Farrow et al v. Lipetzky

Filing 145

ORDER by Chief Magistrate Judge Joseph C. Spero granting in part and denying in part 126 Motion to Exclude Expert Testimony; denying 125 Plaintiffs' Motion for Summary Judgment; and granting 128 Defendant's Motion for Summary Judgment. (jcslc2S, COURT STAFF) (Filed on 1/2/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN FARROW, et al.,
Plaintiffs,

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v.

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CONTRA COSTA COUNTY,
Defendant.

United States District Court
Northern District of California

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I.

Case No. 12-cv-06495-JCS
ORDER ON CROSS MOTIONS FOR
SUMMARY JUDGMENT AND MOTION
TO EXCLUDE EXPERT TESTIMONY
Re: Dkt. Nos. 125, 126, 128

INTRODUCTION
Plaintiffs John Farrow and Jerome Wade brought this putative class action asserting a

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number of claims based on the alleged failure of Defendant Contra Costa County (the “County”)

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to provide appointed counsel at Plaintiffs’ first court appearances, or within a reasonable time

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thereafter, in criminal proceedings in state court. After multiple motions to dismiss, an appeal to

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the Ninth Circuit, and remand to this Court, Plaintiffs’ remaining claims are for failure to provide

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counsel as required by the Sixth Amendment within a reasonable time after the right attached, and

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for a writ of mandamus to enforce Contra Costa Public Defender Robin Lipetzky’s obligations

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under section 27706 of the California Government Code. In accordance with the case schedule set

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by the Court, the parties now bring cross motions for summary judgment on Plaintiffs’ individual

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claims before the question of class certification has been addressed, and the County moves to

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exclude the opinions of Plaintiffs’ expert witness. The Court held a hearing on January 19, 2018.

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For the reasons discussed below, the County’s motion to exclude expert testimony is GRANTED

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IN PART, Plaintiffs’ motion for summary judgment is DENIED, the County’s motion for

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summary judgment is GRANTED as to Plaintiffs’ Sixth Amendment claim, and Plaintiffs’ state

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law claim is DISMISSED for lack of jurisdiction.1

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II.

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BACKGROUND
A.

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Procedural History and Allegations
1. May 2013 Order

Plaintiffs’ original complaint included six claims against Robin Lipetzky, the Contra Costa

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County Public Defender: (1) violation of Plaintiffs’ right to counsel under the Sixth Amendment;

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(2) violation of Plaintiffs’ right to a speedy trial under substantive due process protections of the

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Fourteenth Amendment; (3) violation of Plaintiffs’ right to a speedy trial under procedural due

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process protections of the Fourteenth Amendment; (4) violation of Plaintiffs’ procedural due

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process rights under the Fourteenth Amendment with respect to the timing of Plaintiffs’ bail

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United States District Court
Northern District of California

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hearings; (5) violation of California Civil Code sections 52 and 52.1; and (6) a claim for a writ of

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mandate to enforce California Government Code section 27706. See Order Granting Def.’s Mot.

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to Dismiss Compl. (“May 2013 Order,” dkt. 47) at 5–6.2
The Court held that Plaintiffs’ right to counsel attached at their first court appearances, but

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that neither that appearance nor the waiting period before the second appearance was a “critical

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stage” at which counsel was required. Id. at 14–20. The Court also held that the delay in

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appointing counsel between the time of attachment and the second appearance—which, unlike the

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first, was a critical stage—did not violate the Supreme Court’s instruction that counsel must be

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provided within a reasonable time after attachment, because the delay was shorter than in other

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district court cases that found no violation, and because Plaintiffs did not adequately allege that

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they were prejudiced by the delay. Id. at 20–22 (citing Rothgery v. Gillespie County, 554 U.S. 191

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(2008)). The Court therefore dismissed Plaintiffs’ Sixth Amendment claim with leave to amend.

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Id. The Court also dismissed Plaintiffs’ other federal claims with leave to amend, for reasons that

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are not relevant to the present motion because Plaintiffs did not renew those claims. Id. at 23–31.

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The parties have consented to the jurisdiction of the undersigned magistrate judge for all
purposes pursuant to 28 U.S.C. § 636(c).
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Farrow v. Lipetzky, No. 12-cv-06495-JCS, 2013 WL 1915700 (N.D. Cal. May 8, 2013).
Citations herein to this Court’s previous orders refer to page numbers of the versions filed in the
Court’s ECF docket.
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With no federal claims remaining, the Court declined to exercise supplemental jurisdiction over

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Plaintiffs’ state law claims. Id. at 31–32.

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2. August 2013 Order
After the Court dismissed the initial complaint, Plaintiffs amended their complaint twice,

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and Lipetzky moved to dismiss the second amended complaint. See generally Order Granting

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Def.’s Mot. to Dismiss 2d Am. Compl. (dkt. 69).3 The Court granted that motion and dismissed

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all claims, although it allowed Wade leave to amend his Sixth Amendment claim. Id. at 1–2.
With respect to the Sixth Amendment claim, the Court reaffirmed its previous holdings

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that neither the first appearance nor the waiting period before the second appearance was a critical
stage at which Plaintiffs were entitled to counsel, but the second appearance was a critical stage.

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United States District Court
Northern District of California

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Id. at 22–26 (citing Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054 (9th Cir. 2013),

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subsequently superseded sub nom. Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014) (en

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banc)4). Turning to the question of whether the challenged policy failed to provide counsel within

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a reasonable time after attachment of the right, the Court held that although Plaintiffs added

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allegations regarding the effect of the delay, the allegations did not sufficiently identify any actual

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prejudice that Plaintiffs suffered as a result. Id. at 26–27. Because Plaintiffs came closer to

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plausibly alleging prejudice to Wade than to Farrow, the Court dismissed Wade’s Sixth

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Amendment claim with leave to further amend but dismissed Farrow’s claim with prejudice.
The Court dismissed Plaintiffs’ remaining federal claims with prejudice, for reasons that

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are not relevant to the present motion, and again declined to exercise supplemental jurisdiction

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over Plaintiffs’ state law claims. Id. at 28–35. Wade declined to further amend his Sixth

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Amendment claim, and Plaintiffs instead appealed to the Ninth Circuit.

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Farrow v. Lipetzky, No. 12-cv-06495-JCS, 2013 WL 4042276 (N.D. Cal. Aug. 7, 2013), rev’d in
part, 637 F. App’x 986 (9th Cir. 2016).
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The initial Ninth Circuit panel to hear Lopez-Valenzuela affirmed the district court’s grant of
summary judgment for the defendants on claims under multiple constitutional theories. See
generally Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054. This Court’s August 2013
order relied on that panel’s Sixth Amendment holding. Later, an en banc panel reached a different
outcome, reversing the holding as to substantive due process and finding the Arizona laws at issue
facially invalid on that basis, but declined to address the plaintiffs’ Sixth Amendment claims. See
Lopez-Valenzuela v. Arpaio, 770 F.3d at 791–92.
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3. Ninth Circuit Decision and Denial of Certiorari

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The Ninth Circuit affirmed this Court’s dismissal of Plaintiffs’ due process and equal

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protection claims. Farrow v. Lipetzky, 637 F. App’x 986, 987−88 (9th Cir.) (dkt. 81), cert.

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denied, 137 S. Ct. 82 (2016). As for Plaintiffs’ Sixth Amendment claims, the panel affirmed this

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Court’s conclusion that, on the facts alleged, Plaintiffs’ first court appearance was not a critical

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stage that required the presence of counsel. Id. at 988. The panel held that this Court erred,

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however, in its analysis of whether counsel was appointed within a reasonable time after

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attachment of the right, and remanded for consideration of that issue under the correct legal

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standard:

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United States District Court
Northern District of California

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The remaining question is whether Lipetzky appointed counsel
within a “reasonable time after attachment to allow for adequate
representation at any critical stage before trial, as well as at trial
itself.” Rothgery, 554 U.S. at 212. In other words, how soon after
the Sixth Amendment right attaches must counsel be appointed, and
at what point does delay become constitutionally significant?
Instead of addressing whether the delay in appointing counsel was
unreasonable, the district court considered only whether the delay
“impacted [plaintiff’s] representation at subsequent critical stages of
his proceedings.” By framing the question in that way, the district
court erroneously required the plaintiffs to allege actual prejudice.
See United States v. Wade, 388 U.S. 218, 225, 236–37 (1967)
(finding a Sixth Amendment violation based on the “grave potential
for prejudice”); Hamilton v. Alabama, 368 U.S. 52, 54 (1961)
(finding a Sixth Amendment violation where the absence of counsel
“may affect the whole trial”). We therefore remand for the district
court to consider whether appointing counsel five to thirteen days
and “sometimes longer” after the right attaches complies with the
“reasonable time” requirement articulated in Rothgery.

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Id. at 988–89 (alteration in original). The panel also directed this Court to reconsider whether

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supplemental jurisdiction over Plaintiffs’ state law claims is appropriate in light of the Court’s

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reconsideration of the Sixth Amendment claim. Id. at 989. The Supreme Court denied Plaintiffs’

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petition for certiorari on October 3, 2016. See dkt. 102.

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4. Third Amended Complaint and Facts Subject to Judicial Notice
Following remand to this Court, Plaintiffs filed their operative third amended complaint,

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alleging that Lipetzky implemented a written policy that “arbitrarily withheld legal representation

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to indigent, in-custody criminal defendants for a period of 5 to 13 days after their initial Court

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appearance.” 3d Am. Compl. (“TAC,” dkt. 91) ¶ 1. Under that policy, Plaintiffs alleged that a
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defendant would not receive counsel at the defendant’s first court appearance, but if a defendant

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requested counsel at that appearance and could not afford to pay, the court would set bail, refer the

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defendant to the public defender, and continue the case for a “further arraignment” several days

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later. See id. ¶¶ 1–2, 4, 21, 27, 36.

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Plaintiffs alleged that Farrow was arrested on August 30, 2011, based on allegations that

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he had assaulted his domestic partner. Id. ¶¶ 25, 31. He first appeared in court on September 2,

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2011, at which time the judge asked if he could afford counsel and would like the court to appoint

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counsel. Id. ¶¶ 26–27. Farrow replied that he could not afford counsel and would like appointed

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counsel, and the judge “set bail, ‘referred the matter to the Public Defender,’ and continued the
matter to September 15, 2011 for ‘further arraignment.’” Id. ¶ 27. The judge also asked the

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United States District Court
Northern District of California

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probation department to prepare a bail study, which according to Plaintiffs was prepared during

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the period between the two court appearances and included only information unfavorable to

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Farrow because, without counsel, there was no way for him to provide mitigating information

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such as his ties to the community or employment status. Id. ¶ 28. The judge did not advise

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Farrow of his right to enter a plea at the first appearance, and Farrow remained in jail for the next

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thirteen days. Id. ¶ 27.

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Plaintiffs alleged that Farrow was appointed counsel and entered a plea at his second

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appearance on September 15, 2011, which was sixteen days after his arrest and thirteen days after

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his first appearance. Id. ¶ 29. According to Plaintiffs, the delay in Farrow obtaining counsel

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“might have” contributed to his investigator’s failure to locate witnesses whose testimony could

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have implicated the credibility of the complaining witness (Farrow’s domestic partner) and thus

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“would have had an enormous impact on plea negotiations and may have resulted in acquittal had

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the matter gone to trial.” Id. ¶ 31. Farrow pled guilty to one count against him on December 1,

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2011. Def.’s Req. for Judicial Notice (“RJN,” dkt. 94) Ex. A.

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Plaintiffs alleged that Wade, then seventeen years old, was arrested at his high school on
November 8, 2011 for his alleged involvement in a convenience store robbery. TAC ¶¶ 32, 43.

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Wade first appeared without counsel on November 14, 2011. Id. ¶ 33.5 A county prosecutor also

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appeared in court that day, which Plaintiffs alleged made the appearance “an adversarial

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encounter.” Id. ¶ 35. The judge set bail and asked Wade whether he could afford counsel and

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whether he would like counsel appointed. Id. ¶ 36. Wade responded that he could not afford

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counsel and would like appointed counsel, and the judge “‘referred the matter to the Public

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Defender,’ and continued the matter to November 21 for ‘further arraignment.’” Id. Plaintiffs

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alleged that the judge did not advise Wade of “his right to enter a plea, his right to bail, his right to

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prompt arraignment or his right to a speedy preliminary hearing and trial.” Id. As in the case of

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Farrow, the judge also referred the matter to the probation department for a bail study, which,

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according to Plaintiffs, did not include information favorable to Wade because he did not have

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United States District Court
Northern District of California

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counsel. Id. ¶ 37. Wade remained in jail for seven days. Id. ¶ 36.

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According to Plaintiffs’ allegations, the police and district attorney continued their

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investigation of Wade’s case during the period between his first and second court appearances. Id.

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¶ 39. On November 18, 2011, the district attorney filed an amended complaint adding new

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charges and significantly increasing Wade’s exposure. Id. ¶ 40. Plaintiffs alleged that the district

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attorney was able to do so without leave of the court because Wade had not yet entered a plea. Id.
Wade was appointed counsel at his second court appearance on November 21, 2011. Id.

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¶ 41. Later, his investigator interviewed his high school principal, who had been present when the

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police interrogated Wade. Id. ¶ 42. Plaintiffs alleged that the principal could not remember when

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Wade was given Miranda warnings or whether he had been wearing a sweatshirt that connected

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him to the robbery, and that she “likely” would have remembered what Wade was wearing if she

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had been interviewed sooner. Id. ¶¶ 42, 43. Plaintiffs also suggested (but did not specifically

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allege) that the principal’s memory of the Miranda warnings would have been clearer during an

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earlier interview. See id. Wade pled guilty to three counts on December 6, 2012. RJN Ex. B.
The Third Amended Complaint included three claims: (1) a claim under 42 U.S.C. § 1983

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for violation of Plaintiffs’ Sixth Amendment right to counsel, TAC ¶¶ 56−58; (2) a claim under

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Plaintiffs alleged that Wade was held illegally for four days before his first appearance, but did
not bring a claim based on that pre-appearance detention. See TAC ¶ 34.
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the Bane Act, sections 52 and 52.1 of the California Civil Code, for violation of Plaintiffs’ civil

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rights, TAC ¶¶ 59−60; and (3) and a claim under sections 1085 and 1086 of the California Code of

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Civil Procedure for a writ of mandate to enforce section 27706 of the California Government

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Code, which requires public defenders to represent criminal defendants “at all stages of the

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proceedings,” TAC ¶¶ 61−63. Plaintiffs characterized their claims as “a facial challenge to the

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constitutionality of Defendant’s written policy of arbitrarily withholding counsel for an

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unreasonable period of time” on behalf of all persons who “were subjected to the deprivation of

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counsel at their first court appearance and were forced to continue their cases for 5 days or more

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for appointment of counsel, pursuant to the Public Defender’s written Policy,” from December 21,

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2010 through the resolution of this action. Id. ¶¶ 45−48.

United States District Court
Northern District of California

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5. April 2017 Order and Substitution of Defendant

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Lipetzky again moved to dismiss, and the Court granted that motion in part. Addressing an

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argument that Lipetzky raised for the first time after remand from the Ninth Circuit, the Court held

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that Heck v. Humphrey, 512 U.S. 477 (1994), did not bar Plaintiffs’ Sixth Amendment claim in its

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entirety because a Sixth Amendment violation for failure to appoint counsel within a reasonable

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time after attachment (as discussed in Rothgery) “would not necessarily imply the invalidity of

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Plaintiffs’ convictions in state court.” Order Regarding Mot. to Dismiss 3d Am. Compl. (“Apr.

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2017 Order,” dkt. 107) at 25.6 The Court rejected Lipetzky’s argument that Plaintiffs’ claim for

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unreasonably delayed appointment of counsel must be evaluated under the ineffective assistance

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standards set forth in either Strickland v. Washington, 466 U.S. 668 (1984), or United States v.

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Cronic, 466 U.S. 648 (1984), both of which would require per se reversal of Plaintiffs’ convictions

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and would therefore be barred by Heck, because the Court determined that those cases’ focus on

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prejudice was inconsistent with the Ninth Circuit’s instructions that Plaintiffs need not show

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prejudice here. Apr. 2017 Order at 16–17, 24–25 (“The Court is not persuaded by Lipetzky’s

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argument that the Ninth Circuit has asked this Court to analyze Plaintiffs’ claims in ‘the

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Strickland/Cronic framework.’” (quoting Lipetzky’s reply brief)). The Court held that Heck did,

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Farrow v. Lipetzky, No. 12-cv-06495-JCS, 2017 WL 1540637 (N.D. Cal. Apr. 28, 2017).
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however, bar Plaintiffs’ Sixth Amendment claim to the extent that it was based on a theory that

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they were denied counsel at a “critical stage” of a criminal prosecution, because such a

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deprivation—at least for the particular stage at issue—would be grounds for per se reversal of

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Plaintiffs’ convictions. Id. at 22–23. The Court also held that even with respect to the

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unreasonable delay claim, Heck dictates that Plaintiffs’ “‘compensable injury . . . does not

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encompass the “injury” of being convicted [or] imprisoned.’” Id. at 27–28 (quoting Heck, 512

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U.S. at 487 n.7) (alterations in original).

