Drumgo v. Marin County Superior Court Motion for Leave to File Brief Amicus Curiae

    JV THE SUPRE'lE COURT OF THU STATE OF CALIFORNIA

'LLFTA LRUMGO,

VS,
Tetitiouer,

SuFLilLOM. COURT, COUnTT CF LlARTF.
Respondent,

iHL FFOPj,.. OF THE STATE OF CALIFORNIA,
Real Fartv in Interest.

NO. SF 22953

toe co 1LA.C? LEGAL -IF COST A'-a LUOCATIORAL
t Oi< L • . i . FILL A ELITEAlICTS currah, hi support of peavticlcr

and
BRIEF, ANITVS C'TIAF. OF 

UAACP LEGAL ELFoLtCI L .L lLt;CACIOH.-VL FULL, ICC 
I'4 ALCPORL IF petittollt

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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

)
FLEETA DRUMGO, )

)
Petitioner, )

)
vs. ))
SUPERIOR COURT, COUNTY OF MARIN, ) NO. SF 22953

)Respondent, )
)

THE PEOPLE OF THE STATE OF CALIFORNIA, )
)

Real Party in Interest.)
)

MOTION OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., FOR LEAVE TO FILE A BRIEF,
AMICUS CURIAE, IN SUPPORT OF PETITIONER_____

The NAACP Legal Defense and Educational Fund, Inc. 
(the "Legal Defense Fund") hereby requests leave to file the 
annexed brief amicus curiae in support of petitioner Drumgo.

The interest of the Legal Defense Fund as amicus 
is fully set forth in the annexed brief. The Legal Defense 
Fund seeks leave to file a brief amicus curiae in this 
case to emphasize the peculiar and serious problems of 
representation of indigent defendants from racial minorities.

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Richard Breiner, Esq., attorney for petitioner, 
and Herbert F. Wilkinson, Deputy Attorney General, attorney 
for the Real Party in Interest, have consented to the filing 
of a brief by amicus.

DATED: October 13, 1972.

Respectfully submitted,

WILLIAM BENNETT TURNER 
JULIAN J. FOWLES
Attorneys for Legal Defense Fund 
as amicus curiae

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TABLE OF AUTHORITIES

CASES Page
Brotherhood of Railroad Trainmen

v. Virginia, 377 U.S. 1 (1964) 7
Brown v. Craven, 424 F.2d 1166

(9th Cir. 1970) 8
Carmical v. Craven, 457 F.2d 582

(9th Cir. 1971) 6
Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964) 6
NAACP v. Button, 371 U.S. 415 (1963) 7
People v. Butcher, 275 Cal.App.2d 63 (1969) 9
People v. Byoune, 65 Cal.2d 345 (1966) 9
People v. Croveda, 65 Cal.2d 199 (1966) 8
Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) 7
United States ex rel Davis v. McMann,

386 F .2d 611 (2d Cir. 1967) 8
United States ex rel Goldsby v. Haroole,

263 F.2d 71 (5th Cir. 1959) ‘ 6
United States ex rel Seals v. Wiman,

304 F.2d 53 (5th Cir. 1962) 6
Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964),

cert, denied, 379 U.S. 931 (1964) 6

OTHER AUTHORITIES
The Defense of Indigents in Criminal

Proceedings, California Assembly Interim 
Committee on Criminal Procedure (Jan. 1965) 4

Directory of Judges, Lawyers and Bar 
Associations, National Bar Association (Jan. 1972) 4

li



Page

Mexican Americans and the Administration
of Justice in the Southwest, United States 
Commission on Civil Rights (March 1970) 3, 4, 5

Report of the National Advisory Commission 
on Civil Disorders (Bantam ed. 1968) 3

Report on the San Francisco Public Defender's 
Office, San Francisco Committee on Crime 
(Oct. 22, 1970) 3, 4, 5

Silver, The Imminent Failure of Legal 
Services for the Poor, 46 J. of Urban 
Law 217 (1969) 5, 6

ill



IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

)FLEETA DRUMGO, )
)Petitioner, )
)vs. )
)SUPERIOR COURT, COUNTY OF MARIN, )
)Respondent, )
)THE PEOPLE OF THE STATE OF CALIFORNIA, )
)Real Party in Interest. )
)

NO. SF 22953

BRIEF OF
THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

AS AMICUS CURIAE, IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc., 
is a non-profit corporation formed in 1939 under the laws of 
the State of New York. It was founded to assist black people 
who suffer injustice by reason of race or color to secure 
their basic rights through the legal process and to challenge 
in the courts practices in our society that bear with 
discriminatory harshness on racial minorities and the poor.

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The Western office of the Legal Defense Fund, 
located in San Francisco, receives a very large volume of 
pleas for assistance from persons in California accused or 
convicted of crime in California courts. The Fund is able 
to handle only a few cases involving important issues of 
reform in the administration of criminal justice. One of 
the Fund's concerns, therefore, is assuring that criminal 
defendants are afforded effective assistance of counsel. 
The Fund believes that the decision of the Court of Appeal 
in this case is sound as a matter of law and policy in 
recognizing that indigent criminal defendants may in 
appropriate circumstances be entitled to appointed counsel 
of their choice.

