Well, I think the last thing you want to do is ask the people who are the adversaries of the public defender to make a recommendation to you. Unfortunately, that’s exactly what happened here. The district attorney was asked for her recommendation. The probation department was asked for their recommendation. The sheriff’s office was asked for their recommendation. I think this was exactly the wrong way to go about it.”

Zachary Curtis, a former local prosecutor and Madera County deputy public defender who currently works with the firm Rain and Zepp, said he was baffled by the process.

“I don’t know how someone comes to the conclusion that having a panel essentially of law enforcement pick their adversary is a good idea,” Curtis said. “The appearance, at the very least, is terrible in my mind.”

While four-fifths of the board has remained silent on the hire, Supervisor Estelle Fennell has spoken up to back Marcus and the county’s process, first after public comment at the Feb. 14 meeting and then in response to a Journal email. At the meeting, Fennell said the hiring decision — like all department head hiring decisions — was the board’s and the board’s alone. She urged local attorneys to respect that and give Marcus a chance to prove his worth.
On Feb. 17, the Journal sent emails to all five county supervisors asking them to explain why they felt Marcus was the best person for the job and to respond to those critical of his hire and the process that led to it. Fennell was the only to respond.

“Mr. Marcus is well qualified both professionally and by extensive experience,” Fennell wrote. “I believe he will be able to hit the ground running and lead the office of the public defender in a positive and productive direction in order to ensure that attorneys and staff work well together and their clients receive the best possible service.”

As to the process, Fennell said the board had no input into the makeup of the advisory panel and stressed that the panel simply provided input but did not deliberate with the board. She said the board also conferred with recently retired Public Defender Kevin Robinson, though he maintained in an interview with the Journal that this only happened after he took it upon himself to approach the board after he became concerned with what he’d heard of the process.

A number of the attorneys who addressed the board Feb. 14 made mention of Marcus’ seven-year tenure heading Lassen County’s public defender’s office, a tenure that included allegations that he was too cozy with the district attorney and a scathing grand jury report alleging he only spent 30 to 40 percent of the day at work. (Read our previous coverage of this here.)
According to county spokesman Sean Quincey, department head hiring processes typically include the hiring of a private investigator who is tasked with researching a candidate’s professional history, verifying information volunteered during interviews and performing a criminal background check. “Those steps were taken in this case,” Quincey said.

It appears at least one additional step was also taken in this case. Fleming confirmed that one of her investigators — Chief Investigator Wayne Cox — was asked to participate. Asked about the extent of Cox’s involvement, Fleming emailed the Journal a statement from the investigator.

According to the statement, Cox was in the courthouse’s basement parking garage when he ran into First District Supervisor Rex Bohn, who asked if he’d ever heard of Marcus. Cox replied that he had not but perhaps knew some people in Lassen County who knew Marcus from his tenure there.

“Supervisor Bohn requested that if I was able to obtain any feedback about Mr. Marcus to please let him know,” Cox says in the statement. “Several days later, I had occasion to speak with a colleague in Lassen County. During the conversation, I asked if he knew of Mr. Marcus. He replied that he knew of him, but on a very limited basis. He provided no negative (or positive) information about Mr. Marcus, a fact I later relayed to Supervisor Bohn.”

In a follow up email, Fleming said the colleague with whom Cox spoke is a law enforcement officer.
Fleming also took issue with the notion that an ethical prosecutor would want a weak counterpart in the public defender’s office.

“This suggestion literally makes no sense to ethical prosecutors, because our duty is to serve the public and achieve justice,” Fleming wrote. “Justice requires, and defendants deserve, an effective defense in every case.”

Further, Fleming wrote that weak defense attorneys make a prosecutor’s job harder, “slowing down the criminal justice process through poor communication, failure to meet deadlines and avoiding trials,” while also increasing exposure to time-consuming and unnecessary appeals.

Fleming also stressed that her involvement in the hiring process was limited to sitting on the panel, asking questions prepared by the county and then providing “comments” to the board.

David Nims, a former local prosecutor who now works for Janssen and Malloy, addressed the board Feb. 14 and said he doesn’t understand why the supervisors bypassed qualified local candidates to hire Marcus. He said he even called Bohn — his supervisor — in an effort to understand.

“In my phone conversation with Rex, he seemed to concede, ‘If we had it to do over again, maybe we would have made sure that advisory panel looked a little different,’” Nims recalled, adding that Bohn volunteered that having such a law enforcement heavy panel was akin to letting a batter pick his or her pitcher in baseball.

Bohn did not respond to the Journal’s email seeking comment, but Nims indicated the supervisor said he also called two Lassen County supervisors and a retired judge to further vet Marcus. He said all had great things to say about the man.

Nims said he asked Bohn whether the judge was Ridgely Lazard — a judge who had been found to be biased against the public defender’s office and was barred from hearing cases involving the office until Marcus became the county’s public defender in 2005 and agreed to let the judge return to the bench for cases involving his office. Bohn, Nims said, told him he wasn’t sure.


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Thadeus Greenson

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Thadeus Greenson is the news editor of the North Coast Journal.

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