During its marathon budget session last week, the Contra Costa County Board of Supervisors agreed to increase funding to the District Attorney and Public Defenders offices.
Combined, it will cost Contra Costa County more than $2.3 million to bring on 10-new attorneys (5 for each office). This was needed due to the with anticipated workload increases for the Antioch Police text messages investigation and the work required to review both current and past cases. Both officers are also needing to comply with the unfunded state mandates for the Racial Justice Act (AB 256) and the Expanded Felony Murder Petition (SB 775).
During their presentations, District Attorney Diana Becton and Public Defender Ellen McDonnell provided caseload data and overviews of their departments, while highlighting the anticipated workloads that could take years to examine and potentially correct any wrongs that have occurred.
The discussion came as part of the Board of Supervisors disusing its $5.515 billion Fiscal Year 2023-2024 Recommended Budget (more info) over a period of two days. The total amount of Measure X sales tax for the new fiscal year is estimated at $118.2 million, of that, $5.58 million is still not allocated.
The Board of Supervisors will bring back its final budget for adoption later in May.
Day 1 of Budget Discussion Recap (DISTRICT ATTORNEY & PUBLIC DEFENDER ONLY)
During her presentation to the Board of Supervisors, District Attorney Diana Becton highlighted their total budget is $57.5 million with $32 million coming from revenue from Federal and State Grants. The remainder is from the county costs. 85% of the budget is dedicated towards staffing with 15% to supplies and services.
The staffing of the District Attorney’s Office is 231.6 with 104.1 attorney’s along with 30 investigators, 17 victim/witness unit, and 80 administrative and support staff.
2022 Performance
- Filed over 3,000 felony cases
- Filed over 4,600 misdemeanor cases
- Conducted 74 felony trials
- Conducted 118 misdemeanor jury trials
Becton noted that 90% cases that are filed will result in a plea bargain or go to another type of program.
Challenges include:
- AB 256 (Racial Justice Act for ALL (PC745)
- SB 775 (Expanded Felony Murder Petitions (PC1170.6)
- Recruitment and Retention
- Case Management System
- Office Space
Becton highlighted that traditionally the DA’s office is responsible for a review of about 10,000 police investigations and prosecution of about 6,000 criminal offenses. That caseload is “static prosecution” which is about 10,000 investigations each year.
However, new legislation in AB 256 and SB 775, has created a need for “responsive persecution” which has now increased demands of the DA’s office—which apply retroactively to closed cases.
“The new laws require our office to analyze and prepare and re-litigate prior convictions under the new legal standards,” said Becton where they will look at open and closed cases around race.
Antioch Police Department Racial Text Misconduct
Becton said while there are rights they have to make sure are taken care of under the constitution, but will provide exculpatory discovery that is helpful to the defense.
“With the cases coming out of Antioch, which may also fall under the Racial Justice Act, all active cases coming out of Antioch, whether recently received and waiting for review, whether they are already open, people who are on probation or those serving sentence in jail or prison, all of them have to be reviewed by our office to determine whether the prosecution can go forward or whether those convictions can stand,” explained Becton. “In addition to that, because the law is retroactive, we also have to look at all closed cases as well.”
Becton explained because of this, they will be impacted at the District Attorney’s Office, especially with what they are calling “responsive obligations” and now are requesting additional positions.
She told the Board of Supervisors they estimate needing five additional attorney’s.
Supervisor Diane Burgis asked of those five attorneys, what percentage would be placed working on Antioch situation and if there was a way to making the City of Antioch have to pay for this.
“Its basically, they didn’t do what they are supposed to do and they put us in this situation that is going to cost us money,” stated Burgis.
Becton said its something that the county can explore with the City of Antioch, but not a discussion at this point in time.
She said she was estimated approximately 800 cases from Antioch at any given time which the magnitude of that is difficult because they have to go back and the Racial Justice Act could trigger them going back on any case in the county, not just Antioch.
“We could have motions on closed cases. Its hard to put a specific number on what percentage would go towards just Antioch,” said Becton who said they likely needed three attorneys for open cases, probation and those serving sentences which does not include closed cases for Antioch or other cities.
