Things are changing in the Monroe County Public Defender's Office.

The County Legislature appointed Tim Donaher in February to take over for Ed Nowak, who'd held the post for the last three decades. The appointment, particularly the process leading up to it, was controversial. Citizens and community leaders, especially those in the African-American and minority communities, wanted a citizen-led selection process and formed the Coalition for a Fair and Independent Monroe County Public Defender's Office. They worried that a partisan search would lead to a partisan appointment, which would hurt the credibility and effectiveness of the public defender's office. 

Donaher says that he was keenly aware of the concerns and sought to put them to rest after his appointment. One of his first acts was to create a hiring committee made up of his senior staff. Donaher is not on the committee and does not participate in initial interviews.

He's tapped the office staff to form other committees, too, and their recommendations have resulted in changes around the office. There's a group devoted to increasing office diversity through new hires and there are committees concerned with support staff and continuing legal education. To capitalize on the significant amount of institutional knowledge, the office has put all of its documents - briefs, motions, filings, subpoenas, and so on - into a computer system.

First Assistant Public Defender Brian Shiffrin says that although he was against the process by which Donaher was selected, that Donaher has done a good job.

"Morale is as high now as it's ever been in my 30 years," Shiffrin says.

The office, however, is stressed. Family Court caseloads are climbing and Zero Tolerance has increased caseloads in the City Court and Felonies section. Donaher worked with the county administration to get an extra attorney for that section, and that's let him change the way attorneys are organized in City Court - lessening attorneys' caseloads and allowing them more time to work on cases and meet with clients.

Donaher talked about the role of the public defender's office and the effects of Zero Tolerance in an interview with City Newspaper. He also talked about the need to form an Independent Public Defense Commission, which would run a statewide public defense system.  Below is an edited version of that conversation.

CITY: What's the role of the public defender's office?

Donaher: We have two responsibilities as far as the office is concerned: representing individual indigent defendants accused of crimes and also individual indigent clients who are entitled to Family Court representation. Our primary goal, of course, is zealously representing those clients.

We also see our role as being broader. We see our role as actually protecting the community, in that when we seek to vindicate the rights of our individual clients, we're also vindicating the rights of the community at large.

We have an adversarial system of justice. We have a system of justice that, in order for it to work, requires that both the District Attorney's Office and the Public Defender's Office be staffed with zealous, highly-qualified, competent attorneys. And if we have a system where only one side is staffed with those zealous, competent, highly-qualified attorneys, the system would collapse.

And we also protect the community from any overreaching by the police or by the District Attorney's Office.

You've mentioned the Rochester Police Department's Zero Tolerance policy as a stressor on the local justice system. What impact has it had on caseloads in the Public Defender's Office?

It depends on how you want to look at it. Compared to '06, our caseloads have gone up in City Court and in felonies, because some of these Zero Tolerance cases are turning out to be felony cases - approximately 2,600. So we've gone from 23,000-and-change to almost 26,000 cases in a year. That's a significant increase. Now as you can imagine, the county over the years has kept us pretty lean. As a result it's harder for us to absorb these extra cases.

We're trying to think of innovative ways to handle that.

Are they dealing with the same thing over at the DA's office?

They've got the same pressures. They didn't get any additional staff so they're under the gun; everybody is in the system. The judges would tell you that they're feeling the pressure.

It's not my place or my prerogative to tell the mayor or the chief of police how to run their departments. It's none of my business. I question, in some respects, whether Zero Tolerance is accomplishing the stated goals of reducing violent crime. I do think it's poisoning, in some respects, the relationship between some members of the community and the Rochester Police Department and the administration.

It looks like caseloads in general have been steadily increasing.

That's definitely true. You'll see a huge uptick after we do our annual report after the first of the year. You'll see the rest of that Zero Tolerance impact on this office's caseloads.

But recent changes in Family Law have allowed certain individuals who could not bring cases in Family Court to now bring cases, so we're starting to see an uptick in our Family Court caseloads. Those cases are probably the equivalent of felony cases in their level of complexity, so it's an area of the office that's now understaffed. I've been in discussions with our staff to try to see where we can provide additional resources to our Family Court bureau, because they do need it.

