San Diego County has a new public defender, but the selection process troubled some

It was just before Christmas when San Diego County announced its months-long search for a new head of the Office of the Public Defender had ended with the selection of Paul Rodriguez, a veteran attorney who had for years been running the office’s El Cajon branch. 

Rodriguez, who succeeded retired Public Defender Randy Mize, is well respected and held in high regard among most of the hundreds of lawyers in the office. 

Yet while the selection was not controversial, the county’s process to pick Rodriguez was.

That’s because, in an unusual move, representatives of the District Attorney’s Office, the Superior Court bench, and the Sheriff’s Department were among the members of two interview panels that selected a trio of finalists for the job.

Prosecutors and law enforcement are the chief adversaries of defense lawyers in the criminal justice system. Their involvement, along with judges — the neutral part of the system — in picking candidates to be the leader of the office was criticized by the labor group representing more than 300 public defense lawyers. 

Emily Rose-Weber, the head of the Public Defender Association, said that including law enforcement and the bench presented the appearance of a conflict of interest — allowing one side to assist in picking their opponent. 

“We work within an adversarial system,” she said in an email response to questions about the process. “Public defenders provide a check on the government — prosecutors and law enforcement — and the abuse of power. The process here allowed the government to help select who and how they should be held accountable.”

The process also appears to be counter to a set of non-binding guidelines for public defender systems published last year by the American Bar Association, or ABA, the nation’s leading legal organization. 

The ABA emphasizes preserving the independence of public defense providers, including public agencies like the county’s. It also recommends a board or commission to select the public defender, and that it should not include prosecutors, law enforcement or judges.

Holly Porter, the county’s deputy chief administrative officer, declined through a spokesperson a request for an interview on the process behind selecting Rodriguez. In a terse statement she dismissed any concern over the process. 

“It is not accurate to imply or insinuate that the DA, Sheriff or Courts chose the Public Defender,” she said. “The appointing authority is the Deputy CAO for Public Safety who made the decision in consultation with the CAO and Director of the County’s Office of Equity and Racial Justice.”

But David Carroll, the executive director and founder of the Sixth Amendment Center and a nationally recognized expert on indigent defense systems, said the county process was problematic and did not meet the ABA principles. 

“It is quite clear that what you have described to me as the San Diego process is in violation of these ABA standards,” he said. The U.S Supreme Court has repeatedly said that the independence of a defense lawyer is necessary to fulfill the constitutional right to counsel in a criminal case. 

But a county spokesperson said that the ABA standards were “a set of general principles, not requirements” about oversight of indigent defense by boards and commissions and did not apply to the appointment of a public defender by a county. 

“We followed the County Charter, best practices and legal and ethical guidelines to make the right selection for the role,” spokesperson Chuck Westerheide wrote in an email response.

Even though the final decision was made by county officials, Carroll said the optics are not good. “It may not be an actual conflict,” he said, “it may be the appearance of a conflict. But that is just as bad.”

In an interview, Rodriguez said that the participation of judges and law enforcement gave him the opportunity to advocate for the work that lawyers in the office do. 

“I took that actually as an opportunity knowing that there would be some players from these other organizations,” he said. “I took that as an opportunity to assert at every stage of the process what the role of the public defender is. And the first thing is, we have a duty to our clients and to provide them with a zealous defense.”

Rose-Weber said the issue was not Rodriguez, who she said had a “truly outstanding” reputation in the office, but including law enforcement in the process could raise questions with the public.

“How do you explain to those clients that the sheriffs who jailed them and the district attorney trying to take away their liberties helped hand pick the Public Defender?,” she said. “How do you explain to the family of a client facing the death penalty that the prosecutors seeking to kill their loved one helped select the Public Defender? Or that this Sheriff’s Department in particular — which runs some of the deadliest jails in California according to a state audit — had a special role in selecting the Public Defender?”

The process

With a $134 million budget and 547 employees, the public defender offices represent those who cannot afford to pay an attorney — the vast majority of people charged with crimes in San Diego.

“The process here allowed the government to help select who and how they should be held accountable.”

Emily Rose-Weber, San Diego County Public Defender Association

After Mize retired in June, the county spent $26,000 hiring the Bob Murray and Associates search firm to find his replacement. Unlike the district attorney who is elected by voters, the public defender is essentially a department head, and is selected by the county’s top administrators. 

Using a search firm was unusual, too. Mize said that when he was named public defender in 2017, there was no process — he was simply appointed to the top post after serving as primary public defender, the largest of the four indigent defense offices in the county. 

He added that in 2009 when his predecessor Henry Coker was appointed there was a lengthy application and interview process — one that also included participation from prosecutors in the form of candidates being interviewed by the then-Assistant DA Jesse Rodriguez. 

This time, the firm screened applicants and narrowed down the search to replace Mize to seven candidates. They interviewed with panels staffed with representatives from organizations that interact with the office. These included the Legal Aid Society, the San Diego County Bar Association, Local 221 of the Service Employees International Union, the Public Defender Association, and the criminal justice reform organization the Vera Institute of Justice.

The panels also included San Diego Superior Court Judge Roderick Shelton, who is the criminal case supervising judge for the downtown Superior Court, and Dwain Woodley, the assistant district attorney and number two official in District Attorney Summer Stephan’s office. It also included a commander from the Sheriff’s Department.

The county declined to identify all the individuals on the panels by name, but sources identified the judge and prosecutor. Woodley and Shelton each declined to be interviewed. 

After the first round of interviews the panelists culled the candidates down to several finalists. Then the selection process was abruptly put on hold when Superior Court Judge Michael Washington sued the county.

He said he wanted to be a candidate, but the county would not allow him to apply, citing a state law requiring candidates to be a practicing lawyer for a year before they could be named public defender. He lost the suit in November, re-starting the search process. 

Before the final interview the finalists participated in an informal “meet and greet” with Stephan, San Diego City Attorney Mara Elliott, Sheriff Kelly Martinez and two county supervisors. Rose-Weber said she was “surprised and disappointed” that there were not representatives from her labor organization on hand, and they were not told about it.

Rodriguez said the meeting was brief and informal, and served a valuable purpose. 

“I think that understanding who you are sitting across from the table is very vitally important,” he said. “As long as everyone understands that the message, that we are here to represent our clients zealously, as long as that is not lost in the process, I see the opportunity to meet with, supervisors, the district attorney, sheriff, the city attorney — I see those as tremendously valuable opportunities for them to get to know me.”

Office turmoil

Rodriguez inherits an office that had a rocky year in 2023, largely the result of two lawsuits brought by former lawyers there. 

In one, a jury awarded $2.6 million to an attorney who said he was forced out of the office after complaining about an allegedly racist comment made by a supervisor, and was discriminated against because of how he presented himself as a gay man. A second suit settled with a $900,000 payment to a woman who said she was not hired on full time by the office because of her political activism outside of work. 

The county denied both those claims and said the two were not hired because they performed poorly at tenure review panels. 

Rodriguez started his legal career as an intern with the office and said he was captivated by its mission. 

He said he will work to make the office more transparent and employees to feel they are being “seen and heard.”

“I wanted to be able to provide a voice for individuals who have not yet found their own voice or been able to get their own voice to be heard,” he said.