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Having held that Plaintiffs’ claim for delayed appointment of counsel survived Heck, the
Court turned to what standards should apply to evaluate that claim, and whether Plaintiffs’
complaint plausibly stated such a claim. Id. at 25–27. With the exception of one Middle District

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United States District Court
Northern District of California

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of Louisiana case that required a showing of prejudice inconsistent with the Ninth Circuit’s

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holding on appeal here, the Court found no authority articulating such a standard. Id. at 26. The

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Court therefore held “for the purpose of the [motion to dismiss] that the reasonableness of a delay

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in appointing counsel after attachment depends on the totality of the circumstances, including the

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time needed to prepare for an upcoming critical stage—but not limited to that factor.” Id. at 27.

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The Court held Plaintiffs’ allegations sufficient to state such a claim, which “does not lend itself to

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resolution on the pleadings.” Id.

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Because at least one aspect of Plaintiffs’ federal Sixth Amendment claim survived the

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motion to dismiss, the Court had supplemental jurisdiction over the state law claims, and

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examined those as well. Id. at 28–32. The Court dismissed Plaintiffs’ Bane Act claim with

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prejudice for failure to establish that Plaintiffs had a right to enter pleas at their first court

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appearances, and for failure to allege coercion. Id. at 28–30. The Court allowed Plaintiffs’ claim

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under Government Code section 27706 to go forward, noting that the public defender’s obligation

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to represent indigent defendants at “all stages of the proceedings” is broader than the “critical

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stages” at which counsel is required under the Sixth Amendment, and that the obligation is

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triggered not only by appointment by the court, but also by a defendant’s request for

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representation. Id. at 30–31. The Court did “not decide at [that] time whether section 27706

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requires a public defender standing by at a defendant’s first court appearance to provide
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representation immediately if requested, or whether the statute implicitly allows the public

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defender a reasonable period of time to begin representation after request by an indigent defendant

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or appointment by the court.” Id. at 31–32.
After the Court issued its decision on the motion to dismiss the third amended complaint,

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the parties stipulated to substitute the County for Lipetzky as the defendant in this action. See

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Stip. (dkt. 115); Order on Stip. (dkt. 116).

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B.

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Evidentiary Record
1. 1984 Letter

In a letter dated August 27, 1984, David Coleman, then the supervising attorney of the

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Richmond branch of the County’s Public Defender’s Office, wrote to a judge of the Bay

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United States District Court
Northern District of California

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Municipal Court in Richmond, California “to clarify and memorialize our understanding of how

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the client referral process will operate between the arraignment department of your court and our

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office.” Martin Decl. (dkt. 125-1) Ex. 1 at 008.7 The letter stated that when an in-custody

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defendant requested referral to the Public Defender’s Office, a courtroom clerk would provide a

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referral form and copy of the complaint to the Public Defender’s Office no later than 5:00 PM the

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same day. Id. at 010. An attorney would at some point thereafter interview the defendant at the

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County’s detention facility in Martinez, California, and would be prepared to appear with the

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defendant and enter a plea “on the afternoon of the third court day following the date of the

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referral.” Id. The letter acknowledged that the probation department might require more than

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three days for a bail study, and that the arraignment might therefore take place more than three

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days after the defendant requested referral, but the letter stated that an attorney from the Public

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Defender’s Office “will appear on any date such a coordinated appearance for a plea and bail

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study be scheduled, as long as it is no sooner than three court days away.” Id. The letter went on

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Several of Plaintiffs’ exhibits include witness depositions and related documents as a single
exhibit, with the documents, or portions thereof, inserted throughout the transcript. This order
cites to non-transcript documents using Plaintiffs’ three-digit Bates numbers. Citations to
deposition testimony are identified as such and use the Bates numbers as well as the page and line
numbers from the deposition transcripts, with a comma separating Bates citations from transcript
pagination. In some exhibits, excerpts of documents and deposition transcripts are not presented
in order. Plaintiffs are discouraged from using this format of consolidated, out-of-order exhibits in
future filings.
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to state that the same schedule would apply in multiple defendant cases where one or more

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attorneys would be appointed from the Bar Association Conflicts Panel, and that in those cases the

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Public Defender’s Office would provide “provisional” notice of a conflict to the panel by noon of

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the court day following referral, although a final determination of financial eligibility would

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usually not be completed at the time of provisional notice. Id. at 010–11.

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Robin Lipetzky, the current public defender, testified that she had no independent

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knowledge of the 1984 letter and that it appeared to refer only to proceedings in the Richmond

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courthouse. Martin Decl. Ex. 1 (Lipetzky Dep.) at 007, 20:16–25.

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2. More Recent Practices of the Public Defender’s Office and Other Testimony
of Robin Lipetzky

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United States District Court
Northern District of California

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Lipetzky testified regarding the Public Defender’s Office’s practices regarding

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representation at indigent misdemeanor and felony defendants’ arraignments, including the older

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policy of bifurcated arraignments that Plaintiffs in this case experienced, a pilot program for

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providing representation at some first appearances in one courthouse, and a newer policy of

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representing nearly all indigent defendants at their first court appearances. Lipetzky has worked

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for the County’s Public Defender’s Office since 1990, initially as a deputy public defender, and in

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her current position as public defender for the County she is a department head in charge of the

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Public Defender’s Office and sets policy for the office. Martin Reply Decl. (dkt. 142-1) Ex. 14

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(Lipetzky Dep.) at 329, 7:12–8:16; id. at 338, 23:13–15.

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In 2010, defendants charged with misdemeanors in the County were arraigned without

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counsel, and if they desired appointment of counsel, were referred by the court to the Public

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Defender’s Office and required to come back for another court appearance at a later date. Id. at

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012–13, 22:18–23:12. According to Lipetzky, many defendants waived their right to counsel and

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proceeded without counsel at the first appearance. Id. at 013, 23:3–12. Lipetzky had set a goal in

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2010 of providing counsel for all misdemeanor defendants’ first court appearances. Id. at 012,

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22:10–17.

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Although Lipetzky provided some testimony regarding the arraignment process for out-ofcustody misdemeanor defendants, she testified that she was “not sure [she] ever knew what the
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misdemeanor process was” for in-custody defendants, and that she could instead “speak to [the

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process for] felony in-custody clients.” Baker Decl. (dkt. 129) Ex. D (Lipetzky Dep.) at 44:5–11.

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After reading the charges at a felony defendant’s first appearance, the court would ask if the

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defendant could hire an attorney. Id. at 44:12–14. If the defendant said “no,” the court would

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refer the case to the Public Defender’s Office and set the matter for a subsequent “counsel-and-

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plea” calendar date, and “sometime between that time and the time of the next court date,” the

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Public Defender’s Office would get the referral. Id. at 44:15–16. According to Lipetzky’s

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declaration, the referrals were provided “by the following business day” along with “the complaint

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and discovery if available.” Lipetzky Decl. (dkt. 131) ¶ 3. Some courthouses had “counsel-andplea” calendars twice each week, while others had only one per week. Id.; Baker Decl. Ex. D

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United States District Court
Northern District of California

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(Lipetzky Dep.) at 45:3–9. Lipetzky did not know how the courts determined which calendar to

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set a defendant’s second appearance for, and was not aware of any cases where a court set the

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appearance further out than one of the next two “counsel-and-plea” days, or longer than two weeks

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from the first appearance. Martin Decl. Ex. 1 (Lipetzky Dep.) at 084–86, 109:19–111:20. The

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Public Defender’s Office had no involvement in setting the second appearance date. Lipetzky

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Decl. ¶ 3. A page of the Public Defender’s Office’s website listing answers to frequently asked

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questions included a section briefly describing this process. Martin Decl. Ex. 1 at 037. Lipetzky

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states in her reply declaration that she is aware of other California counties that did not provide

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counsel at indigent defendants’ first court appearances in 2011. Lipetzky Reply Decl. (dkt. 141-2)

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¶ 4.

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According to Lipetzky, after receiving a referral, her office conducted an initial

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investigation into whether the referred person was financially eligible and whether conflicts or

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excessive caseload precluded the main Public Defender’s Office from taking the case, which

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began usually one or two days after receipt of the referral with “a paralegal visiting the person at

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the jail to gather information such as financial status, information relevant to a potential bail

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motion, and basic information about the charged offense.” Lipetzky Decl. ¶ 4. The office would

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“take steps to address” any “immediate needs” disclosed during that initial interview, “such as

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mental health concerns, injuries that needed to be documented, misidentity, or the need to preserve
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evidence that could be lost or destroyed.” Id. The Public Defender’s Office would then check for

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conflicts of interest and determine if it had sufficient staffing to take the case, and would refer

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clients that it could not take on to the County’s Alternate Defender’s Office, which would check

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for its own conflicts. Id. ¶ 5. If the Alternate Defender’s Office also could not represent the

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client, it would refer the matter to the conflict panel, which would appoint an attorney from the

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panel. Id.
Lipetzky testified that she did not “challenge” the County’s policy of bifurcating

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arraignments in 2010. Martin Decl. Ex. 1 (Lipetzky Dep.) at 026, 73:10–14. She did not recall

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whether she “raise[d] the issue with anybody” in 2011. Id. at 026, 73:15–22. She testified at her

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deposition that she did not “take any action prior to [receiving Farrow’s government claim in this

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United States District Court
Northern District of California

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case] to stop this practice” of bifurcating arraignments, id. at 026–27, 73:23–74:10, but states in a

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reply declaration that during her 2017 deposition, her “memory was hazy on the exact timing of

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[her] actions in 2012,” and that subsequent review of documents refreshed her memory that at the

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time she received Farrow’s claim on June 26, 2012, she had in fact already implemented a pilot

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project at the Delta courthouse and developed and begun soliciting funding for a program to

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further expand representation at indigent defendants’ first appearances, as discussed below.

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Lipetzky Reply Decl. ¶ 2 (citing Lipetzky Decl. Ex. G).

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In “mid-2012,” deputy public defenders began representing out-of-custody misdemeanor

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defendants at their first appearances through a pilot program at the Delta courthouse, located in

20

Pittsburg, California. Lipetzky Decl. ¶ 11; Martin Decl. Ex. 1 (Lipetzky Dep.) at 018, 34:5–15.

21

At some point—the date is not clear from the record—Lipetzky stated that her office would

22

expand representation at first appearances to other courthouses if staffing levels increased. Id. at

23

028, 32:3–22. Plaintiffs’ counsel asked Lipetzky if she agreed that she had a legal mandate to

24

provide such representation, but her answer is not included in the excerpt in the record. Id. at 028,

25

32:23–25.

26

In a document dated June 7, 2012 discussing funds provided under the Public Safety

27

Realignment Reform Act of 2011, also known as Assembly Bill 109, Lipetzky proposed creation

28

of the Arraignment Court Early Representation (“ACER”) program to provide counsel at all in12

custody indigent defendants’ first court appearances, a proposal that Lipetzky had developed over

2

the preceding months. Lipetzky Decl. ¶ 12 & Ex. G. Lipetzky states that her decision to develop

3

and implement the ACER program was not related to this or any other litigation. Id. ¶ 18. A

4

report dated July 13, 2012 further discussed the proposal. Martin Decl. Ex. 1 at 032. That report

5

stated that indigent defendants did not have a real opportunity to request lower bail or release on

6

their own recognizance until their second, counseled court appearance, and that providing

7

representation at the first appearance would save the county money because fewer defendants

8

would ultimately be held in pretrial custody. Martin Decl. Ex. 1 at 064. Based on statistics from

9

the ACLU, the report stated that roughly eighty-five percent of the County’s jail population was

10

made up of defendants awaiting trial, which was higher than both the state and national averages.

11
United States District Court
Northern District of California

1

Martin Decl. Ex. 1 (Lipetzky Dep.) at 054, 62:7–25. A September 2012 report describing the

12

proposal indicated that it would resolve the problem of such defendants having to “wait a period

13

of time—between 7 and 14 days—in custody before their next court date when they will have an

14

attorney to represent them.” Martin Decl. Ex. 1 at 034. Lipetzky testified that those times were

15

“not entirely accurate for every case, but yes.” Martin Decl. Ex. 1 (Lipetzky Dep.) at 033, 55:10–

16

25. Lipetzky testified that she believed the longest period a defendant spent in custody between

17

the first and second appearances was “about 13 days,” but she had not researched the issue. Id. at

18

083, 47:14–20.
Funding was secured for the program, and the Public Defender’s Office was able to

19
20

provide counsel at defendants’ first appearances beginning January 9, 2013, except for out-of-

21

custody misdemeanor defendants at the Richmond courthouse.8 Id. at 055, 83:1–6; Lipetzky Decl.

22
23
24
25
26
27
28

8

As of the date of Lipetzky’s deposition in this case, the Richmond courthouse did not permit
attorneys from the public defender’s office to represent out-of-custody misdemeanor defendants at
their first court appearances. Martin Decl. Ex. 1 (Lipetzky Dep.) at 018, 34:17–38:9. In many
cases, judges at that courthouse will present unrepresented misdemeanor defendants with three
options: (1) the defendant can resolve a case for some negotiated disposition presented by the
court at the first appearance; (2) the defendant can hire a private lawyer and return at a later date;
or (3) the court can refer the defendant to the public defender’s office. Id. at 023–25, 39:11–41:9.
According to Lipetzky, when attorneys from the public defender’s office attempted to inform
defendants of their availability represent them before the calendar for first appearances began, the
court instructed them not to. Id. at 025, 41:10–24. Lipetzky has not taken legal action in response
to the Richmond court’s policy prohibiting such representation. Id. at 021, 37:18–20. That policy
is not at issue in this case. Neither Farrow nor Wade appeared in the Richmond courthouse or
13

1

¶¶ 13–14 & Exs. J–M. The Public Defender’s Office has “staffed the initial appearance” or

2

arranged for conflicts panel representation of all defendants at their first appearances at other

3

courthouses, as well as all felony defendants and in-custody misdemeanor defendants in

4

Richmond. Martin Decl. Ex. 1 (Lipetzky Dep.) at 078, 50:1–12; Lipetzky Decl. ¶¶ 15–16. “In the

5

case of an obvious conflict, such as multiple defendants charged with the same offense, the case

6

will be referred to the Alternate Defender’s Office and the matter continued a short period of time

7

(not more than two days) for appearance by” an attorney from that office. Lipetzky Decl. ¶ 15.

8

As a result of implementation of the ACER program, some defendants have been released from

9

custody sooner than they would have been under the old system of bifurcated arraignments.
Martin Decl. Ex. 1 (Lipetzky Dep.) at 038, 66:1–6. When such defendants receive sentences for

11
United States District Court
Northern District of California

10

time served, or have a case disposed of at the first appearance, the new policy has resulted in some

12

defendants spending less total time in jail. Id. at 039, 69:1–8. Lipetzky has not kept accurate

13

statistics of how many defendants are released at the first appearance under the new system, but

14

testified that in aggregate, she believes the ACER program has reduced the number of pretrial

15

custody days for indigent defendants. Id. at 045, 97:11–22; id. at 078, 50:18–21. She states in her

16

declaration that she “commit[s] to continue the current practice of staffing the arraignment courts

17

with an attorney and a legal assistant” even if the County were to discontinue funding for the

18

ACER program, which she has “no reason to believe” would occur. Lipetzky Decl. ¶ 17.

19

Lipetzky testified that under the old system, defendants who had been misidentified or

20

were ultimately acquitted sometimes spent longer in jail than they would have under the new

21

system. Martin Decl. Ex. 1 (Lipetzky Dep.) at 041–43, 77:7–15, 81:23–82:12. In Lipetzky’s

22

approximately twenty years of experience as a deputy public defender, during the period when

23

courts in the County used the bifurcated arraignment system, some of her clients were released

24

from custody as a result of bail motions at the second court appearance, and she testified that they

25

“presumably” would have been released at the first appearance if they had been provided with

26

representation at that appearance. Id. at 027, 74:11–25; id. at 040, 75:13–25; but see Lipetzky

27
28

faced misdemeanor charges, and the Superior Court is not a defendant here.
14

1

Reply Decl. ¶ 3 (clarifying that Lipetzky has “no personal knowledge of any instance where a

2

criminal defendant served additional time in pretrial detention as a result of [her] office not

3

staffing the initial appearance”). Lipetzky testified that a defendant who “has to stay in jail longer

4

than necessary . . . risk[s] losing jobs, losing their housing, losing custody of their children, those

5

sorts of things.” Martin Decl. Ex. 1 (Lipetzky Dep.) at 039, 69:22–25. In a report promoting the

6

ACER program, Lipetzky wrote that it would reduce recidivism by allowing defendants to

7

maintain employment and community ties that would otherwise be jeopardized during pretrial

8

detention. Id. at 061–62, 71:3–72:13.

9

A January 2016 performance review of the ACER program stated that “roughly between
20% and 40% of all detained defendants” were released at their first appearances, and that

11
United States District Court
Northern District of California

10

“roughly 10% of all cases” received expedited dispositions. Martin Decl. Ex. 1 at 047. Lipetzky

12

testified that she had no reason to doubt those numbers but could not say whether they were true.

