The Humboldt County Board of Supervisors is standing by its newly hired public defender, even if it’s a stance that will soon land it in court.

The board met in closed session this morning to discuss a local lawyer’s threat that he would ask a Humboldt County Superior Court judge to step in and block the county’s hiring of David Marcus as its new public defender unless the board backed away from the hire or proved Marcus meets the state’s minimum qualifications for the post. Immediately after adjourning from closed session, the board sent out a press release defending Marcus and his qualifications.

“Mr. Marcus has significant criminal law experience and meets all statutory requirements for the position,” the board stated. “We look forward to working with him as our public defender.”

Marcus' hiring has come under a spate of fire from local defense attorneys, who first criticized the hiring process — in which the board sought input from an advisory panel made up primarily of law enforcement officers and the county’s chief prosecutor — and later took aim at Marcus’ resume. Marcus, who served a controversial tenure as Lassen County’s public defender, has not practiced criminal law in five years, during which time he reported working as a contract attorney for a Walnut Creek firm while living in Florida.

The day after Marcus started in Humboldt, local attorney Patrik Griego served the county with a letter stating his belief that Marcus isn’t qualified for the post and threatened to file a lawsuit if the county didn’t either fire Marcus or prove his qualifications. At issue is California Governement Code Section 27701, which states that a person is not eligible to be a county’s public defender “unless he has been a practicing attorney in all of the courts of the state for at least the year preceding the date of his election or appointment.”

Marcus has retained an active California bar license since leaving Lassen County, so it appears Griego’s argument hinges on how a judge would interpret the phrase “practicing attorney in all the courts of the state.” Is it enough to hold an active license or does one need to actually litigate in a court of law to be eligible? Legal experts consulted by the Journal have interpreted the statute different ways, though all thought it unusual that the county would hire a public defender who hasn’t practiced criminal law in five years.

Contacted by the Journal following the board’s press release this afternoon, Griego emailed over a brief statement.

“We hope to defend the rights of indigent citizens in our county to a qualified public defender as vigorously as the board is defending the law enforcement panel it used as a part of the hiring process,” Griego said. “We have given the board an opportunity to avoid litigation which, unfortunately, will be costly to all parties. They declined. We will file the writ against the board and let the court decide the matter.”

In its press release, the board notes that there has been “a lot of misinformation” surrounding Marcus’ hiring that needs clarification. The board then notes that five candidates were interviewed by the advisory panel and the board, that the board then met with recently retired Public Defender Kevin Robinson to discuss the “in-house candidates” and that the board then re-interviewed three applicants. The board then “exercised its discretion and hired Mr. Marcus, who was not the candidate recommended by the interview panel,” the press release states.

As to Marcus’ qualifications, the board states that he spent 14 years with the San Bernardino County Public Defender’s Office, though the press release incorrectly refers to him as the county’s “public defender” when, in fact, he was a deputy public defender. Still, the board notes, between that and his six years in Lassen, Marcus has 20 years of experience in criminal law.

Marcus has not returned any of a half dozen calls from the Journal since the announcement of his hire last month.

The board also received a letter yesterday from Greg Elvine-Kreis, who as the supervising attorney in the Humboldt County Conflict Office, works under Marcus and served as the county’s interim public defender prior to Marcus’ arrival.

In the letter, Elvine-Kreis describes the incredible responsibility that public defenders carry, often being the only person standing between the accused and years — or life — in state prison. Elvine-Kreis then weighs in on qualifications for the position, saying his belief is that the Legislature intended a “practicing attorney in all the courts of the state” to include criminal law, “as we don’t ask a foot doctor to do brain surgery.”

Elvine-Kreis notes in the letter that he’s cautious to become a whistleblower by challenging his supervisor and the board’s decision to hire him, and that he’s nervous there may be some “retaliatory action.” Nonetheless, Elvine-Kreis says he would be remiss not to speak up for his clients.

“Therefore, after reviewing (Marcus’) history and speaking to him about his legal experience it is clear that he is not qualified to be the Chief Public Defender, he is not qualified to take a capital case, he is not qualified to take any lifetop (potential life sentence) case, nor is he qualified to represent clients in juvenile court,” Elvine-Kreis writes, going on to state that Marcus told him he hasn’t taken any continuing legal education classes since leaving California and isn’t up on the substantial changes that have been made to state criminal law in recent years. Elvine-Kreis then urges the board to look at the qualifications other counties require for public defender hires, alleging that “Mr. Marcus simply does not even come close to meeting” them.

