I can’t believe I almost let today go by without a reminder that today is Hug A Public Defender Day, i.e., the day that I was born, 51 years ago.
Here is the post I wrote last year on this day which ring just as true today.
It’s fitting that in this, the 50th anniversary year of Gideon v. Wainwright, a federal judge issues an opinion finally giving teeth to the noble ideal that the indigent must be given access to attorneys paid for by the State and that those attorneys must be competent and able to do an adequate job.
There has been a disheartening trend over the years of state and county systems buckling under the weight of cases, unsupported by the required funding. It is, after all, a rather unpopular thing to fund. The trope that public defenders are overworked isn’t an invention out of whole cloth. Public defenders and assigned counsel aren’t paid enough and are given far too many cases to handle.
Almost invariably, though, when push comes to lawsuit, the state or county loses, because it’s almost indisputable that they’re providing inadequate resources. The latest judge to find the same is Judge Robert Lasnik of the Western District of Washington.
In a lawsuit filed by the ACLU against two cities in Washington – Mount Vernon and Burlington – the judge sided with the plaintiffs finding that [PDF]:
[I]ndigent criminal defendants in Mount Vernon and Burlington are systematically deprived of the assistance of counsel at critical stages of the prosecution and that municipal policymakers have made deliberate choices regarding the funding, contracting, and monitoring of the public defense system that directly and predictably caused the deprivation.
This is pretty significant and somewhat outside the normal boundaries. This ruling doesn’t seek to avoid laying blame; instead it pretty squarely states that the indigent defense system is broken precisely because of the policies of the government.
The opinion recounts some of the abysmal representation of poor criminal defendants by the firm that was contracted to do the representing. This is absolutely ghastly, horrifying stuff:
The period of time during which Richard Sybrandy and Morgan Witt (hereinafter, Sybrandy and Witt) provided public defense services for the Cities was marked by an almost complete absence of opportunities for the accused to confer with appointed counsel in a confidential setting.
Most interactions occurred in the courtroom: discussions regarding possible defenses, the need for investigation, existing physical or mental health issues, immigration status, client goals, and potential dispositions were, if they occurred at all, perfunctory and/or public.
There is almost no evidence that Sybrandy and Witt conducted investigations in any of their thousands of cases, nor is there any suggestion that they did legal analysis regarding the elements of the crime charged or possible defenses or that they discussed such issues with their clients. Substantive hearings and trials during that era were rare.
In general, counsel presumed that the police officers had done their jobs correctly and negotiated a plea bargain based on that assumption.
In other words, their lawyers acted as if they didn’t have lawyers at all. This is called a deprivation of counsel and is in absolute violation of the Constitution. Keep in mind these are attorneys who are doing public defense work part-time. The judge calculated that on average they had about one hour to devote to each case, resulting in nothing more than a “meet and plead” system.
The judge ordered the cities to hire a part-time public defense supervisor to oversee whether poor defendants are receiving adequate legal counsel, saying “the court has grave doubts regarding the cities’ ability and political will to make the necessary changes on their own.”
And as noted elsewhere, the DOJ filed a “statement of interest” asking the judge to appoint a Federal monitor:
If Lasnik appoints a federal monitor, this could give the DOJ leverage to pressure jurisdictions throughout the country to improve substandard public defender systems elsewhere, Jessica Eaglin of the Brennan Center for Justice told the newspaper.
It certainly would be uncharted territory, but given the reluctance of states to fix their broken indigent defense systems and their almost too-gleeful willingness to keep criminalizing and incarcerating greater proportions of their populations, federal intervention to ensure that the demands of the Constitution are being might be the only solution left to try.
As Judge Lasnik put it:
The notes of freedom and liberty that emerged from Gideon’s trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right.
Update: Gamso also writes about this opinion.
Image of trumpet via. License details there.
The criminal justice system has been called an adversarial system. The Mirriam-Webster Online Dictionary defines adversarial as:
of, relating to, or characteristic of an adversary or adversary procedures
and one of the example sentences it provides is:
an adversarial system of justice with prosecution and defense opposing each other
So what that means is that if you, the prosecution, file a motion seeking to have me disclose information that is confidential and is likely to incriminate my own client, I will refuse. If you, the judge, ask my client incriminating questions, I will intervene. You can choose to hold me in contempt, but you will end up looking like a bully.