All levels of government are in a fiscal crunch and more funding seems unlikely in the near future. So how can you make sure that the office can still do its job?

Right now, because we've improved our efficiency in certain ways, we're able to take on those Zero Tolerance cases without it being a crisis. If we continue to see these upticks in Zero Tolerance cases or Family Court cases, I've discussed with the administration and the powers that be our possible need for additional staff. I was very pleased that they realized that we were an area that they could not cut.

Is there a need to reform the state's public defender system?

The current legislation right now to create the Independent Public Defense Commissionis something that everybody needs to get behind. We're somewhat lucky in Monroe County because we do have an excellent Public Defender's Office. But the quality of representation in other areas of New York State is shockingly bad; so bad that it's on the verge of collapse. If we care about justice in either Monroe County or statewide, we need to ensure that both sides have zealous, competent representation. If you don't, and there are areas of New York State that do not, in those areas you can't say that their justice system is fair.

The state needs to take over public defense services. When they created a system 40-some years ago that had counties pay for and provide indigent defense services, although they might have thought it was a good idea back then, I think experience shows that it's not. Counties are finding it increasingly difficult to bear the financial costs of that service. In some other counties it's become an enormous expense and as a result, they scrimp. They don't provide their defense agencies the resources they need to do a good job for their clients.

Given the state's finances, how likely is a takeover? 

That's a value choice that the state government needs to make. If I were being realistic, I doubt it's going to happen this year or next. But as our economy improves, if our elected representatives in Albany care about the fact that in certain areas of the state our justice system is shockingly bad, it will happen.

It needs to happen because it's the right thing to do. It also needs to happen so people in Monroe County, and mainly New York, can say our system of justice is a fair one.

This isn't something, by the way, that's unique or novel. They've done this in other states and they've done it well and it provides better defense services. We just need to follow their lead.

It seems like it would take any accusations of politicization and patronage out of the public-defender selection process.

Oh, absolutely. There's a variety of competing legislation as to how this would be set up. The bill that I've written letters in support of would provide for a relatively broad-based commission. Groups with vested interests in the quality of defense services would make appointments, to try to remove that taint of too much power in a single individual appointed by a political leader - either the governor or political branch.

There was a lot of controversy leading up to your appointment. Do you think that process tarnished the reputation or credibility of the office?

I think a lot of that controversy came from the desire that the office remain an excellent one. I'd like to think that over the last nine months that I've put some of those fears to bed. The proof is in the pudding. They'll have to look at the job I'm doing to decide whether they feel that I have been a decent public defender. I'm up for reappointment in another 13 months - a lot could happen between now and then. All I'm concentrating on is doing the best job I can so I can make an argument that I should be reappointed.

Is the controversy going to have an effect on the office? I'd be a fool to say no. I can say this: certain individuals in the coalition took great pain to point out it was never about that Donaher guy, it was about the process itself - and I've been gratified to see that I think they meant it. Since I've been public defender, I haven't personally observed anybody holding a grudge, if you will. Everybody realizes that this is an office that needs to be supported. As long as it continues to be an excellent office, I think that they'll continue to support it.

After your appointment, it looked like you were making an effort to reach out to the public. Has that continued?

Yes and no. Certainly that pace that I was keeping up has lessened. We're planning a community outreach event hopefully the first or second week of February. We think we've lined up a downtown church. I think it's something we'd like to have once a year, depending on how successful it is.

The bottom line is anybody who wants to meet with me, I'm more than happy to meet with them - they've just got to pick up the phone.

I think a lot of people just want to move on, see how I do, and re-evaluate the whole selection thing come my reappointment. At that point, if they say, "OK Donaher, you're a nice guy and all, but we don't think you're doing a great job," then the community will decide how they're going to handle the reappointment process.

During my appointment I said that I don't think it would be appropriate for me to comment and I still don't think it's appropriate for me to tell the community how I should be appointed, reappointed, or otherwise. That's the prerogative mainly of the County Legislature.