Category Archives: pd system

A cop in sheep’s clothing

You’re poor. You’ve been arrested. You go to court and you can’t afford to hire a private attorney, so the court tells you to apply for a public defender. You go to their office and fill out a form and they ask you some questions. You have to tell them how much you make, how many dependents you have and how many assets you have. They thank you, give you your next court date and say that they have to complete an investigation into your finances before a final appointment is made.

That’s fine, you say. It makes sense. People shouldn’t be getting taxpayer funded services if they don’t qualify. Many states have made it a crime to lie on the application for public defender services and at least one state has held that there’s no confidentiality in the information provided in those applications.

So you go home and one day a nice man, Eric Carrizales, knocks on your door and says he’s here to investigate whether you really qualify for the public defender.

Carrizales spends a couple of hours a day at the courthouse sifting through applications and going to applicants’ homes to talk about their answers.

What a great public service. The Indigency Council that makes the appointments is tremendously happy about Carrizales’ work:

Unmuting Gideon’s trumpet

Pictured: a trumpet

Pictured: a trumpet

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]:

Adversarial means you can’t force me to help you

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.

If you decide that I must answer those questions, I may still refuse to do so and you can hold me in contempt1:

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.

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Shirking ethics: when you want the job, but not to do it

As I alluded to in my last post, Jacksonville, FL, has an ethical controversy brewing. It involves the elected public defender Matt Shirk and some very questionable hiring decisions he’s made1.

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:

In war, everyone loses something

[P]recisely at the point when you begin to develop a conscience, you must find yourself at war with your society.

James Baldwin, “A Talk to Teachers“, 1963. War is many things, none of them good. This job, this fight, this battle to protect and preserve and to traige, is war 1.

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?

Footnotes:

What if we focused on things that really mattered?

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.