California is failing to provide a vital safeguard against wrongful convictions
A CalMatters investigation has found that poor people accused of crimes, who account for at least 80% of criminal defendants, are routinely convicted in California without anyone investigating the charges against them.
Close to half of California’s 58 counties do not employ any full-time public defense investigators. Among the remaining counties, defendants’ access to investigators fluctuates wildly, but it’s almost always inadequate.
The cost of this failure is steep, for individual defendants and for the integrity of California’s criminal justice system.
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.
In our new investigation, we examine the consequences of this pervasive issue through a reopened kidnapping and murder case in Northern California’s Siskiyou County.
Here are the takeaways:
1. Of the 10 California counties with the highest prison incarceration rates, eight have no defense investigators on staff.
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 2023 data from the California Department of Justice. Only seven California counties met the widely accepted minimum standard of 1 investigator for every 3 attorneys.
2. The situation is most alarming in the 25 California counties that don’t have dedicated public defender offices and pay private attorneys.
Most of these private 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.
3. Prosecutors have an overwhelming advantage when it comes to investigator staffing.
In Riverside, the district attorney has 30% more lawyers than the public defender but 500% more investigators, state data shows, in addition to the support of the county sheriff and various municipal police departments.
This pattern repeats throughout the state. In what is supposed to be an adversarial legal system, indigent defendants and their attorneys are often on their own, facing an army of investigators who are working to secure a conviction.
4. Hidden in the data is the greatest tragedy of failing to investigate cases: wrongful convictions.
The National Registry of Exonerations is filled with cases in which convictions were overturned when someone finally looked into the prisoner’s claims, years or even decades after they were imprisoned.
Hundreds of those cases are in California. In one exoneration out of Fresno, Innocence Project investigators found nine witnesses who corroborated their client’s alibi: He was more than 25 miles away at a birthday party at the time of the crime. In a recent case out of Los Angeles, investigators found evidence of their client’s innocence in a police detective’s handwritten notes, material that had been included in a file turned over to the defense before trial. If their cases had been investigated on the front end, these men might have been spared a combined 30 years in prison.
Maurice Possley, the exoneration registry’s senior researcher, said that a failure to investigate is at the heart of most of the registry’s 3,681 cases.
When he looks at the evidence that overturned these convictions, he’s astounded the defense didn’t find it when the case was being prosecuted.
“If someone had just made the effort,” he said. “This was all sitting there.”
5. California, once a leader in public defense, has fallen far behind.
The nation’s first public defender office opened in Los Angeles in 1913. By the time the U.S. Supreme Court established in 1963 that defendants have the right to an attorney in state criminal proceedings, more than a dozen California counties were already providing free representation to poor people accused of crimes.
As the nation caught up, 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, no investigations — even in the most serious cases.
Investigations affect every part of the criminal justice process. They’re not just about figuring out whether a client is innocent. Even if a case is moving toward a plea deal, an investigation can turn up information that forces a prosecutor to reduce the charge or compels a judge to grant bond or shorten a prison sentence.
Lawyers are discouraged from interviewing witnesses on their own. If a witness later changed their story or disappeared before trial, the attorney could have to testify on their client’s behalf and recuse themself from the case.
6. This is a national problem.
In 2007, the Bureau of Justice Statistics conducted a census of the nation’s public defender offices. It found that 40% had no investigators on staff and that 93% failed to meet the National Association for Public Defense’s industry standard of at least 1 investigator for every 3 attorneys.
The study made it clear that, across the country, investigators were seen as a luxury, not a necessity. CalMatters interviews with top public defenders in several states, along with recent reports examining indigent defense systems, suggest that’s still the case.
In Mississippi, only eight of the state’s 82 counties have public defender offices. The rest rely on private attorneys who are paid a flat fee — one that rarely covers the cost of an investigator. A 2018 report found that, in many Mississippi counties, with the exception of murder cases, the attorneys “never hire investigators and have no time to investigate cases themselves.” Appointed attorneys told researchers they would “get laughed out of court” for requesting additional funds for an investigator.
Public defender systems that are funded and controlled by state legislatures also have severe investigator shortages. The head public defender in Arkansas, Greg Parrish, said he has only 12 staff investigators, responsible for assisting in felony cases, including capital cases, in all of the state’s 75 counties. Minnesota’s top public defender, William Ward, said he is trying to maintain a ratio of at least 1 investigator for every 7 public defenders but knows that’s not enough. “I would rather have a great investigator and an average lawyer than an average investigator and a great lawyer,” he said. “Investigators make all the difference on a case.”
7. New York stands as a model of how to reform the system.
New York was once very similar to California. Its counties managed their own public defender systems, without much input or funding from the state, until a class-action lawsuit, settled in 2015, led to statewide changes.
New York created an office tasked with improving public defense, eventually giving it some $250 million to dole out each year. Counties that take the money must prioritize certain aspects of public defense, including investigations. In a recent report to the agency overseeing the effort, these counties consistently said the ability to investigate cases was among the most profound impacts of the new funding. Some described specific cases that ended in acquittal or significantly reduced charges as a result.
California was also sued over claims it failed to provide competent defense. To settle the lawsuit, filed in Fresno County, Gov. Gavin Newsom in 2020 expanded the scope of the Office of the State Public Defender, which had previously handled death penalty appeals, to include support and training for county-based public defender systems.
But the governor committed only $10 million in one-time grants to the effort, and that money has since run out.
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This story was originally published by CalMatters and distributed through a partnership with The Associated Press.
By ANAT RUBIN/CalMatters
CalMatters
