One small step for Gideon…

see, you made Gideon cry

Today, New York’s highest court (confoundingly named the Court of Appeals , fuhhgeddaboudit), heard oral argument in a NYCLU lawsuit which seeks to enforce Gideon’s mandate (my previous post here). The case, and lead plaintiff, were profiled in this NYT article from Friday. The facts are the usual: pitiful client, not versed in the ways of the system; a contract public defender, overworked, overburdened and generally inattentive; a terrible error; a wrongful conviction; job lost, home lost, dignity dissolved, all over an error her lawyer made.

This and 19 other anecdotes form the basis for the NYCLU lawsuit against The Empire State. But these stories aren’t special to New York. We’ve all heard them, seen them even. The oft-repeated mantra of the overworked, underfunded public defender exists for a reason: they’re out there. They may not be you or me, but we know them; we interact with them and we think to ourselves: this is ridiculous.

Gamso’s written about it; so has BlogMaster Scott and even Mike’s chimed in. I agree with Jeff, somewhat agree with Scott and wholly disagree with Mike. Scott first:

What the NYCLU suit is really all about is forcing the creation of a statewide indigent defender system, an idea which should be implemented and which has, if properly crafted, the potential to resolve many of the faults in the existing system.  But this isn’t the way to do it.

The 3d Department was right to conclude that this was a political issue, and not one that the courts could fix under separation of powers.  It involves many interests and concerns, with many difficult choices.  While I trust the legislative process no more than anyone else, it’s still the means by which such things are supposed to be decided.  For better or worse, and I anticipate the latter.

This should never, ever be a political issue. The political will to adequately fund criminal defense is so miniscule that it might as well be the singularity. If left to legislators, there would be no public defender offices, no contract attorneys and certainly not a whiff of Gideon’s promise. Criminal defendants have a lobby: it’s a lobby against them. Criminal defense lawyers are often lumped in with the people they represent and while on or two may be politically influential, as a whole the community is ineffectual and easily ignored.

The only way – and the best way – to bring about real change, to put teeth into Gideon’s crying face is through the medium that gave  him life: the court system. NYCLU’s challenge in New York isn’t new. Connecticut’s much vaunted public defender system was born of a protracted legal battle, culminating in a settlement in Rivera v. Rowland:

there have been cases similar to the New York one in states like Connecticut [in 1999], Indiana, Minnesota, Montana [in 2005] and Washington, with settlements, lower court decisions and inconsistent rulings. The Michigan Supreme Court is to hear a challenge to its public defender program next month.” Not to mention the lawsuit against Pittsburg in the mid-1990s, one in Mississippi in 2001, and more mentioned here.

Scott is right, though, when he says that holding the lead plaintiff in the NYCLU suit out as the shining example of systemic failure is not entirely correct. The fault for the travesty that has befallen Kimberly Hurell-Harring lies both on the shoulders of the attorney who misrepresented her and the system that failed her. The former is easily dealt with by way of post-conviction relief. What to do of the latter, is the $500 million question.

Experience in other states has shown that the force of a lawsuit can cause the state to bend and twist and even break to the point of agreeing to provide Constitutionally mandated funding to indigent defense systems.

Mike at C&F takes a different view of the NYT story:

There are several weak defenses of the public defense system.  These arguments sound very much like the arguments police make when defending the blue wall of silence.

“I know some great public defenders.”  Sure.  Some are very talented.  Many are hacks.  The talented public defenders do not weed out the hacks.  Thus, an indigent client who walks into a public defender’s office is playing the lottery – Shirley Jackson style, as the stakes are his life.

Aren’t public defenders who allow incompetent colleagues to take on clients the Burkean men who allow evil to flourish by doing nothing?  If we were talking about police rather than public defenders, you know how you’d answer, don’t you?

“They are overworked, and their caseloads are too high.”  Why don’t you demand that public defenders go on strike?  Bring the system to a halt.  That’s what you demand of police: Speak out, even if it means risking your job.  Well, why don’t you demand that public defenders risk their jobs to improve the system?

The general defense of public defender is to ignore the individuals, while attacking the system.  Yet when criticizing police misconduct, criminal defense lawyers attack both the system and the individuals who are part of the system.  After all, change is possible only when those on the front line take bold action.

The fault in the system lies with the players, he essentially argues. That the good lawyers are few and far between. That there is no internal management, no checks, no corrections for poor performance and that we support one another blindly.

On one hand, I think it overestimates the authority that one colleague has over another. On the other, I think the points he makes are somewhat valid. While I would not hesitate for a second to place my liberty in the hands of those I work in close proximity with, there are several public defenders that I wouldn’t let within 5 miles of own criminal case. But this isn’t the issue in the fight for adequate funding or the fight against ineffective lawyers. Any lack of training or oversight or personal responsibility can be traced directly back to the issue of money.

As it is, public defenders are underpaid. The resources they are given are meager. They’re routinely ridiculed, demeaned and dismissed. Even those that work tirelessly for their clients are compared unfavorably to the “real lawyers” that the client could hire, only if he had money. We’re the backup to the backup.

This perception won’t change if I decide to go on strike. This perception won’t change if I step in front of an overworked colleague and prevent him from misrepresenting a client. I am not a Phoenix, rising out of the system. For better or worse, I am the system and I will always be viewed as such. My clients’ dissatisfaction isn’t with me because I’m a bad lawyer, it’s with me because I’m a public defender.

[Incidentally, I think we might be able to improve our image if we started referring to prosecutors by their original appellation: public prosecutors, thus giving the masses a point of comparison and understanding. They’re the public prosecutors and we’re the public defenders.]

Back to Gamso, who says:

Indigent defense is problematic pretty much everywhere – even when it’s superb – because at some point the system, and in particular its funding, is in the hands of the government.  And indigent criminal defendants don’t have a great lobby and don’t make big campaign contributions.

Public defense at its best provides superb representation.  There are places and settings (and lots of individual public defenders and appointed counsel) who provide that level of representation on a regular basis.  But the system doesn’t.  Not broadly enough, anyway.

The issue in the Court of Appeals tomorrow isn’t the quality of representation in New York.  It’s whether the courts can address the quality of representation in more than a case by case way.  It’s a predicate to the main event, but lose and the main event doesn’t occur.

And that hits the nail squarely on the head. We are only as good as our funding. I can have all the energy, zeal and desire to interview every single witness who might refute the State’s proof, but if I have only one investigator to share between 7 lawyers, there’s nothing I can do.

We might want to train all public defenders and teach them the tools of effective representation, but without the money to pay for that training, it’s never going to happen.

Funding is a very good first step. And that’s not within our control. If we get adequate funding and the Hurrell-Harrings don’t whittle down, then come yell at public defenders. I’ll join you.

2 thoughts on “One small step for Gideon…

  1. LJS

    We’ve been going thru this fight in Mass as well.


    In ’04, an number of attorneys effectively went on strike, refusing to take new cases due to the pitiful pay rates. Supreme Judicial Court effectively agreed that the situation was unconstitutional in Nathaniel Lavallee, et al. vs. The Justices of the Springfield District Court, 442 Mass. 228 (2004).

    A legislative fix was agreed, but the agreement seems to be being broken with this year’s budget.


    Money is a huge issue, as are the ancillary resources like investigators, experts, training, and supervision. I think, ultimately, budget issues are legislative, but ideally the courts AND the prosecutors should be our allies — a well trained defense bar saves time and money for everyone in resolving cases fairly. We spend a lot of unnecessary money litigating over mistakes later in appeals and habeas.

  2. Pingback: The other Michigan bailout | a public defender

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