Episode 28: Tracy LeSage
Senior Assistant Orange County Public Defender
00:43:04
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Show Notes
Senior Assistant Orange County Public Defender, Tracy LeSage, talks to M.C. Sungaila about her experience defending those accused of crimes, from misdemeanors to serious felonies. She provides insights into the value of a judicial clerkship, and the very personal rewards of representing the vulnerable and helping them recover their future.
This episode is powered by Clearbrief, Trellis, BriefCatch, and CSBA .
Relevant episode links:
Orange County Public Defender's Office, Project for the Innocent
About Tracy LeSage:
Tracy LeSage
Tracy LeSage is an experienced litigator with an exceptional talent for written and oral advocacy. Ms. LeSage has been an attorney with the Orange County Public Defender’s Office since 2000. She has been a licensed attorney since 1996. Since 2000, she has represented indigent clients in the criminal justice system in a wide variety of cases, including homicides, special circumstance homicides and capital cases. She has worked with thousands of individuals who are mentally ill or drug and alcohol addicted and those that are dual diagnosis. She has also worked with the collaborative courts here in Orange County in adult and juvenile drug courts, Veterans’ court, homeless court and WIT (Whatever it Takes) court for those that are mentally ill.
As a trial attorney she has tried in excess of 50 felony and misdemeanor jury trials. She has assisted clients in securing rehabilitation programs in lieu of prison and she has advocated for services and resources for drug-addicted clients, the mentally ill and those that are homeless by using evidence based practices. In her capacity as a Senior Executive Manager with the Public Defender’s Office, she is in charge of Superior Court Felony Operations which includes the Felony Panel and the Writs and Appeals Division.
Ms. LeSage has also been active in the Orange County Bar Association. She has served as a member of the OCBA Board of Directors and held that position for six years. She has also served on numerous OCBA committees, including, the Judiciary Committee, the Mentoring Committee, the Budget Committee and the Racial Justice Task Force. She was appointed by Governor Brown to serve on the California State Bar’s Lawyer Assistance Program Oversight Committee.
Transcript
I am pleased to have as our guest on the show, Tracy LeSage, who is a Senior Assistant Public Defender with the Orange County Public Defender's Office here in California. Welcome, Tracy.
Thank you for having me.
You are our first government lawyer who's on the show and also in the criminal realm. I'm glad that you will join us and give us some insight into that career path. First, how did you become interested in the law? What drew you to go to law school or why do you want to become a lawyer?
Early on as a young kid, I wanted to be a pediatrician. I went to UCLA for undergrad. It was premed. I hadn't thought about the law very much. As I was going through my freshman year there at UCLA, I started to realize this wasn't for me. I wasn't enjoying it. I've always been book-smart, done well at math, and got good grades. I didn't seem to enjoy it. I changed my major to Psychology and still did not know what I wanted to do. I started to get fascinated by the human brain, relationships, and things like that.
I then started to become more interested in the Constitution and legal issues across diverse backgrounds. I still wasn't quite sure so I took a year off. My father died when I was young. I found out that he was in law school when he passed, so it all came together for me. I studied, took the LSAT, and ended up going to law school. I knew right away that was the right choice. I enjoyed it. It was exciting for me. It wasn't the same as my prior major. It seemed like the years flew by because I enjoyed it.
I was going to ask you if there were any lawyers in your family that you could observe what they had done. You found out that you did have a budding lawyer. It's understandable why you would have that interest as well. One of the things that you said which can be hard to do at that age is to say, “This is what I plan to do and I don't like this very much.”
I always put a lot of pressure on myself. At the time, I thought, “You're going to be successful. That's where you go,” regardless of seeing whether I was interested in it. I thought, “If I do that and become successful at it, then life will be good.” I'm glad I had the foresight to know that this wasn't going to be good for me.
That’s going to happen at any point in someone's career. Before you settled on a career or even during a career, you’ll realize this either isn't a good fit or it was but it isn't anymore. It's being able to be conscious about that, make that decision, pull back a little bit, see that decision, and recognize, “I should have some measure of joy in what I'm doing. I think that I'm contributing and there's some meaning in it.” There are not many law students or lawyers who would say, “I was going down the path to med school.” Many folks who went to law school will say, “I can't stand the sight of blood. I don't like math or that kind of stuff so I'm not going to go to business or med school.” You had that potential option, which most people would say no to in law school.