Burgis asked how long she estimated it would take to get through these Antioch cases which Becton replied it could be several years given the retroactive nature of the legislation.
Supervisor John Gioia confirmed the five positions which three specifically for the City of Antioch based on Racial Justice Act and review of closed cases.
“We have to review every single case,” said Becton.
Gioia asked what would be the consequences of not having additional staffing.
Becton shared they couldn’t underestimate the importance of this work and all the time they need.
“I’d hate to think we would not have adequate staff to slow down the process because if people were processed for improper actions, they have rights as well, so we should move expeditiously with these reviews and these cases,” stated Becton. “Our job is to seek justice.”
Supervisor Ken Carlson confirmed the Racial Justice Act requires a lot of data and statistical tracking that is taking time from staff.
Becton confirmed “yes” but have not yet had a data analyst on board—but within the next 30-days will onboard their first data analyst. Right now the staff and attorneys are going into the system to try and locate the cases—currently, manual searches.
Burgis asked about demographics and if the District Attorney if they can provide demographics.
Becton said at the moment they have to pull data manually, but are moving towards a program that can pull it from a system—plus a data analyst which can include the city, type of crime and demographics of people. She said they are also working to create a public dashboard for information.
Burgis shared concerns from the public and law enforcement that they say “the District Attorney’s Office is not doing enough and so the question is that because the limits of these cases do not allow you to go further, or is it the limits of staffing and capacity, or is it both.”
Becton said its neither one of those.
“We hear somebody came out but we are not going to do anything because the District Attorney’s office will not. Its really unfortunate to have those messages portrayed. One of the things we have to keep in mind is when a crime occurs, the District Attorney’s Office is not the first stop, someone has to be apprehended for that crime. The crime has to be reported, someone has to be apprehended before that case can come to our office for review. Every case brought to our office is important to us,” explained Becton. “Now often, what people are very frustrated about, are crimes where no one is apprehended so therefore the District Attorneys office does not see those cases, or people are very frustrated by the quality of life crimes. I know we have come to recognize that those are not cases we can prosecute our way out of.”
She called mental health, unhoused residents, and drug addiction are cases they cannot prosecute their way out of.
Becton also pointed out there have been times where they have been called out by judges for having too many misdemeanors in the system, which overloaded the system, which cause additional budget requirements on the county.
She further highlighted that due to the amount of misdemeanors, that is why other programs such as neighbor restorative partnership was created to ensure some accountability that the community wants to see but also to offload to resolve them by not filing them in the justice system.
Gioia called this not a new argument because every District Attorney has been told they are not doing enough. Gioia also asked about what cities the District Attorney contracts with to have an attorney in the city to focus on quality of life.
Becton explained they still contract with the City of Richmond, however, with the new negotiations, they are moving away from quality of life crimes to focus on violent crime in the community—the only city in the county at this time.
Supervisor Federal Glover asked about the City of Antioch with its large caseload, he wanted to ensure they had enough staff.
Supervisor Candace Andersen asked about the lookback on cases and how much is from the District Attorney versus the Public Defenders/Private Attorneys.
Becton said the major responsibility for the lookback would fall on the District Attorney.
Public Defender Overview
The recommended budget is $45 million which include 12 managing attorneys, 90 line attorneys, 10 administrators, 17 clerical support, 17 legal assistants, 14 investigators and 12 social work staff for a total of 172.5 positions.
2022 Case Referrals
- Felonies – 2,985
- Misdemeanors – 4,231
- Youth Defense – 408
- Mental Health – 558
- Immigration – 148
- Clean Slate – 6,320
- Revocations – 1,696
- Post Conviction – 406
- Total – 16,752.
2022 Year in Review
- 173 trials conducted
- 131 jury trials
- 42 court trials
- 73% of felony trials resulted in full acquittal, partial acquittal, or mistrial
- 65% of misdemeanor trials resulted in full acquittal, partial acquittal or mistrial.
Current Challenges
- High volume of felony, misdemeanor and mental health case referrals
- Unprecedented rate of deportation filings leading to wait list of 241 community members who are waiting for STCC Services
- Racial Justice Act and Police Misconduct
- Ongoing trend of elevated conservatorships (LPS) referrals
- Increased Digital Discovery (cell phone, DNA, etc.)
