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Los Angeles Public Defender’s Office Has A New Interim Leader — And She’s Never Represented Indigent Clients

Nicole Davis Tinkham
Los Angeles County Chief Executive Office

Los Angeles Public Defender’s Office Has A New Interim Leader — And She’s Never Represented Indigent Clients

On Jan. 23, public defenders in Los Angeles County got a new interim boss — over their own objections. For one thing, many have argued, Nicole Davis Tinkham, the appointee, comes from the Office of the County Counsel, where she defended the Board of Supervisors (the same governing body that appointed her), and the Sheriff’s Department, a frequent foe of their clients. Perhaps even more importantly, they say, Tinkham has no experience with indigent criminal defense. For the next six months, she’ll lead the oldest and largest public defender’s office in the country, where 675 attorneys serve a county more populous than New York City.

The day the Board unanimously appointed Tinkham by a 5–0 vote, Robin Bernstein-Lev, a deputy public defender in LA County and 30-year veteran of the office, said she submitted a letter signed by hundreds of colleagues, demanding Tinkham not be given the role.

“An innate part of our responsibility is to distrust law enforcement,” Bernstein-Lev told The Appeal. “We have to have that perspective to be able to defend our clients. We can’t just accept what law enforcement presents to us. …. It’s our job to investigate around what they say. And she has no experience with that.”

Tinkham’s history with County Counsel, which represents the Board of Supervisors and other public agencies, and whose stated mission is to protect the county from “loss and risk,” also raises legal questions about her allegiance to low-income clients. She appears to have “dual loyalties,” the letter states. Especially since she has brought a team from County Counsel with her to the public defender’s office, and, according to the countywide communications office, plans to return to her Counsel post later this year.

“We are at the opposite end of litigation with County Counsel in a number of arenas,” explained Deputy Public Defender Jennifer Friedman. “If there is some tension in a particular case between our office and our clients [on one side] and County Counsel on the other side, it’s very unclear how that is going to play out.”

LA County public defenders at an organizing meeting with members of 2nd Call, a local nonprofit, in Inglewood last week
courtesy Alisa Blair

Public defenders say building trust with their clients is essential to their work, and they fear that could be compromised by Tinkham’s appointment. While employed by the firm Collins Collins Muir & Stewart LLP in 2013, Tinkham provided civil defense to Sheriff’s Deputy Scott Sorrow after he shot a 15-year-old, William Fetters, in the back in 2009. Sorrow had encountered Fetters holding a plastic toy gun and biking with friends in Palmdale. Fetters was awarded $1.1 million in that case.

Tinkham’s involvement in the Sorrow case and others in which she represented the Sheriff’s Office could make public defenders’ jobs more difficult, the attorneys say. “She doesn’t have to be directly interacting with clients for her presence to have an impact on our ability to gain our clients’ trust,” Bernstein-Lev predicted. “It’s very difficult for a person who is getting a lawyer for free to believe that they are getting quality representation. So we are already at a deficit.”

In a statement to The Appeal, Tinkham said she was entirely focused on her new role. “I will have no divided loyalty as I dedicate my time and energy to this interim position,” Tinkham said.

And in her first communication with staff, an email on January 24, Tinkham acknowledged her lack of experience. “Let me be direct: I need your help,” she wrote. “Your criminal expertise is absolutely essential to our office’s core mission. I am relying on you to further these efforts. But, as I hope you’ll soon see, I bring over 15 years of employment law experience that I think can help the office function more effectively, more transparently.”

“Many of you have certainly provided me with a challenging welcome,” she added. “But as you get to know me, you’ll learn that I love a good challenge.”

Tinkham is assuming the leadership role at the Los Angeles County Public Defender’s office at a crucial moment, when experienced leadership at the office is desperately needed, public defenders told The Appeal. Their office hasn’t had a full-time leader since late 2016, when former Public Defender Ronald Brown retired. There’s currently a shortage of social workers to conduct client interviews that inform alternative sentencing requests, and a backlog of Proposition 47 relief cases, in which poor clients are looking to vacate old sentences to improve their job and housing prospects. And in a county with 10.2 million residents, 20 percent of whom are non-citizens, defense attorneys say their clients often have complex immigration needs, and that their office lacks the staff to adequately serve them.