The day-to-day reality is often very different from what you might expect. And the only way to find out is to be in it.
I'm grateful. I've done a lot of things in the legal field. There's never a day that goes by that I regret that decision.
Let's talk about the different things that you have done with your career after graduation. You're in the Public Defender's Office but I'm assuming you weren't always there. What did you do first?
About the time I was going to graduate from law school, I was working for a professor doing constitutional appellate work, Ronald Talmo. I don't know if that rings a bell. That's what got me excited about going to the next choice I made. I worked for him for a little bit, doing a lot of appellate writing, which helped my career. Looking backward, the writing aspect helps set me apart, which a lot of attorneys don't have, especially criminal defense attorneys. His wife was a legal secretary at a firm that hired me on the spot.
I was lucky because I was also worried about being employed. I worked for them and did a lot of legal writing. It was civil litigation. I did three years of that. I did one trial as co-counsel, which was exciting for me as a young associate. It was medical malpractice. We did some PI and discrimination-type work. Towards the end of that three-year period, I decided to branch out. I had my own firm temporarily. I had it for about a year. I did employment and housing discrimination in Orange County.
I had a partner at the time. She ended up taking a professor job and left. It became too much for me. Right about the year mark, Judge Hernandez, who is the Assistant Presiding Judge. She will be the Presiding Judge after the term is over. She is a good friend of mine who I knew before we both went to law school. She kept telling me, “You got to come to the Public Defender's Office. We need you. This is the place. You would be great here.” Sure enough, I came over in 2000 and I've been here ever since.
It can be hard to stay in that position for a long time because it can be challenging and sometimes emotionally challenging to stay in that.
I had 4 or 5 years under my belt when I came here. I'm a freshman lawyer. They're treating me as I’m fresh out of law school, which I was because it was Criminal Law. That first year, I was hoping I was going to make it because it's fast-paced. People's lives are on the line and there are long hours. I truly enjoyed being able to give back and help. That's what kept me going. Once I got over that year hump, it never was as hard as that first year.
The learning curve is high in a new position when you're starting in the beginning. I remember the feeling when I had judicial clerkships. For the first 3 or 4 months, we were swimming hard to stay with it. As we were getting to the point where we felt comfortable, the clerkship was over. The first year of anything is difficult. There's so much to learn.
I was grateful for the mentors. That's one great thing about this office and I'm sure in a lot of other offices. It's the camaraderie and the wealth of people you can go to for help. You're like, “What do I do here?” Everyone has their specialty and niche. I never felt I was in it on my own. I try to give back too.
You can help someone else when they have a need or want to bounce things off each other. That's important. In my view, that would be one of the hardest points of being a sole practitioner. I like to bounce things off people and brainstorm in a team, even if it's a small team, about an approach to legal arguments in a case. Without that, it would be harder for me. I'm used to being able to do that. It makes a difference in the outcome and the strength of the arguments. You've been there a while but you've had different roles within the Public Defender's Office. Maybe you can talk about different things that you've done there.
I started in a misdemeanor trial assignment. I handled misdemeanor cases in Harbor Court, which is in Newport Beach. You do that assignment for 1 to 2 years. You're being assigned clients and try to resolve their cases if you can without a trial. Sometimes you get cases dismissed. The ones that don't get resolved or dismissed go to trial. That's where you start generally. After that assignment, I did juvenile for about 18 months to 2 years. It's the same thing but we had some felonies from minors or people under eighteen. That was a tough assignment but rewarding.
After that, I did preliminary hearings, which is a felony assignment out in West Court for about a year. In our office, you're striving to get to the Felony Panel, which are the most experienced attorneys in our office. It usually takes people about five years to get there, some less and some more. After prelims, I went to the Felony Panel. That's where I tried the felony cases. They give you mid-level cases at that time on your first assignment. It's about eighteen months. I did about fifteen felony trials. It was a trial a month on average.