13

Martin Decl. Ex. 1 (Lipetzky Dep.) at 046, 98:3–5. A February 2016 report on the program in

14

fiscal year 2014/2015 stated that the program facilitated pretrial release and early case resolution,

15

and cited statistics on the percentage of cases where those goals were achieved. Martin Decl. Ex.

16

1 at 050. Lipetzky testified that she could not confirm the accuracy of the statistics but she agreed

17

that the program helped achieve those goals. Martin Decl. Ex. 1 (Lipetzky Dep.) at 048–49,

18

100:7–101:20. One report indicated that ACER had saved the courts and sheriff’s department

19

money, but Lipetzky testified that she could not confirm whether that was true. Id. at 065, 86:9–

20

25; Martin Decl. Ex. 1 at 066. She testified that ACER has required increased resources from the

21

Public Defender’s Office because the old system of regularly scheduled plea-and-counsel

22

calendars was more efficient for the office than appearing at every first appearance, even though it

23

was less efficient for defendants themselves. Martin Decl. Ex. 1 (Lipetzky Dep.) at 078–79,

24

50:22–51:13.

25

In a report dated July 1, 2012 assessing the performance of the Public Defender’s Office in

26

fiscal year 2011/2012, Lipetzky wrote that the office had a shortage of felony attorneys and was

27

“unable to fulfill its mandate to provide competent representation to all of the clients referred to”

28

it. Martin Reply Decl. Ex. 14 at 322. As a result, the office had “steadily increased” the number
15

1

of cases it referred to private attorneys through the conflicts panel, reaching “roughly 75 per

2

month, at significant ongoing cost to the County.” Id.; see also Martin Reply Decl. Ex. 14

3

(Lipetzky Dep.) at 341–42, 26:14–27:20. Lipetzky testified that in those instances the office could

4

not take on more clients while maintaining constitutional representation for its existing clients.

5

Baker Decl. Ex. D (Lipetzky Dep.) at 27:14–20. From January of 2010 through January 13, 2013,

6

Lipetzky did not receive any complaints from the conflicts panel about the timeliness of referrals

7

to the panel. Lipetzky Decl. ¶ 7.

8

3. Plaintiffs’ Experiences With Delayed Appointment of Counsel

9
10

a. John Farrow
Farrow was arrested on August 30, 2011 on charges including assaulting and threatening

United States District Court
Northern District of California

11

his domestic partner. Baker Decl. Ex. A (Farrow Dep.) at 12:18–13:1; Baker Decl. Ex. E.

12

Farrow’s first court appearance took place at the Walnut Creek courthouse of the Superior Court

13

for the County of Contra Costa at 1:30 PM on Friday, September 2, 2011 before Judge Nancy

14

Stark. Martin Supp’l Decl. (dkt. 134) Ex. 4 (Superior Court Clerk’s Docket and Minutes) at 160.

15

Judge Stark asked Farrow if he could afford counsel, to which he replied “[a]bsolutely not,” and if

16

he wanted a lawyer, which he said he did. Baker Decl. Ex. A (Farrow Dep.) at 18:25–19:8. Judge

17

Stark referred the matter to the public defender and to the probation department for a bail study,

18

and continued proceedings to September 15, 2011 at 9:00 AM. Martin Supp’l Decl Ex. 4. The

19

clerk’s minute order appears to indicate that bail was set at $106,000 and Farrow was remanded to

20

county jail. Id.

21

Farrow met with Lorrie Silva, an employee of the Public Defender’s Office, on September

22

6, 2011. Baker Decl. Ex. C (Requests for Admissions) ¶ 7. Silva completed an applicant

23

interview and provided notes to the Public Defender’s office, including that Farrow had no

24

relevant medical or psychiatric history, that he had been in custody since August 31, and that he

25

would like a copy of the police report. Lipetzky Decl. ¶ 6 & Ex. B. According to Lipetzky,

26

neither the referral packet provided to the Public Defender’s Office nor Silva’s interview with

27

Farrow disclosed any urgent issues requiring attention before his next appearance date. Id. ¶ 6.

28

Lipetzky determined that neither the Public Defender’s Office nor the Alternate Defender’s Office
16

1

could take on Farrow’s case due to their existing caseloads, and referred the case to the conflicts

2

panel on September 14. Id. ¶ 8. Lipetzky states in her declaration that her “office never received

3

a direct request from Mr. Farrow to represent him in this criminal proceeding and was never

4

appointed by the Court to represent Mr. Farrow in this criminal proceeding.” Id. Farrow’s

5

attorney Christopher Martin, who also represented Wade in his criminal case and represents both

6

Plaintiffs in this action, learned that he would represent Farrow in his criminal case at 1:57 PM on

7

September 14. Baker Decl. Ex. C ¶ 2; Baker Decl. Ex. F (Martin Dep.) at 9:25–10:6; Baker Decl.

8

Ex. G. Martin did not do anything related to the case that day. Baker Decl. Ex. F (Martin Dep.) at

9

12:4–7; Baker Decl. Ex. H (billing records).

10

Farrow appeared again on September 15 with Martin representing him, pleaded not guilty

United States District Court
Northern District of California

11

to all counts, and appears to have been again remanded to the county jail with bail set at $106,000.

12

Martin Supp’l Decl Ex. 4 at 162. That appearance was the first time Farrow met Martin, and they

13

discussed the case while Farrow was in a holding area near the courtroom, including issues of bail

14

and the fact that Farrow was upset that he had been in custody for weeks without representation.

15

Baker Decl. Ex. A (Farrow Dep.) at 30:8–11; Baker Decl. Ex. F (Martin Dep.) at 13:23–15:14.

16

Martin objected at that hearing to the fact that Farrow had been in custody for thirteen days

17

without a lawyer and asserted that Farrow had been prejudiced by the delay and lack of counsel at

18

his first appearance, but the presiding judge stated on the record that she did not find Farrow’s

19

rights had been violated. Baker Decl. Ex. C ¶¶ 16–18; Baker Decl. Ex. I (transcript of state court

20

proceedings). Martin did not formally request a bail reduction. Baker Decl. Ex. C ¶ 20. Martin

21

did not “perform any legal services” on Farrow’s behalf until the court appearance on September

22

15, and did not begin reviewing discovery until September 19. Id. ¶¶ 9–10. Martin testified that

23

“the Court doesn’t formally appoint in Contra Costa County” and, as is its typical practice, did not

24

discuss appointment of counsel at the hearing, and that he had “accepted appointment through [the

25

public defender’s conflict program]” when he spoke to someone from that office. Baker Decl. Ex.

26

F (Martin Dep.) at 14:4–19.

27
28

Martin did not request that an investigator seek to locate relevant witnesses until after a
preliminary examination on September 27, 2011, and in fact did not communicate with
17

1

investigator Kent Ringgenberg until November 7. Baker Decl. Ex. C ¶ 5. He testified at his

2

deposition that his decision to engage the investigator to locate those witnesses was based on the

3

complaining witness’s testimony at the preliminary hearing. Baker Decl. Ex. F (Martin Dep.) at

4

19:1–20:11. Ringgenberg attempted to locate the witnesses on approximately November 14, but

5

was not successful. Id. at 26:1–22. Farrow ultimately reached a plea agreement in which he

6

waived his appellate rights and was sentenced to 270 days in county jail. Baker Decl. Ex. A

7

(Farrow Dep.) at 40:9–25, 47:1–14; Baker Decl. Ex. L (plea agreement form).

8

b. Jerome Wade
Wade was taken into custody on November 8, 2011 and held at juvenile hall. Martin

10

Reply Decl. Ex. 13 (Wade Dep.) at 309–10, 16:22–17:3. Wade’s first court appearance took place

11
United States District Court
Northern District of California

9

at the Walnut Creek courthouse before Judge Stark on Monday, November 14, 2011. Martin

12

Supp’l Decl. Ex. 5 (Superior Court Clerk’s Docket and Minutes) at 165. Judge Stark asked if

13

Wade needed and could afford a lawyer, and Wade asked Judge Stark to appoint a lawyer for him.

14

Martin Reply Decl. Ex. 13 (Wade Dep.) at 311–12, 18:20–19:2. Judge Stark referred the matter to

15

the public defender and to the probation department for a bail study, and continued proceedings to

16

November 21, 2011 at 8:30 AM. Martin Supp’l Decl. Ex. 5 at 165. The clerk’s minute order

17

appears to indicate that bail was set at $4,350,000 and Wade was remanded to county jail. Id.

18

The Public Defender’s Office determined on November 17, 2011 that it had a conflict of

19

interest because it was taking on representation of one of Wade’s four codefendants, and therefore

20

referred his case to the Alternate Defender’s Office. Lipetzky Decl. ¶ 9 & Ex. D. The Alternate

21

Defender’s Office decided to represent another codefendant and determined on November 18 that

22

it too had a conflict as to Wade. Id. ¶ 9 & Ex. E. As with Farrow, Lipetzky states that Wade

23

never directly requested that the Public Defender’s Office represent him and the court never

24

appointed the Public Defender’s Office to do so. Id. ¶ 9.

25

Martin had a telephone conversation with someone from the conflicts panel regarding

26

taking on representation of Wade’s case at 10:22 AM on November 18, 2011—the same day that

27

the Alternate Defender’s Office determined it could not represent him—and received an email

28

from the panel at 10:56 AM confirming the referral and attaching the “Crimetime calculation” and
18

1

the complaint. Baker Decl. Ex. F (Martin Dep.) at 31:23–33:5. Martin began working on the case

2

that day, including conducting legal research, and met with Wade at juvenile hall the following

3

day (Saturday, November 19) to discuss the case, including whether Wade had been instructed as

4

to his rights before he made certain admissions during an interrogation. Id. at 37:16–39:4; Baker

5

Decl. Ex. R (billing records).
Wade appeared again on November 21, 2011 with Martin representing him, pleaded not

6

guilty to all counts, and appears to have been again remanded to the county jail with bail set at

8

$4,350,000. Martin Supp’l Decl. Ex. 5 at 167. Martin requested authorization to engage

9

Ringgenberg as an investigator for Wade’s case, specifically for the issue of whether Wade had

10

received Miranda warnings, on November 29. Baker Decl. Ex. F. (Martin Dep.) at 42:9–14. On

11
United States District Court
Northern District of California

7

November 30, Martin asked Ringgenberg to report back on that issue “much sooner” than the next

12

court appearance on December 12. Id. at 44:7–20. At some point, no later than December 29 but

13

possibly before that, Martin learned that at least part of Wade’s interrogation had been recorded.

14

Id. at 40:15–22, 49:14–51:6. Martin considered pursuing a motion related to the Miranda issue

15

but he and Wade decided instead to withdraw the motion as a condition of accepting a time-

16

limited plea deal offered by the prosecutor. Id. at 58:1–11. Ringgenberg did not recall at his

17

deposition whether Martin also asked him to investigate what Wade was wearing during the

18

interrogation. Baker Decl. Ex. J (Ringgenberg Dep.) at 22:10–13.
Wade pleaded guilty to three counts against him on December 6, 2012, approximately one

19
20

year after Martin began negotiating a deal with the prosecutor on his behalf. Baker Decl. Ex. O

21

(Wade Dep.) at 24:21–25:24. Wade testified that he actually committed the crimes to which he

22

pleaded guilty and that he was satisfied with Martin’s representation of him. Id. at 29:12–23. He

23

received credit towards his sentence for the time he spent in jail before sentencing. Id. at 71:24–

24

72:10.

25
26
27
28

4. Expert Witness Reports and Testimony
a. Robert Boruchowitz
Plaintiffs submit an expert witness report from Professor Robert Boruchowitz. See Martin
Decl. Ex. 2. Boruchowitz is an attorney with “43 years of experience in public defense.”
19

1

Boruchowitz Report9 at 17. He served as director of The Defender Association in Seattle for

2

twenty-eight years, supervising as many as ninety attorneys and negotiating “contracts with

3

government funders at the city, county and state level” for which The Defender Association

4

provided service as public defenders. Id. at 18 ¶ 3. Boruchowitz also served as a staff attorney for

5

The Defender Association, representing defendants in a variety of criminal proceedings, from

6

juvenile and misdemeanor cases to at least one case involving capital charges. Id. at 19 ¶¶ 6–7.

7

Boruchowitz participated in the development of public defender standards and model contracts for

8

the American Bar Association and Washington State Bar Association, among other entities. Id. at

9

19 ¶¶ 8, 11. He has consulted for public defender services and associations, or the courts that
oversee those services, in a number of states including Washington, Idaho, Utah, Michigan,

11
United States District Court
Northern District of California

10

Wisconsin, Louisiana, Arizona, and Nevada, and has founded or worked with several

12

organizations dedicated to indigent criminal defense. See generally id. at 19–21. He is a

13

“Professor from Practice” and serves as director of the Defender Initiative at the Seattle University

14

School of Law, id. at 20–21 ¶¶ 17–18, and has written and spoken extensively, as well as testified

15

as an expert, on matters related to public defense, id. at 21–26 ¶¶ 23–27. Boruchowitz relied on

16

his experience in the field, “relevant state and federal law as to what constitutes effective

17

assistance of counsel,” and various standards, guidelines, and published ethical opinions in

18

reaching his opinion. Id. at 17 (“Law and Experience Relied On”). He also reviewed the

19

transcripts of both Plaintiffs’ depositions, although he did not review Martin’s or Ringgenberg’s

20

depositions, Martin’s timesheets, or the file on Wade’s criminal case. Martin Opp’n Decl. (dkt.

21

135-1) Ex. 12 (Boruchowitz Dep.) 10:13–11:9, 16:18–22, 21:25–22:4, 57:5–6.
Boruchowitz describes the scope of his report as follows:

22
23

I was requested to provide an opinion on whether and in what
manner having a policy of leaving indigent criminal detainees
unrepresented in jail for a period of one to two weeks or more poses
a “grave potential for prejudice” based on the totality of the
circumstances test, which should include, but not be limited to,
prejudice at later “critical stages” of the proceedings. I was also

24
25
26
27
28

9

Boruchowitz’s report appears in the record as a portion of Exhibit B to Christopher Martin’s
declaration in support of plaintiffs’ motion (Bates numbers 090 through 116), and as Exhibit A to
Cameron Baker’s declaration (dkt. 127) in support of the County’s motion to exclude the report.
20

1
2

requested to provide an opinion on whether the Contra Costa
Defender’s policy violated California Government Code section
27706.

3

Id. at 1 ¶ 1. Citing case law, Boruchowitz states his opinion that “it is not reasonable to delay

4

appointing counsel for five to thirteen days or longer after the right counsel attaches as articulated

5

in Rothgery,” and that “the delay in appointing counsel of five to thirteen days or longer violates

6

California Government Code section 27706.” Id. at 1–2 ¶¶ 4–7.

7

According to Boruchowitz, “[n]ational and state standards require that counsel be provided

8

at the earliest possible time after an accused person is arrested, charged, or appears in court,

9

whichever is earliest.” Id. at 2 ¶ 8. He cites a number of standards and guidelines discussing the
importance of timely representation. Id. at 2–5 ¶¶ 9–14. Some of those standards call for

11
United States District Court
Northern District of California

10

provision of counsel at specific points in the criminal process—such as the American Bar

12

Association Standards for Providing Defense Services (“Counsel should be provided to the

13

accused as soon as feasible and, in any event, after custody begins, at appearance before a

14

committed magistrate, or when formal charges are filed, whichever occurs earliest.”), the

15

Washington State Bar Association Performance Guidelines for Criminal Defense Representation

16

(“If the client is in custody, contact should be within 24 hours of appointment and shall be within

17

no more than 48 hours unless there is an unavoidable extenuating circumstance.”), a 1976 report

18

of a commission of the National Legal Aid and Defender Association (calling for representation as

19

soon as “[t]he person is arrested or detained,” or when the person reasonably believes criminal

20

process will commence), and the National Advisory Commission on Criminal Justice Standards

21

and Goals (“Public representation should be made available . . . beginning at the time the

22

individual either is arrested or is requested to participate in an investigation that has focused upon

23

him as a likely suspect.”)—while others speak more generally about the importance of prompt

24

representation. See id.

25

Boruchowitz lists the following potential consequences of delay in appointing counsel for

26

in-custody defendants: (1) defendants could suffer injury, illness, or death in jail while awaiting a

27

second court appearance; (2) the mental condition of mentally ill defendants could deteriorate,

28

which appointment of counsel can help to mitigate due to not only the potential for obtaining
21

release, but also the possibility of arranging for treatment in jail; (3) defendants could lose

2

employment, housing, child custody, or medical benefits; (4) a delayed investigation can result in

3

loss of evidence, including witness recollections; (5) defendants might not be able to bring a

4

petition for habeas corpus to challenge unlawful confinement; (6) for defendants who can easily be

5

shown to be innocent, delay in appointing counsel can result in delay making that innocence

6

known and having charges dismissed; (7) juvenile defendants can face “additional challenges” due

7

to vulnerability to peer pressure; (8) delays in obtaining discovery can cause delays in all phases of

8

the prosecution; (9) prosecutors might set limits on plea bargain offers, and delays in appointing

9

counsel can further limit the amount of time counsel has to discuss an offer with the defendant;

10

and (10) failure to have counsel promptly available while a defendant is in custody can lead to

11
United States District Court
Northern District of California

1

mistrust between the attorney and client once an attorney is appointed. Id. at 5–8 ¶¶ 15.1–15.12;

12

see also id. at 12–15 ¶¶ 37–48 (elaborating on some of those categories of potential

13

consequences). Boruchowitz notes a California Penal Code statute permitting any attorney to visit

14

a prisoner upon the prisoner’s request, and asserts that the County’s Public Defender’s Office

15

should have sent an attorney to visit each defendant after the court referred the defendant to that

16

office. Id. at 8 ¶ 15.13.

