No Money, No Justice
Do public defenders deserve scorn, or bigger budgets?
Defending the Damned: Inside Chicago's Cook County Public Defender's Office, by Kevin Davis, New York: Atria Books, 308 pages, $25
Advanced DNA testing has compelled America to confront some uncomfortable truths about its criminal justice system. In 2000 Illinois Gov. Jim Ryan imposed a moratorium on executions in his state after DNA tests exonerated 13 death row inmates, several of whom had come perilously close to their execution dates. In March 2007, the noted defense attorney Barry Scheck's Innocence Project, which uses DNA testing to identify the wrongfully convicted, marked its 200th exoneration.
Durham District Attorney Mike Nifong's recent pursuit of three Duke lacrosse players on rape charges has further raised awareness about the possibility of wrongful prosecution. Nifong's case began unraveling when testing showed no DNA from the three accused rapists on the body of the alleged victim. The victim also repeatedly contradicted herself, and implicated a defendant who was demonstrably not present at the time of the alleged assault. North Carolina Attorney General Roy Cooper eventually declared the players innocent of all charges, and Nifong was disbarred. The case was unusual in that it attracted national attention, and because the race and class of the defendants helped middle- and upper-class whites identify with them. Much of America saw for the first time, in close detail, how an aggressive prosecutor could ruin the lives of innocent people.
The Duke lacrosse players were able to afford top-flight legal representation. One of the accused players, Reade Seligmann, said after he was declared innocent, "I can't imagine what they do to people who do not have the resources to defend themselves."
According to the U.S. Department of Justice, two in three people charged with felonies in federal court can't afford an attorney. In state courts, the proportion is four in five. These people are assigned public defenders, the much-maligned advocates who represented the accused in most of the wrongful convictions mentioned above.
Journalist Kevin Davis' book Defending the Damned: Inside Chicago's Cook County Public Defender's Office should make readers reconsider the contempt routinely heaped on public defenders. Perhaps, given recent headlines, there's actually some merit to the public defender's familiar complaints about inadequate funding, heavy caseloads, and prosecutorial misconduct.
Davis spent the better part of a year shadowing the lawyers on Chicago's Murder Task Force, the elite office where the city's best public defenders eventually end up, representing defendants in high-profile homicide cases. Davis writes in the preface that he wants to get beyond what public defenders sometimes call "the Cocktail Party Question," namely, "How can you defend those people?" He introduces his discussions of that question with the Murder Task Force lawyers by describing some gruesome homicides committed by people the task force has defended. In one particularly horrifying example, the young parents Joan Tribblet and Everette Johnson choked their infant girl to death to stop her from crying and then, to cover up the crime, cut her body into small pieces, breaded and fried them, and fed them to alley dogs. Task force lawyers were successful in sparing both from the death penalty. In another case, a man sexually assaulted a little girl with a shotgun, then fired the weapon during the act.
So how can they defend those people? Davis finds a wide range of motives. Some public defenders are building careers, and value the trial experience they can get right out of law school. Some fight simply out of opposition to the death penalty. Others subscribe to a broader, vaguer notion of representing the powerless against the powerful. Some just relish the challenge.
But most rightly see themselves as an indispensable part of a fair criminal justice system. Davis finds an eloquent explanation of that position in the autobiography of Gerald Getty, the longtime Chicago public defender who represented serial killer Richard Speck in 1967. Speck was convicted, and Getty received a barrage of public scorn for defending him. Nevertheless, he says it was among the proudest moments of his career. "I thought by defending Speck I was helping make democracy work," Getty wrote. "We tried that case in the best traditions of the legal system." Davis adds, "By offering Speck a first-rate defense, as was his obligation, Getty also helped reinforce his guilt."
As U.S. Supreme Court Justice Hugo Black once wrote, if the state aims to take away someone's freedom, the defendant has an "absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to 'Prove it!'?"
Most people don't care much for public defenders. The job is often despised not just by prosecutors, victims, and the public, but by defendants themselves, who see the lawyers as at best second-rate and at worst just another cog in a machine designed to crush them. Some don't want a defense and can be openly hostile, even threatening.
The common thread Davis finds among the public defenders seems to be cynicism, if not fatalism, about the criminal justice system. "I've heard attorneys here say, 'I want a case where there's no chance of winning,'?" Shelton Green, head of the Murder Task Force, tells Davis. "That way, you can't fuck it up. But if you win, it's a miracle."
Yet embedded in that cynicism Davis finds an unwavering dedication and passion among the task force attorneys, often to the detriment of their families, relationships, and health. Davis describes public defenders driven into alcoholism, broken marriages, and heart attacks by the stress and hours that come with the job. Still, Defending the Damned may fail to generate much sympathy for public defenders, even though Davis acknowledges that he grew to respect and admire them while writing the book.
