a public defender

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After my criticism of the show Raising The Bar last week, I think it is only fair if I post a follow-up having watched the second episode.

So here it is: I like it. A lot.

The law was definitely better, although I thought it a bit suspect that the lawyer in the sexual assault case was pretty openly arguing for jury nullification. What also struck me about that is if the prosecutor was willing to agree to probation, why didn’t he just plead to that? The defense lawyer should have known that he had no defense to the actual assault. But that’s minor.

Also, the behind the scenes skulduggery in the murder trial is pretty much why either MPG or the female prosecutor would have to have recused themselves because of their relationship.

It definitely was more interesting than the first episode, but the re-arrival of the star defense witness was a bit too convenient. I’d like to see it get a bit more real.

Finally, nice shout out to Justice Cardozo there.

What did you guys think? Overall, I thought it got better. I don’t care much for some characters, but I can overlook that.

I will echo one sentiment I saw across the web: please don’t let every client be “innocent”. That’s not how it works and you know that.

Update: Seth Abramson has 10 questions for David Feige (who was kind enough to leave a comment below) and I sign on to all of them.

10:17pm: So Raising the Bar is on TNT… It’s a little hard to watch, I’ll be honest. I’ve cringed a few times already. Hopefully it will get better.

10:20: Oh my…

10:25: Um, wasn’t there an acquittal on the rape?

10:30: What about recusal? Sorry…I guess I was looking for something more…realistic?

10:31: Oooh boy….I’m just gonna go now. I’ll come back if it gets better.

10:33: Hmm. Very strange chambers discussion… 10 days for contempt? What the hell goes on in New York courts, ScottyG?

10:40: I guess relationships decide guilt or innocence or lengths of sentence. I guess that’s true to some extent (the last bit).

10:45: Looks like no one’s heard of conflict of interest.

Well, that’s it, I guess.

Overall, I think it was entertaining enough that I might watch it next week again. From a legal perspective, it was awful - inducing the same cringes and head-slaps that L&O does, except this is from the defense perspective. I guess my biggest problem with the show is that it’s not realistic - at all - unless this is exactly like NYC courts and NYC courts are a unique universe unto itself. That I have no clue about, but from my experience, this stuff doesn’t happen.

Also, I’d normally advise the writers of the show to get a quick lesson in legal ethics, but seeing as how it’s written by Feige, it’s an intentional disregard of any semblance of prof. responsibility. Which makes it another L&O (and, from me, that’s not a compliment).

I have to say, I like Mark Paul Gosselaar’s hair. A lot.

Overall: C. I’d watch this over Greek, but not the Big Bang Theory.

You’ve probably heard by now that Steven Bochco and David Feige’s Raising the Bar premieres on Monday at 10pm on TNT. It stars Zack Morris as a public defender and Malcolm’s mom as a crazy judge (who, thankfully, doesn’t seem to yell as much in this new role).

I’ll probably tune in, just to see what real world experience brings to a legal show. The reviews have been mixed, but that shouldn’t stop you.

For example, some guy in the Boston Herald writes:

In this universe, justice is dispensed on the basis of personal relationships between the court representatives. The defendants are pawns between rivals, roommates or lovers who look to one-up each other.

Never has the justice system looked so silly.

That’s not silly! I read that and think: “Hey! Maybe this show is true-to-life!” So we’ll see. Will this come close to unseating The Practice as the best legal show of all time? I don’t think anything can, but I’ll be very entertained if it comes remotely close.

If you’ve been living under a rock (or just without TV) and want to get a glimpse of this show, here are some links:

Behind-the-scenes

Sneak Peek

But, if you’re using Firefox, you’ll have to download some stupid Turner plugin. Which, in this day and age, is just annoying. So instead, you’re better off using IE for these links (ugh).

Note to TNT folks: There are, like, 200 video plugins out there that don’t require some software install. Use one of them [or just use Flash!?!]. Don’t make me install some special plugin for your website only and under absolutely zero circumstances should you force me to use IE to look at a website. Because once you do that, I’ll never come back to your site.

Today, SCOTUS heard oral argument in Indiana v. Edwards, which focused on the application of Farreta. Indiana argued that pro-se defendants who cannot communicate coherently with the court or the jury can be denied their right of self-representation.