17

In a section titled “Three Days in Jail Can Harm a Client,” Boruchowitz states that he

18

“agree[s] with an experienced public defender who wrote” that “‘three days in jail can be life

19

destroying’” due to potential effects on medication, employment, and child custody or care. Id. at

20

8 ¶ 16. Boruchowitz construes the 1984 letter discussed above as demonstrating obliviousness to

21

client needs and also as evincing an ability to provide counsel in three days, which is less than the

22

delay that either Plaintiff faced in this case. Id. at 8 ¶¶ 17–18.

23

Boruchowitz reviews various statements by Lipetzky and the Public Defender’s Office,

24

beginning with her 2010 comments to a county newspaper that she believed providing attorneys at

25

misdemeanor defendants’ first court appearances would protect their constitutional rights, and

26

extending through the development and assessment of the ACER program. Id. at 9–12 ¶¶ 23–35.

27

He concludes that these statements show that Lipetzky “has known for years that her office should

28

be providing counsel . . . at arraignment,” and that the successful implementation of the ACER
22

1

program shows that the County could and should have put such a policy in place sooner. Id. at 9–

2

12 ¶¶ 22, 27, 33, 36.

3

With respect to California Government Code section 27706, Boruchowitz discusses the

4

language of the statute and several decisions by California courts, as well as a decision by the

5

highest court of Maryland interpreting what Boruchowitz characterizes as a similar statute. Id. at

6

15–17 ¶¶ 50–55. He concludes that the period between Plaintiffs’ first and second court

7

appearances was itself a “stage of the proceedings” within the meaning of section 27706, and that

8

to effectively fulfill the requirements of the statute, a public defender “should begin representation

9

as soon as possible, and not wait for five to thirteen days to meet the client at a second
appearance.” Id. at 16 ¶ 51. Boruchowitz testified that his “process for determining whether or

11
United States District Court
Northern District of California

10

not there was a violation of” section 27706 was “that [he] read the statute, and then [he] read cases

12

discussing the statute.” Martin Opp’n Decl. Ex. 12 (Boruchowitz Dep.) at 45:21–25.

13

Boruchowitz testified at his deposition that a public defender “might get some hints of” the

14

specific needs and risks of a client “in highly publicized cases,” but that a defender “need[s] to see

15

the client as soon as possible to assess all those factors effectively.” Id. at 67:25–68:15. He

16

testified that, in his opinion, it would not have been reasonable for Plaintiffs’ counsel (who in

17

addition to representing them here, also was appointed to represent them in their criminal cases)

18

“to delay interviewing those clients for five to thirteen days or longer.” Id. at 69:16–20.

19

Boruchowitz also testified that he considered the issue of whether the County failed to provide

20

counsel in a reasonable period of time to be “a Cronic problem,” referring to the Supreme Court’s

21

decision in United States v. Cronic. Id. at 14:21–15:23.

22

Asked by defense counsel how much time is required to prepare for an arraignment,

23

Boruchowitz testified that if appointed in advance, a lawyer “should spend a good hour meeting

24

with the client before you do anything,” and if “appointed right there in the courtroom, you try to

25

take as much time as the judge will give you.” Id. at 28:7–16. Boruchowitz also acknowledged

26

that there “are still states that do not have representation of counsel at the initial hearing,” that he

27

has “observed a number of states that do not provide counsel at the initial appearance,” and that

28

there have been “instances where counsel was not appointed for months sometimes after the initial
23

1

appearance.” Id. at 20:19–21:7, 34:2–10. Boruchowitz did not know whether there was a

2

“consistent practice” as to that issue in California. Id. at 41:2–20. As a matter of “personal

3

belief,” however, Boruchowitz believes “that counsel should be there from the very beginning,”

4

“even though we don’t have federal case law yet on when the appearance of counsel is required”

5

and “even though the U.S. Supreme Court has not yet held it.” Id. at 35:8–16.
A U.S. Department of Justice report discussed during Boruchowitz’s deposition identifies

6
7

Arkansas, Delaware, Iowa, Montana, New Hampshire, New Jersey, South Carolina, Virginia as

8

states that in fiscal year 2013 lacked guidelines calling for attorneys to be present at bail hearings

9

and arraignments, although many other states had such guidelines. Baker Reply Decl. (dkt. 141)
Ex. B at 25, App’x Tbl. 3. States were also split as to whether they had guidelines calling for

11
United States District Court
Northern District of California

10

appointment of interim counsel within one day, and as to whether they had guidelines for

12

appointment of permanent counsel within three days. Id. The table summarizing various states’

13

guidelines does not include all fifty states, and California is among the states omitted.10 See id.

14

Boruchowitz testified that he was not aware of standards specific to California requiring

15

representation at initial appearances, although he believed such representation was required by

16

section 27706 “because it’s a stage,” and he identified several provisions of California’s

17

guidelines for indigent defense that more generally call for prompt and zealous representation.

18

Martin Opp’n Decl. Ex. 12 (Boruchowitz Dep.) at 59:15–61:15.

19

b. Henry Coker
The County retained Henry Coker as an expert witness. Coker is an attorney who worked

20
21

for the San Diego County Public Defender’s Office from 1989 until his retirement in 2017,

22

including serving as the public defender (i.e., the head of the department) from 2009 through

23

2017. Martin Decl. Ex. 3 at 122 ¶ 1; see also id. at 134–36 (Coker’s resume). Like Boruchowitz,

24

he was asked in this case to consider whether the County’s former practice of “not providing

25
26
27
28

10

The report appears to be limited to states that had “state-administered” indigent defense services
(as well as the District of Columbia) as opposed to states with services administered at a local
level. See Baker Reply Decl. Ex. B at 1. The report, prepared by Suzanne M. Strong, Ph.D., of
the Bureau of Justice Statistics, is titled “State-Administered Indigent Defense Systems, 2013.” It
was published in November of 2016 and revised May 3, 2017. See id.
24

1

public defender attorney staffing at the initial appearance of an in-custody criminal defendant in

2

state court, which might have resulted in a delay in the provision of appointed counsel to the

3

defendant detainees for a period between two days to thirteen days complied with the ‘reasonable

4

time’ requirements for the provision of counsel articulated in Rothgery,” as well as whether

5

Lipetzky violated section 27706. Id. at 122–23 ¶ 2. He concluded based on his experience and

6

review of documents and applicable law that “the timing of the actual provision of appointed

7

counsel in Contra Costa County complied with” both Rothgery and section 27706. Id. at 123

8

¶¶ 3–4.
According to Coker, although “[l]ocal jurisdictions may choose to provide stronger

9

protections, and organizations such as the American Bar Association and the National Legal Aid

11
United States District Court
Northern District of California

10

and Defender Association may recommend even higher standards . . . those higher standards are

12

not relevant to” determining what the Sixth Amendment requires. Id. at 123 ¶ 6.
Coker states that “the evidence indicates” that under the old policy of bifurcated

13
14

arraignments, “counsel was typically ‘provided’ or ‘assigned’ to the case before the actual date of

15

the ‘counsel-and-plea’ hearing,” and the date on which counsel was actually assigned to the case is

16

more relevant than the date of that second court appearance. Id. at 124 ¶ 9.
He describes the timeline of Wade’s case as follows: Wade’s first appearance was on

17
18

Monday, November 14, 2011, the judge set the second appearance for Monday, November 21

19

(one week after the first appearance), the conflicts panel called Plaintiffs’ counsel Christopher

20

Martin the morning of Friday, November 18 (four days after the first appearance), and Martin

21

started work on the case that day and interviewed Wade the following day, Saturday, November

22

19. Id. at 124 ¶ 10; see also id. at 131 (summarizing the timeline in a table). According to Coker,

23

that timeline was reasonable, and allowed Martin sufficient time to prepare for the November 21

24

arraignment hearing as well as subsequent stages of the case. Id. Coker states that the seriousness

25

of the charges, as evidenced by judge setting bail at several million dollars,11 rendered “the bail

26
27
28

11

Coker’s report transposes the digits of Wade’s bail, stating that it was set at $3,450,000, as
opposed to the figure of $4,350,000 that appears in court documents in the record. Compare
Martin Decl. Ex. 3 at 124 ¶ 10 with Martin Supp’l Decl. Ex. 5.
25

1

issue . . . moot,” as would have been apparent to the judge and to any competent defense counsel.

2

Id. Coker notes that Wade was one of four defendants in a “complex” serial robbery case, and that

3

determining how to assign counsel to avoid conflicts of interest in such cases “can, in some cases,

4

take several days in light of the need for thorough conflicts checks and informed decisions about

5

which defendants should be represented by internal staff.” Id. at 125 ¶ 14. He states that the

6

“conflict of interest process took place” on November 17, 2011, one day before Martin was

7

assigned to the case, and concludes that “the fact that attorney Martin’s assignment to represent

8

Wade in this complex and serious five-defendant case occurred only four days after Wade’s initial

9

court appearance seems quite reasonable under all these circumstances and entirely consistent with

10

United States District Court
Northern District of California

11

diligent efforts to arrange for counsel.” Id. at 126 ¶ 16.
As for Farrow’s case, Coker summarizes the timeline as follows: Farrow first appeared on

12

Friday, September 2, 2011, the judge set his second appearance for Thursday, September 15

13

(thirteen days later), a staff member from the Public Defender’s Office interviewed Farrow on

14

Tuesday, September 6 (four calendar days after the first appearance, and the next business day due

15

to the Labor Day holiday weekend), the conflicts panel called Martin to assign him to the case at

16

1:57 PM on Wednesday, September 14 (twelve days after the first appearance), and Martin first

17

met with Farrow on Thursday, September 15 (the day of the second appearance, thirteen days after

18

the first appearance). Id. at 124 ¶ 11, 127 ¶ 20, 132 (summarizing the timeline in a table). Like in

19

Wade’s case, Coker states that the court and competent defense counsel would have known that

20

“the bail review issue was moot,” in this case because “Farrow was a twice-convicted felon with a

21

‘no-bail’ parole hold.” Id. at 124 ¶ 11. According to Coker, the staff interview on September 6

22

“included questions about potential bail issues and the status of [Farrow’s] case,” and “would have

23

identified, but did not, any matter in Farrow’s criminal case requiring immediate attention.” Id. at

24

127 ¶ 20. Coker states that although Martin did not meet with Farrow until the date of his second

25

appearance on September 15, he could have interviewed him the afternoon or evening of

26

September 14, the day he was assigned the case. Id. at 124 ¶ 11.

27
28

Coker also states that because the Public Defender’s Office did not have sufficient
resources to handle all of the cases referred to it at that particular time, “there needed to be a
26

1

determination regarding the volume of new cases coming into the Public Defender’s Office and

2

the Alternate Defenders Office at that time before a decision could be made to route [Farrow’s]

3

case to the Conflicts Panel Office for assignment to outside counsel.” Id. at 126–27 ¶ 17.

4

Farrow’s case was an appropriate candidate for reassignment to the conflicts panel if the Public

5

Defender’s Office did not have sufficient resources available because it was “the type of lower

6

level felony case that was very likely to settle without trial.” Id. at 126–27 ¶ 17. Coker speculates

7

that the Labor Day weekend, and perhaps a large volume of cases associated with “the end of

8

summer vacation[,] . . . parties, and the excessive consumption of alcohol” related to the holiday,

9

could have contributed to the Public Defender’s Office’s need to refer some cases to outside
counsel and to the timeline of Farrow’s case, but he states that he “cannot state for certain” the

11
United States District Court
Northern District of California

10

reason for the volume of cases. Id. at 127 ¶ 18.

12

Coker also looks to what happened after each Plaintiff received counsel and appeared in

13

court a second time, and states that those fact patterns support the conclusion that Plaintiffs were

14

not prejudiced by the delay in appointing counsel and that receiving counsel earlier would not

15

have affected their cases. Id. at 127–28 ¶¶ 20–21. With respect to section 27706, Coker states

16

that the statute does not address how much time may elapse between a request of counsel and

17

provision of counsel, and that Lipetzky carried out her obligations to both Plaintiffs by assigning

18

them conflict counsel. Id. at 128–29 ¶¶ 22–23. He also asserts that the issue is moot in light of

19

the County’s commitment to provide counsel at all indigent felony defendants’ first appearances

20

under the ACER program that was implemented in the years since Plaintiffs’ arraignments. Id. at

21

129 ¶ 23. Finally, Coker responds to some of the points made in Boruchowitz’s report, primarily

22

by asserting that the standards and best practices that Boruchowitz invokes go beyond what is

23

required under the Sixth Amendment. Id at 129–30.

24

At his deposition, Coker testified that he “was not asked to look at the whole system,” but

25

instead “to take a microscopic look at two cases and render [his] opinion on that.” Martin Decl.

26

Ex. 3 (Coker Dep.) at 140, 56:5–7. He declined to offer an opinion on whether it is “reasonable to

27

delay representation for a period of five to 13 days or sometimes longer” in other cases, stating

28

that it would not be an informed opinion. Id. at 140–41, 56:19–57:3. He conceded that “as a
27

1

matter of good practice [he] would hope that it wouldn’t take you two weeks to see the client, even

2

if you have that much time to appear in court,” but testified that the reasonableness of the delay

3

would depend on actual and potential harm caused by the delay. Id. at 142, 44:3–12. “[A]fter

4

looking at the facts of the two cases and looking at [Martin’s] appointment and what [he] did and

5

when [he] did it, [Coker] determined that it was reasonable.” Id. at 143, 45:6–8. Coker also

6

conceded that a two-week delay in meeting with counsel could cause prejudice or be unreasonable

7

in some cases, such as the facts of the Rothgery case where the plaintiff had been held

8

unnecessarily, or where a defendant relied on videotape evidence that was overwritten in the

9

intervening period. Id. at 143, 45:9–44; id. at 144, 60:11–15. Coker testified generally to the
importance of conducting a prompt investigation and that “[i]t is a good practice to interview any

11
United States District Court
Northern District of California

10

client that you’re going to represent at the first opportunity you have.” Id. at 149–53, 27:19–

12

31:10.

13

Coker testified that “conflicts checks are rather tedious things to do,” and that he had

14

experienced cases as a chief deputy public defender “where it took us a week to get it all figured

15

out,” although he did not recall a case where a conflicts check took two weeks, and even in those

16

cases his office either appeared for or arranged for private attorneys to appear for each defendant

17

at the first court appearance. Id. at 147–48, 71:10–72:2.

18

Coker was not aware “off the top of [his] head” of any other county in California that used

19

the bifurcated arraignment procedure previously employed by Contra Costa County. Id. at 155,

20

43:5–8.

21

C.

22

The Parties’ Present Arguments

The parties’ arguments in their briefs on the motions for summary judgment are

23

summarized below. Arguments regarding the County’s motion to exclude Boruchowitz’s

24

testimony (dkt. 126) are addressed in context in the Court’s analysis of that issue.

25
26

1. Plaintiffs’ Motion for Summary Judgment
Plaintiffs seek summary judgment granting equitable relief and nominal damages on their

27

individual claims, or alternatively, summary adjudication of issues including whether they were

28

deprived of their Sixth Amendment right to counsel and whether the County had a policy of
28

1
2

deliberate indifference to Plaintiffs’ rights. Pls.’ Mot. for Summ. J. (“Pls.’ MSJ,” dkt. 125) at 1–2.
Plaintiffs contend that to prevail on a Sixth Amendment claim based on the County’s

3

policy of inaction, they must show: (1) that they were deprived of a constitutional right; (2) that

4

the County had a policy; (3) that the policy “amounts to deliberate indifference to” the right;

5

(4) that the policy was the “moving force behind” the violation of that right. Id. at 3 (quoting

6

Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). They argue that

7

Strickland’s “individualized analysis requirement” is not the appropriate framework through

8

which to view a case “seeking prospective, systemic reform.” Id. at 18 (citing Church v. Missouri,

9

268 F. Supp. 3d 992, 2017 WL 3383301 (W.D. Mo. July 24, 2017)). Plaintiffs cite decisions from
various state courts eschewing individualized analysis in cases based on systemic failure to

11
United States District Court
Northern District of California

10

provide appointed counsel, as well as the Supreme Court’s decision in United States v. Wade, 388

12

U.S. 218 (1967), which considered the general risks to a defendant facing a post-indictment lineup

13

without counsel, rather than the particular circumstances of the defendant in that case. Pls’ MSJ at

14

18–19. They argue that the Court should look to “the grave potential for prejudice inherent in the

15

written Policy of agreeing to withhold representation till any date the court chooses so long as the

16

date is at least three court days out,” and that the circumstances here amount to a systemic

17

violation of indigent criminal defendants’ right to appointed counsel because the County’s public

18

defender “set no outside limit on the length of the delay, did not pay any attention to the length of

19

the delay, delegated responsibility for the length of the delay in representation to the court, and

20

kept no records from which the outside [i.e., maximum] length of the delay could be determined.”