ARGUMENT

In resolving the question presented in this case, 
the Court should take account of serious problems of 
representation of defendants from racial minorities and the 
need for creating confidence in appointed counsel and the 
courts.

In investigating the causes of the civil 
disturbances of the 1960's, the Kerner Commission found 
that "The belief is pervasive among ghetto residents that 
lower courts in our urban communities dispense 'assembly-line' 
justice" and that "the apparatus of justice in some areas has

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itself become a focus for distrust and hostility." Rep 
of the National Advisory Commission on Civil Disorders,
p. 337 (Bantam ed. 1968). In California, the San Francisco 
Committee on Crime found that:

"Many residents of minority communities, not 
only in San Francisco but in most American 
cities as well, distrust the criminal justice 
system as a manifestation of a white-dominated 
power structure having little interest in 
protecting minority rights or interest."
Report on the San Francisco Public Defender's 
Office, p. 14 (Oct. 22, 1970).

The United States Commission on Civil Rights did an exhaustive 
study of the experience of Mexican Americans with the 
administration of justice in California and other states and 
found that:

"Mexican Americans are distrustful of the 
courts and believe them to be insensitive to 
Mexican American background and culture."
Mexican Americans and the Administration of 
Justice in the Southwest, p. 62 (March, 1970).

Part of this minority disaffection with the courts 
is a widespread mistrust of lawyers assigned to represent 
minority defendants in the lower criminal courts. Specifically, 
the San Francisco Crime Committee found that:

"There is a deep-seated antagonism toward 
the San Francisco Public Defender's Office 
among minority groups, particularly in the 
Black communities of Hunter's Point and the 
Western Addition. . ." Report on the San
Francisco Public Defender's Office, p̂
(Oct. 22, 1970).

The United States Commission on Civil Rights similarly found 
that one of the principal sources of Mexican American distrust

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of the legal system is the quality of representation by 
assigned counsel. Mexican Americans and the Administration 
of Justice in the Southwest, pp. 54-55, 69 (March, 1970).

The disaffection with counsel appointed to
represent indigent defendants from racial minorities is
due not simply to the indifference of public defenders or
the inadequate resources furnished to such offices for
representation of the poor —  factors that affect all

1/indigent defendants regardless of race. The confidence
of racial minorities in assigned counsel has also been
impaired by insensitivity to their special needs and the
legal issues peculiarly relating to them. Practically all

2/
the lawyers assigned to represent them are white; one of 
the major deficiencies the San Francisco Committee on Crime

1/ The San Francisco Crime Committee's report, which was 
highly critical of the San Francisco Public Defender, 
found that the Defender conceives of "the function of 
his office as 'processing' so many 'head' at a minimum 
cost to the city per head; he takes pride in clearing 
the calendar at a small per capita cost and is unaware 
of the moral problems involved. The minority communities 
of the City feel this and resent it." Report on the San 
Francisco Public Defender's Office, p. 12 (Oct. 22, 1970).
Concerning the inadequate resources devoted to the 
criminal defense of indigents, see generally California 
Assembly Interim Committee on Criminal Procedure, The 
Defense of Indigents in Criminal Proceedings (January, 
1965) .

2/ There is a severe shortage of black lawyers in California. 
The National Bar Association estimates that of more than 
22,000 lawyers in the state, only 300 are black. National 
Bar Association, Directory of Judges, Lawyers and Bar 
Associations, p. 140 (January, 1972).

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found in the Public Defender's office was the small 
representation of minority groups on the Defender's staff 
and the failure of the office to be closer to the localities 
from which its clients come. Report on the San Francisco 
Public Defender's Office, p. 4 (Oct. 22, 1970).

A special problem faced by Mexican Americans is 
that most Anglo lawyers do not speak or understand Spanish, 
and the United States Commission on Civil Rights found 
evidence that "many Mexican American defendants were not 
being adequately represented by the public defender's office 
because of the language barrier." Mexican Americans and the 
Administration of Justice in the Southwest, p. 69 (March, 1970). 
Of course, communication between any middle-class lawyer and

3/a ghetto defendant will be strained.

Apart from communication difficulties, there have 
been instances of the failure of white attorneys to raise 
legal issues peculiar to defendants from racial minorities.
Thus, one federal Court of Appeals took judicial notice of 
the fact that white lawyers virtually never challenged the

3/ The difficulties of communication between lawyers and 
poorly educated ghetto residents creates substantial 
problems in providing effective legal representation. 
See Silver, The Imminent Failure of Legal Services for 
the Poor, 46 J. of Urban Law 217, 220 (1969).

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The£/
systematic exclusion of blacks from criminal juries, 
indigent's fear that appointed counsel has "sold out" must
be reckoned with in providing representation for the poor.