Yesterday, Prof. Erica Hashimoto (who I think is the individual referenced by Justice Breyer at page 35 of the transcript) had this post up at Concurring Opinions. The post argues, essentially, that the right of self-representation is critical because indigent defendants are often represented by incompetent “indigent counsel” and would be better off representing themselves. She apparently has some history in this area, having authored a January 2007 paper on this topic. The findings of the paper are that pro-se defendants far just as well (or poorly) as represented defendants, if not better.

She does not some limitations in the study - the big one being lack of much data. Her sample size seems to be pretty small too. One limitation I did not see mentioned in the study is the strength of the state’s case. It is very possible that in a lot of pro-se cases, the state recognizes its weaknesses very early on - perhaps the first court date - and offers to either nolle, dismiss or favorably resolve the matter. I also did not see any consideration given to states that do not appoint counsel for misdemeanor charges.

Anyway, back to the topic at hand. The essence of her argument seems to be that, generally speaking, defendants with money can fire their privately retained lawyer and hire another more competent lawyer to represent them. This is a very flawed argument. Anyone who practices in a GA or JD in CT (or any other trial court in any other state) can attest to the number of times a non-indigent defendant has stood before a judge, asking for more time to hire a new lawyer and fire his current lawyer. Almost always, the defendant does not come up with the money and has to go with the lawyer that he is “unhappy” with. Just as if he were represented by a pd that he does not like. He is just as stuck with the private as he is with the pd.

Further - and I’m hoarse from repeating myself - “ineffective” lawyers come in all shapes and sizes and statuses. Private attorneys can be awful, just like public defenders. And while it is very, very difficult to “fire” your public defender, it can and does happen.

I don’t care either way about the right of self-representation. All my clients can represent themselves, if they want to. I will wish them the best of luck and move on. When called upon to represent a client, I will do everything in my power to secure a favorable outcome. But that’s just me.

I guess I don’t buy this idea that the right of self-representation is critical because of public defenders (or appointed counsel). It is critical because every person should have the ability to decide for himself or herself what he/she wants to do. Do we really need another reason?

Edit: By the way, if you want to get an idea of just how “crazy” Edwards was at the time of his trial, sift through the Joint Appendix. Let me know if you follow any of the motions filed.

Well, they’re at it again. The law firm that can’t seem to sell itself without dumping on public defenders has another post up [Update: I just noticed that their post is actually dated April 10, 2008. Heh]. This post actually makes some valid points and seems more like a blog post than a marketing advert. At least until you get to the middle, that is:

A vast majority of the people that end up in prison are represented by the public defenders offices throughout the state. In many cases, to know fault of their own the public defender cannot provide the level of legal defense that should be received by anyone facing jail time. Thus the jails are full of poor people, mostly minority who could not find the funds to retain private counsel.

There are so many things wrong with that paragraph, least of all the spelling.

The implication here is that if you’re poor, you’ll go to jail. If you’re rich (or have money to hire this particular law firm), you won’t. Doesn’t matter whether the State has a strong case; wave some greenbacks in the prosecutor’s face and he’ll go straight to his knees.

This also seems like false advertising to me. They’re promising things they can’t deliver. Are they really saying that prison overcrowding would not be a problem if everyone was represented by private counsel (or perhaps just their firm)? They seem to be implying that every case is winnable, if you have the money to hire a lawyer.

Does anyone know how good this firm is? Anyone heard of them? Any readers from the West Coast? Why do they keep doing this? Did one of them get fired from the PDs office?

In a similar vein, see recent posts from Norm and Scott.

In other news, public defenders are also the cause of black holes, crop circles and Dick Cheney’s sneery disposition.

On occasion, clients will hesitantly - almost embarrassingly - ask if giving us pds money will make things better for their case. Perhaps it will make us investigate defenses with more vigor or make us move their case to the top of our pile.  Obviously, for the ethical attorney, the answer is no. That question is also a stupid question to ask private attorneys: they charge their fee and offering more money shouldn’t make them want to work more (some of the privates can chime in here).

There’s another problem with these sorts of questions: that money can be the answer to all of one’s problems. For example, a perfectly legal search can become problematic because $500 changed hands between the defendant and counsel or $2000 will create a third-party defense when you’re caught on tape with your name on a large cardboard card hanging from your neck, committing the offense, while looking straight at the camera, shouting loudly “I AM JOHN DOE. I AM COMMITTING THIS CRIME.”

