Indefensible

Public defenders are too overloaded to protect the rights of the accused.

The Sixth Amendment guarantees criminal defendants the right to counsel, but that does not mean all defendants receive good representation. Too often, their defense is not even minimally adequate.

Public defenders are lawyers who work for the court system representing indigent defendants instead of maintaining their own practices. Some are passionate civil libertarians who choose to represent the destitute, damned, and despised. Some simply prefer a regular paycheck to the vicissitudes of private practice. Contrary to their reputation, many are great lawyers. But even great public defenders can find it difficult to do great work in every case.

Public defenders are often forced to take on caseloads heavier than any lawyer can competently or ethically handle. According to a 2005 report commissioned by the Missouri Bar, caseload, more than any other factor, determines which public defender offices do good work and which do not. No lawyer, no matter how skilled, can do a competent job on 200 felony cases a year. In some public defender offices, the caseload is more than twice that.

Overloaded defenders are forced to triage, exchanging quick pleas in some cases for the ability to fight in others. They have to decide which cases will benefit from extra attention and which will not. Cases are “pled out” without time to conduct a real investigation, interview witnesses, or even determine whether there are grounds to challenge the police version of the facts. 

Some clients, of course, are just guilty. They are caught on videotape; they confessed; their crimes are established by DNA, fingerprints, or the testimony of a victim who can describe something unique about them. Their crimes are unsympathetic, so there’s little hope for jury nullification. Those cases can and should be settled with a plea agreement that gives the defendant the best result that can be negotiated. 

But it is not always easy to know which cases are the hopeless ones if all you do is read the offense report and spend a few minutes talking to the defendant and the prosecutor. Without putting in the time required to investigate the facts, the law, and the witnesses, it is unethical to recommend that a client accept a plea bargain. Maybe the offer represents the best possible result, but maybe the client is completely innocent and just too frightened to disagree.

Public defenders are often strapped for resources. Investigators, experts, computer animations, and laboratory tests cost money, sometimes a lot of money. Without such resources, innocent people can be convicted, something that happens more often than most of us want to believe. The work of the Innocence Project has led to the exoneration of hundreds of individuals based on DNA testing that was once considered too expensive or esoteric to perform in “routine” cases. An indigent defendant faces a Catch-22: Until a scientific test is performed and the results prove helpful, he cannot show he has a due process right to the funds necessary to perform the test.

Even in counties with public defender offices, many indigent defendants are represented by appointed private lawyers (usually because of a conflict of interest between defendants). Attorneys accepting court appointments often must maintain good relationships with the judges and court staff. This can mean bringing morning donuts, contributing to re-election campaigns, avoiding aggressive pre-trial motions that tie up the court, pleading out as many cases as possible, limiting requests for expensive investigators and experts, or trying not to bill too many hours in a given case. I’ve known lawyers who have been removed from the appointment list because they zealously represented their clients. I’ve known judges who have fired appointed counsel while a case was still awaiting trial because the lawyer was putting too many hours into the case.

A court sometimes will refuse to pay an appointed lawyer for hours it deems unnecessary. If the lawyer spends time researching legal theories that do not pan out, he may not be paid for that work. Sometimes the amount received is less than a good lawyer’s overhead for the time spent on the case. No lawyer should be given a Hobson’s choice between supporting his family and defending his client, but that is where appointed attorneys can find themselves if they work too hard.

For paying clients, a good criminal defense is expensive, from thousands of dollars for a misdemeanor to potentially millions for a serious felony. The difference between an appointed lawyer and a retained lawyer can be marginal, but sometimes cases are won or lost on such marginal differences. I would not expect the taxpayers to fund an O.J. Simpson–style litigation team for every defendant, and not every case would benefit from such extravagance.

I would, however, expect that before the taxpayers spend hundreds of thousands of dollars to incarcerate one of their neighbors for years, branding him virtually unemployable for life and making him part of America’s permanent undercaste, they would want to ensure that he had a competent lawyer, with adequate resources and adequate time to do everything possible within the law to help his client. It is not an extravagance to make sure that before a man’s life is destroyed or taken from him, his defense has fully tested every element of the government’s case. The cost of an adequate defense pales against the cost of incarcerating an innocent man. 