Terry Zimmerman, a longtime deputy public defender, was found on Wednesday to be in contempt of court for refusing to answer 11 questions related to Denise Goodwin’s murder case, despite a Superior Court judge’s ruling on the matter.
Zimmerman represented Goodwin who was accused of murdering an elderly gentleman allegedly in part because of his fortune. Goodwin was hired to care for Raburn, who has since disappeared and is presumed dead and whose assets have allegedly been drained by her. The bone of contention is this:
According to the judge’s written ruling, Zimmerman was appointed to handle Goodwin’s defense in September 2011. In April of last year, she filed with the court a large envelope containing a will, letters and other documents that purportedly belonged to Rabourn.
Those items were turned over to the prosecution. The District Attorney’s Office then filed a motion last month seeking testimony from Zimmerman about how she obtained the documents.
The judge ordered Zimmerman to disclose that and failing to do so, jailed. It’s a threat and a threat not to be taken lightly, but Zimmerman is in an adversarial relationship with the State.
There is only party whose job it is to do “justice”2 and that is not the defense attorney. It is my job to be an adversary. To put the State to the test and to examine its proof. Not to help it convict my clients.
Matt Shirk was covered here in 2008, when he defeated longtime public defender Bill White in an election for the job of Public Defender. Back then I lamented the problems with the position of public defender being an elected one. Shirk’s platform promised no changes to the way things were done, which was kept by him until the day he started when he made huge changes by firing all the most experienced attorneys2. He was also endorsed by the Fraternal Order of Police and promised not to raise questions about the integrity of their work.
This recent article, however, provides more troubling information about Shirk and his allegiances:
Before his election, Shirk was a relatively unknown in political and legal circles. But he had a strong backing from the local Republican party, the support of Sheriff John Rutherford and friend State Attorney Angela Corey.
Angela Corey, you remember, is the stalwart whose office prosecuted Zimmerman. But there’s more:
Shirk campaign’s website noted that he’d worked “under the direct tutelage of Angela Corey.” Many regarded Shirk as her protégé. (How close were they? After he was elected, Shirk spokesperson Ron Mallett referred First Coast News’ call for comment to Corey’s office.)
Shortly after taking office, Shirk drew criticism for firing the Public Defender’s most seasoned lawyers and many of those qualified to try death penalty cases. Shirk himself has never tried a death-penalty case or even a murder case.
When he was assigned as counsel for 12-year-old murder defendant Cristian Fernandez, a group of high profile criminal defense attorneys filed a motion to have him removed. Shirk eventually agreed step down as Fernandez’s attorney.
The evidence neatly sums up the fact that Shirk was elected purely because of his political leanings, his overtures to the police department and his close ties to the establishment, when, in fact, all three of those things should expressly disqualify him from holding the position of a supervisory public defender. His closeness to the the State’s Attorney’s office and the police department underline his extreme unsuitability to lead an army of attorneys whose job it is to undermine and confront those two establishments.
Not to mention him being utterly unqualified to be a regular public defender employee representing people accused of serious crimes.
But none of this matters to voters as he has apparently just started a second term. A man with no qualifications, with strong ties to the very people who are trying to put his clients in jail and a man with, shall we say, questionable judgment:
It was a turbulent month in Public Defender Matt Shirk’s office, beginning with the May hiring of a young woman Shirk sought out after seeing her photo on social media and ending with Shirk’s chief of staff asking a former investigator to help him avoid following the public records law.
I guess the flirting is whatever, but what really troubles me is the last bit: the cover-up that includes changing documentation and deleting access records3:
We made public records requests July 22 seeking out details of the resignation of lead investigator Alton Kelly. At the time, we were told, there was no resignation letter. It was not until the Florida Times-Union was tipped off about a voice mail that we learned the Public Defender’s Office was not telling us the truth.
