a public defender

As expected, my post yesterday on the money wedge between public defender and private attorneys has generated a response from Cousin Greenfield, who calls me on my bullshit of not noticing that there are, indeed, divergent interests to some extent between the private bar and public defenders. Scott, however, turns the table and gently points out that public defenders lack of concern for the actual eligibility of clients takes away from the ability of private lawyers to feed their families (which echos the comment left by “Bubba”).

The thing that disturbs private lawyers most, at least in New York City, is that defendants who can afford counsel are nonetheless given a free lawyer for the asking.  There is no meaningful vetting process, and every defendant is handed a PD or 18b lawyer at arraignment by default.

Why buy the cow if you can get the milk for free?

Public defenders aren’t concerned about defendants who can afford a lawyer but elect to stick with the PD.  I suspect they are flattered, though they should be angered.  These defendants suck up their time, time which should rightfully belong to defendants for whom Gideon (the decision, not the blawger) was intended.  They complain about being oppressively overworked, yet don’t turn anyone away, even if they drive up in a shiny Mercedes wearing 20 pounds of gold and diamonds around their neck.

To the private criminal defense lawyer, the defendant who can afford a lawyer is their domain.  The PDs are taking away their next meal.  Where’s the mutual love?  Defend the poor and downtrodden all day long, but let the private lawyers make a living too.  While PDs see themselves as just helping those in need, private lawyers see them as poaching on their turf.

While I suspect that Scott is engaging in hyperbole, I can see his point. However, I don’t necessarily agree with it. At least one hundred years ago (site very, very NSFW), I wrote about indigency standards and the authority of a court in CT to simply appoint a public defender even if the defendant has some resources available.

To be sure, there are extreme examples of defendants with liquid assets, who can (and routinely do) hire private counsel after they’ve become dissatisfied with their public defender. It’s happened to me and it irks me to no end. To that extent, I agree with Scott: don’t waste my time.

But then the problems we face in life and profession don’t arise in extreme circumstances. It’s the borderline questions that give us pause. Frequently, we’re faced with a client who has some resources: a steady but low paying job for instance, that puts him or her over the income guidelines. In reality everyone knows that the poor fellow will never be able to afford an attorney and even if he does somehow manage to scrape together the funds to pay for one, it will be akin to Sophie’s choice: pay for a lawyer or pay rent/utilities/etc. And what happens when the money runs out? One can assume that there will be a certain percentage of criminal defendants whose resources are greater than the majority – they have access to funds to pay for lawyers, experts, investigators, testing, etc. But Joe “I make $5000 a year more than the income guidelines so I’m technically ineligible for public defenders” Defendant doesn’t have these resources. And then what? How many times have you seen a private lawyer having to withdraw from a case because the client has no more money? I end up representing that guy anyway. (I don’t even want to go near some of the off-the-cuff comments I’ve heard some lawyers make about non-paying clients.)

The problem, as I can see it, is this: the indigency guidelines are a joke. Connecticut determines indigency based on the Federal Poverty Guidelines. For a single individual with no dependents, that’s about $13,000 a year. How many people do you know that make $13K a year?

I know many who make 4 times that and yet wouldn’t be able to “afford” a lawyer. Because it’s not just income that should determine resources, but disposable income. The average household income in the country was roughly $50,000 in 2008. That’s gross income. In CT, the figure is $57,000-ish, which is the highest in the country. [See this link for more detailed data, current to 2007.] So one might be tempted to say that’s a lot of money and surely the average person could hire a lawyer. But that’s not true at all. From that income, you remove taxes, rent, utilities, insurance and you can see how that figure gets whittled down to next to nothing. Then how is the “average” person expected to bear the heavy expenses of a criminal prosecution?

C.G.S. 51-297(f) defines indigency:

(f) As used in this chapter “indigent defendant” means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation [...]

The statute, however, leaves it up to the Public Defender Services Commission to decide how to determine that inability to pay for legal representation:

(a) A public defender, assistant public defender or deputy assistant public defender shall make such investigation of the financial status of each person he has been appointed to represent or who has requested representation based on indigency, as he deems necessary. He shall cause the person to complete a written statement under oath or affirmation setting forth his liabilities and assets, income and sources thereof, and such other information which the commission shall designate and require on forms furnished for such purpose.

The statute makes explicit reference to the liabilities of the accused, but most conversations about (and determinations of) indigency revolve around income and only income. If you make more than X, you’re not eligible. That’s not realistic. [Update: sometimes I think I'm friggin' prescient. See this story in today's NH Register about the public defender's office declining to represent an accused. I'm going to go buy a lottery ticket now.]

Scott writes further:

The difference here is the question of whether a person accused of a crime is required to render himself destitute in order to mount a defense, selling off all his assets to pay for a lawyer. The PD thinks not. The private lawyer thinks that there is no difference between cash in the bank and cash in the Mercedes to justify his getting a free ride. Regardless of how a defendant chooses to keep his assets, if he’s got them he should use them. Obviously, this is because the private criminal defense lawyer wants to earn a fee. In fairness, someone has to pay the cost of defense, and if not the defendant, then the burden falls on everyone else.

This is economics plain and simple and I can understand that. I think it might be instructive to draw a line somewhere: there’s a difference between those that have the ability to pay for their representation and choose not to and those that don’t realistically have that ability.

This also underlines the reason why I couldn’t ever go into private practice. Maybe it’s my bleeding heart, maybe it’s my absolute lack of any desire to do anything relating to the business world, but I could not require someone caught up in the criminal justice system to make that sacrifice. I realize that it is something they should do, but it’s not something I could ask them to.

So what’s the solution? Make indigency levels more realistic? An universal public defender system? I don’t know. There are too many competing interests at stake. I do know one thing, though. The next time the court appoints me on a case where the defendant is technically over the guidelines, I’m not going to bat an eyelid.

Since any post without music is no post at all, I give you this:

[youtube]http://www.youtube.com/watch?v=FFOzayDpWoI[/youtube]