Clay S. Conrad (csconradesq@aol.com) is the author of Jury Nullification: The Evolution of a Doctrine (Carolina Academic Press). He is a shareholder in the Houston law firm Looney & Conrad, P.C., specializing in criminal defense and appellate litigation.

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  • Almanian||

    Well, you don't think we owe the criminals the BEST attorneys, do you?

    Nothing in the Constitution says the criminals get the BEST attorneys. Doesn't even say they'll get attorneys, just "counsel". My MOM could give them counsel. Better yet, why don't we save the taxpayers money and have mom's represent their criminal kids in court? Serves 'em both right for raising criminals, and stuff.

    So you Libertardian Constitutional LITERALISTS take that and smoke it. NOTHING in the Constitution blah blah what I already said above. The End.

    /idiot

  • Almanian||

    Cause we KNOW they're guitly. Why would they have been CHARGED if they weren't GUILTY of something?

    Sheesh...

  •  ||

    What would your remedy be?

  • Almanian||

    MOMS

  •  ||

    I see.

  • ||

    MOMS= teh suck in court. two words: judge judy. QED

  • Almanian||

    Two words - "your mom"

    C'mon, dunphy, you begged for that...

  • ||

    yes i did. btw, the only thing worse than judge judy is nancy grace. i fucking LOATHE that woman. and i've never even met her. her commentary on the duke case was particularly egregious. and she never said she was sorry!

  • Fire Tiger||

    Actually I would venture to guess that in some cases a MOM (or DAD) could do a better job of defending some defendants than a public defender. A public defender has no vested interest in the case and even with a paid lawyer for my son, when he got in trouble, I still had to point out some recent court decisions to them. A possible solution would be for the courts to give remedial classes in how to file papers and what papers to file.

  • Untermensch||

  • Untermensch||

    err, “…would they?”

  • ||

    That video made my day. Thanks.

  • Federal Dog||

    The first thing that must be demolished in any police state are criminal defenders.

    Massachusetts is making dramatic strides in that regard. Prosecutors here are not only demanding that defenders be defunded (and that their money be diverted to prosecution purposes!!), but are trying to get about the only judge in Boston who refuses to rubber-stamp state claims removed from the bench.

    We are barely beating those lying fascists back.

  • Almanian||

    Yet another reason to despise MA and stay the fuck out of that state.

    Thanks for the heads up!

  • ||

    Some simply prefer a regular paycheck to the vicissitudes of private practice.

    I don't have that much respect for the Public Defenders. They are just another part of the crim law industrial complex. I don't think very many really give a fuck about their clients (the ones that are over charged or actually..you know innocent) or ameliorating the system. When I would try to engage them about atrocities about the system (usually a Balko nut punch), they seemed to care less. And here in Mohave County, a good portion of them are simply incompetent. And the courts could care less. As long as there is a warm body there beside the defendant, the judges don't care. And the Arizona State bar could care less. If there is no money involved, they rarely get involved.

  • Federal Dog||

    "I don't have that much respect for the Public Defenders. They are just another part of the crim law industrial complex."

    I understand what you are saying.

    In my bleakest moments -- after the courts have ground their day's victims into bloody hamburger, I have felt that we do nothing more than make everyone feel good about the process.

    Is it better though to fold and walk away?

    At least we fight the fight. And you are wrong in suggesting that we do not care deeply about the courts' victims. You have no idea what it's like when there's not one goddamned thing you can do to stop that bloody meat grinder.

    Have you ever seen what happens when a Klingon dies in Star Trek? That's how bloodied defenders howl.

  • ||

    agreed, you should see how bad it is in texas. the corruption is massive in the entire criminal justice system. it is unbelievable. there are many innocnent and over punished decent people whose lives will permanently be destroyed. equal justice for all is not the case.

  • ||

    You have no idea what it's like when there's not one goddamned thing you can do to stop that bloody meat grinder.

    Actually I do. That is why I hated being a lawyer. Being part of a corrupt system that pretends to do justice. I think losing my license was the best thing that ever happened to me.

    And, by the way, in the name of honesty, I have to admit that I was part of the problem. It isn't like I was all gunh ho about taking cases to trial... though I did.

    We would get $700.00 for a felony case. If I remember correctly, $450.00 for a Petition to Revoke. $400.00 for a juvenile case or a Juvenile Petition to Revoke.
    You could get $55.00 an hour after the first 25 hours. The problem is you have to take a butt load of case to pay your overhead and mortgage.