- New legal obligations from recent legislation and unfunded mandates.
Antioch Police Investigation
“We have Contra Costa County in the national spotlight for racist, homophobic, violent disclosures regarding the Antioch Police Department. Experts that I’ve discussed with the Antioch Police Department have advised me this is one of the largest and most egregious police misconduct scandals not in Contra Costa, not in California, but in our nations history happening right now in Contra Costa County,” stated McDonnell.
Editors Note:
McDonnell said what they know right now, 45 of 100 officers are implicated in the “vile text messages” which include racist statements and images, homophobic, misogynistic statements, uses of excessive force, falsifying police reports, violating civil rights, targeting black and brown people, physical violence on them to take their property and to frame them for different criminal offenses.
“The report released to us from the District Attorneys office investigates these text messages as violations of the Racial Justice Act,” explained McDonnell. “I can tell you in my legal opinion, these are textbook violations.”
She also highlighted that the Pittsburg Police Department is implicated in an FBI investigation as was Antioch Police Department.
“I don’t even think we have the full picture yet, this is still evolving,” stated McDonnell. “My guess is there will be indictments or something further coming from the FBI. I’ve inquired but I have not been able to get that information. This is a very broad number of individuals involved.”
McDonnell further explained that Antioch elected officials have admitted things have been swept under the rug for years—which she said was at the price of community members who have suffered.
“We have a legal requirement and a constitutional mandate to challenge cases where racial discrimination or police misconduct occurred. This is highly complex and data driven work and absolutely unprecedented,” stated McDonnell. “We have people sitting in our jail right now today that are sitting there on the word of these police officers. We have people sitting in state prison on the word of these officers. We have people on probation and parole or other restrictions… thousands of others who have a right to due processes and have their cases reviewed.”
McDonnell says they must now review all potential impacted cases that are open, file bail and release motions, motions to vacate convictions on old cases, file motions to terminate individuals from probation and parole.
“We must ensure all convictions from the Antioch Police Department going back years and years that the officers we know about at the moment, have integrity. The only way to address systemic racism and police misconduct is with adequate resourcing to the Public Defenders Office,” says McDonnell who added her phone has not stopped ringing from the public who want transparency, accountability and action. “There is a heavy burden in addressing this injustice and that burden is going to fall on the office of the public defender.”
She said they could not ensure justice without significant staffing to support the work needed—reviewing cases, pulling old cases, speaking with clients, filing legal motions on their behalf for dismissal.
Stand Together Contra Costa
This program is a collaborative partnership between the County and community-based organizations to provide legal services, community outreach, and public education to immigrants.
- Indigent immigrants are not provided with an attorney during court proceedings.
- 80% of immigrants in the US ordered deported in immigration court last month did not have an attorney.
- Nationally, immigrants seeking asylum protection without an attorney only win 18% of the cases but, when represented, they win 48% of cases.
- In our county, 1,463 new deportation cases filed against Contra Costa residents in the last 90 days and yet 91% have no legal representation.
- In Contra Costa, immigrants who are represented by STCC win their cases 93% of the time.
- STCC currently has a waitlist of 241 community members who are waiting for attorney services.
A new immigration court is opening in Concord in 2023 which is due to unprecedented rate of new deportation filings and case backlogs—this will include 20 judges in the facility, while San Francisco has 25 judges.
Board of Supervisors Ask if Antioch Could Pay for New Staffing
The Board of Supervisors asked county counsel if they could go after the city of Antioch to help pay for the added work required by the District Attorney and Public Defenders. County Counsel said it would look into the cost recovery.
DAY 2 of Budget Discussion — Recap (DISTRICT ATTORNEY & PUBLIC DEFENDER ONLY)
The request in new staffing is due to the Antioch Police Misconduct investigation along with the Racial Justice Act and related activities.
Contra Costa County District Attorney’s Office
- They are seeking 5 additional positions which include 2 deputy district attorneys (fixed term) and 3 deputy attorneys (basic) at a cost of $1.1 million
Public Defenders Office
- They are seeking 5 additional positions which include 2 deputy attorneys (fixed terms) and 3 deputy public defenders III for a total of $1.184 million.