21

Id. at 19.

22

Plaintiffs argue that the County cannot rely on lack of funding as a basis for delay, id. at 20

23

(citing Gideon v. Wainwright, 372 U.S. 335 (1963)), but that even if the Court were to consider

24

funding as a factor in assessing reasonableness, the evidence shows that providing counsel at

25

indigent defendants’ first court appearance actually saved the County money after it changed its

26

policy to do so in most cases. Id. at 21. They also contend that the County cannot escape

27

responsibility by arguing that the state courts prevented it from providing counsel at defendants’

28

first appearance because the evidence shows that only one courthouse actually prohibits that
29

1

practice in some circumstances (the Richmond courthouse, in misdemeanor cases), and because

2

the 1984 letter indicates that the public defender was, at least at that time, prepared to represent

3

defendants three days after their first appearances, as opposed to the longer delays that defendants

4

(including Plaintiffs here) experienced in more recent years. Id. Perhaps to some extent

5

contradicting their contention that the courts were not responsible for the delays, Plaintiffs also

6

argue that “eligibility and conflicts checks were never a factor in determining the delay in

7

providing counsel” because the Public Defender’s Office “had nothing to do with setting the

8

duration of time between the first and second arraignment proceedings.” Id. at 22.
Plaintiffs invoke Boruchowitz’s report as “document[ing] 55 reasons why [the County’s]

9

Policy was unreasonable under the totality of the circumstances,” although they do not identify or

11
United States District Court
Northern District of California

10

discuss any of those reasons in their motion. Id. They argue that the County “has not contradicted

12

a single study or standard referenced by Professor Boruchowitz, or refuted a single factor that he

13

considered.” Id. Plaintiffs also rely on a 2012 report by Lipetzky stating that the County had the

14

highest rate of pretrial detainees (as a percentage of the total jail population) in the state, and on

15

the fact that County’s expert witness was not aware of other California counties that similarly

16

failed to provide counsel at a defendant’s first court appearance. Id. at 22–23. According to

17

Plaintiffs, the lack of justification for the earlier “Policy” of failing to provide counsel at first

18

appearances, combined with the potential for prejudice that Boruchowitz identified, establishes

19

that the failure to provide counsel was unreasonable. Id. at 23.
Plaintiffs also argue that for purposes of section 27706, the burden is on the County to

20
21

provide justification for a delay in providing counsel. Id. They contend that the County has failed

22

to provide any justification, and that the rationale of the decision of the Maryland Court of

23

Appeals (that state’s highest court) applying Maryland’s then-existing public defender law in

24

DeWolfe v. Richmond, 434 Md. 403 (2012),12 applies equally to section 27706 in California. Pls’

25
26
27
28

12

On reconsideration, the Maryland court reached the same conclusion that counsel was required
at a defendant’s first appearance, but based that conclusion on the Maryland Declaration of Rights
(a component of the state’s constitution) rather than on the public defender statute, which the state
legislature had amended in the intervening period to specifically exclude any requirement for
representation at the type of hearing at issue in the case. DeWolfe v. Richmond, 434 Md. 444,
454–55, 464 (2013).
30

1
2

MSJ at 23–25.
In support of their request for an injunction, Plaintiffs argue that a constitutional violation

3

with potential to recur satisfies the “irreparable injury” and “inadequacy of legal remedies”

4

requirements, and that although Plaintiffs were ultimately provided with counsel and their criminal

5

prosecutions have since ended, they have standing to seek prospective relief under the “relation

6

back” doctrine discussed by the Supreme Court in County of Riverside v. McLaughlin, 500 U.S.

7

44, 51–52 (1991), and under the Ninth Circuit’s framework for class actions challenging policies

8

or officially sanctioned patterns of unlawful behavior as discussed in Armstrong v. Davis, 275

9

F.3d 849, 860 (9th Cir. 2001), abrogated on other grounds as stated in Davidson v. Kimberly
Clark Corp., 873 F.3d 1103, 1113 (9th Cir. 2017). Pls’ MSJ at 26–27. Plaintiffs contend that the

11
United States District Court
Northern District of California

10

subsequent implementation of the ACER program does not moot their claims because “it is

12

reasonable to expect that the practice of denying representation to indigent criminal defendants

13

will recur without the injunction sought,” and because the County has not taken action to remedy

14

the Richmond courthouse’s practice of prohibiting public defender representation at first

15

appearances of out-of-custody misdemeanor defendants. Id. at 28–29. Plaintiffs also argue that

16

they are entitled to nominal damages and declaratory judgment. Id at 29–34.

17

2. The County’s Opposition to Plaintiffs’ Motion for Summary Judgment

18

The County argues that Plaintiffs’ motion should be denied because it fails to address the

19

circumstances of Plaintiffs’ individual experiences during their criminal prosecutions. Def.’s

20

Opp’n (dkt. 137) at 1, 12–13. It contends that it “did not have a policy of ‘withholding

21

representation’ for a period of days,” but rather did not provide counsel at first appearances

22

because the Public Defender’s Office did not have a sufficient number of attorneys to staff those

23

appearances. Id. at 13. Although the County does not dispute that “attachment occurred at the

24

initial appearance,” it argues that it is “undisputed that [Plaintiffs] had counsel present at every

25

critical stage,” and that the delay in providing counsel was reasonable because Plaintiffs have not

26

presented evidence that it “caused either of them any actual prejudice or posed any grave potential

27

for prejudice.” Id. at 14.

28

Despite this Court’s previous determination that delayed appointment of counsel under
31

1

Rothgery is its own Sixth Amendment violation distinct from the Strickland or Cronic tests for

2

ineffective assistance of counsel, see Apr. 2017 Order at 25, the County continues to argue that

3

Rothgery “should be read in conjunction with” those cases. Def.’s Opp’n at 15. Even if the Court

4

disagrees with that approach, however, the County contends that “a critical or necessary factor in

5

establishing any violation of the right to counsel is the impact, or potential impact, on Plaintiffs’

6

criminal proceedings.” Id. at 15–16. The County notes that the Rothgery decision discussed

7

appointment of counsel within a reasonable time to allow for representation at “critical stages”

8

before trial, and that Justice Alito’s concurrence in that case construed the Sixth Amendment right

9

to counsel as protecting only the effectiveness of assistance at trial, not “‘other objectives that may
be important to the accused.’” Id. at 15, 18 (citing Rothgery, 554 U.S. at 212, and quoting id. at

11
United States District Court
Northern District of California

10

216 (Alito, J., concurring)).

12

Turning to the facts of this case, the County argues that Plaintiffs have not presented

13

evidence to support the forms of actual prejudice alleged in their complaint, specifically that the

14

delay in appointing counsel affected Farrow’s ability to locate witnesses relevant to his case and

15

Wade’s ability to gather statements from a witness while her memory of his interrogation was

16

fresh regarding Miranda warnings and whether he was wearing a sweatshirt that tied him to the

17

crimes. Id. at 19–21. It contends that the possible forms of prejudice identified by Boruchowitz

18

“do not apply to Plaintiffs themselves,” with the exception of Boruchowitz’s opinion that Wade

19

faced potential prejudice in obtaining witness statements while the witness’s testimony was fresh,

20

which the County argues was not based on review of the actual facts of Wade’s case. Id. at 22–23.

21

The County contends that Boruchowitz’s reliance on professional standards and guidelines is

22

unavailing because he conceded that there is not a national consensus on this issue and that some

23

states do not provide counsel at initial appearances. Id. at 23–24.

24

The County also argues that any statements from Lipetzky suggesting that the previous

25

practice of withholding counsel at first appearances was harmful or unreasonable do not bind the

26

County because a public defender’s interests are often adverse to a county’s interests in cases like

27

this one, and that the 1984 letter discussing the Public Defender’s Office ability at that time to

28

provide counsel for Richmond cases within three days of the first appearance does not establish
32

1

that longer delays are unreasonable under Rothgery because it does not take into account the effect

2

of such a delay on the proceedings. Id. at 22–23. The County points to the “undisputed facts” that

3

the state court (not the public defender) set the length of time between appearances, that the Public

4

Defender’s Office “took steps to ascertain whether there were any urgent issues needing to be

5

addressed,” and that deputy public defenders or appointed conflicts counsel could and sometimes

6

did begin working on a case before the second court appearance. Id. at 23; see also id. at 26

7

(arguing that the court’s role in setting the second appearance negates any causal link between the

8

County and the alleged violations). The County also argues that, contrary to suggestions made in

9

Plaintiffs’ arguments and their counsel’s questions during depositions, Plaintiffs cannot analogize
a delay in providing counsel to a decision by an attorney already assigned to a case to delay the

11
United States District Court
Northern District of California

10

initial interview of a client, because the latter circumstances are evaluated under the Strickland

12

standard and Plaintiffs have not satisfied Strickland by showing prejudice here. Id. at 24 (citing

13

Dick v. Scroggy, 882 F.2d 192 (6th Cir. 1989)). The County contends that Plaintiffs cannot show

14

deliberate indifference to their rights because no decisions now or at the time of the violation

15

clearly demonstrated that the delays at issue were unconstitutional and because Lipetzky never

16

received complaints about delays in referrals to the conflicts panel, among other reasons. Id. at

17

24–26.

18

The County argues that Farrow is estopped from bringing a claim here because his lawyer

19

objected to the delay in appointing counsel at arraignment, the state court judge did not find

20

Farrow’s rights to be violated and overruled the objection, and Farrow waived his appellate rights

21

as part of his plea agreement. Id. at 26–28.

22

As for section 27706, the County argues that Plaintiffs cannot support a claim because they

23

did not make a “direct request for representation” to the Public Defender’s Office and the state

24

court did not formally appoint the office to represent them. Id. at 28. The County contends that

25

the Maryland case on which Plaintiffs rely is distinguishable because the Maryland statute did not

26

condition the public defender’s obligations on a request for or appointment of counsel. Id. at 29.

27

The County also argues that the Public Defender’s Office acted responsibly in light of the ethical

28

conflicts preventing it from directly representing either Farrow (due to staffing constraints) or
33

1

Wade (due to a conflict of interest). Id. at 29. The County also argues that Plaintiffs’ claims for

2

declaratory and injunctive relief are moot, and that no exception to the normal doctrines of

3

mootness and standing applies here. Id. at 30–33. Finally, the County contends that certain

4

evidence on which Plaintiffs rely is inadmissible, including Boruchowitz’s opinions for the

5

reasons stated in the County’s separate motion to exclude, certain parts of Coker’s testimony that

6

the County contends were outside the scope of his expert witness designation, statements by

7

Lipetzky that the County argues are hearsay and improper opinion testimony by a fact witness,

8

and the 1984 letter regarding representation at the Richmond courthouse, which the County argues

9

is irrelevant or unduly prejudicial under Rule 403 of the Federal Rules of Evidence. Id. at 33–35.

10

United States District Court
Northern District of California

11

3. Plaintiffs’ Reply in Support of Summary Judgment
Plaintiffs again argue in their reply that their claims in this “case seeking systemic reform”

12

should “be evaluated in terms of how the Policy [of not providing representation at first

13

appearances] poses a grave potential for prejudice to all detainees,” not based on the facts of

14

Plaintiffs’ own cases with the benefit of hindsight. Pls.’ Reply (dkt. 142) at 7–9. They argue that

15

the evidence shows that the County had a policy of withholding representation for “a period that

16

was typically between 5 and 13 days, but was sometimes longer,” and that Farrow and Wade

17

“suffered a constitutional tort” as a result of being subjected to the policy if the policy was

18

unconstitutional. Id. at 9–10. Plaintiffs therefore argue that Boruchowitz’s conclusions regarding

19

the policy as a whole are sufficient for success on their Sixth Amendment claim. Id. at 10.

20

Plaintiffs argue that the County was on notice of the violation based on a criminal case where the

21

issue was raised in 2011 and Lipetzky’s own statements. Id. at 10–11. Plaintiffs contend that the

22

County, not the state court, was responsible for the delay in appointing counsel because “the

23

Public Defender authored the Policy in 1984” and has ratified that policy through words and

24

conduct in the years since then. Id. at 11. Plaintiffs also dispute the County’s arguments that the

25

requests for declaratory and injunctive relief are moot. Id. at 11–14.

26

As for the County’s evidentiary objections, Plaintiffs argue that Coker’s testimony

27

regarding examples of prejudicial conduct falls within the scope of appropriate cross examination

28

and that his lack of awareness of other counties with bifurcated arraignments is an issue of fact,
34

1

not expert opinion. Id. at 14–15. They contend that Lipetzky’s statements in various reports and

2

publications are not hearsay, or meet the tests for hearsay exceptions, because they are admissions

3

of a party’s agent, fall within the public records exception, or are relevant to show her state of

4

mind, and also that they do not constitute improper expert opinion. Id. at 15–18. Plaintiffs argue

5

that the 1984 letter is relevant to the origin and nature of the County’s policy regarding indigent

6

representation. Id. at 18–19. Plaintiffs address Boruchowitz’s testimony separately in their

7

opposition to the motion to exclude. See id. at 14.
Plaintiffs conclude by arguing that this Court should adopt a standard that, except in

8
9

emergency circumstances, counsel should be appointed within forty-eight hours of arrest and
provided at the first court appearance, mirroring the requirement for determinations of probable

11
United States District Court
Northern District of California

10

cause established by the Supreme Court’s decision in McLaughlin, 500 U.S. 44. Reply at 19–20.

12

4. The County’s Motion for Summary Judgment

13

The County argues in its motion for summary judgment that the “‘reasonableness’

14

determination focuses on the consequences, if any, of the delay on the criminal defendant’s ability

15

to defend the charges against her/him.” Def.’s Mot. for Summ. J. (“Def.’s MSJ,” dkt. 128) at 18.

16

It contends that the Sixth Amendment only protects the right to a fair trial, and that the Court

17

should reconsider its previous order holding that an unreasonable delay in providing counsel is

18

distinct from the Strickland and Cronic framework for evaluating ineffective assistance of counsel.

19

Id. at 18–20. According to the County, Cronic’s presumption of prejudice standard is consistent

20

with the Ninth Circuit’s instruction to this Court to consider risk of prejudice, as opposed to only

21

actual prejudice, on remand. Id. at 18–19. The County argues that since, in its view, grave

22

potential for prejudice falls within the Cronic framework, such a claim would be barred by Heck,

23

and “Plaintiffs are limited to [showing] an actual prejudice to their individual cases, which they

24

cannot establish.” Id. at 21.13 But even if the Court considers potential for prejudice, the County

25
26
27
28

13

The County does not address the fact that actual prejudice would presumably satisfy
Strickland’s test for reversal of Plaintiffs’ convictions, and thus would also presumably be barred
by Heck. Because the Court declines to reconsider its previous determination that unreasonable
delay in appointing counsel need not be considered in the framework of Strickland and Cronic,
however, there is no reason to wade back into the Heck analysis of the previous order.
35

1
2

contends that there is no evidence on which to find such potential. Id.
As discussed above in summarizing the County’s opposition brief, the County argues that

3

the facts here do not show actual prejudice to either Farrow or Wade as a result of delay in

4

providing counsel. Id. at 22–25. The County primarily analyzes Plaintiffs’ cases with the benefit

5

of hindsight, arguing that Martin’s lack of urgency in engaging an investigator to pursue

6

potentially relevant testimony demonstrates that appointing counsel sooner would not have

7

changed the outcome, and that at least in Wade’s case the testimony did not turn out to be material

8

because there was an audio recording of Wade’s interrogation. Id. The County also argues that

9

Plaintiffs cannot show deliberate indifference by the County, that the delay in appointing counsel
was caused by the state court, and that Farrow is collaterally estopped from asserting a Sixth

11
United States District Court
Northern District of California

10

Amendment violation. Id. at 25–28. The County contends that the Public Defender’s Office’s

12

policy of interviewing defendants promptly after referral to identify urgent issues shows that

13

prejudice was not foreseeable from the delay in appointing counsel, and asserts without citation to

14

evidence that “generally speaking, a week or even two weeks is not likely to result in destruction

15

of critical evidence.” Id. at 27.

16

The County asks the Court to dismiss the section 27706 claim for lack of subject matter

17

jurisdiction if summary judgment is granted for the County on the Sixth Amendment claim, and

18

argues that even if the Court retains jurisdiction over the state law claim, the County is entitled to

19

summary judgment because the Public Defender’s Office did not receive a direct request for

20

representation from Plaintiffs and was not appointed to represent them by the state court, and

21

because the Public Defender’s Office could not represent them due to ethical conflicts and

22

properly referred their cases to the conflicts panel. Id. at 28–31. The County contends that

23

Plaintiffs’ claims for declaratory and injunctive relief are moot. Id. at 31–35.

