Public Defenders and Private Defense Counsel and the Rights of Criminal Defendants

by Tom Wolpert on December 10, 2013

When it Comes to the Quality of Representation for the Indigent, Location Matters

The New York Times reported recently that a federal judge in Washington State issued an unfavorable ruling concerning the public-defense systems of two towns in the state of Washington, finding them so inadequate that they violate the Sixth Amendment right to the assistance of counsel in criminal prosecutions.  Calling it “little more than a ‘meet and plead’ system,” U.S. District Judge Robert Lasnik excoriated the cities of Mt. Vernon and Burlington, Washington, for failing to provide meaningful representation to indigent defendants facing misdemeanor charges.

The class-action suit against the cities, which was brought by the American Civil Liberties Union’s Washington affiliate and private citizens, went to trial in June but only garnered national attention after the Justice Department requested that the court appoint a federal monitor to oversee the cities’ systems if it found in the plaintiffs’ favor.

Judge Lasnik agreed, pointing out that the two lawyers the cities had contracted for this work — both of whom had separate private practices — each handled about 1,000 cases per year, far in excess of the state supreme court’s annual public-defender caseload cap of 400.

As a result,  lawyers often spent less than an hour per case, meeting clients for the first time in the courtroom, “sometimes with a plea offer already in hand.” There was no opportunity, or financial incentive, for the lawyers to interview the client, understand his or her side of the case, seek out witnesses, hire experts or investigators, or do any of the things a defense lawyer ought to do in the process of representing a client.

The fact that the outcome in many if not most of the cases was “reasonable” was beside the point, the judge said. The central problem was the lack of any meaningful representation. “Advising a client to take a fantastic plea deal in an obstruction of justice or domestic violence case may appear to be effective advocacy,” he wrote, “but not if the client is innocent, the charge is defective, or the plea would have disastrous consequences for his or her immigration status.”

Finding that the cities were “willfully blind” to this crisis, Judge Lasnik ordered them to hire a part-time supervisor to ensure that public defenders do their jobs. The supervisor is also required to collect data on, for example, how often the defenders use investigators and expert witnesses, and to prepare regular reports for the next three years.

I responded by posting the following email comment:

Even where the public defenders are excellent attorneys, and not overworked, the differences between public defender representation and private representation are stark. Often, the real work of a private criminal attorney is negotiating the best sentencing deal available. This involves providing favorable client information to the District Attorney’s office that will favorably impact the plea offer, before it is made. Letters from an employer are an obvious example. When the plea offer is made (much before the trial date, because the private defense attorney is asking the prosecutor for it), then the private criminal attorney can discuss, and if necessary, meet in person the prosecutor to offer sentencing alternatives. There is no way to do all that on the morning the case is being called for trial.

Randy Tucker, from Ventura Californa, apparently an attorney and public defender, disagreed in an informative way in his own email reply post:

Actually, I disagree. Because of our quantity of cases (not only individually but as an office which handles about 70% of all the criminal cases) and the fact both the Judge and the DA know they are going to have to deal with us again tomorrow and the next day and the next month and the next year, I find we are often able to extract better negotiated outcomes for our clients than many private attorneys. And again, a well funded PD office, like many (most?) in California have Sentencing Specialists whose entire job is to gather letters and other mitigating information and find rehab programs.

California is clearly a desirable place to be arrested, at least as far as getting good representation from public defenders is concerned.  The problem is that no public defenders from 49 other states chimed in to agree with Mr. Tucker about the quality and workload of the public defenders in their states.  No public defender from Philadelphia posted a comment, although the public defenders in Philadelphia have an excellent reputation for their skill and experience.  And it raises an interesting question – since no private attorney ever gets the in-court trial experience of a public defender of comparable years of experience, why wouldn’t rich folks, when they are arrested, make certain to get a public defender?   Why does every rich defendant charged with a serious crime get the most high-powered, expensive, private criminal defense counsel they can locate?  My hypothetical questions appear a bit smart-alecky, because the answer is so obvious.  The best possible representation of a criminal defendant isn’t necessarily at all equal to the most in-court experience.  As the New York Times article above-quoted noted, the best possible criminal defense is about investigators, witnesses, experts, forensic evidence challenges, motion practice, discovery fights, plea negotiations, sentencing negotiations, twisting and turning by defense counsel in every possible way to wedge open the case, either in terms of basic criminal culpability, or in terms of the sentencing outcome.  It simply takes time and effort and lots of money.  Private defense counsel is financially motivated to get results.  To the extent that the California system is funded well enough and staffed well enough to do all that work – what an admirable system.  To the extent that 49 other states are lagging behind, some very far behind, that is the reality for most defendants.

I applaud the efforts of Judge Lasnik to improve the system at those towns in Washington.  I’m not always a fan of the ACLU, but their suit serves an important function in this case.  Plea offers which are accepted by defendants almost invariably look reasonable to someone outside the case who is observing the result – but the defendants may be terrified, outraged, bullied, or indignant, but just not in a position to do anything about it, since the alternative is the risk of a much more severe sentence.  The victims may feel much the same way.  Neither victims nor criminal defendants have a good perspective on their own cases, so asking them how they feel about it won’t be a very reliable guide.  The system of criminal justice is a mill, and it works because the legal players have adjusted the risk/reward ratios of plea bargains to the point where only a few very brave, desperate or foolish individuals want to play the case out to a full scale trial.  Jerry Sandusky went to a full trial in Pennsylvania, because I am certain the plea bargain he was offered entailed such a long sentence that he had nothing to lose.  But for most folks caught up in the criminal justice system, who are there for a vast litany of misdemeanors and lesser felony charges, which are going to get bargained down in the plea process, it is a bureaucracy in the truest sense of the word.

If you need to locate an attorney for representation in Pennsylvania, click on Wolpert Schreiber P.C.  If you need an attorney for representation for a personal injury matter in Pennsylvania, click here.

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