Ron Mallett, who is the chief of staff for Matt Shirk, left this message for Alton Kelly after our request: ”Hey buddy, it’s Ron. We’ve had a public information request regarding your resignation from Action News. Would you mind if we actually typed up a resignation letter so we don’t have to use the email, and make it, uh, more official? Anyway, if you want to give me a call back or shoot me a text and let me know what you think.” That voice mail references an email dated July 15, seven days before our initial request.
Here is a man, tasked with protecting the core Constitutional individual rights of all citizens, yet he has no experience, no training and no desire to do the job. Yet he’s in a position to affect the lives of so many and seemingly has only done so in a negative way.
Requiring elections for what should be independent positions like the public defender is a recipe for disaster. It becomes a political yo-yo, swinging back and forth between the favored child of whatever party happens to have a stronghold on that district4.
The lives of those these decisions affect are disregarded, because it is more important to have that job, than to do the job, apparently.
[P]recisely at the point when you begin to develop a conscience, you must find yourself at war with your society.
Sure, nobody dies 2, but there is much loss and there is much lost. The hallmarks are there: the thousand yard-stare; the separation from reality; the perverse sense of humor; the paranoia; the anger, so much the anger.
War has casualties. Ask my friend and fellow public defender and blogger Daniel Partain, who loves to quote Hawkeye from M*A*S*H. After 13 years, he’s walking away from the calling for good 3. Daniel’s journey to this point reads like a script for a movie about the struggles of an indigent defender:
Just like the ocean slowly ebbs away the coastline, so did being a public defender to my well-being. I made poor decisions regarding my health, both physical and mental, and I suffered for it. However, a day came where I realized that I needed to take better care of myself, and I started to alter some of my lifestyle choices. While my physical health improved, the diminution of the joy that I had in being a public defender continued to fade away from me. Without warning or great fanfare, one day I woke up, and I started viewing being a public defender as a job, and not as a calling. My viewpoint about being a public defender had become like one of Hawkeye’s rants from MASH about the disdain for being in the Korean War. However, I am my father’s son; I am my mother’s son; I refused to quit. I told myself that I was letting the stress get the better of me, and that I can persevere. For a while, it worked. I was able to carry on, and be the dutiful advocate for my clients. Yet, I knew that I needed a change.
Daniel’s story isn’t unique. Every public defender office and system throughout the country has tales to tell of similar people. Those that “lost it”, or “had a nervous breakdown” and couldn’t handle the work anymore. Those who had to be shifted around into less stressful positions because the job got hold of them and gave them the beating of their life.
Sometimes I wonder, here on this blog and out loud in real life, why we do this. The pay isn’t spectacular – even 30 year veterans who are supervisors make less than first year associates fresh out of law school do at big firms; the day to day drudgery of the work is overwhelming; the rewards are fleeting and far between; the accolades non-existent. Some get shot at, some stabbed, some stalked, some threatened and spat upon – literally and figuratively- and mocked and ridiculed and not always by our clients.
To do this job right is to do this job all the time. There is always something to be done. But you can’t do it 24/7. And that brings guilt. Because every minute I’m at home watching True Blood is a minute less spent on a client sitting in jail. But you can’t do it all the time. So you do it most of the time. It’s in your head. It percolates. You become anesthetized. The three bullet wounds to the head aren’t a tragedy, they’re a fact. The little boy who claims to have been anally raped isn’t a horror, it’s a problem 4.
You take a part of your brain, add a part of your soul and mix in a healthy heaping of emotions and you lock them away. The alternative is to render yourself unable to function.
It’s a war alright. A war against a system that’s eating itself without realizing. A war against a society that is full of so much hate that it is blind to the devastation it is causing to itself. A war against those that purport to exercise their better judgment for me. A war against a machinery that sees people as cattle, to be branded with the mark and shepherded into dark corners, ignored and forgotten.
It is a war that cannot be won.
And for what? Is it worth it? Are the six months I shaved off the offer because I worked till 7:30pm or because I spotted a legal argument worth any of that? Maybe yes. Because it’s 6 months less that someone needs to spend in those hell-holes we call “correctional facilities”.