24
25

5. Plaintiffs’ Opposition to the County’s Motion for Summary Judgment
Plaintiffs argue that the County’s “argument that actual prejudice is required is a

26

nonstarter, as the County bizarrely insists upon a legal standard that both this Court and the Ninth

27

Circuit Court of Appeals have explicitly rejected.” Pls.’ Opp’n to Def.’s Mot. for Summ. J. (“Pls.’

28

Opp’n to MSJ,” dkt. 135) at 6. Plaintiffs also argue that it is not appropriate to focus on the facts
36

1

of their case for assessing potential prejudice, and instead contend that the Court should look

2

“whether a Policy of arbitrarily delaying representation to all indigent jailed criminal defendants

3

for 5 to 13 days, and sometimes longer – without any reference to the facts of their underlying

4

criminal cases – poses a grave potential for prejudice.” Id. Plaintiffs argue that the facts of their

5

cases do, however, support a conclusion that delay caused potential for prejudice—in Wade’s

6

case, because the prosecution was able to add charges without having to seek leave of the court,

7

and in Farrow’s case, because the need for conflicts counsel was caused by the County’s failure to

8

provide sufficient funding to the Public Defender’s Office and “myriad potentials for prejudice”

9

could arise from a nearly two week delay that “cannot properly be evaluated in hindsight.” Id. at

10

7–8.

United States District Court
Northern District of California

11

Plaintiffs argue that the evidence supports a finding of deliberate indifference, and that the

12

County had a written policy of delaying representation, as memorialized in the 1984 letter, a 2010

13

statement by Lipetzky to a local newspaper describing the Public Defender’s Office’s practices,

14

memoranda from 2012 describing the then-current state of affairs in the context of proposals to

15

establish the ACER program, and statements on the Public Defender’s Office website. Id. at 9–10.

16

Plaintiffs also argue that a lack of sufficient resources to provide counsel at defendants’ first

17

appearances is not a valid reason for delay, but instead is itself a failure to meet the County’s

18

obligations under Gideon. Id. at 10. Plaintiffs argue that “California criminal procedure is

19

exacting” and assert, without citation to evidence so stating, that Contra Costa was the only county

20

in California that systematically denied representation to in-custody defendants at their first court

21

appearances. Id. at 12.14 Plaintiffs also argue that the County was on notice of “the problem” as a

22

result of arguments raised “in a motion and petition for writ of mandamus in a case to which it was

23

a party,” although Plaintiffs do not contend that the court in that case determined that the County’s

24

practices were improper. Id. at 13. Plaintiffs contend that Lipetzky’s testimony that some

25

defendants remained in jail longer because they did not receive representation and that some

26
27
28

14

Plaintiffs cite Coker’s testimony that he did not, “off the top of [his] head,” know of other
jurisdictions in California that had such a policy. See Pls.’ Opp’n to MSJ at 12; Martin Decl. Ex. 3
(Coker Dep.) at 155, 43:5–7. That testimony does not show that no other jurisdiction had such a
policy.
37

1

defendants are now being released earlier under the ACER program demonstrates that defendants

2

who did not receive earlier representation suffered prejudice within the meaning of Strickland. Id.

3

at 14.

4

With respect to Lipetzky’s testimony that paralegals interviewed defendants after their first

5

court appearances to address “immediate concerns,” Plaintiffs argue that “there is absolute no

6

proof of a single case where the Public Defender did anything other than eligibility conflicts

7

checks during the . . . period between appearances,” and assert without citation to authority that

8

“the failure to provide proof where a party would logically provide it creates the inference that

9

such proof does not exist.” Id. at 13.

10

Plaintiffs contend that Farrow is not estopped from bringing a Sixth Amendment claim

United States District Court
Northern District of California

11

because the Sixth Amendment claim was not actually litigated or necessary to the judgment in his

12

criminal case, and the issues are not the same. Id. at 14–17. Plaintiffs argue that the Strickland

13

and Cronic paradigms applicable in criminal cases, including Farrow’s case where Martin raised

14

the issue of delayed appointment, do not apply to this civil case. Id. at 17.

15

Plaintiffs concede that section 27706 does not require a public defender to represent a

16

defendant until that defendant requests that the public defender do so or at court appoints the

17

public defender to do so, but argue that where a defendant has told a judge that the defendant

18

would like appointed counsel and the judge referred that request to the public defender, the

19

defendant has effectively requested representation from the public defender within the meaning of

20

the statute. Id. at 18–19. Plaintiffs also argue that the County has not offered a sufficient reason

21

why the Public Defender’s Office did not have attorneys available to represent defendants at their

22

first appearances. Id. at 19.

23

Plaintiffs contend that their claims for prospective relief are not moot, in part because the

24

County still delays representation by bifurcating arraignment proceedings for defendants where

25

the Public Defender’s Office has clear conflicts of interest, in which cases arraignments are

26

continued by up to two days to resolve the conflict. Id. at 19–21. Plaintiffs also argue that the

27

new policy shows that delays of more than two days to resolve conflicts issues in their own cases

28

were unreasonable. Id. at 21.
38

1

Plaintiffs conclude their opposition brief, as in their reply in support of their own motion,

2

with an analogy to the McLaughlin case and an argument that the same presumptive deadline of

3

forty-eight hours after a warrantless arrest to conduct a probable cause determination should apply

4

to appointment of counsel. Id. at 23–24.

5
6

6. The County’s Reply in Support of Summary Judgment
The County argues in its reply that the steps taken and facts discovered in Plaintiffs’

7

criminal cases after counsel was appointed demonstrate that the delay in providing counsel after

8

their first court appearances did not actually cause prejudice or a grave potential for prejudice.

9

Def.’s Reply in Support of Mot. for Summ. J. (“Def.’s Reply re MSJ,” dkt. 141) at 8–10. The
County contends that the Court should not consider “hypothetical injuries not present in

11
United States District Court
Northern District of California

10

[Plaintiffs’] own cases,” and that regardless, adverse effects to a defendant’s pretrial liberty

12

interest are not cognizable as prejudice in a Sixth Amendment claim. Id. at 10–11. The County

13

argues that Plaintiffs also have not established that the potential injuries that they cite “are so

14

inherent and frequent in cases where there is no counsel at the initial hearing as to warrant the

15

presumption of prejudice,” in contrast to the dangers that the Supreme Court considered when it

16

recognized a right to counsel at post-indictment lineups in United States v. Wade, 388 U.S. 218

17

(1967). Def.’s Reply re MSJ at 11–12. The County further argues that counsel cannot be required

18

under the Sixth Amendment at a defendant’s first appearance because Rothgery explicitly permits

19

a reasonable period of time to appoint counsel after attachment of the right, and that there is no

20

national consensus on whether counsel must be provided at defendants’ first appearances, citing

21

the Department of Justice report surveying state standards. Id. at 12–13.

22

The County briefly contends that Plaintiffs have not shown a policy of deliberate

23

indifference, id. at 13–14, that the state court rather than the County was responsible for the length

24

of delay, id. at 14, and that Farrow is collaterally estopped from bringing a Sixth Amendment

25

claim, id. at 14–15. If the Court does not dismiss the section 27706 claim for lack of jurisdiction,

26

the County argues that it is entitled to summary judgment because a referral from the state court to

27

the Public Defender’s Office is not equivalent to a direct request from a defendant or appointment

28

by the court, and because the Public Defender’s Office acted reasonably in light of its ethical
39

1

conflicts after the referrals. Id. at 15–16. The County also continues to argue that Plaintiffs’

2

claims for declaratory and injunctive relief are moot, and that no exception applies. Id. at 16–19.

3

III.

ANALYSIS

4

A.

5

Rule 702 of the Federal Rules of Evidence permits a party to offer testimony by a “witness

Motion to Exclude Expert Testimony and Other Evidentiary Objections

6

who is qualified as an expert by knowledge, skill, experience, training, or education.” Fed. R.

7

Evid. 702. This Rule embodies a “relaxation of the usual requirement of firsthand knowledge,”

8

Daubert v. Merrel Dow Pharm., 509 U.S. 579, 592 (1993), and requires that certain criteria be met

9

before expert testimony is admissible. The Rule sets forth four elements, allowing such testimony

10

United States District Court
Northern District of California

11

only if:

12

(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or determine a
fact in issue;

13

(b) the testimony is based on sufficient facts or data;

14

(c) the testimony is the product of reliable principles and methods;
and

15
16

(d) the expert has reliably applied the principles and methods to the
facts of the case.

17

Fed. R. Evid. 702. These criteria can be distilled to two overarching considerations: “reliability

18

and relevance.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011). The inquiry

19

does not, however, “require a court to admit or exclude evidence based on its persuasiveness.” Id.

20

The reliability prong requires the court to “act as a ‘gatekeeper’ to exclude junk science,”

21

and grants the court “broad latitude not only in determining whether an expert’s testimony is

22

reliable, but also in deciding how to determine the testimony’s reliability.” Id. (citing Kumho Tire

23

Co. v. Carmichael, 526 U.S. 137, 145, 147–49, 152 (1999)). Evidence should be excluded as

24

unreliable if it “suffer[s] from serious methodological flaws.” Obrey v. Johnson, 400 F.3d 691,

25

696 (9th Cir. 2005).

26

The relevance prong looks to whether the evidence “fits” the issues to be decided:

27

“scientific validity for one purpose is not necessarily scientific validity for other, unrelated

28

purposes,” and “[e]xpert testimony which does not relate to any issue in the case is not relevant.”
40

1

Daubert, 509 U.S. at 591. “Where an ‘expert report’ amounts to written advocacy . . . akin to a

2

supplemental brief, a motion to strike is appropriate because this evidence is not useful . . . .”

3

Williams v. Lockheed Martin Corp., No. 09CV1669 WQH (POR), 2011 WL 2200631, at *15

4

(S.D. Cal. June 2, 2011) (citation omitted; first ellipsis in original). Moreover, “an expert witness

5

cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law[; . . .]

6

instructing the jury as to the applicable law is the distinct and exclusive province of the court.”

7

Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (citations and

8

internal quotation marks omitted). An expert nevertheless may, in appropriate circumstances, rely

9

on his understanding of the law and refer to the law in expressing an opinion regarding

10

United States District Court
Northern District of California

11

professional norms. Id. at 1016–17.
The County moves to exclude the opinions of Plaintiffs’ expert Robert Boruchowitz,

12

arguing that his testimony only “fits” the case if it corresponds to harms that actually befell

13

Farrow and Wade, and faulting Boruchowitz for failing to review evidence regarding the particular

14

prosecutions at issue in this case. Because hindsight is generally inappropriate in assessing

15

potential for prejudice, the Court agrees with Plaintiffs that Boruchowitz had no need to review

16

evidence pertaining to proceedings after Plaintiffs’ second court appearances, such as the timing of

17

work by investigator Ringgenberg and evidence later available or unavailable. On the other hand,

18

to the extent that the Court’s analysis focuses on the particular circumstances of Wade and

19

Farrow’s prosecutions, Boruchowitz’s failure to discuss those circumstances in any detail renders

20

his opinions unsuited for that analysis.

21

To the extent that the Court looks more generally to whether the County’s former policy

22

violated the Sixth Amendment rights of criminal defendants as a class, Boruchowitz’s expertise

23

and experience qualifies him to identify risks associated with delayed appointment of counsel, and

24

his statements identifying such risks are admissible expert opinion. The County’s motion is

25

DENIED as to those portions of Boruchowitz’s report. But while those ill effects support a

26

conclusion that delay is bad, it is less clear whether they can support a conclusion that a particular

27

period of delay is or is not reasonable. Boruchowitz’s ultimate conclusion—that “it is not

28

reasonable to wait to appoint counsel for five to thirteen days after the first court appearance”—is
41

1

not based on any discernable framework for determining reasonableness. See Boruchowitz Report

2

¶ 49. Along the same lines, Boruchowitz’s “opinion that it is critical to have counsel begin work

3

on the case of an accused person as soon as possible,” id., only raises the question of when

4

appointment is “possible.” Taken literally, and devoting unlimited resources, it would likely be

5

possible to appoint counsel for every defendant the moment that the right to counsel attached, but

6

as discussed below, a rule requiring appointment at that time would be inconsistent with the

7

“reasonable time after attachment” standard applicable here. If Boruchowitz’s opinion is read

8

more liberally as requiring appointment “as soon as [reasonably] possible,” see id., it only begs the

9

original question of what delay is reasonable. The County’s motion to exclude these opinions on

10

United States District Court
Northern District of California

11

the ultimate question at issue is GRANTED.
Boruchowitz’s opinions regarding section 27706 consist solely of legal analysis “akin to a

12

supplemental brief” and thus do not constitute admissible opinion evidence. See Williams, 2011

13

WL 2200631, at *15; see also Hangarter, 373 F.3d at 1016. The County’s motion is GRANTED

14

to exclude those opinions as evidence. Because, as discussed below, the Court declines to exercise

15

jurisdiction over Plaintiffs’ claim under that statute, the Court need not decide whether it would be

16

more appropriate to consider Boruchowitz’s analysis of section 27706 as supplemental argument

17

or to disregard it entirely.

18

The Court also excludes and disregards the portions of Boruchowitz’s report addressing

19

case law interpreting the Sixth Amendment. See, e.g., Boruchowitz Report ¶¶ 46–48 (block-

20

quoting case law from the United States Supreme Court and an 1883 decision of a New York state

21

court). If Plaintiffs wanted Boruchowitz to present legal arguments, they could have retained him

22

as counsel rather than as an expert, or requested that he file an amicus brief on behalf of himself or

23

one of the indigent defense organizations with which he works. Such arguments fall outside of

24

Boruchowitz’s role as an expert witness.

25

This order assumes for the sake of argument that all of the other evidence to which the

26

County objects is admissible. The Court agrees with the County, however, that statements by

27

Lipetzky do not constitute binding judicial admissions on behalf of the County, nor are her or any

28

other witness’s personal opinions as to what the Sixth Amendment requires in this context relevant
42

1
2
3

to the Court’s interpretation of the law.
B.

Legal Standard for Summary Judgment Under Rule 56

Summary judgment on a claim or defense is appropriate “if the movant shows that there is

4

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

5

law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show

6

the absence of a genuine issue of material fact with respect to an essential element of the non-

7

moving party’s claim, or to a defense on which the non-moving party will bear the burden of

8

persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

9

Once the movant has made this showing, the burden then shifts to the party opposing
summary judgment to designate “‘specific facts showing there is a genuine issue for trial.’” Id.

11
United States District Court
Northern District of California

10

(citation omitted); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely

12

disputed must support the assertion by . . . citing to particular parts of materials in the record

13

. . . .”). “[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the

14

substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v.

15

Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of

16

identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan

17

v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Thus, it is not the task of the court to scour the

18

record in search of a genuine issue of triable fact. Id.; see Carmen v. S.F. Unified Sch. Dist., 237

19

F.3d 1026, 1031 (9th Cir. 2001); Fed. R. Civ. P. 56(c)(3).

20

A party need not present evidence to support or oppose a motion for summary judgment in

21

a form that would be admissible at trial, but the contents of the parties’ evidence must be amenable

22

to presentation in an admissible form. See Fraser v. Goodale, 342 F.3d 1032, 1036−37 (9th Cir.

23

2003). Neither conclusory, speculative testimony in affidavits nor arguments in moving papers

24

are sufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co.,

25

Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). On summary judgment, the court draws all

26

reasonable factual inferences in favor of the non-movant, Scott v. Harris, 550 U.S. 372, 378

27

(2007), but where a rational trier of fact could not find for the non-moving party based on the

28

record as a whole, there is no “genuine issue for trial” and summary judgment is appropriate.
43

1
2
3

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
C.

Plaintiffs’ Claim Under § 1983 and the Sixth Amendment

Both parties seek summary judgment on Plaintiffs’ claim under 42 U.S.C. § 1983 that the
County failed to honor their right to counsel under the Sixth Amendment of the United States

5

Constitution. The parties agree that the Ninth Circuit’s Oviatt decision describes the appropriate

6

framework for a claim for failure to act to preserve a constitutional right. That case held that a

7

plaintiff bringing such a claim under § 1983 “must establish: (1) that he possessed a constitutional

8

right of which he was deprived; (2) that the municipality had a policy; (3) that this policy

9

‘amounts to deliberate indifference’ to the plaintiff’s constitutional right; and (4) that the policy is

10

the ‘moving force behind the constitutional violation.’” Oviatt, 954 F.2d at 1474 (quoting City of

11
United States District Court
Northern District of California

4

Canton v. Harris, 489 U.S. 378, 389–91 (1989)). The analysis here both begins and ends with the

12

first element: whether Plaintiffs were deprived of a constitutional right.

13
14

1. The Sixth Amendment and Rothgery
The Sixth Amendment provides in relevant part that in “all criminal prosecutions, the

15

accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.

