The Sentinel

By Mark Gutglueck (www.sbsentinel.com)
Posted on February 14, 2014

(February 14)– A delay in the selection and approval process for four lucrative county contracts for the provision of what is known as conflict representation for indigent defendants in the county’s courts has resulted in the exposition of a series of apparent irregularities in the rating and recommendation system being used in the competition for the contracts.

One of the competitors has now launched a challenge of the rating system that favored the politically connected firm that currently holds two of the county’s four regional conflict representation contracts, after evidence surfaced to show that the incumbent firm was allowed to revise its bid after several of its competitors came in at prices well below its offer.

The Constitution and California law provide for the right of all persons against whom criminal court proceedings are brought to be represented by counsel. The public defender provides legal representation to the criminally accused in the county who do not have sufficient money to secure lawyers on their own. In a number of cases, primarily ones in which there is more than one indigent defendant, a conflict arises that prevents the public defender’s office from representing both parties in preparation for trial as well as at trial.

California Penal Code Section 987.2 allows counties to contract with panels of attorneys, known as “conflict panels,” to provide defense representation services for indigent defendants the public defender is unable to represent. The county has contracted for adult indigent defense representation services since 1993. The costs for such appointed services are an obligation of the county. The county of San Bernardino Indigent Defense Program administers appointed representation service contracts, and the services of other court-appointed attorneys, investigators and experts for the county’s impoverished defendants.

Through December 31, 2013, four law firms had contracts to serve as conflict attorneys representing defendants in San Bernardino County. The Law Firm of David Goldstein had a $9.35 million contract to provide conflict attorney representation in the West Valley region of San Bernardino County. The law firm of Carter Spring, Shank & O’Connor, headed by Earl Carter and Jim Spring, had an $18.75 million contract to represent defendants in the East Valley as well as a $12 million contract to represent defendants in the county’s North Desert Region. Attorney John Burdick had a $1.875 million contract to do conflict representation in the East Desert region.

On September 26, 2013, County Chief Executive Officer Greg Devereux approved the solicitation of bids for court-appointed adult indigent defense representation service providers. A proposal evaluation committee consisting of representatives of the county and the Superior Court was formed to review the submitted proposals. When that committee did not arrive on a decision on which firms to extend the conflict representation contracts to by December, the board of supervisors extended the contracts with Carter Spring Shank & O’Connor, the Goldstein Law Firm and attorney John Burdick through March 2014 for $2,450,000, $1,070,000 and $200,000, respectively.

In response to the September 26 bid solicitation, six law firms submitted bid proposals for the work, including Earl Carter’s firm, under the name Inland Defenders; Burdick under the name Contract Defenders; Greenline Partners, headed by attorneys Daniel Greenberg and Raj Maline; Robert Ponce; the law firm of Brown, White and Newhouse; and the law firm of Skipper, Singer & Associates.

The selection committee, the Sentinel has learned, was leaning in favor of hiring Carter as the conflict panel attorney for all four of the county’s geographical areas, having carried out a ranking of each firm based upon administrative, fiscal, record-keeping and audit compliance capability and resources; company reliability and financial resources; strength of representative capability and coordination and oversight of investigators; and cost evaluation.

The four members of the selection committee, which included Superior Court judges Annemarie Pace and John Vander Feer as well as chief assistant county counsel Michelle Blakemore and deputy county counsel Phoebe Chu, participated in that evaluation in which each committee member could assign the competitors up to 100 points each, for a total maximum score of 400 based upon the rankings of all four evaluators.

Carter Spring Shank & O’Connor scored a rank of 353. Contract Defenders scored 315. Greenline Partners were ranked at 309. The Ponce law firm achieved a 306 ranking. Skipper, Singer and Associates as well as Brown, White & Newhouse scored an identical 240.

In late January, Greenline Partners caught wind of the intended recommendation of Carter and Spring as the contract recipient. On January 31 it submitted a letter of appeal in which the firm charged there was “faultiness [in] the evaluation process” or “biases” on the part of the evaluators.

The pending conclusion that Carter Spring Shank & O’Connor should receive the contract, potentially worth more than $40 million, Greenline maintains, “does not reflect the best interest of the county, nor does it support any notion of fairness.”

The bias in favor of Carter Spring Shank & O’Connor, also known as Inland Defenders, was demonstrated, according to Greenline, by the consideration that the committee ranked Carter Spring Shank & O’Connor more favorably than Greenline in terms of cost evaluation despite Greenline having significantly underbid Carter Spring Shank & O’Connor.