“Having a strong chief of the office can be incredibly important to help reform an office,” said Andres Kwon, an attorney and Equal Justice Works Emerson Fellow at the American Civil Liberties Union of Southern California. It should be “someone who has been a public defender, because you cannot substitute that knowledge. You can’t learn theoretically. You learn representing the most vulnerable poor accused, day in and day out.”

But county officials have been steadfast in their support of Tinkham. County CEO Sachi Hamai wrote a formal recommendation for her, highlighting the Board of Supervisors’ priorities for the job, including “operational effectiveness” and “fiscal responsibility.” In a letter to the public defender’s staff, Board of Supervisors Chair Sheila Kuehl said that she believes Tinkham will bring “much-needed stability to the Public Defender’s Office during an uncertain time.”

A veteran employee of the office, who has met Tinkham multiple times since she assumed the post and asked that we withhold her name to avoid tension with her colleagues, said that some of the Board’s concerns about mismanagement are founded, even if appointing Tinkham was a serious misstep. “I think there’s a lot in our upper management structure that’s not effective,” the employee said, citing a lack of communication between the office’s four assistant public defenders. “I can hardly get an email responded to from our own HR department.”

Tinkham is “approachable, very bright, and seems committed to addressing the difficulties,” the person added, but the Board should have brought in a seasoned public defender alongside her: someone with experience to make final case decisions, and whose name would be on the letterhead.

“We could have her come in and do some oversight or whatever, but [having her] as the last person to answer for any of these clients or cases … I don’t know how that’s not problematic.”

While Tinkham was appointed to serve through June, some defense attorneys are still working to unseat her. Alisa Blair, deputy in charge of the Los Padrinos Juvenile Court and president of the Black Public Defenders Association, is part of the so-called Lawyers of the Resistance, a group of colleagues that launched an online petition for Tinkham’s removal, with 1,288 signatures as of this writing. “My issues are that it sets a very bad precedent and makes us seem unimportant — like the incorrigible bad children of the county — to say anyone can come in to clean things up,” Blair said. The group recently announced a rally in Grand Park in Los Angeles on February 12 to demand that Tinkham’s appointment be rescinded. They’ve made rubber “#notmyPD” bracelets.

Blair, who applied for Tinkham’s position earlier this month, shared a letter with The Appeal that her colleagues sent to grassroots allies, enlisting their support ahead of the rally. Tinkham “has never zealously advocated for an unmedicated mentally-ill individual in the throes of mental illness,” it states. “She has never held the hand of an undocumented client facing removal for a minor, victimless crime. She cannot understand the spirit and commitment necessary to ‘suit up and show up’ every day on behalf of Los Angeles County’s most underserved and misunderstood constituents.”

Veteran San Francisco Public Defender Jeff Adachi is the only public defender in California elected by the voting public, which he considers important to his independence. When a Board of Supervisors makes the selection, he said, “the office-holder is beholden to the Board of Supervisors.”

Experience in criminal defense is important too, he said. Before being elected, he served as an attorney in the office he now runs for 15 years. “You have to weigh in constantly in this day and age,” Adachi said. “You need someone who understands bail reform, sentencing reform, and is committed to reducing mass incarceration. To bring in someone who doesn’t have experience in that area but has also actively defended law enforcement against police misconduct would be unthinkable here.”

“Right now is a critical time, because Los Angeles is the biggest county in the state, and criminal justice reform is being debated every day, both in the grassroots and the capital,” he added, citing the bail reform and anti-mass incarceration movements. “Having a knowledgeable person who understands these issues from LA would be huge.”

How a Case of ‘Restorative Justice’ Was Actually Just Business As Usual For the New Orleans DA

Office of the Orleans Parish District Attorney

How a Case of ‘Restorative Justice’ Was Actually Just Business As Usual For the New Orleans DA

It was a courtroom scene that seemed to tell an epic tale of redemption — and show the New Orleans DA’s office in a rare embrace of restorative justice. On December 1, 2017, 23-year-old Jeremy Burse stood before the New Orleans criminal court judge who, less than two years earlier, had sentenced him to life without parole for shooting a friend during a botched robbery when he was just 15 years old.