16

amend. VI. The Supreme Court addressed “attachment” of the right to counsel in Rothgery as

17

follows:

18
19
20
21
22
23
24
25
26

The Sixth Amendment right of the “accused” to assistance of
counsel in “all criminal prosecutions” is limited by its terms: “it
does not attach until a prosecution is commenced.” McNeil v.
Wisconsin, 501 U.S. 171, 175 (1991); see also Moran v. Burbine,
475 U.S. 412, 430 (1986). We have, for purposes of the right to
counsel, pegged commencement to “‘the initiation of adversary
judicial criminal proceedings—whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment,’”
United States v. Gouveia, 467 U.S. 180, 188 (1984) (quoting Kirby
v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)). The rule is
not “mere formalism,” but a recognition of the point at which “the
government has committed itself to prosecute,” “the adverse
positions of government and defendant have solidified,” and the
accused “finds himself faced with the prosecutorial forces of
organized society, and immersed in the intricacies of substantive and
procedural criminal law.” Kirby, supra, at 689.

27

Rothgery, 554 U.S. at 198. The Court went on to hold in that case that “a criminal defendant’s

28

initial appearance before a judicial officer, where he learns the charge against him and his liberty
44

1

is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of

2

the Sixth Amendment right to counsel,” reversing a decision by the Fifth Circuit that the right had

3

not attached because no prosecutor was aware of or involved with the plaintiff’s first court

4

appearance. Id. at 213.
Formally, the Supreme Court resolved only the question of whether the right had attached,

5
6

and declined to “decide whether the 6-month delay in appointment of counsel resulted in prejudice

7

to Rothgery’s Sixth Amendment rights” or “what standards should apply in deciding this.” Id.

8

The Court hinted at the answer to that question, however, by stating that “counsel must be

9

appointed within a reasonable time after attachment to allow for adequate representation at any

10

critical stage before trial, as well as at trial itself.” Id. at 212.

United States District Court
Northern District of California

11

2. Legal Standard for Unreasonable Delay
As noted above, the Ninth Circuit instructed this Court to consider the question of whether

12
13

the County provided counsel within a reasonable time after attachment as stated in Rothgery,

14

which does not require Plaintiffs to show “actual prejudice.” Farrow, 637 F. App’x at 988–89.

15

Plaintiffs’ surviving Sixth Amendment claim is limited to that issue. See Apr. 2017 Order at 21–

16

27. With the exception of one district court that used a standard of actual prejudice inconsistent

17

with the Ninth Circuit’s instructions here, this Court is not aware of any decision articulating a

18

standard by which to evaluate reasonableness of delay. See id. at 26 (discussing Grogen v.

19

Gautreaux, No. 12-0039-BAJ-DLD, 2012 U.S. Dist. LEXIS 120411, at *9–11 (M.D. La. July 11,

20

2012), report and recommendation adopted, 2012 U.S. Dist LEXIS 120404 (M.D. La. Aug. 24,

21

2012)).

22

The language that the Supreme Court and Ninth Circuit used to describe the requirement

23

for timely appointment rules out possibilities of how to apply the standard that fall at both

24

extremes of the potential significance of attachment. First, and contrary to Plaintiffs’ arguments

25

and their expert’s personal view of the right to counsel, Rothgery cannot be understood as

26

requiring counsel to be appointed at an indigent defendant’s first court appearance, because the

27

decision specifically provides for “a reasonable time after attachment,” and also holds that the

28

right attaches at such an appearance. 554 U.S. at 212–13 (emphasis added). Thus, except where a
45

defendant’s first appearance is itself a critical stage requiring representation, or arises after such a

2

critical stage, at least some time between the first appearance and the appointment of counsel is

3

constitutionally permissible. Second, and contrary to the County’s arguments here, the majority

4

opinion’s framing of the issue as “a reasonable time after attachment,” rather than “before a

5

critical stage,” precludes a framework that looks only to the timing of appointment with respect to

6

upcoming criminal stages. See id. (emphasis added); cf. id. at 218 (Alito, J., concurring) (“Texas

7

counties need only appoint counsel as far in advance of trial, and as far in advance of any pretrial

8

‘critical stage,’ as necessary to guarantee effective assistance at trial.”). Although the majority

9

opinion’s phrasing explicitly recognizes the importance of adequate representation at critical

10

stages, it also requires some evaluation of whether the period of time between attachment and

11
United States District Court
Northern District of California

1

appointment is reasonable. Both of these conclusions are bolstered by the Ninth Circuit’s

12

instruction for this Court to consider “how soon after the Sixth Amendment right attaches must

13

counsel be appointed, . . . at what point does delay become constitutionally significant,” and

14

“whether the delay in appointing counsel was unreasonable.” Farrow, 637 F. App’x at 988

15

(emphasis added).15
In its previous order, this Court indicated that it would look to “the totality of the

16
17

circumstances” to determine whether delay in providing counsel was constitutionally

18

unreasonable, taking into account “the time needed to prepare for an upcoming critical stage,” but

19

not limiting the analysis to that factor. Apr. 2017 Order at 27. The Court is not persuaded that

20
21
22
23
24
25
26
27
28

15

Affording due respect to, on one hand, Justice Alito, and on the other, Professor Boruchowitz,
the majority opinion’s “reasonable time after attachment” language could be understood as dicta in
light of the Court’s statement that its “narrow” holding was limited to the issue of whether the
right had attached and that the Court therefore had “no occasion to consider what standards should
apply in deciding” whether a delay in appointment of counsel actually violated the Sixth
Amendment. Rothgery, 554 U.S. at 213. Outside of the context of this case, one could perhaps
reasonably argue that the language on which this order focuses is not binding, and either that the
time between attachment and appointment of counsel is not in itself significant (and the
appropriate metric is instead solely the time between appointment and a critical stage) or that
appointment is required at the time of attachment. Taking into account the Ninth Circuit’s
instructions remanding this case, however, this Court has no occasion to reconsider whether the
phrase at issue in Rothgery would in itself constitute binding precedent. See Farrow, 637 F.
App’x at 988 (stating that the “remaining question is whether Lipetzky appointed counsel within a
‘reasonable time after attachment to allow for adequate representation at any critical stage before
trial, as well as at trial itself,’” and instructing this Court to consider Plaintiffs’ claim in that
context).
46

1
2
3
4

any alteration of that framework is warranted.
3. Plaintiffs Have Not Presented Evidence Sufficient to Establish a Violation
Based on a Facially Unconstitutional Policy or Deliberate Indifference
Plaintiffs argue that the Court need not and should not consider the particular

5

circumstances of their individual experiences to find a violation of their rights under the Sixth

6

Amendment based on the County’s policy of failing to provide counsel at criminal defendants’

7

first court appearances. The record presented here does not support such a finding.
As a starting point, the Court declines to accept Plaintiffs’ invitation to set a per se rule as

9

to how much time after attachment is presumptively reasonable. See Pls.’ Reply at 19–20 (asking

10

the Court to hold that “arrangements for provision of counsel should [presumptively] occur within

11
United States District Court
Northern District of California

8

48 hours of arrest, and that counsel should [presumptively] be provided at the first court

12

appearance”). Plaintiffs cite no authority for the proposal that “arrangements for provision of

13

counsel” must begin before the right to counsel attaches. As previously discussed and as

14

determined by the court of appeals, the right to counsel only attached at Wade and Farrow’s first

15

appearances. Moreover, as discussed above, the Court construes Rothgery as foreclosing a rule

16

that counsel must be provided at the first appearance under the circumstances presented here.

17

Finally, the record in this case is not amenable to crafting the kind of rule Plaintiffs seek. It is true

18

that courts have, in some circumstances, fashioned rules to protect constitutional rights that

19

incorporate clear time periods. See, e.g., McLaughlin, 500 U.S. at 56–57 (establishing a

20

presumptive time limit of forty-eight hours for probable cause determinations after warrantless

21

arrests). If Plaintiffs wish for this Court to derive from the “reasonable time” standard endorsed

22

by the Supreme Court and Ninth Circuit a hard rule that, under the Sixth Amendment, counsel

23

must always be appointed within a fixed amount of time after attachment—or that some fixed

24

period is presumptively reasonable or unreasonable absent a showing to the contrary—they have

25

not presented the sort of evidence that would allow the Court to do so. Derived from the federal

26

Constitution, such a rule would presumably apply nationwide, in jurisdictions with a wide range of

27

resources, caseloads, and current practices.

28

Boruchowitz’s report, to the extent that it complies with Daubert, identifies a number of
47

1

ways that delay in appointing counsel can potentially harm an indigent defendant. That there is

2

some risk of such harm is not controversial—the Supreme Court recognized as much in Rothgery:

3

“a defendant subject to accusation after initial appearance is headed for trial and needs to get a

4

lawyer working, whether to attempt to avoid that trial or to be ready with a defense when the trial

5

date arrives.” 554 U.S. at 210. For the most part, Boruchowitz does not tie the risks that he

6

identifies to a particular period of delay, and Coker focuses his opinions on the particular

7

circumstances of Plaintiffs’ cases rather than considerations affecting a typical case. The

8

evidentiary record before the Court therefore provides no basis to determine how much time a

9

generic, competent public defender’s office (or other system for appointing counsel) would need
to provide a defendant with an attorney—or in other words how much delay is reasonable, and

11
United States District Court
Northern District of California

10

thus tolerable, under the Constitution in a typical case.

12
13
14

The record that Plaintiffs have presented also does not show that the Public Defender’s
Office employed an inherently unconstitutional policy in delaying appointment of counsel.
With the possible exception of the 1984 letter regarding arrangements at a particular

15

courthouse where neither Farrow nor Wade appeared—a letter of which Lipetzky was not aware

16

before this litigation, and for which there is no evidence that those arrangements continued in

17

force even at that courthouse through the time of Plaintiffs’ prosecutions—Plaintiffs cite no

18

evidence of a policy to withhold representation for any particular period of multiple days. While

19

there is some evidence regarding typical periods between court appearances, the only evidence

20

cited regarding the timing of representation indicates that the Public Defender’s Office received

21

referrals from the court “sometime between” the two court dates, Baker Decl. Ex. D (Lipetzky

22

Dep.) at 44:21–23, or as stated in Lipetzky’s declaration, the next business day after the first

23

appearance, Lipetzky Decl. ¶ 3, and defendants waited “up to”—i.e., at most—“two weeks in

24

custody . . . to be represented by an attorney,” Martin Decl. Ex. 1 (Lipetzky Dep.) at 030, 64:2–12.

25

The record also indicates that the Public Defender’s Office initiated contact with criminal

26

defendants before the second court appearance. Martin Decl. Ex. 1 at 037 (excerpt from the

27

Public Defender’s Office website stating that “a paralegal, law clerk or attorney” would interview

28

defendants in custody “before the next court date”); see also Baker Decl. Ex. C (Requests for
48

1

Admissions) ¶ 7 (indicating that a staff member met with Farrow the next business day after his

2

first court appearance, which was nine days before his second appearance); Lipetzky Decl. ¶ 6

3

(same).
Plaintiffs cite no evidence that, as a matter of course, the County “appoint[ed] counsel five

4
5

to thirteen days and ‘sometimes longer’ after the right attaches.” Cf. Farrow, 637 F. App’x at

6

988–89 (instructing this Court to consider at the pleading stage whether Plaintiffs’ allegation that

7

the County utilized such a test stated a claim for unreasonable delay under Rothgery). Aside from

8

their own individual experiences, Plaintiffs have not presented evidence that such a policy exists,

9

and cannot prevail on the basis that a hypothetical policy would violate the Sixth Amendment.16

10

The only policy actually supported by the record is that counsel was provided “sometime

United States District Court
Northern District of California

11

between” the first court appearance and the second court appearance. See Baker Decl. Ex. D

12

(Lipetzky Dep.) at 44:21–23. Such a policy—i.e., appointing counsel between attachment of the

13

right and the first critical stage—does not inherently violate Rothgery’s requirement that counsel

14

be appointed “within a reasonable time after attachment to allow for adequate representation at

15

any critical stage.” See 554 U.S. at 212.
Plaintiffs also contend that the County used a policy that allowed for arbitrary periods of

16
17

delay in appointment of counsel, and that this policy of indifference—rather than, as addressed

18

above, a policy of a particular length of delay—itself violated Plaintiffs’ Sixth Amendment right

19

to counsel, regardless of the delay (or lack thereof) that Plaintiffs themselves experienced. See

20

Pls’ MSJ at 18–20. In making that argument, Plaintiffs implicitly disregard the first element of the

21

Oviatt test—that Plaintiffs were deprived of a right—by assuming that demonstrating a policy of

22

indifference to the right to timely provision of counsel would in itself suffice to show that they

23

were deprived of a constitutional right.

24
25
26
27
28

16

Even if Plaintiffs had established the existence of such a policy, the record is not conducive to
determining its reasonableness, for much the same reasons that, as discussed above, this record
would not allow the Court to develop a per se rule of how much time is permissible. The lack of
evidence regarding broad topics like, for example, logistical challenges to appointing counsel,
processes for resolving conflicts and caseload constraints, and accepted practices and timelines in
other jurisdictions would still leave the finder of fact without sufficient facts to justify a
conclusion that the policy, on its face, was constitutionally unreasonable.
49

Plaintiffs rely on cases considering the right to due process, citing Oviatt’s examination of

1

whether a jail had sufficient internal procedure to track whether inmates’ liberty interests

3

established by Oregon law were sufficiently protected, and the Supreme Court’s decision in Carey

4

v. Piphus, 435 U.S. 247 (1978), which held that even students whose suspensions were justified

5

and who suffered no other actual injury were deprived of their procedural due process rights as a

6

result of constitutionally defective procedures and thus entitled to nominal damages. See Carey,

7

435 U.S. at 266; Oviatt, 954 F.2d at 1473–76; Pls.’ Mot. at 19–20 (citing Carey); Pls.’ Opp’n to

8

MSJ at 11–12 (discussing Oviatt). In those cases, however, the defendants’ indifference, lack of

9

safeguards, or defective procedures were themselves components of the deprivation of a right

10

because the right at issue was a right to process. Here, the Plaintiffs’ surviving constitutional

11
United States District Court
Northern District of California

2

claim is for the right to counsel, and specifically the right to appointment of counsel within a

12

reasonable time after attachment. See Farrow, 637 F. App’x at 987 (affirming dismissal of

13

Plaintiffs’ due process claims); Apr. 2017 Order at 27–28 (allowing Plaintiffs’ Rothgery Sixth

14

Amendment claim to proceed). Plaintiffs have not presented authority for the proposition that a

15

criminal defendant who is in fact provided counsel within a reasonable period of time after

16

attachment nevertheless suffers a deprivation under the Sixth Amendment if the process by which

17

counsel is provided lacks safeguards to ensure timeliness.17
Accordingly, on the record before the Court, Plaintiffs cannot prevail based on a per se rule

18
19

of when counsel should be appointed, a theory of systemic deficiency based on a generally

20

applicable policy of delay, or a theory that deliberate inaction or indifference itself violates the

21

Sixth Amendment without need to consider the specific circumstances of Plaintiffs’ own

22

appointment of counsel.

23
24
25
26
27
28

17

Even if this case included a due process claim, which in its present form it does not, it is not at
all clear that the Due Process Clause would govern the process by which counsel is appointed.
The Fourteenth Amendment provides that a state may not “deprive any person of life, liberty, or
property without due process of law.” U.S. Const. amend. XIV. While indigent criminal
defendants certainly have a right under the Sixth Amendment to timely appointment of counsel,
Plaintiffs have not argued that indigent defendants have a liberty or property interest in timely
appointment such that an inadequate procedure in determining the time of appointment would
effect a constitutional deprivation in itself under the Due Process Clause, even if counsel was
timely appointed within the meaning of the Sixth Amendment.
50

4. Plaintiffs’ Individual Experiences

1
2

Without establishing a per se rule of how long a delay is permissible or showing that the

3

County subjected Plaintiffs to an inherently impermissible policy, Plaintiffs could of course still

4

prevail by showing that the particular delays that they each experienced were constitutionally

5

unreasonable under the totality of the circumstances, see Apr. 2017 Order at 27, and that the

6

County is liable under Monell and Oviatt for its deliberate failure to prevent such unreasonable

7

delays. To meet Oviatt’s first element of deprivation of a constitutional right, Plaintiffs must show

8

that the County in fact did not provide them with counsel within a reasonable time after

9

attachment.

10

That is not to say, however, that the County can rely on circumstances after counsel was

United States District Court
Northern District of California

11

appointed to show, post hoc, that the time of appointment was reasonable because it did not

12

actually affect Plaintiffs’ ability to defend themselves in the criminal proceedings against them.

13

Although Rothgery’s “reasonable time after attachment” requirement has not yet been subject to

14

significant analysis in the courts, the concept of reasonableness more generally is a familiar one,

15

and does not generally include the benefit of hindsight. See, e.g., Premo v. Moore, 562 U.S. 115,

16

132 (2011) (considering the reasonableness of counsel’s conduct in the context of a Strickland

17

ineffective assistance claim, and holding that “hindsight cannot suffice for relief when counsel’s

18

choices were reasonable and legitimate based on predictions of how the trial would proceed”);

19

Graham v. Connor, 490 U.S. 386, 396 (1989) (holding in the context of the Fourth Amendment

20

that the “‘reasonableness’ of a particular use of force must be judged from the perspective of a

21

reasonable officer on the scene, rather than with the 20/20 vision of hindsight”); Zebley v.

