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Riverside’s Public Defender Seeks Respect for Office

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Final of Two Part Series
By Bruce Bean

Public Defender Gary Windham recently spoke with the Black Voice News about his vision and goals for the Law Offices of the Public Defender of Riverside County. Here is the second part of that interview.

Black Voice News: The Riverside County District Attorney’s office says that they have a 98 or 99% conviction rate, what is yours?
Gary Windham: They claim it’s 99% and we know that based on our records that’s not true. What they are saying is that if you plead to something, to anything, it’s a victory. If you’re charged with murder and you are found guilty of voluntary manslaughter, it’s a victory. Well that’s a victory for us because our client is looking at a maximum of nine years instead of 25 years to life. We call that a victory and they call it a victory.
If our client is charged with drunk driving, but they come back and say, “no it wasn’t drunk driving, but resisting an officer”, well that is a victory for us. They can say that because; remember I told you that 90% of the time our client did it. So, if they were to say they were between 85 and 90%, I would agree with that, but if you say 99%, I disagree with that.
BVN: What would you say your win rate was; what would you say to critics?
GW: You know we don’t keep records of that because we have a different way of doing business. The definition of winning is that if you want to win a case then you go work in the DA’s office because theoretically they should never lose a case. We know what cases we win, but we don’t keep track of wins and losses. We keep track of are you going to your client, are you giving the best service, are you going to training and are you doing your best? Sometimes our victory is keeping the jury out for 15 minutes. Remember I told you that sometimes you have a fool for a client and I go to trial knowing that I am going to lose, but I go to trial anyway because the system says he has a right to a trial.
BVN: I was reading that the jury pool here is unbalanced. Is it very conservative?
GW: This pool in Riverside County is one of the best that I have seen. It’s evenly balanced. For example in Ventura County, and that’s my experience, it’s very educated engineers, highly conservative Republicans and they are extremely right-wing. Here you have a mixture of common folks. People on welfare are on juries. You got blue-collar folks, you have highly educated folks all in the pool, and it brings a different perspective. We have gone to trial and won more misdemeanor cases than the law would allow and our success rate at trial is phenomenal.
BVN: I’ve talked to some other defense attorneys who feel that African Americans and Hispanics get stiffer sentences because when they go to trial they get older juries and that the DA has free reign because of that.
GW: Let’s take that in two pieces. First of all the jury is not going to sentence anybody. When it comes down to sentencing, it is the judge. All the jury is going to do is say that you are guilty or not guilty. Only in death penalty cases do they make a recommendation whether the death penalty should be given or not. So, it is true that African Americans and Hispanics tend to receive higher sentences.
African Americans and Hispanics seem to be charged more often. And the question is ‘is there any bias in that’? I believe there is. Can I prove it? I can’t. If I could, I would be trying everyone that goes in there. I just know it exists and you can tell by the way you pick juries. In one case that we just recently had, African Americans were thrown off the jury left and right because they thought that the Tyisha Miller case might influence Black votes. Or they think that Blacks are too liberal or hate police or establishments or whatever the case may be. That’s the charging aspect of the DA or the sentencing aspect of the judge.
Now let’s look at the aspect of it. When we go before a jury, we have a void ire process and that process is the selecting of the jury. The purpose is to get a balanced jury. And if the jury seems to be unbalanced, we would bring a challenge to that jury. When you have serious cases like the killing of a child after being molested there are not too many people who will like that whether you are Black or not. So, we have certain cases like molestation that seem to be extremely disadvantageous to our clients. Not only do we have to get passed beyond a reasonable doubt, now we have to get passed prejudice and bias toward the fact that you are even charged with such a crime. So the presumption of innocence doesn’t really exist, it’s a presumption of guilt so we have to get passed that and to the level where you start thinking what are your obligations. See our job becomes extremely hard because we have to convince the jury to be fair. So juries can be biased. I’ve seen biased juries. Our job is to balance it out and make the challenges to the pool when it is that way.
Riverside County has a tendency to be much more balanced than, let’s say, San Bernardino County where they do get the older people. That’s why when people come into court and they are young and professional and want to get out of jury duty, we challenge that. If they get out of it then that do you have, the old folks who have the time? That could be advantageous or disadvantageous according to the charge. If you come in with a misdemeanor they are less likely to be biased and have a tendency to listen more. But if you come in and say rape and you have an old man who believes that he has to protect women then you have an uphill battle right away. And that really has nothing to do with race. It has more to do with your upbringing.