But on that December day, the very same judge, encouraged by the same assistant district attorney who had prosecuted the case, erased the living death sentence of life without parole and resentenced Burse to 25 years in prison, a deal agreed to by the prosecution and defense. That morning, Burse met, apologized to and hugged the mother of the victim.

“This case involved two boys who were very close friends and made very stupid mistakes,” Laura Rodrigue, head of the restorative justice unit for the Orleans Parish District Attorney’s office (and daughter of the District Attorney Leon Cannizzaro), stated in a news release. “Both families suffered devastating losses through the actions of both the defendant and the victim.”

The case was celebrated as New Orleans’s first mediated revision of a juvenile life without parole sentence, but what looked like a moment of reform was far from it. What Rodrigue — and the Times-Picayune article describing the scene — omitted is the prosecutorial misconduct alleged by Burse’s attorneys that sent him to prison in the first place.

As the assistant district attorney prosecuting the young man four years earlier,Rodrigue allegedly threatened the state’s key witness with prosecution and offered him a new attorney for his pending charges in exchange for his testimony against Burse. As he prepared to appeal the conviction, Burse’s attorney Christopher Murell sent an investigator to interview Stewart, who admitted to the threat and the offer. Murell then filed a motion for a new trial. However, not wanting the case to drag on without resolution, Burse agreed to plead guilty in exchange for a 25-year prison sentence.

The New Orleans District Attorney’s office has a decades-long history of misconduct. In 1995, the United States Supreme Court rebuked then-Orleans Parish District Attorney Harry Connick Sr. for “blatant and repeated violations” of the Brady rule, which requires prosecutors to divulge information such as deals made with state witnesses and information that could discredit their witnesses. Justice David Souter even went so far as to write that the court had “descend[ed] to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of the truth.”

Louisiana courts have overturned at least 36 convictions out of the Orleans DA’s office for hiding evidence that might impede a conviction. In one case, Robert Jones spent over 23 years in prison, wrongfully convicted of a string of violent crimes, including murder, rape and kidnapping, after prosecutors failed to turn over exculpatory evidence. (Now free, Jones is suing the district attorney’s office.)

In another case, John Thompson was weeks away from execution after spending 18 years behind bars when his attorneys found exonerating evidence, which prosecutors had known about but failed to turn over in court. He sued and a jury awarded him $14 million in damages. But the Orleans Parish district attorney appealed to the U.S. Supreme Court, which in 2011, ruled that the DA’s office could not be held responsible for the actions of a lone prosecutor.

The Orleans DA’s office, led by Leon Cannizzaro since 2009still doesn’t play fair. That’s what the attorneys for Jeremy Burse argued in their motion for a new trial. The prosecution’s key witness, Ricky Stewart, admitted to lying under oath when he testified against Burse in June 2013. His testimony sent Burse to prison for life without parole.

In September 2010, police responded to a 911 call about a shooting in New Orleans East. They found a security guard in the parking lot of an apartment complex, shot but still alive, following a robbery attempt. They also found the dead body of 16-year-old Anthony Davis, who was later determined to be one of the two teenagers attempting to rob the guard. Davis had died of a gunshot wound to the chest after a bullet ricocheted off another object.

Under questioning two days later by the New Orleans Police Department, Ricky Stewart, then age 16, told officers that he, Burse, Davis and another young man had been driving around in a stolen car. Stewart said he and the other teen had already dropped Burse and Davis off at the apartment complex and were driving away when the shooting occurred. Stewart told police that he heard gunshots, then saw Burse, with a gun in hand, who told him that he had made a “mistake” and shot a security guard. Burse then ran off. Based solely on Stewart’s account, the police arrested Burse, then 15, for attempted murder and attempted armed robbery. The Orleans DA later added a second-degree murder charge.

In June 2013, Burse, then age 18, finally had his day in court. By then, he had spent three years at Orleans Parish Prison, the notorious local jail that is under a federal consent decree. The key witness was Stewart, who was facing 12 years in prison for a burglary charge. The jury found Burse guilty of second-degree felony murder, which in Louisiana means that a person was killed during the commission of a crime.

By then, the Supreme Court had issued its opinion in Miller v. Alabama, which established that mandatory life without parole for children under age 18 violated the Constitution’s prohibition on cruel and unusual punishment. The ruling did not, however, prohibit states from ever sentencing a child to life without parole; a judge could still do so after an investigation and a hearing. After the required Miller hearing, the judge nonetheless sentenced Burse to life without parole. Burse was sent to Louisiana’s Angola State Prison, where he remains today.

