On the uneven use of investigators by indigent defense attorneys in rural California

CalMatters last week published this story by Anat Rubin about the relative lack of investigators to assist indigent defense attorneys in some counties, with the greatest deficits in nonmetro counties.  The story that illustrates the problem comes out of Siskiyou County, a nonmetro county on the state line. This paragraph explains why investigators matter: 

Defense investigators interview witnesses, visit crime scenes, review police reports and retrieve video surveillance footage that might prove the defendant was on the other side of town when a crime was committed, or that an assault was an act of self-defense. They do work that most lawyers are not trained to do. Without them, police and prosecutorial misconduct — among the most common causes of wrongful convictions — remain unchecked, significantly increasing the likelihood that people will go to prison for crimes they did not commit.

And here's an excerpt with details of the situation in California:

The lack of investigators affects counties throughout the state, from poor, rural areas like Siskiyou to the state’s largest and most well-funded public defense offices. Los Angeles employed just 1 investigator for every 10 public defenders — one of the state’s worst ratios, according to the most recent data from the California Department of Justice. Only seven California counties met the widely accepted minimum standard of 1 investigator for every 3 attorneys.

The situation is most alarming in the 25 California counties that don’t have dedicated public defender offices and pay private attorneys to represent indigent people in criminal court. Most of these attorneys receive a flat fee for their services, and the cost of an investigator would eat away at their profits. Some counties allow contracted attorneys to ask the court for additional funds for investigations, but court records show the attorneys rarely make those requests.

In Kings County, which has one of the highest prison incarceration rates in California, contracted attorneys asked the court for permission to hire an investigator in 7% of criminal cases from 2018 to 2022. In Lake County, attorneys made those requests in just 2% of criminal cases over a three-year period; in Mono County, it was less than 1%. To earn a living from meager county contracts, research shows, private attorneys and firms must persuade defendants to accept plea deals as quickly as possible. An investigation is an expensive delay.

And here is a paragraph putting this all in the context of local funding of the indigent defense function.

As the nation caught up [on funding indigent defense], California slipped behind. The state kept its defender system entirely in the hands of its counties. Today, it is one of just two states — alongside Arizona — that don’t contribute any funding to trial-level public defense, according to the Sixth Amendment Center. The state does not monitor or evaluate the counties’ systems. There are no minimum standards, and for many defendants there are no investigations — even in the most serious cases.

I have written extensively in academic journals here and here about this latter issue and its consequences in rural counties.