Or is it the principle of the thing? Is it the ideal. The ‘one for all, all for one’. “My rights are your rights.”
And if it is the principle that drives you, then be prepared for the anger. Because there are no principles that the establishment won’t run over, leaving us on the sidelines, helpless.
Trial courts and prosecutors are in the conviction business. Appellate courts are in the affirmation business. We are in the triage business. You don’t care unless it happens to you. No one is in the rights business.
But for now, it goes on. Monday morning comes and there are people clamoring for attention. There are deals to be struck and clients to placate. There are lunches to miss and jails to visit and a mountain of stress waiting to strap itself back onto your back. It is both a job and a calling. For Daniel, it stopped being the latter. He walked away. Others may not have that courage. As for me, it sates for now, but how long is now?
Matthew Yglesias, some guy who writes at Slate, writes this piece asking “What if George Zimmerman had a public defender?”
Obviously the natural response to that question would be: nothing different, but you know it’s a loaded question and you know what he’s getting at: banging the drum of the tired trope of the overworked, underfunded public defender.
Well, not exactly. Because he throws this in there:
What if Zimmerman, like most criminal defendants in the United States, was relying on a public defender with little emotional or financial investment in winning the case and no resources with which to pursue a robust defense even if he’d been inclined to do so. Wouldn’t that defender have told Zimmerman that the smart way to avoid a second-degree murder sentence was to plead guilty to manslaughter and work out terms of incarceration that would be less onerous than what he’d end up with if he fought and lost. And of course the last thing any sensible person wants to do is go to trial with his entire life on the line in a situation where his own attorney has just plainly said he’s not enthusiastic about running the case.
So, yes, Yglesias’ comments are moronic, but you don’t need to follow in his footsteps and become one.
There are so many errors with his premise: for example, a public defender has the same “financial incentive” that Mark O’Mara and Don “Knock, knock” West had: none. They both got paid up front – contigency fee agreements are illegal in criminal cases – you can’t get paid only if your client wins at trial. So they got paid. Just like any public defender would’ve been paid.
Emotional investment? You think public defenders like losing? You think we, who dedicate our lives to the defense of the poor, do so for money? Fame? Accolades? How does that even pass the basic logic test, because we’ve already established that everyone hates us and the clients we represent. We’re underfunded, underpaid and reviled. So, I’m doing this because…?
I bet if the State had made an offer to Zimmerman, O’Mara and West would’ve had to convey that to Zimmerman. Maybe they would’ve looked at the case and said “Hey, GZ, man, you really should think about pleading.” Or they would’ve said “Hey, you should take this to trial”.
Just like any other attorney would’ve said.
The logic is further missing in this argument because it presupposes that any privately hired lawyer in the world is per se and necessarily better than a public defender.
So it doesn’t matter if the private attorney has no experience in criminal law but charges exorbitant sums, he or she is, by the very nature of their existence, automatically better than a public defender.
That is what we call a damn fool argument. Because Zimmerman – who was poor and relied on donations to fund his defense – could’ve hired two morons like Yglesias to represent him. And then he’d have lost. And then? Then I don’t know because at this point I’ve officially thought about this more than Yglesias did before hitting publish. There are good attorneys and bad attorneys and they can be found everywhere.
Yglesias later apologized, to be fair, and said that his article was more about the lack of funding for public defenders. You read it and you decide, because if that’s what his article really was about, then he’d have spent a significant portion of it (read: all) focusing on the ways in which the federal government’s sequester is destroying the federal public defender’s office and the Constitutional right to counsel.
“All employees, from the receptionist all the way up to me, have lost almost three weeks of pay,” he said. The office has also seen its staff size shrink by about 10 percent because of early retirements and layoffs, Nachmanoff said. Nationwide, federal public defender offices currently face between 15 and 20 furlough days and have had to consider declining work from indigent clients. Nachmanoff said his office has had to turn down death-penalty cases, international fraud cases and other resource-intensive cases because of the cuts. ”And that’s just going to get worse in the year to come,” he said.
