Are Public Defenders Any Good?

It’s been a long while. For over the past month, I’ve been incredibly busy and blogging about much of anything has managed to be at the bottom of the priority list. I won’t say that I’m “not busy” but I really wanted to get a new post out. Today, I bring you another informal perspective on criminal law. This is an essay that I probably should have written and posted when I first started this site but somehow I’m just now doing it. Without further ado, an essay on the critical role public defenders play in American legal society.

I. INTRODUCTION

The infamous Miranda warning, which takes its name from Miranda v. Arizona, 384 U.S. 436 (1966), is one I bet you could repeat to me word for word.  We deem it vital that criminal suspects are informed of their legal rights, including the 5th amend. right to be free from self-incrimination and the 6th amend. right to counsel. However, the term “public defender” is synonymous with bad lawyer in most peoples’ minds. Take any criminal justice show on television, watch it long enough, and you’ll likely find a dig at public defenders. Ask a person on the street if they’d want a public defender representing them and the answer will probably be uniformly “no.”

Why is this? Is it accurate? Are public defenders any good? These are some of the questions I hope to answer in this essay.

II. BACKGROUND

We should start at the outset by coming to a consensus on what exactly a public defender is. In America, a public defender is the term used generally to refer to attorneys appointed to represent criminal defendants who are too poor to afford an attorney.

In America, an indigent criminal defendant has a guaranteed right to appointed counsel if counsel is desired. This right originates from the 6th amendment to the United States Constitution, which provides in pertinent part that, “In all criminal prosecutions, the accused shall have the right to . . . Assistance of Counsel for his defence.” The United States Supreme Court held in Gideon v. Wainwright, 372 U.S. 335 (1963) that the 6th amendment right was incorporated via the 14th amendment as binding upon the states. Prior to Gideon, states had not been legally obligated to provide counsel to indigent defendants. See Bretts v. Brady, 316 U.S. 455 (1942) (holding that the 6th amendment right to counsel was only mandated for federal cases); Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243 (1833) (holding that the Bill of Rights were not binding upon the states). Today, the right to counsel is a constitutional threshold that all states must meet for indigent criminal defendants– though it is worth noting that most state constitutions similarly provide for this right.

In response to Gideon, multiple systems have appeared throughout the country for handling representation of indigent defendants. States such as New York and Massachusetts rely primarily on private attorneys. In these systems, criminal defense attorneys take on caseloads with primarily indigent defendants and bill their time to the government. In New York, particularly, there have been major monetary concerns about such a system.

Another format is contracting cases out to a private firm for a flat fee. In general, this typically is about the worst way to provide representation because it encourages reduced work to increase profit. Several counties in California have properly taken flack for using such a system.

In areas where crime is low and/or population is small, there may be a less structured approach. I remember an attorney from a rural area once telling me about the judges in his town assigning pro bono cases to the younger attorneys and how it was a rite of passage. Everybody did ’em. Tax lawyer? You did ’em. Divorce lawyer? You did ’em. I’d guess about the only lawyers who didn’t were those in the district attorney’s office.

Yet the best system, generally only seen in larger urban areas, is a dedicated office that handles public defense work. The Public Defender Service for the District of Columbia and the Philadelphia Public Defender Association are widely recognized in the criminal defense community as the gold standards to which all other public defender offices aspire. I’d personally suggest that the Orleans Public Defenders, which serves New Orleans, is right on the heals of the two big guns above…which should come as no surprise since it was revamped after Hurricane Katrina by former DC office attorneys. All of the above offices are home to a large staff of full-time attorneys who are paid by state and federal funding to work exclusively on cases for indigent defendants. Additionally, theses offices have well-trained in-house investigators to support attorneys and a large clerical staff to provide administrative assistance. In cities with such a system, it’s completely fair to say you’d be lucky to have your case handled by a public defender.

It’s my contention that the organized public defender office I just described will probably exist in cities with major crime problems. Because crime and poverty are very highly correlated, in cities such as New Orleans the vast majority of people charged with crimes are unable to afford legal representation. In New Orleans, the number is nearly 90%, in Philadelphia it’s around 75%. Two conclusions logically follow. First, such heavy legal representation requirements demand a structured system for handling them and second, there’s little business for private criminal defense attorneys in such cities.

III. STEREOTYPES

There are a number of stereotypes that seem to attach to the words “public defender.” The most common, and most accurate, is that public defenders are overworked. To say that public defenders usually have too many cases is but a truism. The American Bar Association consistently finds that average public defender work loads exceed the recommended maximum.