Elvine-Kreis argues that Marcus’ recent inexperience will cost the county money, as it will have to hire a private attorney to defend indigent clients in capital cases because Marcus cannot take them on himself. Additionally, Elvine-Kreis writes that Marcus has indicated to staff that he does not plan to appear in court, which he argues would necessitate the county’s hiring of another felony attorney to take on cases when any of the office’s attorneys are out sick or on vacation, a role Robinson previously took on for the office in addition to all his administrative duties.

The letter goes on to state that Elvine-Kreis took on a murder case for the office while acting in the interim role, and did so with the assumption he would hand it off to whomever the county hired to fill the role on a permanent basis. But now, Elvine-Kreis writes that he and his client “are concerned that Mr. Marcus is not qualified to accept this murder case.” Consequently, Elvine-Kreis writes that he won’t turn the case over until he’s assured he can hand it off to someone who is qualified and to an office that’s adequately staffed.

Elvine-Kreis closes the letter by essentially warning the board that if it keeps Marcus on board, it will face not just the litigation from Griego but likely other cases as well.

“It is clear that an attorney that has not practiced in any California court for the last five years is not qualified to be the Chief Public Defender of any California County,” he writes. “In addition, when that attorney has not practiced any litigation in the criminal courts for five years, he is even less qualified.”

Reached by phone this afternoon, Griego said he plans to file suit in Humboldt County Superior Court by the end of the week.

From the board:

Following is a press release from the Board of Supervisors:
There has been a lot of misinformation surrounding the Board of Supervisors’ hiring of David Marcus as the Public Defender that needs clarification.
After receiving numerous applications the Board decided on five candidates to interview. An additional interview panel was also formed and interviewed all five candidates. The Board also met with retired Public defender Kevin Robinson to discuss the in-house candidates. Three applicants were interviewed a second time by the Board. The Board exercised its discretion and hired Mr. Marcus, who was not the candidate recommended by the interview panel.
Mr. Marcus has 14 years of experience as a Public Defender in San Bernardino County and six years as the Public Defender for Lassen County, totaling more than 20 years of criminal defense work. For the past five years he has been practicing law for the firm of Cella, Lange and Cella in Walnut Creek, Calif. on a contract basis while living in Florida. Mr. Marcus has significant criminal law experience and meets all statutory requirements for the position. We look forward to working with him as our Public Defender.

From Griego:

The Board's press release omits the following facts: A Grand Jury found Mr. Marcus had an overly cozy relationship with the District Attorney's Office during his last stint as Public Defender. Mr. Marcus then left the State and has not practiced criminal law in more than five years. During those five years, while living in Florida, he has not practiced law in the courts of California, as required by the Government Code. The Board was informed by a practicing Deputy Public Defender that Mr. Marcus has shown himself unqualified to practice criminal law while in the office this past week.

We hope to defend the rights of indigent citizens in our County to a qualified Public Defender as vigorously as the Board is defending the law enforcement panel it used as part of the hiring process. We have given the Board an opportunity to avoid litigation which, unfortunately, will be costly to all parties. They declined. We will file the writ against the Board and let the Court decide the matter.

Letter from Elvine-Kreis:

March 3, 2017

Humboldt County Board of Supervisors
825 5th St., Room 111
Eureka, CA 95501

Re: Public Defender Position

Honorable Board of Supervisors of Humboldt County:

I have practiced criminal defense law for over fourteen years. In the last year I have practiced in all the courts of California, meaning, conservatorship courts, juvenile courts, Superior Courts of several counties and filed writs in the First District Appellate Court, all appearances relating to and involving the defense of indigent defendants. I have done this because of my dedication to serving my community through providing representation to indigent people when their liberty interests are impacted by the power of the government in criminal prosecutions. I do this in the spirit of providing qualified defenders when the full weight of the government is upon them as recognized in the Gideon v. Wainwright decision wherein Justice Black of the Supreme Court of the United States of America held that,

