The D.A. and P.D. may be perpetual adversaries, but they both work for the county.
The Santa Clara County courthouse. David McEddy / Wikimedia Commons Creative Commons Attribution-Share Alike 3.0 Unported License
The Sixth Amendment to the United States Constitution guarantees any criminal defendant the right to “have the assistance of counsel for his defense.” What that means, in the real world, is that every county or legal jurisdiction in the country must provide lawyers for any criminally accused person who cannot afford one. In Santa Clara County, starting in 1965, those lawyers have come from the Office of the Public Defender.
Since March of 2013, the office has been led by Public Defender Molly O’Neal, who had been named acting public defender by the Santa Clara Board of Supervisors the previous summer—after serving as defense attorney in the office since 1990 and, among many other duties, heading up the office’s Juvenile Division starting in 2010. O’Neal heads up what amounts to a sizable criminal law firm, with 121 lawyers, as well as 31 paralegals, 30 investigators, and 58 support staff.
But the size of the office O’Neal leads is substantially outstripped by the one headed up by District Attorney Jeff Rosen. While the public defender is appointed by the Board of Supervisors, Santa Clara County voters elects the district attorney, who are ultimately responsible for all criminal prosecutions in the county. Rosen was elected in 2010, and re-elected in 2018, to head an office of 196 prosecutors, and 640 total employees.
The D.A. also beats the Public Defender in the funding department. According to the Santa Clara County 2019/2020 adopted budget, the Public Defender’s office was allocated approximately $71.3 million—compared to more than $153.6 million for the D.A.
When Deputy Public Defender Sajid Khan posted a pair of combative blog entries during the Black Lives Matter protests earlier in the summer, Rosen filed a whistleblower complaint against him.
In the posts, Khan called for protesters to focus not only on police, but on prosecutors.
“To best honor George Floyd, we should fire our very righteous outrage, fury, and ire at District Attorney’s offices too,” Khan wrote—which apparently rubbed Rosen the wrong way.
In a letter to his own staff, according to a Washington Post report by columnist Radley Balko (yes, the conflict went national), Rosen complained that Khan “aimed to incite anger and destruction toward us” and “endangered the safety of everyone.”
“Rosen was using something designed for the little person to call out government misconduct, and weaponized it to throw his weight around. I don’t think that’s appropriate, reasonable or justified,” Khan told Mercury News reporter Robert Salonga.
Rosen eventually backed down, after a wave of negative publicity, and pulled the whistleblower complaint. Khan later said that he would consider running against Rosen in the 2022 D.A. election.
The D.A. and P.D. may be perpetual adversaries, but in Santa Clara County, there is also a third category of public lawyer. Since 1996, the county has maintained an Alternate Defender’s office, currently presided over by Supervising Attorney David W. Epps, who oversees a staff of more than 30, including defense lawyers, paralegals, investigators, and support personnel.
The Public Defender represents any person in the county accused of a crime and determined to be “indigent.” That is, they can’t afford a private defense attorney. According to a 2006 report by the California State Bar Association, that covers the “vast preponderance of persons” charged with crimes in the state. Early in the process after an arrest, a potentially indigent defendant meets with a paralegal from the Public Defender’s office, who—in addition to gathering information about the defendant’s case—collects info about how much money that person makes. That determination guides the decision as to whether the defendant qualifies for a public defender.
The public defender, however, cannot officially represent a defendant until a judge gives the OK, after an initial court appearance.
So if the Public Defender defends criminal defendants who cannot afford a private lawyer, and the District Attorney prosecutes all defendants—rich, poor, and otherwise—what does the Alternate Defender do?
Though technically coming under the auspices of the Public Defender’s office, the Alternate Defender’s office functions as a separate entity for ethical reasons. The entire rationale for the office’s existence is to avoid conflicts of interest by the Public Defender. According to an explanation on the Santa Clara County Alternate Defender’s website, conflicts most often arise when “more than one person is charged with a crime in the same case.”
Because each person is entitled to a unique defense, the Public Defender is not allowed to represent both defendants in multi-defendant cases. In comes the Alternate Defender to pick up the defense of one client.
The District Attorney’s office, on the other hand, prosecutes every criminal case in the county, sometimes starting even before an alleged offender is arrested. In many cases, police must submit a warrant to the D.A. before arresting a suspect, spelling out what they expect that person to be charged with. The warrant undergoes a thorough review by the D.A., or one of the prosecutors working in the office, to figure out whether there’s enough evidence to charge the suspect with a crime.
The process is not just a rubber stamp. Prosecutors, like most lawyers, would rather not take cases they don’t believe they can win. It is not uncommon for a prosecutor to send that warrant back to the cops, telling them to keep right on investigating until they gather enough to make a case that sticks.
That power, in addition to the disparities in staff size and funding, is yet another advantage that the District Attorney holds over the Public Defender. The D.A.’s office can decide which cases it takes. The P.D. must take any case thrown its way by the court.