With a Whimper

Walls closing around him, David Marcus resigns



It was about 2:30 p.m., the day before Thanksgiving, when embattled Humboldt County Public Defender David Marcus began packing up his personal effects, putting them in cardboard boxes and trudging them from his office in the gray shingled building on Eureka's Fourth Street to his white pickup truck, which still has Florida license plates. Then, without addressing employees, he left.

With that, Marcus' controversial nine-month tenure quietly came to a close.

The day before, at 24 hours notice, the county had called a special closed session meeting of the Board of Supervisors with two items on the agenda: a discussion of the lawsuit brought by local attorney Patrik Griego challenging Marcus' hire and alleging he didn't meet minimum state qualifications for the job, and the evaluation of an unnamed public employee. About a month before, the supervisors had met in closed session to evaluate Marcus but emerged having taken no action. But circumstances seemed different this time: A visiting judge had cleared the way for a pivotal Dec. 13 hearing in Griego's lawsuit, a week earlier a frustrated local judge had publicly ordered Marcus into a closed chambers meeting to discuss issues with his office and staffing turnover had pushed Marcus into the position of having to handle more serious cases, including a client who was facing life for molestation charges and headed to trial in a matter of days.

Exactly what happened Nov. 22 — Marcus' last day with the county — remains murky, but it seems the situation was dynamic until Marcus sent County Administrative Officer Amy Nilsen a short letter of resignation at about 7:20 p.m. that indicated he was resigning effective immediately and claimed the board of supervisors had agreed to provide him two months' of severance pay, an amount equal to about $25,000 based on his roughly $150,000 annual salary.

What we know is that Marcus showed up at work that morning and county counsel appeared to be prepping for the closed session meeting with the board that afternoon, having asked a number of Public Defender's Office employees to stand by, saying they might be asked to come testify, one by one, before the board about Marcus' job performance. At some point after Marcus packed up his things and left, the employees were told they wouldn't need to attend the meeting.

After convening at 4:15 p.m., the board met in closed session until about 6. They reported no final actions out of the meeting and apparently had yet to receive Marcus' resignation letter. That came about 80 minutes later, after most county offices were shuttered for the holiday weekend.

The following Monday, Griego issued a press release indicating that after being informed of Marcus' resignation, he'd decided to dismiss the lawsuit challenging his hire. The release somewhat strangely seemed to go out of its way to clear District Attorney Maggie Fleming or Sheriff William Honsal — both of whom served on a controversial interview panel during the process that led to Marcus' hire — of any responsibility for his tenure, saying "there is no evidence" that they "improperly influenced" Marcus' selection.

Griego told the Journal last month that he'd offered to settle his lawsuit with the county — and forsake any claim to more than $125,000 in accrued costs and fees — if the county simply parted ways with Marcus. It's unclear if that offer remained on the table last week and Griego wouldn't say whether the dismissal came as part of a settlement, but he did confirm he will not seek to recover his fees and costs in the case.

A message left for Marcus seeking comment for this story was not returned by deadline.

Humboldt County spokesperson Sean Quincey said the supervisors will meet in closed session Dec. 5 to consider accepting Marcus' resignation and in open session to consider appointing Kaleb Cockrum to helm the office on an interim basis. Cockrum, who was a finalist for the post when Marcus was hired, is currently serving as the supervising attorney of the conflict counsel office, an offshoot of the public defender's office.

Asked whether the county reached a severance agreement with Marcus, Quincey declined to comment.

"It's a confidential personnel matter and I can't discuss it," he said. "I anticipate there being more to report after the board meets in closed session Tuesday."

Reached by phone Nov. 28, Supervisor Rex Bohn said Marcus has "asked for" two months' severance pay from the county but that no funds had yet been paid out. Asked whether the board had entered into any severance agreement, Bohn said it's a personnel matter and he couldn't discuss it.

Journal attempts to reach the other four county supervisors were unsuccessful by deadline. The Journal also requested a copy of Marcus' contract from the county to try to determine under what circumstances he could be fired for cause but was told he didn't have one and all department heads are essentially "at-will" employees.