The next year, however, Stewart admitted that he lied on the stand. “I did not want to testify in Jeremy’s trial,” Stewart wrote in a 2017 affidavit. He stated that he had not actually seen the shooting, but Assistant District Attorney Laura Rodrigue, who had prosecuted Burse, “said that they would charge me for having a role in Anthony’s murder if I did not testify. I was very scared. I did not want to testify, but I had to or else I would go to jail. It was more important to me that I not go to jail than telling the truth about the night Anthony was killed.”

Not only did Rodrigue allegedly use the stick of a murder charge, but she also dangled a carrot before her witness. Stewart had complained about the public defender appointed to represent him in his burglary case(“I did not think my public defender was fighting for me,” Stewart stated in his affidavit. “I wanted to hire a private lawyer to get better representation. I could not afford a private lawyer.”) So, Rodrigue allegedly offered Stewart a private lawyer if he testified against Burse.

“The day before I testified in Jeremy’s murder case for the prosecution, Robert Jenkins was appointed to represent me on my burglary case,” Stewart wrote in his affidavit. “I know Robert Jenkins to be a big name, private lawyer in New Orleans. Robert Jenkins showed up to court to enroll as my lawyer.” Jenkins is a prominent private attorney whose clients include former New Orleans Mayor Ray Nagin. “It was clear that the two lady DAs got Robert Jenkins appointed to my case so that I would testify for them the next day,” Stewart wrote in his affidavit. But, Stewart continued, Rodrigue also cautioned him not to talk about her role in securing him a better attorney. That, of course, violates the Brady Rule.

This is not the only time that Cannizzaro’s office has been accused of violating the Brady rule. In 2010, Cannizzaro prosecuted Jamaal Tucker for second-degree murder based on the testimony of a jailhouse informant named Morris Greene. In return, Cannizzaro called in a favor from the prosecutor in Lafayette Parish. Greene got time served; Tucker got life in prison. Faced with a subpoena to testify about his dealings with Greene, Cannizzaro tossed the conviction. Tucker later pleaded guilty to manslaughter and will serve at least 25 years in prison.

In October 2017, the ACLU and the Civil Rights Corps filed a federal lawsuit against Cannizzaro and ten of his prosecutors, including Rodrigue, for coercing reluctant witnesses with arrest warrants and fake subpoenas. The suit alleges that, for years, Cannizzaro’s prosecutors have attempted to intimidate reluctant witnesses into private interviews outside of court. If they refused, prosecutors “routinely obtain[ed] arrest warrants to put crime victims and witnesses in jail.” According to the lawsuit, over the past five years, Cannizzaro’s office sought at least 150 material witness warrants, jailing at least one rape victim and one victim of child sex-trafficking.

Burse attorney Christopher Murell’s 2017 motion for a new trial was based on similar allegations of prosecutorial misconduct by the Orleans DA’s office. He also reached out to prosecutors to begin plea negotiations. “It was a risk analysis,” he explained. “We had lost at trial before. We could have won at a retrial, but it’s not guaranteed that we would.”

Murell said he had no idea that the case would be part of the DA’s restorative justice program, which Rodrigue heads. Though Burse and Davis’s mother met and spoke in the judge’s chamber before Burse’s court appearance, Murell had not been informed that the meeting was part of a mediation, which generally involves an open-ended conversation rather than a pre-ordained plea deal. “I was under the impression that this [meeting] was in furtherance of getting the plea [of 25 years rather than life without parole],” Murrell said. “Until the very end, I did not know that the district attorney had a restorative justice program.”

Still, reflects Murell, “it’s a better outcome than being sentenced to life without parole. Jeremy will be released while he’s still relatively young and be able to be with his own family and build his own family and have a life. But living in a state where something you did when you were 15 years old can result in a 25-year prison sentence, I would not say is justice.”