This typically-accurate perception tends to lead to another one, which is not necessarily as correct: public defenders are too quick to push for plea deals. Do some public defenders too hastily push their clients towards a plea deal? I’m sure they do. But, this may be more of a problem with their resources than their competency. Without proper investigative support, an attorney simply may not be able to prove in court that his/her client is innocent. If that’s the case, trying to bargain for the most favorable outcome is far from incompetent or hasty. And even with investigative support, sometimes there is no avoiding the reality that the client is guilty … or that his innocence simply cannot be proved convincingly to a jury. In other situations, the risk may be too great. If going to trial means risking twenty years in jail whereas taking a plea bargain means serving only one or two years, taking the del still may be a perfectly proper thing to suggest a client should do. All of this means that many public defenders urge clients to take deals. This is not, in and of itself a bad thing. Indeed, with the court dockets as full as they are, it is an important way of improving judicial efficiency.

The more stinging stereotype is that public defenders are the bottom of the barrel attorneys not smart enough or skilled enough to work in private practice. This is truly the most misguided belief people have regarding public defense. Yet it’s easy enough to understand how people came to such a belief. Students at the top of their law school classes and/or top law schools in the nation sought and won jobs at big corporate firms because those firms pay big bucks. Indeed, most of the Am 250 firms have starting salaries of over $100,000 for their first-year associates. Coming out of law school with around that much in debt, the opportunity to start making big bucks fast is hard to turn down if you’re fortunate enough to be in the position to get such a job. Government-funded jobs, on the other hand, are notorious low-paying in all areas and the law is no exception. Rational economic actors choosing between a low salary and a high one will naturally take the latter. {And that’s truly a shame because many of these people will take the high-paying job not because they love corporate law but because of the salary and will end up whining on and on about how horrible the law is and how everybody should avoid law school and how terrible life as a lawyer can be. The legal profession will get a bad name all because some vocal @$$holes decided to blame their problems not on their poor career choices but on the consequences of those choices.} All of this is to say that those entering the public legal sector generally didn’t want to be there. Regardless of your skill or intelligence, you’ll never do an effective job if you have no interest in the task.

Thankfully, in later years, increased emphasis has been placed on getting young talent into public defense. Government and private incentives such as loan forgiveness have been made more available to encourage students to serve the public and the result has been generally positive. Offices such as Orleans Public Defenders regularly attract some of the brightest law students this country has to offer. Of course, this is only a start since passion is a key ingredient to doing a truly outstanding job. Even still, such trends indicate that many public defenders are excellent attorneys.

Aside from the push to motivate top law students to work in government, the truth that most people (yes, even seasoned lawyers) seem to overlook is that there is perhaps public defenders are among the most experienced litigators in the legal profession. The positive side to high case loads full of criminal matters is frequent court room experience. Many associates in private practice won’t enter a court room for years and certainly won’t be lead counsel on any major case until they make partner (if they even make partner). Public defenders necessarily get a lot of trial experience rather quickly. Indeed, it’s not uncommon for a senior criminal trial attorney to have tried literally several thousands of cases in court. Make no mistake, they are not to be underestimated. {Of course, it’s important to note that prosecutors are the one other type of attorney that can rival a public defender in courtroom experience}. Indeed, if you want to pursue a career in criminal law, there’s no better place to cut your teeth than either a district attorney’s office or public defenders office.

The last stereotype that’s particularly concerning is the general public’s belief that public defenders are only out to set criminals free. Once again, such a view is deeply misguided and fails to understand the basic nature of the American legal system. We live in what’s known as an adversarial system. In other words, two parties go head to head and theoretically their opposing forces should cancel out leaving the fact-finder with the truth. There is no safeguard that ensures a fair trial beyond having a defense that attacks the prosecution’s case. No judge, no watchdog will come on and save a defendant from a bad, malicious, or otherwise unjust prosecution. This job rests solely on the shoulders of the defending attorney. Thus, if you take him or her out of the equation, you’re left with a highly biased and unjust system. Imagine a fire that’s aggressively consuming a forest. The proper application of water can oppose this fire and keep it from moving too far and destroying homes. If you take away the water, the fire is left free to consume everything in its path including peoples’ property. Thus it’s vital that there be opposing forces to ensure that no one side goes too far.

