New Public Defender’s qualifications questioned in lawsuit

Daniel Mintz
Mad River Union

HUMBOLDT – The county’s hiring of a public defender is the target of a lawsuit claiming that the rights of indigent defendants will be compromised due to the new hire’s lack of qualifications.

Filed on March 10 by Patrik Griego, a defense attorney with the Eureka-based Janssen Malloy LLP law firm, the lawsuit alleges that the county’s recently-hired public defender, David Marcus, is unqualified for the post because he doesn’t meet a key state requirement.

According to the lawsuit, a public defender must have practiced law “in all the courts of California” for at least a year prior to being appointed.

“The last time Mr. Marcus was practicing in the courts of California was many years ago, in approximately August of 2011, when he left the Lassen County Public Defender’s Office,” the lawsuit states.

The legal action follows criticism from defense attorneys that emerged after the hire. County Conflict Counsel Greg Elvine-Kreiss reiterated concerns about the integrity of the hiring process just prior to a March 7 Board of Supervisors closed session meeting on the lawsuit, which was anticipated at that point.

The county issued a press release after the closed session stating that “there has been a lot of misinformation” on the hiring.

An aspect of the controversy is that an advisory panel made up mostly of prosecution-aligned officials was part of the hiring process. But according to the county’s press release, the panel’s recommended hire was not Marcus.

The release also emphasizes that Marcus has over 20 years of criminal law experience.

Marcus has lived on the East Coast for the last five years, however, and the lawsuit demands proof that his recent experience meets the state’s requirement.

The county’s press release states that Marcus worked for a Walnut Creek law firm on a “contract basis” while living in Florida.

Noting the content of the county press release, the lawsuit states that “the county provided no evidence regarding the nature of the contract work or any evidence that Marcus had actually practiced criminal law or practiced law in the California courts for the year preceding his appointment.”

Addressing supervisors last week, Elvine-Kreiss emphasized that staff under the public defender needs to be confident that their boss “can do everything they can do – plus.”

He added, “Your current hire does not have that.”

Elvine-Kreiss had submitted a letter to supervisors the previous day that acknowledges his potential to be seen as a “whistleblower,” as Marcus is his supervisor.

His letter also states that due to Marcus’ recent out-of-state residency and a lack of education on recent California legal changes, he won’t be qualified to challenge capital punishment and juvenile court cases and the county will have to spend extra money to contract a private attorney. 

Elvine-Kreiss, who was appointed as interim public defender after the retirement of former Public Defender Kevin Robinson, also states that he is representing someone accused of murder and if Marcus remains in his post, his client “likely has a legal action against the county” for hiring an unqualified public defender. 

He adds that all public defender clients may take similar legal action “as an entire class.” 

Elvine-Kreiss told supervisors he has “an ethical obligation to zealously advocate for my clients” and “this is something we do because we care about our clients and that’s why I’m coming forward.” 

Supervisors took no action related to the lawsuit in the closed session meeting. The lawsuit demands an injunction on the hiring and an award of attorney’s fees and court costs.