Fiscal Year 2020 Budget Proposals Public Defender (BU 0204)

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2 Proposal Add Justice System Clerks for e-discovry Project Net Position Added: 4.00 FTE On-Going Net Cost: $395,608 One-Time Net Cost: $42,000 Recommended Action Add 4.0 FTE Justice System Clerk I positions to accelerate the expansion of e- discovery exchange with the goal of converting all adult criminal discovery to a paperless exchange. Fiscal Impact FY19-20 ongoing fiscal impact of adding 4.0 FTE Justice System Clerk I positions will have an impact of $395,608 to the General Fund. Department also requesting onetime funding of $42,000 for scanners and to improve the Office's computer equipment and workstations. Space Requests: For the 4 positions we are requesting to add, we do not have adequate space and have attached a Space request to house this new staff. Transportation: For the 4 positions we are requesting to add, we have adequate transportation and have no transportation needs at this time. Service Impact/Background The Office of the Public Defender is requesting the addition of 4.0 FTE Justice System Clerks. The county criminal justice system has been slowly transitioning to an electronic environment for several years. The Public Defender Office (PDO) has been working collaboratively with the District Attorney Office (DAO) to develop and revise a digital exchange system. The goal has been to increase early and efficient transmission of legally mandated material (discovery) between the parties. These efforts will not only transition both offices toward a paperless operation but should reduce case delay, reduce length of stay days in county jail, and increase overall justice by achieving timely case dispositions. Deployment of e-discovery solutions have expanded each of the last three years. Largely the transition has been successful. Furthermore, in 2018 the Superior Court launched its new case management system, relying on paperless case files and requiring electronic filing. As a result of the court requirement for e-filing, the PDO and DAO have accelerated the expansion of e-discovery exchange, with the goal of converting all adult criminal discovery to a paperless exchange in 2019, including in the North and South County operations. In the past, the DAO staff (paralegals) made physical copies of paper discovery, addressed it to the assigned PDO attorney, and had it delivered to individually designated PDO attorney mail boxes. During that same time DAO staff copied early versions of digital media (e.g., digital video and audio records, photographs) to DVDs that were delivered in the same fashion. All this material was delivered and distributed by a lone courier and was stored in a single physical paper file. With the proliferation of smart phones capable of almost limitless digital photos and recordings, as well as body worn cameras constantly recording all law enforcement activity, the volume of discovery has exploded in recent years. All this material is created, stored, and delivered in an electronic format. The electronic discovery that is received must be recorded as received, indexed and electronically attached to it s respective e-file. 02/15/2019 DETAIL REPORT OF DEPARTMENT BUDGET PROPOSALS 1

3 Proposal Add Justice System Clerks for e-discovry Project As a result, the PDO has had to build new infrastructure to manage e-discovery using 2 Office Specialist (OS) staff. The Office Specialists currently assigned to manage e- Discovery do not have the necessary knowledge of the justice system to competently perform these tasks. They are being asked to work with more complex digital files, execute downloads from proprietary cloud-based platforms, edit and redact material digitally, load it into various devices run by different operating system software, and complete quality checks related to uploads into PDO s new case management system. Additionally, the OS classified staff have a high turnover rate, making it an additional challenge to retain competent personnel in this critical position. This work is more appropriately completed by a Justice Systems Clerk (JSC). Finally, as result of constantly shifting business practices related to legislative changes, the Legal Clerk Unit has a significant backlog of cases to officially close. PDO would designate the additional JSC to assist with closing cases in the PDO case management system, and this would in turn alleviate the need for overtime to address the backlog. The primary duties of the JSC s will be to download and lodge e-discovery from DAO s shared digital exchange. The JSC would work with the DAO staff to address requests for missing or outstanding discovery. They would research files and computer data to disseminate e-discovery within the PDO. Also, the JSC would redact and upload e- Discovery to tablets deployed into the jail for use by in-custody clients. Finally, they would assist the Legal Clerk unit with closing case files in the department s case management system. CONSEQUENCES OF NEGATIVE ACTION The department would be unable to keep up with the increased incoming e-discovery. This will impact the quality and promptness of defense services to clients, likely increasing delay and extending case disposition dates. Also, the PDO will have to continue utilizing overtime to close the backlog of case files. The accuracy of department statistics could be impacted, in particular the number of closed cases will be inaccurate. Net Position Added: 1.00 FTE On-Going Net Cost: $299,680 One-Time Net Cost: $5,883 Recommended Action Fiscal Impact Add 1.0 FTE Alternately Staffed Attorney I/II/III/IV position to provide consulting on immigration consequences of criminal convictions. FY19-20 ongoing fiscal impact of adding 1.0 FTE alternately staffed Attorney I/II/III/IV position will have an impact of $299,680 to the General Fund. Department also requesting one-time funding of $5,883 to improve the Office's computer equipment and workstations. 02/15/2019 DETAIL REPORT OF DEPARTMENT BUDGET PROPOSALS 2