I came off and went to Writs and Appeals. We have a Writs and Appeals department here but I did all my own legal writing with my background because I could do it quicker. After Writs and Appeals, I went back to the Felony Panel for a second time. That's when you try the more serious cases. I tried homicides and a capital case. I have a client on death row. I tried multiple murders and cases where the clients were looking at life or were sentenced to life in prison or multiple life terms. Somewhere in that stint on the panel, I got promoted to be a manager.
In our office, that first level of management is called an Assistant Public Defender. You usually run a branch court or the Felony Panel. When I first got promoted, they moved me back to juvenile court. I was the Head of Court at juvenile. I ended up being a Felony Panel team leader. I managed a team of felony lawyers. About a year and a half into that, I got promoted to Senior Assistant Public Defender. That is my position. In that role, I oversee six Assistant Public Defenders. I'm assigned to the Felony Panel. I have what they call Superior Court Operations, which has the Felony Panel and Writs and Appeals under my jurisdiction.
You have both of those. Are you personally still trying cases and doing appeals, or are you more supervising others?
I am more supervising others. I keep trying to find a case to give myself though. I'm hoping that if things get easier with the pandemic and the situation, I'll have more time where I can take a case. The last case I had tried was the capital case only because that was assigned to me, and I kept it until I finished it. They wouldn't assign me anything new. I understand. We're so busy here and have so many balls in the air. I'm their manager so I need to focus on that.
With COVID and the impacts on court proceedings moving forward with court closures, limitations on trials, and things like that, that would be a challenging time to have other assignments. Working out the logistics of that with the court, the bench, and the bar together has been a fair amount of effort in itself.
What makes you stand out in your particular role most is the combination of your skills that allow you to do your job best.
It has been. There are lots of coordination. Every day there's something new.
It's always moving. It's a good thing that we have had some good communication and coordination on that between the DA's office, defenders, private criminal lawyers, and the bench.
There's no way we could have stayed open and operational without all those stakeholders coming together. It was a group collective effort.
They tried hard to have it remain as fair as possible and ensure due process for everyone. It's a whole new territory so it was a challenge. I've never had to do this before. What do we do? Do you have any tips for people who might be considering a government or public service-oriented position? Is there something in retrospect that you think would be positive in terms of what skills to work on before coming to the office?
Our office, including the District Attorney's Office, County Council, Public Law Center, and places like that all have internship programs, which I should have taken advantage of but I didn't. I did clerk though for a Ninth Circuit justice, which was great. Any internship helps. It's important to do it because we get a lot of attorneys who we hire and come here. Two or three months in, they're thinking, “This isn't for me.” The internship is important on many levels particularly so that you know, “Do I like this kind of work? Can I see myself doing this long-term?” Maybe you want to be a prosecutor versus a defense attorney. Try them both and see. You can tell right away, “This is for them. They're going to apply until we hire them.” Some are like, “Thank you very much for the opportunity.” It's tough.
It's challenging but that's a good point in any position. What you think it is and what it is could be different. The day-to-day reality is different from what you might expect. The only way to find out is to be in it.
It's exciting and fun. I've always had interns when I was on the Felony Panel. My interns loved going to court and helping me prep witnesses. That one-on-one hands-on experience is hard to come by. I included them as part of the team. They got to go to meetings. It's exciting for those who love the work.
That's a good mentoring and supervision role that you played for them too in terms of giving them the maximum exposure to things and seeing how it works, the various strategies, and all of it together. That's part of discovering whether that's something you like. Sometimes that can be an interesting part that people otherwise wouldn't know or see.
Also, join organizations and bar associations. They have a lot of student-oriented ones. Get involved to get your name out there. There are so many amazing people, strong women, mentors, judges, public defenders, and prosecutors when you join those groups. I remember early on when I was at the end of my law school or my first year as an associate, I joined an Inn of Court. For some, that's outside of their comfort zone. I thought, “I don't want to do this.”
I did and I got assigned to John Barnett. To me, he was one of the top criminal defense attorneys in the country. At the time, he was in the Rodney King trial. I got to sit and talk to him about that. Joining those organizations gets to that contact and information. I'm thinking back in hindsight. That also drew me to Criminal Law because that was fascinating.