Which is why I chuckle when defendants say things like “why did I pay that guy so much? I could have gotten the same result with a public defender” or “man, he didn’t do nothin’. The offer stayed the same”. It’s also really shady for a private to take a case away from a pd with the promise of a better offer. The other day, I read a transcript in which both the judge and the prosecutor stated on the record that the offer made to the defendant was the same that was made when he was represented by the public defender. The judge said “some defendants think that if they fire the pd and hire a private attorney, the offers are going to get better. That’s not the case.”

I’ve heard judges tell defendants “not to waste their money”, because whatever the private attorney can do, the public defender can do.

Folks - it’s the facts. Either there’s a defense or there isn’t. (In)competence reaches across both sections of the bar. There are incompetent public defenders and just as many incompetent private attorneys. Money won’t make them perform better. Or, at least, it shouldn’t.

I get some reader mail now and then and it’s usually about someone’s family member in jail or some conspiracy theory. Which is fine. But then I get the “are you really a lawyer?” “Have you tried any cases?” “Did you even attend law school?”

Since it’s a Sunday and I’m tired of scouring the web to bring you the stupidest stupidity, I’ll take a break to answer that second question.

(Okay, it wasn’t reader mail; it was the imbroglio who asked)

The question was posed thusly:

If you’re a PD and you’ve read this far, please tell me: How often do you go to trial in a year? Do you work mostly felony or misdemeanor cases? Inquiring minds want to know!

Okay, inquiring mind, I will tell you. On average I am on trial 5-6 times a year. They are only felony trials and some of them are even fun!

Others weigh in more informatively.

If you have a question for the Gideon, leave it in the comments.

Back to scouring.

I would be remiss not to congratulate our very own Miranda for a well-deserved victory this past week. Congratulations!

That’s one public defender I’d be proud to have representing me.

Okay, don’t let it get to your head. Get back to work!

You just can’t please everyone. Especially when everyone you have to please are clients in this profession. Donzell relates:

At Calendar Call, the State offered to dismissed the Aggravated Assault charge, to recommend that my client get ten years on probation with all those special conditions, including intensive probation supervision for six months, and have him treated as a first offender (to keep the felony off his record). I explained the offer to my client and answered his questions. My client took the offer, but now, he is complaining that it is too onerous, I sold him out, and that I did not do anything for him.

Sorry to those true believers out there, but what the fuck? Where does this sorry bastard get off to complain? I saved his sorry ass from prison, and got a majority of what he wanted from the State. I sold him out? I did nothing for him? Yeah, right.

Donzell is right in feeling angry here. But that righteousness comes from having put in his best effort the first time around. There are some clients who will always be greedy, or will never be satisfied with what you’ve done, even if you get them dismissals on all counts. There’s nothing you can do about it, but shrug (and maybe rant on your blog) and move on.

Sometimes, though, the clients are justified in complaining. I also wonder if some of this isn’t due to the reputation of public defenders.  You know, the myth about lawyers forcing their clients to plead on the first day or because they can’t afford to pay them for trial, come from somewhere. Just like our clients who say the cops are out to get them. The cops probably aren’t out to get all 100 of you, but maybe one or two of you are targets.

It is really important that the advice you give your client about whether to plead guilty is a result of your best effort.  If it isn’t, you can’t complain.

A couple of years ago prosecutors in the State floated a bill asking for hazardous pay. They claimed that defendants threatened and stalked them. I remember the public defender’s office submitting testimony to the legislature saying, essentially, “you think your job is hazardous?”, and providing several examples of public defender employees being the subject of attacks by clients.

Here’s the latest story. PD Sue Hankins (who is a very nice lady and a pretty damn good lawyer) was in court with a client who wanted her replaced (and perhaps wanted to represent himself - that’s not entirely clear). His motion to “fire” her was denied, so he turned to her, started yelling and then spit on her.

Reality check, folks. Public defenders are more often the subject of clients’ ire than prosecutors or judges. I cannot tell you the number of times I’ve heard clients say: “Well, they’re only doing their job, but my lawyer, man he screwed me.”

They see prosecutors and judges as cogs in the wheel, a part of the system. We, on the other hand, are supposed to be their champions, their protectors. When we don’t give them what they want, they’re angry with us. Sure you’ll have the occasional nutbag that follows the prosecutor home and tries to torch his house, but more often than not, they attack us, they lunge at us, they call us names, they spit on us, they cold-cock us in court. We’re almost always standing next to them or sitting at the table across from them, giving them unpleasant news. They react immediately and almost invariably toward the most accessible person: their lawyer.