“This is notwithstanding the fact that over three years, Greenline Partners is approximately $2.25 million less expensive to the county than is Inland Defenders,” the appeal states. Moreover, according to Greenline, after all of the competitors had submitted their bids, the county permitted Carter Spring Shank & O’Connor to submit a lower bid than it had previously submitted.

“While Greenline Defenders was contacted to verify the low fees for some services, Greenline Defenders was never afforded the opportunity to adjust its bid to further compete. A January 2, 2014 fax from Inland Defenders to the county contained a revised fee schedule, merely one day before the intent to award was declared. Greenline Defenders believes that this was unfair and potentially a violation of due process of law,” according to the appeal letter.

Greenline took issue with the unfair treatment another of the firms bidding on the contract was accorded by the county.

“While Greenline Partneres was not directly affected by this particular example, Evaluator A gave Brown, White and Newhouse a 32/100[ranking],” the protest states. “They were awarded particularly low scores in categories that do not justify the low scores (cost, for example, receiving far lower scores than other bidders with the same fee schedule).

Clearly there was significant bias against that bidder. The integrity of the entire process is compromised in that result.”

There were two significant conflicts of interest in the favorable treatment accorded Carter Spring Shank & O’Connor, Greenline asserted.

One involved Judge Pace, who afforded the Inland Defenders access to her during the evaluation process not given to others. The other involved district attorney Mike Ramos, who provided a written recommendation for the law firm, despite the consideration that the current and future contracts for conflict attorney service directly involve attorneys acting in an adversarial role to the district attorney’s office.

“During the bidding process, Earl Carter and Sean O’Connor were observed entering evaluator Hon. Annemarie Pace’s chambers,” the appeal letter states. “Carter and O’Connor remained there, according to the letter, “for approximately 40 minutes.” The letter goes on to say, “While the conversation that took place was not observed, the potential for impropriety and the conflict of interest is apparent.”

According to Greenline Partners, “Michael Ramos, the district attorney and professional adversary of the award recipient, not only listed himself as a professional reference, but wrote a letter of recommendation for Inland Defenders. This is clearly improper, and the potential for abuse and bias is readily apparent. A district attorney should not be endorsing any individual or organization as an adversary.”

The Sentinel has obtained a copy of that letter. It reads, in part:

“I have been the district attorney for the county of San Bernardino since 2003. We have the largest criminal caseloads in the state and I can say that our law and justice partners, including the defense bar, work hard at being efficient and seeking justice in our criminal courts. Mr. Carter’s defense attorneys’ work is no exception. These attorneys do not shy away from jury trials and are tough advocates for their clients, according to my attorneys who work with them and against them on a daily basis… One may wonder why the district attorney is writing a letter for indigent defense attorneys, but it’s basic. They are tough, yet fair and ethical advocates as we seek justice for victims while protecting the rights of the accused.”

In the aftermath of the Greenline appeal, the county has postponed ratifying the Carter firm as the conflict panel attorney. Meanwhile, further information has surfaced, raising questions about the county’s readiness to confer all four of the regional conflict representation contracts upon Carter’s firm.

Documents on file with the county registrar of voters’ office and the California Secretary of State’s office show that Earl Carter, together with his recently deceased law partner Jim Spring, and his law firm, Carter, Spring, Shank & O’Connor, donated a total of $120,500 to district attorney Mike Ramos from 2004 until 2012. Additionally, together with his law firm and law partners, Carter has made $88,500 in political donations to all five current county supervisors, including $38,000 to Gary Ovitt, $32,050 to Josie Gonzales, $12,750 to Janice Rutherford, and $1,500 each to both Robert Lovingood and James Ramos.

The more than $200,000 in political donations made by Carter and his law partners to San Bernardino County politicians raised the specter of pay-to-play politics having tainted the judicial process. This tawdry image was worsened when allegations were made that Carter and his firm had earlier captured the two conflict panel contracts it currently holds and was about to take on all four such contracts because it made a practice of providing lackluster legal defense to indigent clients as a means of lessening the burden on the county’s clogged court system.