In summary, racial minorities face special 
problems, apart from their poverty, in gaining effective 
representation when they are charged with crime. Their 
confidence in appointed counsel has been impaired by lack 
of minority lawyers, significant communication barriers, 
indifference of institutional public defenders, inadequate 
resources devoted to indigent representation and failures 
of appointed counsel to provide a vigorous and resourceful 
defense.

The resulting mistrust of appointed counsel 
manifests itself inevitably in the increasingly common 
attempts by indigent defendants to disavow the assigned 
lawyer, to proceed Ln propria persona, to disrupt courtroom

5/

£/ United States ex rel Goldsby v. Harpole, 263 F.2d 71, 8 
(5th Cir. 1959); see also Whitus v. Balkcom, 333 F.2d 4 
507 (5th Cir. 1964), cert, denied, 379 U.S. 931 (1964); 
United States ex rel Seals v. Wiman, 304 F.2d 53, 68-69 
(5th Cir. 1962) . In Cobb~v. Balkcom, 339 F.2d 95 (5th 
Cir. 1964), the appointed white lawyer stated that he was 
aware of the constitutional basis for challenging exclusion 
of blacks from juries, but chose not to raise the issue 
because he_ was satisfied that the all-white jury would 
be "fair"T The illegal exclusion of blacks from juries 
is not unique to the South and has been documented in 
California. See Carmical v. Craven, 457 F.2d 582 (9th 
Cir. 1971).

5/ See Silver, The Imminent Failure of Legal Services for 
the Poor, 46 J. of Urban Law 217, 220 (1969).

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kO 
N)



proceedings and to challenge, in never-ending postconviction 
proceedings, the effective assistance of counsel. In short, 
where the defendant lacks confidence in appointed counsel, 
serious problems in the administration of justice are sure 
to be created.

Given the background of distrust and the consequent
problems for the criminal justice system, foisting an unwanted
attorney on a defendant when an attorney in whom he has
confidence is available makes little sense. To the extent
possible, the courts should seek to minimize the lack of
confidence in assigned counsel. We recognize that as a
general proposition indigents are not entitled to choose the
attorney to be appointed by the court, but no valid purpose
is served by making this proposition absolute and inflexible.
We submit that in the exceptional case where a defendant has
managed to obtain a competent attorney willing to serve if
appointed, and private counsel must be appointed in any
event, only a compelling state interest could justify denial

£/
of such appointment. Certainly no strong state interest

6/ In other contexts it has been established that state 
regulations regarding legal representation must yield 
to the paramount constitutional right, guaranteed by the 
First and Fourteenth Amendments, to be represented by 
counsel of choice. See Brotherhood of Railroad Trainmen 
v. Virginia, 377 U.S. 1, 8 (1964); NAACP v. Button, 371
U.S. 415, 444 (1963); Sanders v. Russell, 401 F.2d 241, 
245-47 (5th Cir. 1968) . The courts have reviewed the 
reasonableness of the state rules and struck them down 
where they unduly or arbitrarily interfered with the right to counsel of choice.

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has been shown in the present case, and the refusal to 
appoint the lawyer sought by petitioner Drumgo was purely 
arbitrary.

We do not contend that a minority defendant is7/
entitled to a minority lawyer, or to reject a public 
defender in favor of private counsel, or to a specific 
attorney who may not be immediately available. But in the 
exceptional circumstances of this case the holding that 
petitioner has the right to an available lawyer whom he 
knows and in whom he has confidence follows from well-settled 
principles:

Where a defendant is dissatisfied with appointed 
counsel and makes good faith efforts to retain his own 
attorney, forcing him to trial with unwanted appointed 
counsel violates due process of lav;. See United States 
ex rel Davis v. McMann, 386 F .2d 611 (2d Cir. 1967); cf.
Brown v. Craven, 424 F .2d 1166 (9th Cir. 1970). This Court 
has recognized that the criminal courts "should make all 
reasonable efforts to ensure that a defendant financially 
able to retain an attorney of his own choosing can be 
represented by that attorney," and where the defendant is 
denied the opportunity to be represented by his counsel of 
choice, he is denied due process. People v. Crovedi, 65

7/ This is obviously impossible, given the small number of 
minority lawyers in California. See note 2, supra.

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Cal.2d 199, 207 (1966); People v. Byoune, 65 Cal.2d 345 
(1966); see also People v. Butcher, 275 Cal.App.2d 63 (1969).
The result should be no different where, even though an 
indigent is financially unable to pay an attorney, he is 
able to persuade an attorney in whom he has confidence to 
represent him if appointed by the court. That is, in a case 
like the instant one where private counsel must be appointed 
in any event, and the indigent defendant takes the initiative 
in finding a private attorney who is competent, ready, 
willing and able to represent him, denial of such appointment 
cannot be sanctioned.

Respectfully submitted,

WILLIAM BENNETT TURNER 
JULIAN J. FONT.ES
Attorneys for Amicus Curiae

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