The board has faced pressure surrounding Marcus' hire almost from the outset, when members of the local defense bar raised concerns about the hiring process, and especially the convening of an interview panel that featured Honsal, Fleming and county Probation Chief Bill Damiano — all of whom can be seen as holding adversarial roles to the public defender — but not a single defense attorney. The pressure only intensified after Marcus showed up for work in February and questions about his qualifications began to swirl.

In March, Griego sent the supervisors a letter asking them to prove that Marcus met state qualifications to be a public defender — which require that a candidate have spent the year preceding his or her appointment as "a practicing attorney in all of the courts of the state" — or face a lawsuit. The board huddled in closed session to discuss the threat and emerged voicing its support for Marcus and trumpeting his 20 years of defense experience as a deputy public defender in San Bernardino County and heading the Lassen County Public Defender's Office.

On March 24, about two weeks after Griego filed his lawsuit, all nine deputy public defenders sent a letter to the board alleging Marcus is incompetent and unqualified, and already failing clients. A couple of weeks later, eight non-attorney staff members sent a similar letter, alleging that Marcus lacked the basic legal knowledge required for the post and had "crippled" the office.

Griego deposed Marcus as part of his lawsuit in July, and Marcus testified that while he'd spent the five years preceding his hire working primarily as an insurance adjuster in Florida he'd also spent about five hours a week doing contract work for the Walnut Creek law firm Cella, Lange and Cella, which is owned by his good personal friend Chris Cella. (As we reported back in February, the firm has no website, doesn't come up in any news stories or legal filings online. Despite repeated attempts, we were also unable to connect with anyone from the firm who could talk to us about Marcus or even offer basic information, like how many people the firm employs or what areas of law it specializes in.) During the deposition, Marcus testified that he hadn't appeared in court or authored any pleadings for the firm, didn't have a written contract and couldn't document any hours worked in the prior year. (Read a transcript of the deposition here.)

In October, visiting Humboldt County Superior Court Judge Marjorie Carter denied a county request to dismiss Griego's lawsuit on the grounds that it was a "witch hunt," the product of disgruntled employees fuming about a political appointment. And earlier this month, Carter set a Dec. 13 court date to interpret the meaning of the statute — a crucial step in the lawsuit that, depending on how Carter ruled, could leave the county with little ground to stand on.

Meanwhile, the last few months have taken a brutal toll on the office, seeing the departure of four attorneys — Jennifer Dixon, Owen Tipps, Heidi Holmquist and Meagen O'Connell — as well as a legal secretary and an office manager. On her way out the door, Holmquist — considered by many in the local legal community to be a rising star and a dyed-in-the-wool public defender — blasted Marcus, saying she was leaving the job she loved because the office no longer stands for "what we were all taught you should be as a public defense attorney."

With the Humboldt County Public Defender's Office handling roughly 80 percent of criminal cases filed in the county, the impacts of the office's apparent dysfunction and understaffing continue to reverberate. Last month a high-profile murder trial was pushed months into next year when a deputy public defender told the court his office was too short staffed to allow him to mount an adequate defense. Accused child molester Chad Smith's trial was scheduled to get underway Dec. 1, but that case had landed on Marcus' desk after Dixon's resignation — despite widespread allegations that he was unqualified to handle a case with life exposure — so that will likely be pushed back months as well. And there are reports of poor representation, like that of a man currently serving a prison term who alleges Marcus misadvised him on a plea deal, telling him he'd spend far less time behind bars than he was ultimately sentenced to, according to the recent deposition of one deputy public defender.

Roughly a year after popular former Public Defender Kevin Robinson resigned, the county again finds itself without a chief public defender. But if you ask those who spend their days in Humboldt County's courtrooms, they'll tell you Marcus' tenure will be felt here for a long time.

Thadeus Greenson is the Journal's news editor. Reach him at 442-1400, extension 321, or Follow him on Twitter @thadeusgreenson.


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