Supervisor Candance Andersen pointed out the difference in cases handled by both offices while stating she wanted a better understanding of case volumes. She stated the District Attorneys Office cases vs public defender.
“They gave me statistics from 2022 of criminal filings, there were 12,137 criminal filings, 6,072 were actually filed by your office and the public defenders office, including the conflict panel handled just under 4,000 of those,” Stated Andersen who questioned if both needed the same amount of staffing given the case load differences. She wanted updated and verified numbers.
District Attorney Diana Becton shared in any given year they are looking at around 10,000 criminal filings with nearly 7,000 actually being filed—which does not touch on cases under the Racial Justice Act and under additional legislation under SB 775 under the felony murder rule.
“Bottom line, I would like to revisit this in 6-months at mid-year and not adjust the budget now,” stated Andersen.
Supervisor John Gioia asked Becton when she anticipated the workload to increase and the courts calendar impacting that.
Becton shared a general picture where Sacramento is seeking “responsive prosecution” and that the two bills apply retroactively which require them to analyze, prepare and re-litigate prior convictions under new standards while the racial justice act is very expansive.
“The legislation requires it to be phased in,” stated Becton who shared it would be difficult to say what the workload may be because they are not even discussing juvenile cases yet but in the past week or so they received a homicide case from 2005 (18-years ago) which includes reviewing the charges, implicit bias and the data and statistics to provide—they have to research cases from the time and how they were charged, firearms, gang enhancements research. On the opposite end, motions from a traffic misdemeanor case.”
Gioia cut her off to focus on a timelines and when Becton anticipates the workload to ramp up in terms of needing more staff—including Antioch.
Becton shared that in the course of a year, they have 7,500 cases that they might file, 10% of those are from the City of Antioch. They can estimate that 750 cases a year come from Antioch.
“When we are just focusing on the Antioch cases, we have an obligation to review every case, some have not been filed yet, every case that is currently in the system in progress in the court system, cases where people on probation and then cases where people who are in custody in county jail or state prison. Then in addition to that, we will have to have the opportunity to go back and look at closed cases as well,” stated Becton. “That is just for Antioch, not even overlapping the racial justice issues.”
Ellen McDonnell explained the urgency of hiring additional attorneys due to the work load increase.
Ellen McDonnell, Public Defender, said 90% of the cases they are dealing with come from the City of Antioch—now closer to the mid-to-high 90%.
“We know that from Contra Costa there are more than 1,500 individuals in CCDR and state prison serving sentences with 73% of them are people of color and must have their cases reviewed for racial justice claims and some of that is police misconduct Antioch, Pittsburg or other agency review but all of them will have racial justice claims based on the numbers in Contra Costa,” stated McDonnell. “In terms of the Antioch cases, I can’t stress this enough, this is an immediate need. Its happening now and today.”
McDonnell asked a rhetorical question on the consequences of not immediately adding these resources, who on any year average about 1,700 cases.
“For our office, it means people will languish in county jail, they will languish in state prison and languish on cases where they were wrongfully convicted based on racist police officers who’s text we have now seen where our office has an absolute duty right now to be reviewing those cases,” stated McDonnell. “Did those individuals get targeted based on their skin color, use of excessive force, the admission of falsifying confessions, falsifying evidence so we really need to look at these cases individually. We know there are individuals both in county and state jail and its urgent we work with those groups.”
McDonnell urged the board to act now on increasing the budget based on this new added burden they will have.
“This is a crisis folks are seeing nationwide that is happening in our community,” said McDonnell. “I appreciate the District Attorney’s Office is also going to conduct a review, but the 6th Amendment requires a defense attorney to look at the discovery, what they see in the case, their may not be alignment with the DA’s office. There is a lot of litigation in court on the racial justice act and these police misconduct cases, its critical we take cases to court immediately.”
McDonnell shared the priority level of how they would triage the cases:
- People in most restrictive level of custody in jail/prison
- Probation/parole or other restriction
- Pending cases
- Prior convictions
She estimated this work would require a task force and would go on for years saying the level of magnitude, volume and scope is unprecedented with internal affairs officers involved and they do not even know the full scope yet.