It's all a cumulative effect of the things that you learn and the people you meet. I'm glad you mentioned the Inn of Court because that's not something that anyone else has mentioned up to this point. It's in the category of bar activities. The members are supportive of each other. It does allow you the opportunity to have one-on-one relationships and mentoring opportunities with experienced lawyers. The junior lawyers get paired with the senior lawyers. They're putting on presentations and having monthly meetings.
It's about civility and collegiality in the Inns. That's a good suggestion for people, and bar work as well. I remember my experience being on the Women Lawyers Association's board for many years in Los Angeles when I practiced there. The joy of that was being able to meet many other women on the board who participated in the organization in many different practice areas, and to see all of these different options that people were pursuing well.
It also gave you a sense of an understanding of the broader practice of the law in the area. If you're doing civil business litigation and defending cases, you're not going to meet general public interest lawyers, government lawyers or any of that. You were able to do that to become friends with them, and work alongside them. It makes me feel much more part of the broader community in that way. I wholeheartedly endorse both of those suggestions. Those are good. I wanted to ask you too about the Ninth Circuit. Were you an extern or did you clerk for a full year?
I was an extern.
Who did you extern with?
It was Jay Ferguson. He treated his externs as if they were full clerks so I traveled. We did Hawaii, Oregon, here and Pasadena. They were building the Ronald Reagan Federal Building and I got to go as his guest when they dedicated it. It was incredible and beautiful. I kept all the programs. I didn't know a lot of the people there but I'm sure they were the most important and powerful people.
That's so exciting. I externed for Judge Dorothy Nelson on the Ninth Circuit. She did the same thing and treated us as other clerks. I worked on an en banc case with her, traveled, and all of those things. It was such a wonderful experience. It made me want to clerk for a full year afterward. Including you in those events is nice. When I clerked for Judge Stotler, the district court was still in the trailers. That building is amazing. That is not anywhere close to the splendor in which we operated in the Federal district court. Judge Ferguson was in the separate Federal building in his chambers.
There’s a huge impact that you can make on the community by helping one person move towards redemption and turn their life around.
There are two things from that. One is for people to think about externships. People consider clerkships as well. For one reason or another, it may not be possible to do that. The judicial externship is an excellent opportunity to consider and apply for, and internships in your office as well. A judicial externship is a great opportunity to see if you like that and if you would want to clerk for a year as well. Also, working for a judge is an opportunity that you don't get again in your career to see the person you're submitting things to, how do they look at things and review things, and what's important to them in what you submit. That's invaluable no matter what practice you go into in litigation after that.
Reflecting back, that was an invaluable experience that also set me on my career path. I knew what they were looking at, how the process worked, even oral arguments and watching attorneys going, “This is not going well.”
It's something you can't replicate unless you've had that experience in chambers. That's another good recommendation. The other thing that I noticed, which is a common thread among others but I hear in your story too, is all of the different threads and experiences coming together. You have the appellate training, both through Judge Ferguson and also in some of your early work in writing.
You're able to add that skill to the Defender's Office and your toolkit when you're doing trials, which is important not just from the writing aspect but also thinking ahead in terms of appeals, preserving issues, and making sure the record has what it needs. That's a dual skill that, in my experience, old-time trial lawyers have before they were appellate specialists. You would have an eye towards both things. Some trial lawyers now don't have an eye towards both things because the Writs and Appeals department handles that later. I don't have to consider that.
Having an eye towards both when you're doing the trial also distinguishes you as a trial lawyer. Creating that record and preserving issues are part of being a good trial lawyer too. It all fits together and makes you stand out in your particular role because of the combination of the skills you have that let you do your job the most. At the time, you wouldn't think, “My appellate experience could be helpful in the Defender's Office,” when you’re doing trials. What do you think is the most rewarding aspect of your work in the Defender's Office? Has that changed over time?