  • Federal Dog||

    "Being part of a corrupt system that pretends to do justice."

    I hear you. I really do. And I feel the same exact thing.

    But what the hell happens if we all walk away?

  • ||

    No much, I am afraid. Not much.

  • ||

    prosecutors and defenders are like the sheep dog and wolf in that old bugs bunny cartoon. they clock in, do their thang, and clock out.

    it's the crusaders (especially prosecutors) that i fear. the workman types at least are less likely to suborn perjury or thwart justice for a "greater cause"

  • Saddened||

    Thank you Troy.
    I have fallen victim to the corruption and because I stood up to these overzealous corrupt individuals, they are pulling all the stops. I am exhausted and the only way out is to jump out of a window 25 stories high, this has been meticulously planned for the last few weeks and I am going to follow through with this next week. I simply cannot take it anymore, my life and my reputation have been destroyed and the corruption is unbearable, they stop at nothing.
    Thank you for your post, it made me feel a bit better.

  • ||

    I think this is a crisis. And the sollution is a single payer legal system. Why should a rich person get better legal defense than a poor person? The sollution is for the government to ban the private purchase of legal services. And then create a single "nationl legal service" modeled on the British National Health Service.

    If that is the sollution for healthcare, why wouldn't it be the sollution for this?

  • Almanian||

    John!! Stop. Giving. Them. IDEAS.

    Thank you.

  • ||

    All the arguments for socialized medicine apply equally and in some cases better to the legal field. Unlike health care, you actually do have a constitutional right to a lawyer.

    Make this argument to a liberal sometime and watch them spit and stutter and change the subject. It is quite funny.

  • MNG||

    "Make this argument to a liberal sometime and watch them spit and stutter and change the subject."

    WTF? Liberals support funding for the accused, it was the "liberal activist Warren Court" that handed down Gideon.

  • ||

    Sure, then lets socialize the entire legal profession. Look how many people get screwed in civil cases because they can't hire a lawyer. Think of the people who go bankrupt because of legal fees assocaited with a divorce or other legal matter. Think of the deserving plaintiffs who can't sue because their case isn't worth enough for a lawyer to take.

    Yeah, liberals will be signing up for that program real soon.

  • MNG||

    Many single payer proposals I've read about are just like PD programs: tax payer money goes to pay for lawyers/doctors for those who can't afford it. Of course we're talking criminal matters here so you're divorce and stuff talk is the usual misdirecting nonsense.

  • ||

    Divorce can be just as important and emotional as any criminal matter. Most people would consider losing their kids just as bad as going to jail. And legal fees associated with a nasty divorce has bankrupted more than a few people.

    By the logic of socialized medicine, there is really no reason for any lawyer practicing in any area to be in private practice. They should all be paid for by the government and rationed out in a single payer, fair system. It ought to be illegal to pay a lawyer with your own money. Sure some lawyers are specialists. But not every doctor is a GP and not every medical procedure is life threatening. Yet, it would all be socialized under single payer. Same with single payer law.

  • ||

    I am actually surprised that this idea hasnt caught on. Only reason I can come up with is that the folks that would push for such a thing are convinced that poor defendants are usually guilty and don't require a decent defense.

  • ||

    even most defense attorneys are going to be smart enough to know MOST defendants (poor or otherwise ) ARE guilty.

    regardless, even the guilty deserve a zealous defense, and a very fair %age of the charged are in fact innocent.

  • ||

    Divorce can be just as important and emotional as any criminal matter. Most people would consider losing their kids just as bad as going to jail

    I am doing paralegal work in this divorce case. Dad has criminal record a mile long. Been charged with aggrivated assault three times. He beat the fuck out of a fireman and caused him to have to learn to walk. The cocksucker had the audacity to file for sole custody in his divorce. If it wasn't for my boss, this beast would probably get the kids.

  • ||

    but liberals do not support it for lawyers. why? well, the ABA etc. is full of liberals, they are very politically powerful and they hate the idea of socialized law. they want the same opp's to earn big paychecks as those evul corporate overlords.

  • ||

    perfect example being your john edwards types btw

  • MNG||

    Well, conservatives have long hated the public defender system imposed on the noble states by the mean ol' federal courts. It violates state's rights to screw their citizens into prison and coddles criminals doncha know?