So the next time a prosecutor wants to ask for hazardous duty pay, come do our jobs for a bit first.

For some, blogs are a business. For some, it’s a way to grow their business. But if you’re selling yourself, remember to put your best foot forward. Take Wallin & Klarich and their AV rating. They seem like a normal criminal defense firm located in southern Cali. In fact, I gotta say, their website is pretty snazzy. They have video clips, login for clients and a blog!

Ah, now that’s what interests me. A blog. So let’s have a look. How is this firm going to set itself apart? How is this firm going to attract clientele?

Then I read the latest post and it hit me. I’ve read this blog before. Same MO in the four posts I’ve read: shit on public defenders.

Here’s the latest:

Many people call our office asking if they can appeal their case. The people who call often tell us that their loved one, who is in jail, did not get proper representation. We are often told that the defendant’s public defender did not provide adequate legal advise or did not do proper investigation. Defendants are often told that it is in their best interest to enter a guilty plea by their public defender. After a guilty plea is entered the person accused wants to “appeal” their conviction.

Oh. Ouch. “Often told”? Here’s an earlier post:

As a former public defender I have seen first hand the benefits and consequences to letting a public defender handle your case. Although the public defenders are highly skilled and experienced attorneys, they are severely overworked. They carry a caseload of up to 20 clients a day! What this means for their clients is that the public defender cannot afford to spend more than a few minutes on the client’s case before moving on to the next case. If your case happens to need more research or a closer look, it is possible that the public defender will simply not have enough time to do the necessary work.

The Public Defender is so overworked that they often times fail to build a meaningful relationship with their clients; they simply do not have the time. This means that they will not have the time to sit down with you and listen to your side of the story. They also will not have the time to answer your phone calls and questions.

Wrong, wrong, wrong and even wronger and still wrongest. I mean, this is just plain nonsense! Playing up the stereotypes of overworked public defenders to sell yourself is just damn low.

The sad part is that the first post that I linked to has an important message: if you plead guilty, you need a certificate of probable cause if you want to appeal. But all I see in there is shitting on fellow members of the bar - in the same field, no less! The point of that post could have been made just as effectively if the first paragraph had been left out.

Now, I know crime is down and business is slow, but c’mon, this is serious bullshit. Selling yourself by trashing a large number of your fellow practitioners is not nice and it’s not smart. I guarantee that some public defenders in your jurisdiction have read your blog.

Law firm marketing gurus, what say you?

In the past week I have had the pleasure of writing “heretofore” and “therefrom” three times, “hereinafter” four times, “wherefore” twice and “assuming, arguendo” five times. How about you?

Radley Balko has this fantastic piece in Reason, making a compelling argument for greater funding for public defender offices nationwide.

His starting points are the high-profile DNA exonerations, the Duke lacrosse case and Kevin Davis’ Defending The Damned [Davis was profiled on our sister blog, PD Stuff, here].

The piece first explores the prevailing perception of public defenders and why it is mistaken.

[Davis’ book] should make readers reconsider the contempt routinely heaped on public defenders. Perhaps, given recent headlines, there’s actually some merit to the public defender’s familiar complaints about inadequate funding, heavy caseloads, and prosecutorial misconduct.

As U.S. Supreme Court Justice Hugo Black once wrote, if the state aims to take away someone’s freedom, the defendant has an “absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’?”

He then tackles the central point: Funding.

Most public defender’s offices don’t have those resources. A 1999 U.S. Justice Department study of the country’s 100 most populous counties found that 97 percent of their law enforcement budgets went toward police, courts, and prosecutors, with the remaining 3 percent going to public defenders. That study didn’t include less populous, rural areas of the country, where the public defender position rotates among private-practice attorneys or is filled by a single lawyer in private practice who receives a stipend of a few thousand dollars per year.

Finally, he artfully tells us why it is imperative that public defenders should have the same resources as prosecutors:

The fundamental function of government is to secure the rights of its citizens. There has never been much problem generating support for the law enforcement side of that responsibility: courts, police, prosecutors, and prisons. The government seems eager to protect us from criminals. But it’s also obliged not to violate our rights in the process.

