By Bruce Bean
52-year-old Public Defender Gary Windham has a dream of how the Riverside County Public Defenders office should operate. That dream includes an office that is respected by the legal as well as the general Riverside community.
To make that dream come true Windham has had to make some changes. Those changes included firing some lawyers and accepting the resignations of many others who could not catch his vision for the PDs office.
The result has been a meeting of the minds among those in the Public Defenders office that has gained the office respect in the legal community that has yet to translate into respect by the general population. Windham recently sat down for a face-to-face talk with a Black Voice News about what his office does, and to try to refute misconceptions that he often deals with in the African-American community
Black Voice News: Why dont you tell me about yourself?
Gary Windham: I was born and raised in Oxnard, CA. Went through all schools there, went on to University of California Santa Barbara where I got a BA in political science and left there in 1972 and went to Marquette School of Law in Milwaukee, WI where I got my Jurist Doctorate in 1975. I started working with the Public Defenders office there for a year, then went into private practice for 12 years, and then started back with the public defender in Ventura County in September of 1986. I was a Deputy Public Defender there handling the most serious cases, the homicides, rapes and such matters until 1999 when I was appointed the Public Defender in Riverside. I understand that I am the first African-American public defender in Riverside Countys History and the second in the State of California by two weeks.
BVN: How do you like Riverside?
GW: Actually its quite interesting. Its more advanced than I thought it was. When someone said Riverside, I said where? But Ive come to realize that we have more culture than I had in Ventura County. Were an hour from L.A., an hour and 15 minutes from San Diego, and hour from Big Bear and three hours from Las Vegas. So, its like a hub and there is a lot more that you can do in Riverside County than in other cities. In addition to that, I see it as a mecca. There are very few places in the United States where you have your trial courts, you appellate courts and your federal courts in the same location. LA, San Diego and San Francisco, but that is it, which means that this place is going to grow as far as legal is concerned. You put a law school here then this would be a legal mecca.
BVN: Lets talk about how the Public Defenders office works because many people dont know.
GW: Let me give you a brief history because March of 2003 will be the 40th year of Gideon vs. Wainright. Prior to Gideon vs. Wainright there was no right to council and that particular case Gideon happened to be poor and he was charged with several felony counts and he asked the trial court to have a counsel to represent him.
Well the District Attorney was represented by counsel, private people who could afford to have counsel it was mandatory that that occurred, but the poor folks couldnt. So as a result, there was an inequity there. And I like the last line of Gideon because it says, Without the guiding hand of counsel, there can be no justice in the system.
Our number one job is to represent people who are charged with a crime and cannot afford counsel. So what does that mean? We break it down into several categories. We got misdemeanor cases and felony cases. Misdemeanor cases are those cases that carry a fine and not more than one year in the county jail. If you can get over one year in the county jail all the way up to the death penalty that is a felony.
Then we represent children and the purpose in juvenile court is theoretically not to punish. Its to rehabilitate. Our job is to make sure that when a person is charged with a crime he actually did that crime. We check to make sure that the elements of the crime exist. Because if one of the elements dont exist there is no crime. Next, our job is to look and see if the people involved in the system are doing it correctly.
The problem is capitalism because people feel that if you dont pay for it, it is no good and you dont pay for a PD.
BVN: What is the racial makeup of your office?
GW: They call us the United Nations. We have 94 lawyers. Over half of them are women. We have 12% African-American, 10% Asian, we have one Native American and we have people that are over 50.
BVN: Is there any truth to the thought that the Public Defenders office and the DAs office are in cahoots that you actually sit down and decide whats going to happen in cases together?
GW: Nothing could be further from the truth. At the planning executive level, there should be no adversarial relationship. So Grover Trask, (Riverside DA) and I meet on a monthly basis to talk about things that are happening in the criminal justice system and how we can make it betterproblems that we are having with our trial lawyers because they are always fighting and we may allege that they are not giving us discoveryso we can work policy and things out before they become a problem. We are both government agencies. He is an elected official and I am an appointed official. And sometimes, like in Ventura they are in the same building. We both went to law school. The similarities stop there. Their job is to represent the people of the State of California, they are human, and they do make mistakes. Our job is to represent the client. Period. We owe no allegiance to anyone. We cant lie to the court. We cant present perjured evidence, but our allegiance is to the client.
We go into a case and we make an assessment based on the information thats in the police report, what our investigators come back and tell us, talking to our clients and in many cases by talking to experts who will come in and testify and say based on what we have here there is no way to dispute the evidence. Once we come to that conclusion we have to go to the client, we say here is our assessment based on our experts, and we think you should plead. The law tells us that if the DA offers us something, whether we agree or disagree, we have to take it to you the defendant. The reason why is that the defendant is in the drivers seat. There are two things that we as lawyers cannot do for the defendant. We cannot tell them how to plead, he tells us whether he is guilty or not guilty and he tells us whether he will take a plea. The tactics and strategy in the case belong to the lawyer. Once you tell me that you are not guilty and we say fine. We know the system and we can guide through the system.
So, the problem is that people dont understand the system. That is a two-fold problem. Either we are not explaining it to them or they come in with a bad taste. When I got here, I use to hear that really strongly. I heard youre not trying any cases. My philosophy is that we are a trial litigation firm. We are not the Public Defender of Riverside County. We are the Law Offices of the Public Defender of Riverside County.
The reason why I did that is the people say I want a real lawyer, well we are real lawyers but people dont know that. Secondly, I instituted a community program where we go to the Rotaries and the high schools and talk about what it is we do.
BVN: I went to an arraignment with a woman by the name of Linda Mayfield. I saw a public defender that should not have been at work that day. She told a couple of clients that her mother was in the hospital ill, that she was having a bad day and she put pressure on clients to make decisions. What about the pressures and case loads and how do those things affect how your office defends clients?
GW: Do you have a name? I think anytime that you have caseloads that are unbearable it affects how you defend your client. The question becomes what is unbearable. The National Legal Aid and Defendants Program says the maximum caseload for a felony attorney should be 150 cases per year. The average caseload for a misdemeanor attorney should be 400 cases per year. Thats the ideal according to the NLADA. The state of California is slightly above that. The average in the state of California, we handle about 250 felony cases per year and about 500 misdemeanor cases per year. In Riverside, we are below that.
Riverside had a history of felony attorneys trying to get anywhere between 10 and 12 cases a year to trial, which is a Disneyland number because thats way below what a litigation firm would handle. We are now averaging about 20 to 25 cases pending per month per lawyer. They receive somewhere between two to three new cases at a maximum per month. So, as you can see the caseload here is very low.
When the cases start to go beyond that 20 to 25 numbers, then lawyers begin to complain about caseload and that becomes a management problem. That means that we are not moving cases. Thats what was wrong with Riverside County for many, many years. They didnt have managers.
If you remember the history of this office, in 1999, they were going to close it down because they felt that the office was not acting appropriately. Those lawyers were not representing clients appropriately and I was brought in and was told that Im going to be the last Public Defender in the county of Riverside. If I couldnt straighten, this office out it was going to be closed. I came in here and I assessed this office. I did two things. I had an audit performed by NLADA where they came in and reaffirmed what I thought was wrong with the office. They found that there was no management and there were no policies and procedures or missions and visions. None of these things existed in writing. So, I fixed all that and the next year I had another audit performed and asked, How do you like me now?
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