Don’t be a part of the problem

The problems that plague our criminal justice system are well known. Equally well known are the deficiencies in indigent defense systems country wide. Public defenders are overworked, underpaid and represent a lot of ungrateful clients. It’s tough to do this job out there in the world; there’s no doubt about it. There are inadequate resources, little to no time to study and investigate each case and an immense pressure to keep the line moving.

But to mistake that explanation for a justification is to submit to the oppressiveness of the system and to take the easy way out by playing the victim. It reeks of a certain whining and invokes the image of a 5 year old on a playground who fancies himself the coolest kid on the block but regularly gets his lunch money stolen only to be left there, empty handed, yelling “Moooooooooom!”

The system is not made for you, nor is it made to cater to your needs or your ego. There is no place in the job of the criminal defense lawyer for an ego greater than the size of a peanut. With a judge, prosecutor and client in the room, there’s barely enough air left to breathe.

There’s also a common fallacy pervading the offices of public defenders that clients owe us something. That they owe us their loyalty, their gratitude and their undying love. We’re the only ones to help them, dammit. After all, if it weren’t for me, they’d be doing twice as much time!

If you think that, you’re an idiot. The client owes you squat and you should expect squat. You took this job not for the admiration of peers and clients but, hopefully, to uphold some noble principles knowing full well that the job mostly requires toiling long hours in under-appreciated roles, with little to no stroking of the ego. If that’s what you wanted, you should’ve been a prosecutor.

So it makes me cringe when I see comments like this one, left by a PD or a PD cheerleader “Evan T”:

“Did it dawn on anyone that the lawyer should have inspected the crime scene a year ago? Did it occur to anyone that he’s about to go on trial and has no theory of defense yet? He’s first interviewing witnesses the day before hearing and trial?”

Um… did it ever occur to the blog writer that public defenders throughout the nation are pressed into situations like that on a regular? Prosecutors have an entire police department to do their investigations, while public defenders are far less fortunate… Everything is stacked against public defenders, I am not shocked that he was only able to investigate a day before trial. People need to walk a mile in a PD’s shoes before they judge.

[The first paragraph is a quote from Scott’s post about the NatGeo reality show, which I wrote about here.] Oh, Evan. While there may be an explanation for the last-minute investigation (and you may well be right about the lack of resources and the system being stacked), it’s not a very good one, or one that should be shouted from rooftops. One should be ashamed of this, rather than trumpet it.

Let’s get another thing clear: the system isn’t stacked against public defenders. We get to go home at night. The system is stacked against our clients. And if you seek to justify your inability to diligently perform your job as an affront to you, you’ve already lost.

I’ll let you in on a secret here: public defenders in high-volume courts will provide ineffective assistance of counsel. There’s just no way around it. That the deficient performance often won’t have the accompanying prejudice that is required under Strickland is no matter. It is inescapable that you will not be providing effective assistance to all 700 of your clients in a given year, or the 250 that are currently active, or the 25 that you have today. It’s a human resource problem and there are only so many hours in a day.

But the solution isn’t to throw your hands up and say “well, what the hell can I do about it, so get off my back already!”

We have to try. We have to try harder. We have to stand by our clients and say “I’m not ready”. We have to fight for resources, we have to make that extra effort. We have to remember that a month less in jail for a client is a month more of freedom that we take for granted. We have to remember that the fight isn’t between us and them, it’s between them and the State. We have to stop injecting ourselves into this adversarial system.

So when that call comes that the client has filed a habeas corpus petition, we should embrace it rather than go running to call “my lawyer” the state’s attorney. The state’s attorney is not your lawyer. If I had my druthers, not one single public defender would ever cooperate with a state’s attorney seeking to get a client’s habeas petition denied. You’re not being sued, your mother isn’t being called to tell her what a bad boy you’ve been and naked pictures of you aren’t being posted to Facebook. Your client is seeking some justice, deserved or not. Your ego has no place in that room.