  • ||

    Some states actually require attorneys to represent indigent persons, at no charge, as a condition to be licensed to practice law. I do some pro bono work and would hope other lawyers do also, but it should not be forced upon anyone as a requirement to earn a living.

  • cynical||

    I'm not sure a lawyer who is being forced to help you and resents it is going to give you the best legal advice.

  • ||

    What about that 13th amendment thingy?... Fucking state bars. Fuck those cocksuckers.

  • ||

    govt is not the solution it is the problem. holding prosecutors accountable for not being ethical to their oath as attorney of law is a start they are virtually untouchable and play the numbers game all the time

  • ||

    "Why should a rich person get better legal defense than a poor person? "

    Why shouldn't they?

  • ||

    cuz of that whole 'equal treatment under the lawwwww' thang, trollmie.

  • ||

    Aren't you the asshole who was wrong and I proved it, and you've been crying ever since? (Checks) yep, and ALSO you didn't answer the question, you just splattered stupid everywhere.

  • ||

    Seriously, what kind of moron thinks that means anything other than "the government treats prosecutions equally"? Is there really someone out there stupid enough to think it means "equal access to defense attorneys no matter their cost"? YOU'RE REALLY THAT STUPID? LOLOLLOLOLOLOOLL Jesus I thought you were just a crybaby troll, but you're actually an idiot.

  • ||

    "Aren't you the asshole who was wrong and I proved it, and you've been crying ever since? "

    *sigh*
    Life must be so hard with nothing to do but get upset all day.

  • Gray Ghost||

    Most politicians are lawyers. Most of them are going to go back to their practice when their political career is over, and they do not want that practice to be the equivalent of working for the DMV. The ties between wealthy plaintiffs' attorneys and the Democratic party have already been noted.

    Your analogy, John, is quite elegant.

  • Anarchist||

    Outlaw the legal system!

  • ||

    If you have to rely on a Public Pretender to get you out, you might as well just bend over and kiss it good bye.

    www.real-privacy.no.tc

  • GregorySmith3||

    Articles like this is why I differentiate between libertarians and LIBERALterians.

  • Sockpuppet Alliance®||

    There should be a law against unfairness.

  • MWG||

    Interesting thought Gregoooo. Do you have a newsletter or some blog I could check out to learn more?

  • Almanian||

    That made me lol a little. +1

  • GregorySmith3||

    I do, but I'm not supposed to put it in the body of the message anymore. Instead I'm supposed to wait for someone to click on my name or otherwise some asshole reports me as a spammer and then I have to become GregorySmith4.

    Oh well, c'est la vie.

  • MNG||

    Just curious, shouldn't the same paleos that rush to same-sex marriage threads to argue we must not extend marriage to same sex couples because it would expand government also rush to this thread and denounce Gideon v. Wainwright because, you know, money gets stolen from A and B to pay for C's defense, public defenders are on the public teat, etc, etc,?

  • ||

    No one on here ever objects to gay marriage because it expands government. They object to gay marriage because it is either done by judicial fiat or it will in combination with discrimination laws make objecting to homosexuality illegal.

  • MNG||

    "No one on here ever objects to gay marriage because it expands government."

    Wrong yet again. Let's wager on it, shall we? I'll produce a half dozen commenters who've said they oppose it on those grounds and you agree to post as Johnny Mistaken Boy for the next month?

  • MNG||

    Shit we just had a thread with over 200 posts yesteday with half a dozen who made this argument. C'mon John, put your handle where your careless assertion is!

  • ||

    People want the government out of marriage all together. But I am aware of no reasonoids think that marriage should not be expanded because it would expand government.

    Hell I think I am the only or one of the few people who will even say a qualified word against gay marriage on here. And I make the arguments given above.

    I don't know where these threads are. But I have never read them. And know of no one on here who believes such a thing.

  • MNG||

    Make the wager then John.

    Better look at the threads from the 17th before you do...

  • ||

    There is no way to have such a wager because there is no way to judge such a thing. you will just go pull some random post that says nothing of the sort, but claim it does. And then you will spend the next month being even more tiresome than usual screaming about it.