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Judges Who Help Us Expand Our ‘Crabbed View’ of Justice Beyond Criminal Prosecution

Judges Who Help Us Expand Our ‘Crabbed View’ of Justice Beyond Criminal Prosecution

Joseph Margulies, professor of law and government at Cornell University, recently remarked, “In the carceral state, we have developed such a crabbed view of justice that we imagine it as nothing more than a criminal conviction … I hope we want accountability for what happened, and change to ensure it never happens again. Why should we think a criminal prosecution is the only — or even the best — way to achieve these goals?”

Those who resist this “crabbed view” may wish to examine a little-known area of the criminal law, in which judges are able to step in and declare that a conviction would be the very opposite of justice. Fifteen states (and Puerto Rico) give judges the power to dismiss prosecutions “in the interests of justice,” or, in other words, to declare that, regardless of the strength of the evidence, a dismissal would get us closer to justice than would continued prosecution. Four states (and Guam) have de minimis dismissal provisions, which serve the same ends. Scholars often ignore these provisions; practitioners often fail to invoke them. But judges use them — multiple examples are discussed in this recent article — and in doing so they reveal surprising things about how they see justice, and their role in securing it.

Many experts have told us that the most powerful players in the criminal justice system are prosecutors. But in these 19 states, judges can check prosecutorial power. Indeed, Connecticut’s dismissal statute has the purpose of “prevent[ing] unchecked power by a prosecuting attorney.” In jurisdictions with these provisions, judges can — and do — dismiss when they detect injustice in, for example, the anticipated sentence, the anticipated collateral consequences, law enforcement bias, law enforcement misconduct, or a waste of taxpayer money.

Different states conceptualize this judicial role differently. In New York, the dismissal statutes (one for felonies, and one for misdemeanors) are said to “interpose the court between the prosecution and the accused.” In California, the dismissal statute allows for a situation in which a judge grabs the reins, “takes charge of the prosecution, and acts for the people.” And in New Jersey, the judge is said to stand as the “gatekeeper” of the criminal law, vigilantly ensuring that it be used for proper ends only.

Some have called for this power to be available in jurisdictions that do not provide it. Recent filings in Florida and in North Carolina (states that, like the rest of the southeastern United States, lack these provisions) have urged judges to find this kind of power within their state’s law. One judge on the D.C. Court of Appeals was forced, in the absence of such a statute, to concur in the affirmation of a conviction, but he declared that the prosecution in question, which centered around an allegation of grabbing a cellphone after a long, hot day at the DMV, was just the kind of thing that merited dismissal. And District Judge Frederic Block has asked “[S]hould not federal law recognize, as New York State does, that in a worthy exceptional case, ‘the letter of the law gracefully and charitably [should] succumb to the spirit of justice’?”) (Indeed, in 1970, the Federal Rules Committee proposed adding such a provision to the Federal Rules of Criminal Procedure, but it went nowhere.).

The downsides of these provisions aren’t hard to imagine. How much discretionary power do we wish to place in the hands of an individual, even or especially an elected one? With discretion comes the risk of bias, and all kinds of assessments weighed in considering dismissal — assessments of harm, wrong, pain, and worth — are hotspots for implicit bias. “Appellant is somebody’s daughter. I have a daughter,” said one judge as he dismissed a prostitution charge, thus making explicit the feeling of connectedness that was moving him to dismiss. Our feelings of connectedness have an uneven reach, and our state judiciary is not representative. 83 percent of state trial judges, for example, are white.

In addition, these dismissals can tackle only a tiny bit of injustice. Invoking separation of powers concerns, judges frequently limit their own power. New York judges, for example, have declared that these dismissals occur only because of “the tiniest crack that allows a sliver of discretion to shine through when Justice cries out for mercy in spite of the strict application of the law.” Others have said that these provisions should be invoked only to avoid “absurd” results. But where to draw the line? Some might say our entire system of mass incarceration is “absurd.”

Whatever the fallibility of what these judges are doing in individual cases, they are doing something important as a group. They return, again and again, to an interest in non-criminal forms of accountability, often dismissing prosecutions where other means exist to address the alleged harm, or where prosecution would thwart productive change. They often treat the criminal law as a last resort, rather than the default. These judges inspire us to shed our “crabbed view” of justice, in Margulies’s words, expanding our vision to include possibilities far beyond the criminal courts.

Editor’s Note: A fuller treatment of this topic can be found in Dismissals as Justice, Alabama Law Review (2017).

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