It has changed over time. The most rewarding for me is making sure that justice is done, meaning the Constitution is followed whatever the outcome is. It's rewarding to me. Over my career, I've had many clients who were wrongfully accused and proven so later because they've got a declaration of innocence. They were in the wrong place at the wrong time. To see that through and know that I was part of a system that righted a wrong and didn't ruin this individual's life is extremely rewarding.
I have tons of stories where it was the wrong person, whether it was ID or DNA cases. Also, seeing clients turn their lives around is not easy to do, especially for those who are mentally ill or addicted to whatever their substance is. It's wanting to turn their life around and help but not succeeding. Many do, and they call me to this day. That is so rewarding. They have families and jobs. They're giving back. Even if it was one person, it would be worth it to me. Luckily, it's many more.
I have that experience when I served as judge pro tem on the collaborative courts. It's different from appellate work on this high level with theory, law and all of that stuff. That's where I learned the impact that you can make on the community by helping one person move towards redemption and turn their lives around. You change their families. That spirals out to their work, immediate community and then ultimately, the larger community.
It's amazing to see when people are able to come out of some difficult circumstances and become of service both to their family and community. What a difference that makes. To play a part in that or help them maintain that path in that journey is heartfelt. It's nice when you can do that. To have many people that you help like that and see them succeed must be gratifying.
I keep every letter and card I've gotten. A lot of my clients do artwork. I keep all of it. It's a reminder to continue to serve and do good. Some don't do that but are just as grateful. The letters and cards are nice too.
When you mentioned the innocence issues, I have a friend who runs the Project for the Innocent at Loyola Law School. It's amazing to me what she manages to accomplish through that. It's disturbing how many people she needs to help. As lawyers, we like to believe and hope that the system works properly, but there are times that it doesn't. That is damaging to the system, the Constitution, and that individual.
It's good that you're able to establish that with regard to some of your clients but also terribly sad. It's always important to have a meaning and a reason that you do this because it's not easy work. Practicing law in any setting is not easy. I like that you're keeping the individual notes and stories of the people you've helped as being the fuel that carries you along. Do you have any tips for people who do trials or want to do trial work? Are there any good tips you have for being an effective trial lawyer?
I've learned some over the years. One which is universal is preparation. I tell my attorneys, "You got to know that case better than anyone else inside and out. Don't go forward until you're there and then figure out the rest." I'm a big proponent of Motions in Limine. In Criminal Law, you can make them orally. I stress for them to do them in writing, figure out their case, have that planned out, and have that be the focus before they even start. Be organized and find a system that works for you, whether it's trial binders.
Things have changed over time. With technology, it's a bit easier. Back in my days, there were just books, binders and folders. You have to organize it either by witnesses, what evidence goes with which witness, and have it at your fingertips because they may take a witness out of order or something changes. One thing I didn't do early on which I started to do later on is to take care of myself.
Make sure that you're not staying up until 4:00 in the morning, going to court at 9:00, and staying up late. Make sure you're eating healthy and working out. Towards the middle of my career, I made sure I was eating small items. You don't want to be in trial and you're not feeling well, exhausted, or you've eaten something that doesn't agree with you. Take care of yourself because if you're 100%, then you're better off.
That can be hard when you're under the gun. You're like, “I want to read one more case and prepare one more thing.” I'm guilty of the same thing when I have an oral argument in particular. We prepare for a month for an appellate argument. I have to tell myself the last couple of days before the argument, “You cannot be up late reviewing this. You need to rest because you need to be nimble when you're up at the lectern. You need sleep to do that.”
Sometimes what I would say is, “I'm going to have to go to sleep now.” I always had about 45 minutes to 1 hour in the car. I was thinking, “There's time there.” I was trying to figure out how I could get some more sleep and still do what needed to be done, and don't be worried because I didn't work as hard.
We often forget that even if you're doing something else or sleeping, your brain is processing it behind. It's like a computer program that's still running even though it isn't pulled up. You're still working on the problem in some way. When you come back to it, you will have an epiphany. You know what to do with this because you were working on it. You need to step away to let that happen. That's what I've found. Go for a walk, and while you're on the walk, you're still working on it in the background.
It's amazing to see people come out of difficult circumstances and become of service to their families and community.