If we’re serious about giving everyone a fair crack at justice, indigent defendants need access to the same sorts of resources prosecutors have, including their own independent experts and investigators. If we’re going to generously fund the government’s efforts to imprison people, we need to ensure that everyone the government pursues is adequately defended and protected from prosecutorial overreach. The ongoing stream of exonerations in felony cases suggests we’re a long way from that goal.

Tip of the hat to Skelly. The comments to Balko’s piece are also very interesting. Be sure to check them out.

Stumbled across two new interesting studies last night, both by David Abrams of the Univ. of Chicago Law School. The first one, entitled “Do Judges Vary In Their Treatment of Race” tries to take on the burning question of racial disparity in sentencing from a different angle.

Does the legal system discriminate against minorities? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges systematically differ in how they sentence minorities, avoiding potential bias from unobservables by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants…In our data set, which includes felony cases from Cook County, Illinois, we find statistically significant between-judge variation in incarceration rates, although not in sentence lengths.

The second, entitled The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability, seeks to measure attorney ability (duh).

We find substantial heterogeneity in attorney performance that cannot be explained simply by differences in case characteristics, and this heterogeneity correlates with attorneys’ individual observable characteristics. Attorneys with longer tenure in the office achieve better outcomes for the client. We find that a veteran public defender with ten years of experience reduces the average length of incarceration by 17 percent relative to a public defender in her first year.

We also examine the correlation between attorney characteristics and case outcomes. Experienced attorneys achieve substantially more favorable outcomes for their clients (defendants) than less experienced attorneys. Defendants represented by more experienced attorneys are more likely to avoid a prison or jail sentence, and those who do receive a sentence serve shorter terms on average. We do not, however, find any statistically significant differences in sentencing based on the attorney’s legal educational background.

Attorneys who attended higher-tier law schools (based on 2005 U.S. News & World Report law school rankings) do not obtain better sentence outcomes for their clients than their peers who attended lower-tier schools. Lastly, and somewhat surprisingly, we find racial disparities in attorney performance: attorneys of Hispanic origin achieve lower average incarceration than all other racial attorney groups.

Well, there you have it. Going to a top tier school has no bearing on your likelihood of success in the public interest field and in criminal defense. This is not surprising to me at all.   The closer you are to the top of the tier, the more the focus is on securing lucrative jobs at big firms, which involve writing briefs and - if someone can please, please, explain to me what this means - document review. The towards-the-middle-and-bottom-of-the-tier schools seem to provide a healthy mix of the academia and the practical. That is what prepares you to practice successfully in this field. Not only knowing how to write that darn appellate brief, but also knowing how to try that case first.

HT: Andrew Leigh

Keeping score is not something I do as a public defender. I know my “wins”, but there is no tally; there is no scoresheet, no chart. Yet it is something that inevitably comes up once a month when talking to clients. “How many cases have you won?” “Have you tried X type of cases before?”. Essentially, are you good enough to be my lawyer?

People like Bennett, Norm and Scott can legitimately answer that question. Private counsel often have the luxury of choosing their clients. You see a good case, you take it. Case is a deal loser and will require only minimal plea bargaining - you don’t have to waste your time.

For us public defenders, on the other hand, the score wouldn’t represent anything. Our “win-loss” record means as much as it does for a pitcher in baseball: almost nothing. We get what cases we get. We deal with them as best we can.

I don’t mind, really. I know there will be more “losses” than “wins”. As an attorney, more of my clients will go to jail than not. This obviously is not the whole picture. What counts as a win and what counts as a loss? Is every case where the disposition you negotiate better than the client’s expectation a win? What if the client has unrealistic expectations? That’s called a no-win.

What of pleas, which make up the vast majority of the dispositions? Is a suspended sentence a “win”? What about a 3 year sentence when the prosecutor was looking for 5?4?

But again, this doesn’t bother me. I can’t really go into a discussion of the meaning of “win” with a client, so there’s a generic response.

On the other hand, with a paying client, it may not be so easy to brush off. Is it a legitimate question to ask of the private attorney you are about to hire? Does it, in a sense, help the consumer in making an informed decision? Or is it just about building trust between the attorney and the client? If that is the case, should I be answering the question instead of the general “I have plenty of experience”?

Yikes. What started out as a pretty straightforward post has becoming confusing. I don’t know the answer. What do you think?