Who will Merced County supervisors choose for defense contract?

In the coming weeks, Merced County supervisors will choose either to maintain a years-old relationship or start a new one with a contract for criminal defense services.

While the Public Defender’s Office represents suspects who cannot afford to hire private attorneys, cases are referred to outside attorneys when the county public defenders have a potential conflict of interest, such as representing a co-defendant in a case.

Though records show the county intends to recommend Ciummo & Associates for a new contract, the current contractor has protested the move, accusing county staff of handling the process incorrectly and unfairly.

The county’s relationship with the current contractor, Merced Defense Associates, goes back 14-years and through years of record-high homicide rates, the recession and numerous transitions in county administration.

Over the years, attorneys with MDA handled thousands of cases. They currently are working more than 30 homicide cases. More than half of the murder cases come with special circumstances, meaning prosecutors are seeking life without parole sentences for the defendants.

As the fight over the contract continues, concerned residents have contact supervisors Daron McDaniel and Jerry O’Banion about a potential conflict of interest for MDA.

Tom Pfeiff, the contract’s administrator, works with Cindy Morse, who is married to the Merced County District Attorney Larry Morse II. Two county supervisors say they’ve received questions from residents wondering whether the county prosecutor’s spouse should be part of the firm that defends the people he prosecutes.

“It’s been brought up at different times over the years,” O’Banion said. “My understanding is that Mrs. Morse is not part of the contract. Can I prove that? No, I cannot. I’ve asked questions on different occasions, but that’s the answer I received in the past.”

Pfeiff said he and Cindy Morse have taken many steps to ensure the MDA contract for indigent defense is not a conflict of interest. Cindy Morse does not handle any criminal cases. She works on civil law matters.

In 2009, the Fair Political Practices Commission in an analysis determined there was no conflict of interest for the district attorney if the county contracted with MDA.

In 2016, MDA became a limited liability company (LLC), making Pfeiff the sole owner, in order to eliminate any perceived conflicts.

Pfeiff even contacted County Counsel James Fincher to make sure the Morses’ marriage didn’t pose any conflicts of interest, and Fincher referred back to the FPPC letter, he said.

MDA has received criticism now and then for attorneys being late or not showing up, Public Defender David Elgin said, but overall the lawyers have done the job. Elgin said the Ciummo firm, on the other hand, isn’t well regarded, in his view.

“The reputation of the other firm in the legal community is not good,” Elgin said.

Elgin pointed to a decision a year ago when Placer County decided to drop Ciummo as the main public defender, opting to contract with a different firm for a higher rate.

“To me, especially with county government, you’re not going to pay more for a service unless that service has been subpar,” Elgin said. “They must’ve been dissatisfied with the service.”

However, many other counties have used Ciummo’s legal defense services for decades. Both Fresno and Madera have contracted with Ciummo for two decades. Madera has done so for three decades, said Michael Fitzgerald, Ciummo’s CEO and part owner of the firm. Ciummo also has served as the primary public defender in both Calveras and Amador counties for about 10 years.

“I know the rumor is out there that bringing in an outsider doesn’t benefit us,” Fitgerald told the Sun-Star. “We will put in every effort we can to hire local attorneys. We’ve also heard that our attorneys will be late for court because the attorneys are coming from Madera. We would not tolerate being late for court.”

In a 2008 report, Ciummo & Associates was described as the “Wal-Mart model” for defense services by a San Diego law professor, who said the firm didn’t pay attorneys benefits and took other cost-cutting measures.

Fitzgerald said the law professor never contacted anyone with Ciummo when working on the report. “We disagreed with a lot of the findings as far as how they applied to us,” Fitzgerald said. “We hire attorneys, we pay them salaries and benefits and we encourage going to trial. And of course we investigate cases.”

In the minds of supervisors, the decision comes down to representing constituents and being fiscally responsible with taxpayer money.

The county has drafted a five-year contract with Ciummo for about $9.5 million, a price about $1.5 million lower than MDA’s proposal.

McDaniel called the $1.5 million difference “alarming.”

“I’d be crazy to say that’s not a significant amount of money,” O’Banion said. “All county dollars are important.”

Pfeiff’s protest will be reviewed by the county’s top administration to determine if his points are valid.

Said O’Banion: “We’ve got to let the process work.”

This story was originally published May 9, 2017 at 6:20 PM with the headline "Who will Merced County supervisors choose for defense contract?."