Always make sure you have a big jug of water there and snacks for your break. Little things like that make a huge difference.
You don't have to worry about it. Have things set up that you don't need to worry about it. They're there so I can focus on something else that might be a wild card I hadn't seen coming. I won't need to worry about this. That's handled. There are binders and all of that stuff. I'm old-fashioned too. I still need paper to see the full picture. If I'm reviewing exhibits or a record, I still need binders even though it's online.
There's also a difference when you're doing research online. You have to follow the way things are keyed. When you're looking at a treatise or something yourself, you can see parts of the outline of the chapters that might spark an idea for you. It may not seem directly relevant but it carries you along the way. That is something that you miss online. You don't have that same, “I'm going to review the table of contents and see how everything relates. Maybe there's some other issue I haven't thought of that this could fit in.” I usually end with a little lightning-round of questions. Which talent would you most like to have but you don't?
I would love to speak multiple languages or even a second language.
There are some people who learn languages quickly. What is the trait you most deplore in yourself and others?
I am a perfectionist to a fault where it is sometimes crippling. I wish I was a little easier on myself. For other people, it's being demeaning or talking down to someone else regardless of who they are.
Treat people with respect as human beings. It doesn't matter what their role or status is. Who are your favorite writers? It can be a poet.
I like Maya Angelou.
Poetry is amazing. All different forms of writing have unique aspects. Poetry captures a particular moment well. Short stories capture something else. Each form is a different art and special in itself. Who is your hero in real life?
It was my father before he passed. I was ten when he passed. He did enough in those ten years that I picked up on. I have vivid memories of him studying and his dedication and work ethic. He continues to inspire me.
Was he then going to school while he was working with the family then?
He was going to La Verne at night and working full-time. He was a football coach. He taught history as well at the school. He was the head football coach and was going to law school at night. I remember him always being organized, dapper, commanding the room when he walked in, and working so hard but always kind.
It would be easy not to be since that's pretty stressful doing all of that with a family. That was a huge responsibility. My father did the same. He went to school while working full-time while I was young. There's a level of dedication and diligence by that example that sticks with you when you've seen it because you see what that dedication looks like. For what in your life do you feel most grateful?
It's my children. I have two sons. They give meaning to everything I do. I feel truly blessed and grateful that both of them are kind-hearted kids. The younger one is at Chapman. He's a freshman. He wants to be a public defender. It was surprising because most public defenders' kids don't want even to be a lawyer. He's sweet and compassionate. Whatever he does, I know he's going to give back. My oldest has a BS in Kinesiology. He's got the math brain genius. He's in physical therapy school. I love the fact that they're kind to everyone. Besides the fact that they're my sons, they're such incredible human beings. I feel super lucky.
That's very rewarding. To have played a role in contributing two nice people to the world is good.
I was telling people that when I come home from work, if they're home, they’ll come out. They used to do that when they were younger. Carson is home for break and my oldest is back from his dorm. They will come out and say, “How was your day?” How lucky am I?
What a great feeling. Given your choice of anyone in the world, who would you invite as a dinner guest?
Martin Luther King. That's where I'm going.
Treat people with respect and as human beings. It doesn't matter what exactly your role or status is.
Finally, what is your motto if you have one?
I always say, “Live, laugh, love,” but I don't think that so much as my motto. I always think love doesn't cost anything. It's easy to give. If you lead your life in that manner, then it seems kindness and respect follow, and things happen.
When you said that, what popped out in my head was, “I'm sure that whatever Tracy says, it's going to be something about kindness.” It's because that is who you are to me. With your answer about love, the second thought that came to me was, “It is no surprise that you have such wonderful sons given that answer.” That's where I thought you would go. I'm glad you were authentic about that answer. That's the truth in how you both contribute to your professional career and interact with people. It shows in your family as well. Thank you so much for bringing your kindness and love to the show, sharing your experiences, and giving some insight into a public defender's life and role.
Thank you so much for having me. It was great participating. I look forward to watching more of your show. You’re a great interviewer. You make me feel comfortable and at home. Thank you.
Thank you so much, Tracy. I appreciate you being here.
You're welcome.