Aside from the financial hardships, the dangers of further unbalancing an already uneven playing field cannot be overstated. The DOJ and their AUSAs have suffered no such corresponding financial hardships. They haven’t had to lay off workers and cut budgets for training and experts. There are real people out there, whose lives are on the line, who will not get Constitutionally adequate defense because of the sequester. [See also this detailed and moving letter by the Federal Defender of Connecticut, which highlights the same problems.][Prior posts on pd systems here.]
His alleged point that there isn’t adequate funding is a valid one, but there’s more that he could have spent his time on: how the Government has all the power; how the purse strings are controlled by ‘tough on crime’ types, how judges and prosecutors are two big parts of the criminal justice system and we are but bit players. The “blame” doesn’t lie with us; most public defenders, as far as I know, are doing the best they can with the resources available to them.
If George Zimmerman had a public defender and lost because of the lack of resources available to him and his lawyers, then a greater injustice would’ve been done.
But that’s not worth writing about.
In a sure to be groundbreaking series of articles, the Hartford Courant’s Jon Lender has discovered that the business of government – the every day practice of running a State – costs money.
This heretofore undiscovered concept works in this way: people work for the State. They get paid. Shocking and novel, I know. I wonder what the repercussions for society will be? I shudder to think of the fallout from this breathtaking expose that you know, people like to get paid for the work that they do.
Take his latest revelation, for example: that lawyers hired to defend death row inmates were paid money. Ingrates, right? Bastards should work free for the honor or something.
His masterful investigative journalism (read: FOI requests) has uncovered that over the course of 8 years, the public defender’s office has made payments to approximately 8 lawyers totaling 1.8 million dollars. In addition, they’ve paid experts $513,000.
The State, ever cagey in its disclosures, says it can’t estimate how much its lawyers made working on this death penalty case, but it paid its experts over $1 million dollars.
He wrote another article a few weeks ago about how the State had paid a few hundred thousands dollars to defend against a lawsuit that went to the Second Circuit.
Perhaps Mr. Lender and his ilk work for free. Perhaps they come from money so they don’t need to get paid. Perhaps he doesn’t have a fucking clue how the world works. Or perhaps they do all too well and know that sensationalism sells. I’m guessing the real answer is closer to the latter.
The death penalty is the most final of punishments. There is a lawsuit pending, which alleges that the State of Connecticut engages in racial and geographic disparity in order to kill its own citizens. This lawsuit was diverted into a sort of “class action” by our supreme court. There are different parties to the lawsuit, including each of the death row inmates. Most of them have – as they damn well should – their own lawyer.
If the State is in the business of killing people – and doing so arbitrarily – then it should damn well have to pay for the defense of those it is trying to kill. Unless you want to live in China, like some of the comments suggest (protip: don’t read comments).
The funny thing is, that State hourly rates are paltry, especially in Connecticut. The amount of money they get paid is established by the Public Defender Commission (I think) – a commission of judges and laypersons selected by the Chief Justice and members of the legislature.
It’s one thing to report neutrally on the expenditures of the State. It’s fine. There’s excess everywhere. It’s quite another to report without context as Mr. Lender is wont to do and certainly with bias.
Because it’s easy to write article when all you’re doing is appealing to the basest instincts of humanity: revenge and jealousy. They made how much!?! AND THAT TOO DEFENDING CRIMINALS!??!
Perhaps if Mr. Lender or someone who oversees his drivel at the Courant would’ve bothered to fact-check around the country to see how much death penalty lawyers get paid; they’d realize that the fact that we pay them $100/hour is nothing. Do you know how much big firm lawyers make for working for corporations, generally sitting around in big offices smoking cigars? Upwards of $500/hour.
And we quibble about paying those that are tasked to do the ultimate job in our criminal justice system: representing the condemned?
We’ve lost all perspective of what is just and fair; there is no context anymore, just trumped up grievances in a vacuum. Government watch is necessary; we need a check on the powers of government and the fourth estate to bring them to light. But government watch isn’t looking at expenditure sheets and crowing that $3 was spent on a pen, but rather why that $3 spent on that pen was unnecessary and excessive and an abuse of power.
Because sometimes that pen is worth $3.