By putting up weak or non-existent defenses for the accused the firm represents or by persuading its clients to enter guilty pleas or accept plea bargains, criminal cases were disposed of expeditiously and court calendars cleared, critics of the Carter Spring Shank & O’Connor law firm alleged. To facilitate quick pleas, some who had been convicted reported, investigators from Earl Carter’s firm arrived at the county’s jails and detention facilities to interview clients with a plea arrangement document in hand. Those investigators would in many cases, it was alleged, persuade the defendants to sign the plea document at that point. Thus, many of the Carter firm’s clients never actually met with an attorney before paperwork on their cases was filed with the court, according to those questioning the quality of work done by Carter’s firm.

Repeated phone calls to Blakemore for comment went unreturned.

County spokesman David Wert told the Sentinel that the board has yet to award the conflict panel contracts but will very likely have the contracts in place and ratified by March, when the current contract extensions expire.

With respect to district attorney Ramos’s letter of recommendation on behalf of Carter’s law firm, Wert said, “That letter from the DA is not something over which the board of supervisors would have any jurisdiction. I am not aware of anything that would curtail the district attorney’s ability to write a letter like that. As to why he wrote it, that is something you have address to the district attorney. It is up to each individual [on the selection panel] as to whether the recommendation means anything. I do not think a letter like that would have any influence over the process because a recommendation from the DA was not one of the contract qualification criteria.”

With respect to Greenline’s contention that Carter’s law firm was given an unfair advantage in being able to submit a revised fee schedule after all of the competitors had submitted their bids at a point just before the panel made its recommendation, Wert said that submission “wasn’t a second bite at the apple. The competitors had already been eliminated. What happens in these things is the panel decides who the top bidder was. At that point, county staff began negotiating to get a better price. In the exchange with Carter at that point the first issue was can we get a better price. It wasn’t an opportunity to get an advantage in the competition with Greenline because Greenline was out of it. It was an effort by county staff, not the panel but county administrative staff, to go and get a better price once the panel had chosen and before this went before the board of supervisors.”

As to the Carter firm being given a more preferential rating with regard to cost than firms that had submitted lower bids, Wert defended the panel’s ratings by asserting, “First of all, cost was only 30 percent of the consideration for awarding the contract. This is not a dump truck full of sand or cement. You don’t automatically go with the lowest price.

Submitting the lowest price doesn’t make you the best bidder. When you compare Carter to the other firms, you are comparing apples to oranges. Carter’s bid reflected prices for the entire county. Greenline only bid on two regions of the county. To make sure we were clear on the price evaluation, what the panel did is it broke down the prices by region and found that Carter was in fact lower than in the two regions Greenline bid in. Greenline was only bidding for the East Valley and High Desert. Carter’s price represented the entire county.”

Wert said he was not in a position to respond to the charges leveled at the Carter Law Firm regarding the alleged practice of having its investigators approach clients with plea agreements in hand before any investigation or evaluation of the cases or allegations or facts involved took place.

“I don’t know anything about that,” Wert said. “That is not something the county needs to respond to. That is something Carter needs to be accountable for if someone is making that statement.”

By press time, Earl Carter did not return any of nine phone calls from the Sentinel made to his office on February 11, 12 and 13 seeking his input. Nor did his law firm or the county supply data with regard to how many court appearances the Carter law firm’s lawyers have made on behalf of the indigent clients the firm represents or how many of those cases were taken to trial.

Maline told the Sentinel, “I don’t have personal knowledge of Inland Defenders’ investigators obtaining plea agreements from their clients in the jails.”

He did say, however, that he believed the way in which the county structured the arrangements for retaining criminal conflict attorneys was “flawed. The system has a built-in incentive that facilitates quick pleas. The indigent conflict attorneys do not have an incentive to fight the cases they take. They get the same amount of money if they make one court appearance or multiple court appearances.”

Wert said the suggestion that the county was acceding in an arrangement that facilitated those quick pleas was wrong.

“The court system is a separate entity from the county,” he said.

He dismissed the Greenline appeal of the panel’s recommendation as grousing that is typical of entities that fail to capture county contracts.

“The county administrative office feels the process has gone how it was expected to go and how it should go,” Wert said. “We would never expect someone who did not come out on top of the bid process to be happy about how things went. Those that lose do protest, and there are a lot of appeals. That is the nature of things.”

Wert said the “appeal has not made its way through the process. It is still going on. There is always the possibility the appeal will cause the panel to rethink things. We don’t want to say there is nothing to this before we hear the appeal. That would not be fair to the people making the appeal. The board has not been a part of the process yet; the process is still going on. The board is not going to have anything to do with the process until the appeal is considered and the administrative review is done and a report for the board is completed. The only reason this hasn’t come to the board is this appeal is dragging things out.”