“I would urge the board to act on this at this time so we can get this moving,” said McDonnell. “Its urgent we prioritize this work due to the harm to our community to address the harm.”
Andersen asked at what point a court would want to wait to see the results of the federal investigation before their going to weight that to look back at certain cases—she asked on the timing vs. presuming and if there would be a delay in hiring someone before cases see a court.
McDonnell shared they are already litigating some of these cases in court and to argue the impact the text messages had on cases—she called it immediate need and pieces are not yet released with additional factors or possible indictment of officers in the city of Antioch (45 officers) and City of Pittsburg.
She called for not allowing people to languish in custody and aggressively pursue litigation and legal remedies for everyone impacted.
Andersen called it “horrific” but also asked about due process or any reason a court would delay hearing a case pending an investigation being completed.
District Attorney Becton talks about the urgency of needing more staff due to workload increases
Becton stated they knew “something was happening” as they had been working for over a year with the Federal DOJ and could not talk about what charges might be or officers who could be charged, but through the investigation they uncovered the text messages stating the text messages within themselves are not “necessarily criminal behavior” but what they reveal is a systemic problem in policing—she called it separate problems in possible criminal indictments that could be separate from text messages from being uncovered.
“We cannot wait, and I have to piggyback on the urgency Ellen talked about,” stated Becton. “All eyes all over the country are on Contra Costa County, there is not an investigation that we are aware of on this magnitude that affects so many citizens in our county. We can’t wait… this is not something we can sit on our hands and wait.”
Gioia reigned in the conversation stating he urged the Board to focus on the District Attorney and Public Defender workload and not the officers text messages.
Andersen stated it was about the timing of whether or not a court we need the full investigation before they are going to review the cases—called it a timing. She called her question “legitimate” because both the DA and Public Defender said they cant wait.
Supervisor Diane Burgis called what is happening in Antioch is horrifying, heartbreaking while calling it destructive while making people feel less safe—stating Representatives Mark DeSaulnier and John Garamendi have called for a federal investigation–while Becton and McDonnell are saying is they don’t even know everything at this point.
“Is that fair to say we don’t even know everything we are dealing with at this point,” asked Burgis.
Becton confirmed by saying, “we can make our best estimate on the magnitude of the cases. I think we can estimate pretty well how many cases may be effected just by cases in Antioch.”
Becton stated in their numbers, they include the added workload from the cases from the City of Antioch in addition to workload from the racial justice act and felony murder rule.
“I know today, we are talking about attorneys. I would say we are asking for is very conservative, but as attorneys, we also need support and appropriate investigative staff, clerical staff, we haven’t even got to estimating what those numbers will be, so expect to see us back here,” stated Becton. “Hopefully we will get the resources to dive into these cases but please know this is a bigger picture. Every attorney has to be supported by staff.”
Burgis confirmed this was going to get bigger and stated, “I am very disappointed in those officers and they let us down. I am ashamed to know those folks were out there doing the work they were doing and making people feel unsafe. It reflects poorly on a whole group of people who are out there who are trying to protect the community.”
Burgis stated she would let staff figure out a way to let staff get this paid for.
Supervisor Federal Glover stated he was ashamed of the system and they have now identified a problem that has been a problem for a number of years and done nothing about it.
“In terms of timing, the timing is now,” stated Glover. “You need to get your staff up to par. We know enough to identify there is resources that are going to be needed and our choir is to find those resource… we are not going backwards, we need to go forward.”
He urged the Board to find the sources to fund the District Attorney’s Office and the Public Defenders Office.
Supervisor Ken Carlson could not agree more stating what is going on in Antioch with the text messaging is now impacting the District Attorney’s Office and the charging that can even be done—such as “officer A” had is hand on it so we are not going to file this case.
Carlson also stated based on demographics, not just Antioch, based on the legislation, it would also give them idea on number of cases with people of color and how far back and how far back they would search. He believe they could get a rough idea countywide.
“It is imperative we get it done now,” said Carlson. “The work we are trying to do in the racial equity social justice realm and the racial equity realm, we need to be on top of it ahead of it as opposed to we have to catch up because we kicked the can way too long. I am support of doing this.”
He said it would be challenging finding $2.3 million to fund the initiative.