4 Service Impact/Background Space Requests: For the 1 position we are requesting to add, we do not have adequate space and have attached a Space request to house this new staff. Transportation: For the 1 position we are requesting to add, we have adequate transportation and have no transportation needs at this time. PDO is requesting an additional full-time immigration attorney. The current PDO Immigration Attorney s core duties consist of researching and consulting on immigration consequences of criminal convictions with assigned attorneys and clients, writing letters to the D.A. s Office in support of requests for plea offers that either have less severe or no immigration consequences, and seeking appropriate post-conviction relief to alleviate immigration consequences for current, former, and income-eligible PDO clients. This role has evolved to include more duties as the needs have become apparent. During the course of criminal representation, the Immigration Attorney also takes referrals from the assigned defense attorney to assist the client in any pending immigration petitions or cases that the client may simultaneously be facing without counsel. When a client has a pending immigration matter at the same time that she is facing a criminal charge, it is not only imperative that she have immigration counsel, but also that counsel be experienced in crimmigration law in order to thoroughly respond to USCIS or ICE allegations, in person interviews, and requests for evidence. This also ensures that there is counsel to advocate so that the client receives the benefit of the immigration-safe disposition that defense counsel endeavors to obtain. In addition to handling individual immigration and post-conviction relief cases, the Immigration Attorney fields daily inquiries from non- profit immigration service providers, immigration consultants with mutual clients, other public defender offices representing former clients, law school immigration clinics, ADO & IDO attorneys, and occasionally local private defense attorneys. The Immigration Attorney also conducts trainings for all new PDO attorneys and paralegals and keeps the office apprised of developments in immigration law and ICE enforcement. The Immigration Attorney is the liaison with all SCC agencies and local NGOs and attends county task forces and meetings related to immigration topics on behalf of the Public Defender s Office. The Immigration Attorney also participates in law school guest lectures and community outreach events. The Immigration specialist also participates in monthly state-wide calls with the ILRC and public defender representatives to discuss legislation, enforcement, and criminal court issues and challenges. The following is a sample of immigration cases that the PDO has been taking on: USCIS, CBP, U.S. Consulates, Executive Office for Immigration Review cases: - FOIA requests to investigate immigration case history before embarking on postconviction and immigration relief - Petitions to remove conditions of conditional permanent residence - Naturalization cases after having obtained vacaturs of convictions that previously made the lawful permanent resident deportable (including filing petition, supporting memorandum and documents, and attending naturalization interview with client) - Special Immigration Juvenile Status petitions for delinquency clients 02/15/2019 DETAIL REPORT OF DEPARTMENT BUDGET PROPOSALS 3

5 - DACA renewal petitions - Motions to reopen removal case and terminate removal order in order to regain permanent residence and no longer be under fear of execution of order of deportation after having obtained vacatur of criminal case that was grounds for removal order - U.S. Consulate Visa Processing Advocacy with InfoNet Briefing (India and Mexico) - Political Asylum Adjustment of Status Applications - Travel letters with certified copies of record of conviction for non-citizens for whom we have obtained immigration safe pleas or for people with pending criminal cases who need to depart the U.S. for visa renewal. Superior Court: - Post-conviction motions to vacate judgment in order to make client admissible or eliminate ground of deportability so that client can either terminate removal proceedings, immigrate through adjustment of status or consular processing, renew green card, or naturalize. - Advocate with D.A. s office to clear warrants and resolve pending cases in absentia for clients stuck outside of the Country during consular processing at U.S. consulates or for people trying to obtain bond to get released from ICE custody. Sixth District Court of Appeal: - Appointed on remand after appeal of denial of Penal Code section motion to vacate judgment Board of Immigration Appeals: - Appeal of Denial of TPS (Temporary Protected Status) renewal (after having obtained TPS safe plea) - Appeal of Denial of U Visa Adjustment of Status (After having obtained plea that kept client admissible) - Motion to Reopen Removal Proceeding based on new evidence of post-conviction relief A second FTE Immigration Attorney is needed in order to address the growth in the types of cases listed above and for the following needs that have now outnumbered the capacity of one attorney: 02/15/2019 DETAIL REPORT OF DEPARTMENT BUDGET PROPOSALS 4

6 Under the Trump administration ICE enforcement against anyone with solely a criminal arrest has ramped up. ICE has announced an intent to target so-called Sanctuary jurisdictions for enforcement actions, including threats to arrest defendants and their collateral family members, if encountered, in and around the courthouse. Clients are also being arrested at home after criminal arrests. People with prior removal orders, even those who have been released from ICE custody on orders of supervision, are being targeted above all others. This has created fear in the immigrant community. For example, the PDO is working with Vietnamese American community groups with requests for assistance in vacating convictions that were the subject of removal orders and subsequent releases on Orders of Supervision. These community members previously were lead to believe that they would not actually be deported. Thus, many did not fight their removal cases and had less concern about trying to secure safer plea bargains in their underlying criminal cases. Now that all previous agreements regarding this population are in limbo, we are hoping to build an effort to help people with prior removal orders to vacate convictions and reopen removal cases before ICE takes action against them. At a minimum, we want to start the process so that if people are detained, the investigation will already be under way. Preparing this type of case requires extensive litigation in both criminal and immigration court. It will also require community outreach, support and coalition building. Meetings with the District Attorney s Office have been fruitful in creating a possible opening for informal resolution of some of these cases. We expect that this effort will uncover many other cases where people with Santa Clara County criminal histories are facing immigration consequences related to those records. We hope to augment the kinds of immigration cases that the Immigration Attorney is already handling on a case-by-case basis as the program evolves. The Public Defender s Office is uniquely qualified to provide this kind of seamless crimmigration representation. The chart below illustrates the need for an additional Immigration Attorney. The PDO represents between 35,000 and 40,000 cases per year, about double the number handled by Contra Costa County, and about the same as Alameda County. Alameda has 5 full time immigration attorneys, while Contra Costa has 1, but half the number of cases as Santa Clara. The Contra Costa PDO Immigration Attorney does not provide post-conviction relief and does not provide immigration representation. Sonoma County PDO represents about 14,000 cases per year and has one full time immigration attorney who does not provide post-conviction relief or immigration representation. See referenced chart in attachment. 02/15/2019 DETAIL REPORT OF DEPARTMENT BUDGET PROPOSALS 5

7 Attachment as part of Service Impact/Background