This concept is admittedly an abstract and admittedly may be idealistic. When communities are plagued with crime, when we feel confident in a person’s guilt, it can seem like any attempt to defend what feels so clearly criminal is a threat to our safety. But our nation has always recognized that we cannot sacrifice our values at the altar of pragmatism. The phrase that “you have to stand for something or you’ll fall for anything” is especially true in a criminal system driven by parties with a biased interest in a particular outcome. Election after election, judges and prosecutors run for office on campaigns promising to be tough on crime. Such a platform and such an expectation from their voting base provides little incentive for one to go out of ones way to ensure a defendant is not being falsely prosecuted. The presumption of innocence until proven guilty is such a critical hallmark of our legal system that the job of a defense attorney is crucial to ensuring that hallmark is realized and not reduced to a meaningless phrase that rings hollow.

I say all of this not to suggest that prosecutors or judges are bad. Their place is of equal importance. Without the prosecution of behavior that harms society, safety would be scarce. Yet my emphasis on the importance of defense in general and public defenders in specific stems from the weight placed on their shoulders. It’s a lot easier to tear something down that build something. In other words, it takes little effort to ruin an man’s life with a prosecution. It takes a lot to ensure that this doesn’t happen to an undeserving defendant. All throughout this country, every day public defenders are responsible for the future of their clients’ lives. This responsibility is not as immediate as that of say a surgeon but it is arguably just as great. A half-hearted or incompetent defense can ruin a defendant’s life. As such, their role is of great significance in our system. Far from villains trying to keep criminals on the streets, public defenders are the last bulwark an accused person has. So long as we believe in the philosophy of innocent until proven guilty, we must support this bulwark. We must appreciate and respect this wall for its role in protecting that philosophy.

IV. CONCLUSION

I wish I could tell you that every public defender everywhere is good. I wish I could say that the stereotypes about being overworked, incompetent, unintelligent, defenders of evil are entirely false. I cannot say that. Of course some public defenders have too much work and some are lacking in the desire to zealously defend clients. Nor are all public defenders ‘A’ students. And yes, some may even have bad motives for defending clients.

But.

On the whole, public defenders are far better than both the general population and the legal community wish to acknowledge. Public defenders are generally very capable, highly experienced trial lawyers who make the most of their resources and stand for ensuring that people receive a zealous defense. Public defenders are the last line of defense (and the only line of defense) against the presumption of guilty unless proven innocent. Are public defenders any good? You bet. These people are dedicated either on a part-time or full-time basis to ensuring that the size of one’s pocketbook doesn’t determine the availability of one’s legal representation. We should count ourselves lucky that we live in a country that stands for values and ideals enough to see the importance in such a cause and provide for ensuring its actualization. Public defenders are truly the unsung heroes of the criminal law. Their plight is similar to a soldier’s in that people may respect their cause but will never envy their job. But those willing to do it are by and large precisely the people you’d want doing it. They are compassionate, they value justice and fairness, they are gracious, they are humble. Not only are they good, they believe in doing good. And when it comes to the law, it’s hard to ask for much more.

-Zachary Cloud

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4 responses to “Are Public Defenders Any Good?

  1. Dear Sir:

    As a proud employee of the Public Defender’s Office, Sussex County, DE, I would like to thank you for a thoughtful and accurate article depicting my workplace. Too often, I am asked by defendants, “Should I take the public defender or should I get a ‘real’ lawyer?” which shows what an undeservedly poor reputation PD’s have with the public. I sincerely appreciate your portrayal of our attorneys as professionals with good hearts and minds, not out to just set criminals free, but protecting the rights of all American citizens. Thank you for your article!

    T. Davis

    • Thank you for the kind words!! As an aspiring PD, I got tired of explaining why I wanted to be a public defender to everyone…so I ended up writing this. I’m glad to hear it’s appreciated!

  2. Sir:

    I thought this piece was well thought out and admirable. With one exception, the paragraph below. I challenge you to replace “public defender” with the word “attorney” and the exact same thing applies. By highlighting “public defender” in this paragraph, it reasonably implies that this is the case for public defenders, or particularly applies to public defenders, when in reality it points to just about any other line of work in this business or any business equally.

    “I wish I could tell you that every public defender everywhere is good. I wish I could say that the stereotypes about being overworked, incompetent, unintelligent, defenders of evil are entirely false. I cannot say that. Of course some public defenders have too much work and some are lacking in the desire to zealously defend clients. Nor are all public defenders ‘A’ students. And yes, some may even have bad motives for defending clients.”

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