One reason is the book's focus: the trial of accused cop killer Aloysius Oliver. The public defender assigned to represent Oliver is a brash, ostentatious lawyer named Marijane Placek. Placek might evoke grudging respect from readers for her prowess in the courtroom, but she's hardly a sympathetic personality. She is icy, sometimes even rude, to the families of murder victims and is openly contemptuous of police, judges, and prosecutors. She seems to tackle her job with few guiding or undergirding principles: She supports the death penalty, for example, but fights to spare her clients, even those who have pleaded guilty, from getting it. (It was Placek who defended Joan Tribblet in what the attorney rather crudely calls the "Kentucky Fried Baby Case.") She tells Davis she chose to be a public defender for no other reason than that, at the time, the position paid more than what a starting state's attorney was getting. She thrives on whiskey and steak, throws lavish parties, and proudly sports an abrasive personality.
Although Placek occasionally gives obligatory nods to notions of fighting for justice or sticking up for "the little guy," her motives seems to stem largely from a bruised ego: She's a full-figured woman who has spent much of her life fighting ridicule and low expectations. "She wanted to be a winner at all costs," Davis writes, "to turn upside down the way she was perceived and treated in the courtroom."
All this makes Placek a fascinating character but a poor starting point for discussing the adequacy of the public defender system. That's unfortunate, because Davis interviewed several lawyers in the same office who embody many of the more admirable characteristics of the job.
Another problem, one that Davis acknowledges in the preface, is that Chicago's Murder Task Force is an atypical, relatively well-funded public defender's office. Its attorneys do juggle a heavy caseload. On average, each of the unit's 33 lawyers handles 27 cases at a time; there were 816 new cases in 2001 alone. But they're pretty well paid (top attorneys make $80,000 to $90,000 a year), they have a support staff, and they have the money to hire their own investigators, forensics experts, and psychiatrists.
Most public defender's offices don't have those resources. A 1999 U.S. Justice Department study of the country's 100 most populous counties found that 97 percent of their law enforcement budgets went toward police, courts, and prosecutors, with the remaining 3 percent going to public defenders. That study didn't include less populous, rural areas of the country, where the public defender position rotates among private-practice attorneys or is filled by a single lawyer in private practice who receives a stipend of a few thousand dollars per year.
Prosecutors have police to investigate crimes, medical examiners and crime scene investigators to provide them with evidence, and considerably more support staff than public defenders do. The 1999 DOJ study, which seems to be the most recent one of the subject, found that prosecutors' budgets exceeded public defense budgets by about 2.5 to 1. Indigent defendants don't have their own forensics experts or private investigators, and courts aren't always obliged to grant them taxpayer money to hire them.
Such underfunding, coupled with the threat of mandatory minimum sentences and an increase in the number of crimes on the books, results in an overwhelmingly high number of plea-bargained admissions of guilt, as prosecutors look to pad conviction rates and defense attorneys have no choice but to slough off burdensome caseloads. A 2005 report from the Texas Office of Court Administration, for example, found that less than 1 percent of felony cases in Texas ever make it to trial. The rest are resolved by plea bargains. The federal courts aren't much better: Only about 10 percent of felony cases go to trial. In state courts across the country, it's 7 percent.
"I can confirm from my own experience as a judge that indigent defendants are generally rather poorly represented," the federal appeals court judge Richard Posner writes in his 1999 book The Problematics of Moral and Legal Theory. But Posner, chief judge of the U.S. Court of Appeals for the 7th Circuit and one of the country's most renowned legal scholars, isn't much bothered by this. "If we are to be hardheaded we must recognize that this may not be entirely a bad thing," he says. "The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A barebones system for the defense of indigent criminal defendant may be optimal."
Posner's position is widely shared. Indeed, most advocates of limited government would probably instinctively resist the idea of devoting more public resources to the legal representation of indigent defendants. But perhaps it's time to reconsider that resistance.
The fundamental function of government is to secure the rights of its citizens. There has never been much problem generating support for the law enforcement side of that responsibility: courts, police, prosecutors, and prisons. The government seems eager to protect us from criminals. But it's also obliged not to violate our rights in the process.
If we're serious about giving everyone a fair crack at justice, indigent defendants need access to the same sorts of resources prosecutors have, including their own independent experts and investigators. If we're going to generously fund the government's efforts to imprison people, we need to ensure that everyone the government pursues is adequately defended and protected from prosecutorial overreach. The ongoing stream of exonerations in felony cases suggests we're a long way from that goal.
Radley Balko is a senior editor for reason.