22

Heartland Indus. of Dawson, Inc., 625 F.3d 449, 457–58 (8th Cir. 2010) (holding that a district

23

court correctly stated the standard for negligence under North Dakota law when it instructed jurors

24

that they should not consider hindsight in determining how a reasonable person exercising

25

ordinary care would have behaved). Moreover, to engage in post hoc analysis of how the delay

26

affected Farrow and Wade would run afoul of the Ninth Circuit’s admonition that Plaintiffs need

27

not show actual prejudice. In the context of Rothgery, the appropriate test is therefore whether

28

counsel was provided within a period of time after attachment that was reasonable under the
51

1

circumstances of a defendant’s case, as such circumstances were apparent at the time of

2

attachment and during the intervening period before counsel was provided. The Court declines to

3

consider developments in Plaintiffs’ cases that occurred, or circumstances that only became clear,

4

after Martin was assigned and agreed to represent them.

5

There is some dispute as to whether it is appropriate to take into account considerations

6

that are not directly related to the fairness of the criminal trial, such as the potential effects of

7

confinement on a criminal defendant’s employment or child custody, among other risks identified

8

in Boruchowitz’s report. The County cites United States v. Gonzalez-Lopez, 548 U.S. 140, 147

9

(2006), for the proposition that the right to counsel is limited to the purpose of ensuring a fair trial,
and that the only relevant potential for prejudice would be the potential for an unfair trial. See

11
United States District Court
Northern District of California

10

Reply Re Mot. to Exclude at 3. The passage on which the County relies, however, describes “the

12

right to the effective assistance of counsel,” which the Supreme Court originally derived from the

13

Due Process Clause and later recognized as also arising from “the Sixth Amendment’s purpose of

14

ensuring a fair trial.” Gonzalez-Lopez, 548 U.S. at 146–47 (emphasis added). The Court

15

contrasted that right with the “right to select counsel of one’s choice,” which “has been regarded

16

as the root meaning of the constitutional guarantee,” and which requires no showing of prejudice

17

to establish a violation of a defendant’s right under the Sixth Amendment. Id. at 147–480. As

18

discussed in this Court’s previous order, this Court construes the right to timely appointment of

19

any counsel as distinct from the right to effective counsel. See Apr. 2017 Order at 25 (“Moreover,

20

it is not clear that the same standards apply to a case involving delayed appointment of counsel,

21

like this case, as would apply to cases involving ineffective assistance of counsel, as in Strickland

22

and Cronic.”); see also Hurell-Harring v. State, 15 N.Y.3d 8, 22 (2010) (holding that allegations

23

that “counsel was simply not provided at critical stages of the proceedings . . . state[d] a claim, not

24

for ineffective assistance under Strickland, but for basic denial of the right to counsel under

25

Gideon”). Because it does not affect the conclusion that the County is entitled to summary

26

judgment, the Court assumes for the sake of argument that considerations aside from the fairness

27

of trial are relevant to whether counsel was appointed within a reasonable period of time after

28

attachment
52

1
2

Having addressed the framework to apply and the sort of considerations that are relevant,
the Court turns to whether the delays that Plaintiffs experienced were reasonable.

3
4

a. Time Allowed to Prepare for a Critical Stage
As a starting point, with respect to the only factor specifically identified by the Supreme

5

Court in Rothgery, the time allowed after appointment for counsel to prepare for upcoming critical

6

stages in Plaintiffs’ cases does not suggest that the delay was unreasonable. The Ninth Circuit

7

affirmed this Court’s determination, based on allegations that do not differ significantly from the

8

evidence in the record as to this issue, that Plaintiffs’ first appearances were not critical stages, but

9

that their second appearances for “further arraignment” were critical stages. Farrow, 637 F.
App’x at 988. The question as to this factor, then, is whether the timing of appointment

11
United States District Court
Northern District of California

10

reasonably allowed for adequate representation at the second appearances. See id. (quoting

12

Rothgery, 554 U.S. at 212). Asked how much time a lawyer needs to prepare for arraignment,

13

Boruchowitz testified that a lawyer appointed in advance “should spend a good hour meeting with

14

the client before you do anything,” and if “appointed right there in the courtroom, you try to take

15

as much time as the judge will give you.” Martin Opp’n Decl. Ex. 12 (Boruchowitz Dep.) at

16

28:7–16.

17

Martin was assigned to Farrow’s case one day before Farrow’s second appearance for

18

arraignment and to Wade’s case three days before Wade’s second appearance for arraignment.

19

Baker Decl. Ex. F (Martin Dep.) at 9:25–10:6, 31:23–33:5; Martin Supp’l Decl Ex. 4 at 162 & Ex.

20

5 at 167. That timing allowed for the sort of preparation that Boruchowitz testified is appropriate,

21

and there is no other evidence in the record suggesting that more time would be necessary for an

22

attorney to provide adequate representation at an arraignment. Moreover, it is difficult to see how

23

appointment one or more days before a defendant’s arraignment could be construed as providing

24

inadequate time to prepare when appointing counsel at a first appearance that includes

25

arraignment—the process that Plaintiffs seek to require, which the County has in large part

26

adopted in the years since this case was filed, and which is widely used in other jurisdictions—

27

provides less time for counsel to prepare than was available in either Plaintiff’s case. There is also

28

no evidence that Martin believed he had insufficient time to prepare for Plaintiffs’ second
53

1

appearances. The factor of sufficient time to prepare for a critical stage therefore weighs against

2

finding the delay unreasonable for either Plaintiff.

3

The next question is whether evidence in the record pertaining to other relevant factors

4

would nevertheless require the conclusion that the delay in appointment for either Plaintiff was

5

unreasonable (as Plaintiffs assert) or reasonable (as the County asserts) based on the totality of the

6

circumstances. The Court examines each Plaintiff’s circumstances separately, beginning with

7

Wade.

8

b. Other Factors Relevant in Wade’s Case
Wade, one of five codefendants, first appeared in court on Monday, November 14, 2011,

10

and his right to counsel therefore attached. Martin Supp’l Decl. Ex. 5 at 165; Lipetzky Decl. ¶ 9.

11
United States District Court
Northern District of California

9

The Public Defender’s Office determined that it had a conflict three days later on November 17.

12

Lipetzky Decl. ¶ 9 & Ex. D. The Alternate Defender’s Office determined that it also had a

13

conflict the following day, November 18, and the case was referred to the conflicts panel and

14

assigned to Martin that same day. Id. ¶ 9 & Ex. E; Baker Decl. Ex. F (Martin Dep.) at 31:23–33:5.

15

Martin began working on the case that day—four days after Wade’s right to counsel attached. See

16

id. at 37:16–39:4; Baker Decl. Ex. R.

17

Coker, an experienced public defender who before his retirement was in charge of the San

18

Diego County Public Defender’s Office, states in his report that “the fact that attorney Martin’s

19

assignment to represent Wade in this complex and serious five-defendant case occurred only four

20

days after Wade’s initial court appearance seems quite reasonable under all these circumstances

21

and entirely consistent with diligent efforts to arrange for counsel.” Martin Decl. Ex. 3 at 126

22

¶ 16. Although Boruchowitz—who is also an experienced public defender—identifies a number

23

of generic risks inherent in delayed provision of counsel that would tend to weigh against the

24

reasonableness of any delay, his report and testimony do not address how much time is reasonable

25

to resolve conflicts of interest in a case with several codefendants, and thus do not refute Coker’s

26

opinion on that issue. See Martin Decl. Ex. 2 at 094–97, 101–04 ¶¶ 15.1–15.13, 37–48. Nor is the

27

Court persuaded that the fact that the County’s more recent practice under the ACER program

28

(which devotes more resources to provide counsel at first appearances) calls for resolving conflicts
54

1

within “not more than two days,” Lipetzky Decl. ¶ 15, creates a material factual dispute. The

2

possibility of faster appointment does not contradict Coker’s conclusion that the four-day conflicts

3

process in Wade’s case was reasonable. Followed to its logical conclusion, a rule that

4

reasonableness requires that all possible efforts and resources must be devoted to minimizing

5

delay in provision of counsel would essentially require appointment at all defendants’ first

6

appearances—an outcome that, as discussed above, is not consistent with the law of the case or

7

with Rothgery’s allowance of a reasonable delay.

8

Even assuming for the sake of argument that the delay in appointing counsel allowed
charges to be added against Wade that would not otherwise have been permitted without leave of

10

the court, and that the delay affected his school principal’s recollection of his interrogation to his

11
United States District Court
Northern District of California

9

detriment, there is no evidence aside from Coker’s opinion as to how much time is reasonable for

12

a public defender’s office to resolve conflicts of interest in a case like Wade’s. Because Coker’s

13

opinion on that issue is undisputed, and taking into account the fact that there is no evidence that

14

the delay left counsel with insufficient time to prepare for a critical stage, no rational finder of fact

15

could conclude on this record that the four-day delay in Wade’s case was unreasonable. The

16

County’s motion for summary judgment is therefore GRANTED as to Wade’s Sixth Amendment

17

claim, and Plaintiffs’ motion is DENIED as to that claim.

18
19

c. Other Factors Relevant in Farrow’s Case
Farrow’s case presents a closer call, because there is essentially no evidence in the record

20

explaining a reason for the longer delay of twelve days between attachment of his right to counsel

21

and Martin’s assignment to represent him. The Public Defender’s Office determined that

22

appointment from the conflicts panel was necessary in light of its excessive caseload, but neither

23

Coker nor Boruchowitz addresses the amount of time reasonable to arrange for such appointment.

24

Coker’s speculation that the Labor Day holiday weekend might have led to more criminal cases

25

than usual does not appear to be based on any evidence, and regardless, does not explain why

26

appointment of conflict counsel in such circumstances should take twelve days. See Martin Decl.

27

Ex. 3 at 127 ¶ 18.

28

The totality of the circumstances, however, is not limited to merely the length of the delay.
55

1

In Farrow’s case, the Public Defender’s Office dispatched a paralegal to meet with Farrow and

2

inquire about his case on the next business day after his first court appearance, which, due to the

3

long weekend, was four calendar days later. Lipetzky Decl. ¶ 6. The paralegal completed a report

4

of the interview on a form that included sections for medical or psychiatric history, bail

5

information or “general comments,” and case notes “re case progress, problems, settlement,”

6

among other topics. Lipetzky Decl. Ex. B. According to Lipetzky, “[n]either the referral packet

7

itself nor the interview with Mr. Farrow disclosed any urgent issues pertaining to Mr. Farrow or

8

the charges that had to be addressed in advance of” the next appearance. Lipetzky Decl. ¶ 6.

9

Coker’s report states his opinion that “[t]his interview process would have identified, but did not,
any matter in Farrow’s criminal case requiring immediate attention.” Martin Decl. Ex. 3 at 127

11
United States District Court
Northern District of California

10

¶ 20. Lipetzky states in her declaration that in cases where the paralegal interview identified such

12

issues, the Public Defender’s Office “would take steps to address these immediate needs.”

13

Lipetzky Decl. ¶ 4.18
Boruchowitz’s report generally identifies potential harms that could result from delayed

14
15

appointment of counsel because of issues that counsel would recognize and might redress if

16

appointed sooner. See Martin Decl. Ex. 2 at 094–97, 101–04 ¶¶ 15.1–15.13, 37–48.

17

Boruchowitz’s report does not, however, address whether a paralegal could identify those issues,

18

and thus does not rebut Coker’s conclusion that the paralegal who interviewed Farrow would have

19

identified any such issues if they had applied to Farrow. As for whether the paralegal interview

20

was itself unreasonably delayed, if the Court accepts the premise (based on the Supreme Court’s

21

formulation of the rule in Rothgery) that some delay is permissible, Boruchowitz’s report does not

22

provide a standard to evaluate how much delay is reasonable, and Plaintiffs do not identify other

23

evidence in the record to support a conclusion that meeting with a defendant on the next business

24

day after attachment of the right to counsel is unreasonable, particularly where the next court

25
26
27
28

18

Plaintiffs assert that there is no evidence that the Public Defender’s Office actually took such
steps. Pls.’ Opp’n to MSJ at 13. Plaintiffs do not, however, identify any evidence contradicting
Lipetzky’s statement, and in the absence of contrary evidence there is no reason to conclude that
Lipetzky’s declaration under penalty of perjury about the procedure that her office followed is not
accurate.
56

1

appearance is not imminent, and where the Public Defender’s Office generally did not receive

2

referrals from the Superior Court until that next business day, see Lipetzky Decl. ¶ 3.
The evidence that the paralegal interview would have revealed any issues requiring

3
4

attention before the second appearance, and that it in fact revealed no such issues, is

5

uncontroverted. The evidence also shows, as discussed above, that Martin was appointed with

6

enough time to prepare for the first critical stage of Farrow’s case. Taking into account all of the

7

facts and circumstances of Farrow’s case, no reasonable finder of fact could conclude on this

8

record that the twelve-day delay in appointing counsel in that case was constitutionally

9

unreasonable. The County’s motion for summary judgment is therefore GRANTED as to
Farrow’s Sixth Amendment claim, and Plaintiffs’ motion for summary judgment is DENIED as to

11
United States District Court
Northern District of California

10

this claim.
***

12

Because the Court concludes that a rational finder of fact could not find on this record that

13
14

provision of counsel to Farrow and Wade was unreasonably delayed for the purpose of the Sixth

15

Amendment, the Court does not reach the parties’ remaining arguments regarding the Sixth

16

Amendment claim, including whether Farrow is collaterally estopped from bringing such a claim

17

and whether the practices at issue violated the Sixth Amendment rights of potential class members

18

other than the current Plaintiffs. Without evidence to support the conclusion that Plaintiffs’ own

19

Sixth Amendment rights were violated, Plaintiffs cannot represent a class of other individuals on

20

their claims that the County’s practices violated the rights of putative class members. In any

21

event, the Court does not decide whether the rights of the non-party putative class members were

22

violated, as no class has been certified. Although Plaintiffs’ own Sixth Amendment claims are

23

dismissed with prejudice, the claims of other members of the putative class are not before the

24

Court, and this order does not bar any person other than Wade and Farrow from bringing such a

25

claim.

26
27
28

D.

Plaintiffs’ Claim Under California Government Code Section 27706

Plaintiffs’ remaining claim under section 27706 of the California Government Code is a
state law claim that falls within this Court’s subject matter jurisdiction, if at all, under the doctrine
57

1

of supplemental jurisdiction codified by 28 U.S.C. § 1367(a). Under subsection (c) of that statute,

2

however, a district court “may decline to exercise supplemental jurisdiction over a claim under

3

subsection (a) if,” among other reasons, “the claim raises a novel or complex issue of State law” or

4

“the district court has dismissed all claims over which it has original jurisdiction.” Id. § 1367(c).

5

“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of

6

factors to be considered under the [supplemental] jurisdiction doctrine—judicial economy,

7

convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the

8

remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
This case raises what appear to be novel issues of how quickly section 27706 requires a

9

public defender to provide representation upon request or appointment, whether and how ethical

11
United States District Court
Northern District of California

10

conflicts affect that inquiry, and whether a referral of a plaintiff’s request for counsel by a court to

12

a public defender’s office triggers the public defender’s obligations under section 27706 as either a

13

direct request by the plaintiff for representation by the public defender or an appointment of the

14

public defender by the court. Plaintiffs present no argument in their briefs why this case warrants

15

a deviation from the usual approach of declining to exercise state law claims after all federal

16

claims have been dismissed. The Court therefore GRANTS the County’s request and dismisses

17

Plaintiffs’ section 27706 for lack of subject matter jurisdiction, without prejudice to Plaintiffs

18

bringing that claim in a court of competent jurisdiction.

19

IV.

20

CONCLUSION
For the reasons discussed above, the Court concludes that a reasonable finder of fact could

21

not find that the delay in providing counsel after Plaintiffs’ first appearances in their criminal

22

cases was constitutionally unreasonable. To be clear, in reaching this determination, the Court

23

considers only what conclusions can be drawn from the record available, and does not purport to

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hold that a four- or twelve-day delay is presumptively reasonable, or that an interview by a

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paralegal before counsel is appointed can necessarily substitute under the Sixth Amendment for

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providing an attorney. Based on the evidence presented in this case, however, Plaintiff’s motion

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for summary judgment is DENIED, the County’s motion for summary judgment is GRANTED as

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to Plaintiffs’ claim under 42 U.S.C. § 1983 and the Sixth Amendment, and Plaintiffs’ claim under
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California Government Code section 27706 is DISMISSED for lack of subject matter jurisdiction,

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without prejudice to Plaintiffs bringing that claim in a court of competent jurisdiction. The Clerk

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is instructed to enter judgment accordingly and to close the file.

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Because the claims of the putative class are not before the Court, this order does not bar
absent putative class members from bringing any claim in a separate action.
IT IS SO ORDERED.
Dated: January 2, 2019
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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United States District Court
Northern District of California

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