[T]he Sixth Amendment’s guarantee of counsel is a fundamental right essential to a fair trial and, as such, applies the states through the Due Process Clause of the Fourteenth Amendment.  … Justice Black stated that “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”  He further wrote that the “noble ideal” of “fair trials before impartial tribunals  in which ever defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

What this means to myself and to countless criminal defense attorneys, is that the Chief Public Defender of any county should be qualified to represent all the clients of her or his office, be qualified to provide guidance and advice to the deputy public defenders under that person, be qualified to appear in juvenile court and represent clients in conservatorship court and take the most serious cases such as murder, sex crimes, kidnapping that can send a person to life in prison, referred to as “lifetop cases,” all while serving as the administrative head of the Office. These ideals are encompassed in the California Government Code §27701 which is placed in the statute under the Public Defender Section of the Counties Section to assist in guiding counties when choosing a Public Defender. It is clear that the plain language of the statute and the placement of the qualifications under Public Defender, means that the person should have the above experience and training, and not just be a contract lawyer for the last year, as we don’t ask a foot doctor to do brain surgery.

The Board has recently decided to hire Mr. David Marcus as the Chief Public Defender of Humboldt County. As cautious as I am to essentially becoming a “whistleblower” by challenging my supervisor and this Board and as nervous as I am that there may be some type of retaliatory action, I would be remiss to not speak up in protection of the clients represented by the Public Defender Offices as well as the dedicated attorneys and staff of the two offices. Therefore, after reviewing his history and speaking to him about his legal experience it is clear that he is not qualified to be the Chief Public Defender, he is not qualified to take a capital case, he is not qualified to take any lifetop case, nor is he qualified to represent clients in juvenile court. Mr. Marcus has indicated that he has not practiced law in any courts of California for the past five years. He has not taken any continuing legal education to be apprised of the current criminal law changes that have happened over the last five years and even when he practiced law at the Lassen Public Defender’s Office he was only working 30%-40% of the time. Furthermore, with this hire, the main office of the Public Defender of Humboldt County now does not have an attorney that can represent a defendant in a capital case pursuant to §4.117 of the California Rules of Court. What this means financially for the county is that the Board will have to hire a private attorney that qualifies anytime that a capital case is filed by the District Attorney of Humboldt County. Additionally, if Mr. Marcus does not plan to appear in court, as he has indicated to his staff, the main office will be forced to request another felony attorney to assist when the other attorneys are on vacation or out sick, again costing the County additional funds. If the Board was to look at qualifications for Public Defenders in other California Counties you would see the standard is very high because the fundamental right to counsel is so important and that Mr. Marcus simply does not even come close to meeting this standard.

As the Board knows, I have served as Interim Public Defender since December 2016 and have managed the Conflict Office since January 2013. During that time I have acted in an administrative capacity for the main office of the Public Defender, continued managing the Conflict Office and have carried a full felony and misdemeanor case load while doing so. Additionally, because of personnel shortage in the main office after Mr. Robinson left, I took over a murder case for that office in anticipation that the new Public Defender would be qualified to take that murder back. However, with the hire of Mr. Marcus, my murder client and I are concerned that Mr. Marcus is not qualified to accept this murder case. In fact, I have an ethical duty to keep that murder case until I have been assured that staffing levels at the main office are acceptable for the office to take the murder case back, or that Mr. Marcus is qualified under the California Government Code §27701. If not, my client most likely has a legal action against the County for hiring an unqualified person to represent him as an individual and all public defender and conflict defender clients may have legal action as an entire class.

It is clear that an attorney that has not practiced in any California Court for the last five years is not qualified to be the Chief Public Defender of any California County. In addition, when that attorney has not practiced any litigation in the criminal courts for five years, he is even less qualified. It is my request as the Supervising Attorney of the Humboldt County Conflict Office that the Board reconsider the hiring of David Marcus and commence a search for a qualified Chief Public Defender that will protect the rights of all your constituents, save the County tax dollars from the threatened litigation that it is currently looking at and that most assuredly will be compounded with additional claims if the Board remains steadfast in its hiring decision.

Sincerely,

Gregory J. Elvine-Kreis
Supervising Attorney, Humboldt County Conflict Office