Only S.F. Elects Its Public Defender. Should That Change?

The unexpected death of San Francisco Public Defender Jeff Adachi in February focused attention on a unique aspect of his office: Among the 58 counties in California, only San Francisco's public defender is elected. The rest are appointed.

The question is: What difference, if any, does it make whether a public defender is elected or not?

At Adachi's memorial service at City Hall, San Francisco Mayor London Breed remembered how hard the 59-year-old public defender advocated for more fairness in the criminal justice system.

"Jeff led the way on so many progressive policy reforms, from reducing recidivism, ending cash bail to standing up for undocumented and unrepresented children," Breed said.

All those things — advocating for policy reform, lobbying for more city funding, strongly challenging police misconduct, even running for mayor — are not things most public defenders do.

Years before Adachi died, he told KQED that being independently elected gave him the freedom to do things appointed public defenders can't.

"I think it puts public defenders at a disadvantage when you're at-will and you have to answer to the Board of Supervisors rather than the electorate," Adachi said.

San Francisco attorney Alicia Gamez thinks all public defenders in California should have that kind of independence to give clients the robust legal defense the U.S. Constitution guarantees. So she is promoting the idea that public defenders in every county should be elected, just as district attorneys are now.

"If you are an appointed public defender and you lobby too hard for the interests of your department or your client, you might not get picked again," Gamez said.

The way Gamez sees it, appointed public defenders may be reluctant to push too hard, criticize the police or even hold them accountable for illegal tactics as Adachi did.

The notion that appointed public defenders don't fight as hard for their clients as an elected public defender rankles Robin Lipetzky, Contra Costa County's public defender and president of the California Public Defenders Association.

"There is a certain tension there because I'm an at-will employee," Lipetzky said. "If I piss them off it could be a problem. But I have pissed them off royally — publicly, privately and every which way. I don’t feel very constrained. But there is a different fallout when you speak publicly in an appointed position versus an elected official."

But would electing public defenders work in all 58 counties?

"Twenty-five out of those 58 counties voted for Trump," said Brendon Woods, the appointed public defender in Alameda County.

Like his friend Adachi, Woods is a big advocate for criminal justice reform. But he worries about the kinds of candidates who would get elected in more conservative counties.

"A public defender who's going to push back hard against law enforcement, who's going to take certain views that may be uncomfortable for them — will they accept that? Will they want that?" he asked. "And I think in a lot of those counties the answer is no."

As an example of how elections can bring unintended results, Woods cites Florida, one of the few states where public defenders are elected.

"A public defender there ran a campaign saying his attorneys will not accuse police officers of lying. He ran that campaign and he won — because he got the endorsement of the police unions," Woods said.

To say Adachi was unpopular with San Francisco law enforcement is a huge understatement. He fought them whenever he could, including a decade ago when he released video footage showing undercover San Francisco police officers barging into a residential hotel room.

The cops were eventually accused of stealing drugs and money from drug dealers. Adachi's attention to the issue helped launch an FBI investigation, leading to the conviction of four officers. Needless to say, it did not endear him to the SFPD.

And public defenders sometimes represent clients who don't generate public sympathy. Take Jose Ines Garcia Zarate, the undocumented immigrant who fired a gun that shot and killed Kathryn Steinle as she walked with her father along a San Francisco pier four years ago. The jury found him not guilty of murder in the first or second degree.

Convincing a jury that Garcia Zarate shot Steinle by accident may have shocked many casual observers. But Sacramento County District Attorney Anne Marie Schubert says most DAs understand that's the public defender's job. As for whether they should be appointed, or elected like Schubert is?

"I'm never going to call myself a politician. I'm always a prosecutor," Schubert said. "But the reality is, and the part we don't like — and I'm sure the public defenders wouldn't like if they were elected — is we all have to raise money. And that's not why we all went to law school."

Even if legislation requiring public defenders to be elected is introduced in Sacramento, it would surely face strong opposition from police, district attorneys and crime victims advocates.