BVN: Let me ask you a question about Linda Mayfield because I know for a fact that she has had four different lawyers from your office and I want to know why that would be?
GW: I’ll tell you that generally if it is a serious or inherently dangerous felony then we go vertical which means that the lawyer will take it all the way through. Remember we have 37,000 cases. We get the case at the felony arraignment and the lawyer would look at the case, investigate, and go through the preliminary examination to determine whether there was a crime committed and whether your client committed it. If it is not resolved during that period of time it would be assigned to a lawyer who will follow the case all the way through to trial. So there should only be two lawyers in a felony case that is not vertical. And that is going to be the great majority of the felony cases.
In misdemeanors, the case is assigned to an attorney and it stays there. What has happened in the last two years is that there has been a great turnover in my administration. When I came in, I had lawyers who didn’t want to try cases and who were accustomed to not trying cases. They were accustomed to doing what they wanted to do. When I came in here and put in some structure, so that got rid of some folks. I remember one in particular who said, “If I have to work that hard, I’m going some where else.” So he left. We had a category of people who were fired because I thought they were incompetent. We had a category of people who died. So there were 32 people, at that time I only had 54 lawyers, and 32 of them left. So, I had to hire brand new lawyers. That was the basis of it. So there has been some turnover in the last 18 months because of the change in the office itself.
The other thing is that there has been only one rotation in this office. Every 18 months or so I want lawyers to rotate from misdemeanors to preliminary so that they can get different experience. That was one of the biggest criticisms of this office was that lawyers would be in a certain position for years and become experts in that area, but if they were not here no one else could do it. Two years ago there was a rotation, so that could account for people saying that there was another lawyer. The rationale behind it is that either they were gone and I had to make personnel changes or I had a rotation so that we could maintain skill and cross training that is necessary to maintain a viable office of the benefit of the client. The bottom line is that the client has been serviced and if I don’t get lawyers the experience that they need, they are not going to be serviced well.
BVN: Do you feel that your office has changed?
GW: Every time I asked that whether it’s a judge or a community member they say, “well the public defender did this or they did that.” And I asked them when did they do that and they say five or six years ago. I’m saying what have you heard since September of 1999. It’s a historical analysis that we are living in today, we are being judged today by what happened in the past. The changes that I am making today may not materialize in their perspective for another two years because changes have been made. This office is nothing like it was before. We have been praised by NLADA. We are now recognized by other public defenders in the state of California who used to laugh at Riverside.
BVN: A lot of what you hear is that public defenders come to work here just until they can get a job in private practice and then they leave. Is that true?
GW: No. That used to be the case. In the sixties and seventies, this was a training ground for the defense bar and we didn’t expect lawyers to be here for more than three years. Now it’s a career. We have lawyers who have been here for 20 years.
BVN: How does your budget match up to that of the DA’s office?
GW: When I came here we were operating with mix-match furniture and with tin desks from the 1950’s when the DA had brand new first class stuff. Within the first year I was here, I got $80,000 just to change the furniture in the office to lift the morale. I started meeting with the DA and saying that we have to balance. We got a coin, and in a coin, you have a head and a tails and if you have, more silver in the head than you do the tail it’s going to be a counterfeit piece of money. So, I want the same amount of money you get. So, for the last two years I got more money than the DA. That is the first time that has ever happened in Riverside County.
BVN: Is this a difficult job to do?
GW: Sure it is because we are always fighting up hill. The DA thinks we are clogging the system because we are always fighting them. The judges think we are clogging the system because they want to produce cases through their system and we are saying slow down and look at the facts. Our clients don’t trust us because they think that we are a part of the system and we’re not there for their benefit. So, nobody likes you except another public defender. So, it’s very difficult to do your business. Even your loved ones at home sometimes wonder how you can represent the people you represent. Now a public defender or a defense attorney will say I love this job because if I’m not here then who is because our constitution has to be enforced. If we’re not there then people do whatever they want to do.

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