But I digress. Yes, there is a workload problem. Yes, there is a resource problem. So do something about it. Like Missouri did. They refused to take on additional cases because doing so would cause them to provide ineffective assistance of counsel. Their Supreme Court agreed.Now, they’re working on a plan to decide how best to manage caseloads.

Just don’t whine.

8 thoughts on “Don’t be a part of the problem

  1. Jamison

    This blog entry will be my nomination for the SJ Blog Entry of the Year Award.

    As a former public defender myself, I am guilty myself of having done my share of whining. So I will avoid that temptation here. What I will say is saying “I am not ready” is not the solution. It means that the client will sit in custody on a unproven charge a couple of weeks or months longer. And, in a system of horizontal representation like they employ in Philadelphia, it will only mean that the case is passed onto the next defender who will find him/herself equally unprepared. The cycle will just continue.

    The answer, not surprisingly, is to devote adequate resources to indigent defense. Just look at the Public Defender Service (PDS) in D.C. Defenders there have excellent training, manageable case loads, and plenty of resources for investigation, experts, etc. Also not surprisingly, some of the best criminal defense in D.C. is provided by PDS.

    Reply
    1. Gideon Post author

      Agreed. The problem, as always, is with the pd system itself and how seriously it takes its responsibility to provide timely and effective representation to clients. Instead of whining about how oppressed we are and overworked we are, we have to start changing the way we do business.

      “I’m not ready”, while potentially burdening clients also helps them: a client deserves to have his case tried by a competent and prepared attorney, not someone who cries foul and then goes ahead and participates in that foul system.

      Reply
  2. Sam

    Evan T’s comment could have been more articulately stated (from Gid’s response):

    “I’ll let you in on a secret here: The system is stacked against our clients. Public defenders in high-volume courts will provide ineffective assistance of counsel. There is a workload problem. There is a resource problem. It’s a human resource problem and there are only so many hours in a day. There are inadequate resources, little to no time to study and investigate each case and an immense pressure to keep the line moving. There’s just no way around it.”

    Everything else in this article was a digression that sounds like it was written by a State Attorney’s lobbying group.

    Reply
    1. Gideon Post author

      Everything else in this article was a digression that sounds like it was written by a State Attorney’s lobbying group.

      As clearly indicated by this paragraph:

      So when that call comes that the client has filed a habeas corpus petition, we should embrace it rather than go running to call “my lawyer” the state’s attorney. The state’s attorney is not your lawyer. If I had my druthers, not one single public defender would ever cooperate with a state’s attorney seeking to get a client’s habeas petition denied. You’re not being sued, your mother isn’t being called to tell her what a bad boy you’ve been and naked pictures of you aren’t being posted to Facebook. Your client is seeking some justice, deserved or not. Your ego has no place in that room.

      I think you may not have understood any of this post.

      Reply
  3. alice harris

    I agree. Quit your whining. If all the time and energy spent on whining by PDs was instead spent on actual work, we PDs would be a lot better prepared and a lot more effective.

    Reply
  4. bellyache

    I’ve seen [some] PD’s spend more time arguing with a client on why they can’t spend time on a case than they have actually spent on the case. What about the client who is tired of pointing that out to her PD?

    That’s reprehensible because they really don’t have enough time for cases and really are overworked. But some will make the time for that, and I mean a lot of time, 10, 20, 30, 40 hours, back and forthing over it with the client. And I mean doing that in lieu of even an initial interview – you know, finding out what happened, asking the basic questions, getting the basic info from the client. I am dead serious.

    [Edited per request of commenter.]

    Reply
    1. bellyache

      Ask Brian Carlow –He knows about it, intimiately. And the argument hasn’t ended yet. I haven’t counted the hours scientifically, but it is up there, and I am the client in fact, and I am losing it. I’ve never spent so much time trying to teach someone how to get out of a sandpit in all my life. And two other lawyers involved too. (Thus the use of the plural) Supposedly a conflict case, but a conflict case where everyone is denying a conflict except for Carlow, the one who declared it. I am starting to hate them all, except that I try not to hate anyone. I will say I am starting to dislike them intensely. This has been dragging on now for months on a stupid case that should have been disposed of months ago.

      Reply

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