    I have never read such an argument on here. If you can find such a thing in the bowels of the Reason archives, and I seriously doubt you can, good for you. But who the fuck cares? I didn't make the arguement and neither do any of the other people posting on this thread. So I am not seeing how your charge of hypocrisy means much.

  • MNG||

    It's a long time and commonly expressed response from the conservative leaning paleos here. It's all over this thread from five days ago, and many others.

    http://reason.com/blog/2011/06.....e-away-fro

  • cynical||

    Good point. Look what this wingnut said:

    "In fairness to the bishop the bill does have coercive implications in that people who object to gay marriage would not be allowed to discriminate against them in the provision of property or services for the marriages. But that's like objecting to interracial marriage on the grounds that people who oppose it would not be able to discriminate against them in the same areas. It's the discrimination laws that would be the problem there, not the marriage laws."

  • ||

    "It's all over this thread from five days ago"

    Then stop linking to the thread you claim it is in AND QUOTE THE "half dozen" comments that clearly and unambiguously say so, or admit you're full of shit.

  • ||

    Keeping in mind, you also claimed the comments came from a "half dozen commenters (sic)", so 6 distinct, clear, unambiguous comments that say EXACTLY what you claim, from 6 clearly identifiable, different posters.

  • ||

    Wow, huge surprise, you totally failed to list them, cause you know you're a liar.

  • ||

    "I'll produce a half dozen commenters"

    Please try. I'll wait while you fail. And no, save the stupid name games, we escrow money or you can save your childish pecker-pulling.

  • ||

    I don't think the govt should pay anything for our legal fees. But then, I dont think the govt should pay anything pay for our "healthcare" (i.e. doctor's fees) either.

  • DRM||

    "The Sixth Amendment guarantees criminal defendants the right to counsel, but that does not mean all defendants receive good representation."

    Well? I'm guaranteed a lot of rights by the Constitution that don't come with the government actively providing me with the means to exercise them.

  • Appalachian Australian||

    More accurately (at least for a believer in negative rights like myself), the 6th amendment gives you the right to have your access to counsel not interfered with by the federal government.

    I'm sure the positivists will counter that the 2nd amendment guarantees the right for the government to provide you with a free gun.

  • cynical||

    Works for me.

  • ||

    Pretty much the end of the discussion.

  • Philosoraptor||

    Public defense is a sweet gig - full benefits, nice salary. I doubt many people actually care about criminals.

  • BigT||

    You wouldn't say that if you met the scumbags you had as clients. The experienced PDs morph into scumbags over time. The entire system is a disgusting charade.

  • ||

    I've been a public defender and I can assure you the salaries are far from generous, at least on the state level (federal PDs do get paid a lot more than most state). They do vary from one locale to the next. But generally figure on maybe 40-50K per year out of law school, maybe up to 70-80K if you have a lot of experience. And forget about regular raises. Now most PDs salaries are being cut. Again that is on the state level.

    Of course there is a trade off for everything in life. Better job security and you can have a life, unlike most private law firms.

  • Steve||

    The Commonwealth of Virginia caps court appointed fees. An attorney gets $120 for a misdemeanor, $445 for a felony punishable up to 20 years, and $1235 for a non-capital felony punishable by more than 20 years. That means in felony cases, an indigent defendant might get 1-3% of the cost of a privately funded defense.

  • Crystal Jewelry||

    A court sometimes will refuse to pay an appointed lawyer for hours it deems unnecessary.

  • ||

    "cuz of that whole 'equal treatment under the lawwwww' "

    Seriously, what kind of moron thinks that means anything other than "the government treats prosecutions equally"? Is there really someone out there stupid enough to think it means "equal access to defense attorneys no matter their cost"? YOU'RE REALLY THAT STUPID? LOLOLLOLOLOLOOLL Jesus I thought you were just a crybaby troll, but you're actually an idiot.

  • abercrombie en france||

    why?

  • Ayn R. Key||

    So, here's a proposition.

    1. The Public Defender Office and the District Attorney Office in any jurisdiction should have equivalent funding, and equivalent staffing +/- 1 person.

    2. Just as District Attornies are promoted based on successful prosecutions (even if the prosecution is later overturned) the Public Defenders should be promoted based on successful defenses.

  • زفات||

    thank you

  • قبلة الوداع||

    thank u

  • قبلة الوداع||

    ThaNk U

  • دردشة زين العراق||

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