Gioia highlighted everyone on the Board has criticized the text messages and criticized what went on while Glover was critical of the system, which Gioia said the District Attorney’s Office and Public Defenders are a part of the system.
“Yes, we can all give verbal criticism but unless we take on the responsibility and the action we need to do to fix what went on, to correct what went on, we are not as guilty, but we are not looking good,” said Gioia who highlighted its not just Antioch but if they don’t do anything then they would be partially to blame in the future by keeping the system alive. “The fact we have a unified position by a District Attorney and Public Defender, to me argues that we need to do something now.”
Gioia asked staff where they could possibly identify funding.
County Finance Director Adam Nguyen said they had several options such as the funding sources themselves or the operations and logistics around hiring:
- Recommended budget is balanced so to identify new funding, take an existing line (such continuously reserve) and apply it. The challenge is next year the revenues increase to backfill a small contingency.
- General Fund Reserve
- Go through another source (such as Measure X – $5.58 million)
- District Attorney’s Office has 32 vacancies, which are 12/13 attorney’s vacant – suggest they fill those positions first before adding new positions.
Burgis asked Becton in the case of Antioch, if the burden of doing something so big that they are going to take on, is there any financial remedy that the County could explore.
County Counsel said they were unaware of financial remedy.
Burgis shared that she believed this would not be a temporary positions and they would ultimately become permanent.
Becton said absolutely that was their position.
“Just on a everyday ongoing basis there is attrition,” said Becton noting two attorneys recently retired. “Even though it might look on paper we just fill the positions we have vacant everything would be fine. But they still have to fill in positions to fill gaps they have. What they are talking about here is in addition to the allocation positions they have. I think it would do us a disservice given the time it takes to ramp up, hire, advertise, to wait to increase staffing because those positions need to be filled now, today, so we can do the work with the 10,000 cases we process.”
Becton confirmed the goal was to fill the vacancies and the new positions.
McDonnell shared that was the public defender’s goal as well for their vacancies and called this urgent because of this brand new workload.
Gioia asked if the Public Defenders would get an added workload even without the Racial Justice Act from the city of Antioch in which McDonnell agreed.
“In a sense, we have had more crime, except this is crime by police officers. They have come to us saying we need to address this,” said Gioia. “To me, the idea in delaying it, it makes me think justice delayed is the same thing as justice denied. There are people sitting there paying the consequences of the acts and they don’t know if these individuals are there because of misbehavior of a police officer. We don’t know that until they investigate it. There are people now being harmed.”
Becton shared the District Attorney’s office is the only one in the state to hire attorneys on the contract system (3-years) which inhibits them to bring anyone lateral in with any type of experience.
“We are doing our hiring based on the BAR passage,” said Becton and hopes to change the contract system soon to bring in laterals and experience people. “Right now, our new attorneys just graduated from law school and clustered around the passage of the bar.”
Nguyen stated another path that would not need a funding source, but could add the positions and draw on existing salary already allocated which would draw on salary savings. Currently with the vacant positions (32 vacancies) which means they are saving salary by not having to pay people working.
Andersen pushed again to wait until the District Attorney’s Office was fully staffed whereas Gioia said he was concerned if they came back mid-year.
Nguyen explained to the Board of Supervisors that the Public Defenders are in a tighter margin because they have less vacancies to fill.
After some back and forth, Andersen suggested they fund both departments today, as staff recommended, once they fill the positions, see if they can balance their budgets and if they can’t, they have the authority to draw upon a contingency reserve budget—the county would offer budget protection by authoring a budget up to a specified amount of $2.3 million (combined).
Gioia confirmed the motion would be authorizing the county to draw $2.33 million out of the contingency reserve to create and fill the positions. The board was in agreement.
3 comments
I agree with the Board of Supervisors, make Antioch pay for this, not the rest of the county. Antioch has plenty of money from cannabis. They should fund it, not put the burden on the rest of the county.
Why do they need more positions if they cannot even fill the positions they have open now? Becton herself says they only hire around the time of the bar exam. Maybe the DA and public attorney should come back when they are fully staffed. Imagine getting 5 positions each and then nothing turns out from the text messages.
More money and people to do more nothing against crime.
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