Newsflash: Indigents Need Lawyers. Judges too

The Washington Post has another article about the crisis in indigent defense.  Are you surprised to learn that no one has found a pile of money to hire your public defenders or to lighten the caseload to human levels?  Neither am I, but people keep doing incredibly, and inexcusably, stupid stuff that ends up landing them in the dock.  Go figure.

The article opens on the tale of Kimberly Hurrell-Harring, whose husband is on vacation in Great Meadows Correctional Facility.  He’s got one itty, bitty favor.  Can she just squeeze a little weed into an orifice when she comes to see him?  Really, is that too much to ask?  And he asked on the prison phone.  You know, the ones with the really big signs over them that say, “Your Call Is Being Recorded!”  Oh, those prison jokesters.  Who would believe them?

He was calling from a maximum-security prison, and someone must have been listening because when she walked into the Great Meadows Correctional Facility in upstate New York, guards immediately yanked her to the side.

They told her things would go easier if she handed over the dope without a fuss. She did, and things immediately got worse.

With a swiftness that made her head spin, she was handcuffed and hauled to jail. At her arraignment, there was no public defender available, though she was entitled to one. Standing alone, she was charged with one felony count of bringing dangerous contraband into a prison.

And so, lacking funds to retain counsel, standing alone, afraid, confused, guilty.

After her arraignment, Hurrell-Harring went back to jail because she couldn’t afford bail, either. Three weeks passed before a public defender appeared, and she says she spent a total of 15 to 20 minutes with him before her sentencing hearing.

He told her not to fight the district attorney’s recommended punishment _ six months behind bars and five years of probation. It was the best she could hope for, he said. But she had no criminal record. Surely, she begged, couldn’t possession of less than an ounce of pot, a misdemeanor under other circumstances, be bargained down to probation?

“It was like he had no time for me,” she says now, still unemployed 17 months after her release because she lost her nursing license when she became a convicted felon. “He told me to plead guilty.”

This tale of woe is a terrific beginning, not because it engenders huge sympathy per se, but because it reflects the start of a series of problems that seem to fly right over the head of the writer.  For a story about the horrors of funding for public defenders, it’ tells a very different story.  Find a good guy amongst this crowd if you can.

Let’s start with our heroine, secreting marijuana in her private parts.  Did it surprise her that this might get her in trouble?  Her dear husband, already in prison, wanted it, and as she later explains, women do bad things for their men.  Really?  Then women get in trouble for doing bad things for their men.  It’s a cause and effect thing.  If you can’t afford to get in trouble for trying to sneak some drugs into prison, then here’s a solution.  Don’t do it.  Not to hard to figure out.

And what about the guards who lied to her that it would go easier if she just gave it up?  Isn’t it heart-warming to know that the primary tool of law enforcement is lying?  Yes, it’s effective.  No, it’s not the sort of thing that engenders respect for the law.  Especially when they manipulate some clearly clueless woman.  Big, tough prison guards.  Aren’t you proud of yourselves?

Then we have our prosecutor, who could have charged her with a misdemeanor, given that it was only a small amount of marijuana (it’s not clear how much, but there are few places within a body where you can hide a brick).  But this prosecutor was shooting fish in a barrel, so why not dump a full load on this woman and do as much damage as humanly possible.  After all, it’s not like she’s in a position to fight back, right?

Strangely, the article makes no mention of a judge.  Was there a judge around?  We can only assume, it being a court and all, but nary a mention of why the judge held her on bail (was she going to flee with her man in Great Meadows?), thus imposing one of the most coercive means of getting a plea, nor why the charge and sentence for this minor offense was cool with him. 

But since this was an article about indigent defense, I reserve my special thoughts for the lawyer charged with defending our heroine from tragedy.  What does Patrick Barber, the part-time public defender, have to say about this case?

He agrees with his former client. He doesn’t have much time to visit clients. It’s not possible to see every defendant, he said. Many have no car, and can’t get to his office. Others are in jail, and he simply can’t get to all of them, he says.

Barber claims he did the best he could for Hurrell-Harring.

“She couldn’t have been charged with a misdemeanor because it wasn’t offered. It wasn’t going to be offered. The district attorney takes a very hard stance when it comes to prison contraband,” he said.

No amount of money would cure this disease.  His problem wasn’t lack of time or funds, but lack of heart.  The defense was lost before it even began.  Was standing before the judge to accept a pre-dictated plea really the “best” he could do?  Had Barber said that he would have fought this case zealously, challenging the confession and search, maybe even making a Clayton motion, if only he had the time to do so, I would give him credit for good intentions. But instead he defends his representation, and for that he gets what he deserves.

Hurrell-Harring, 33, doesn’t much care about Baker’s caseload . . .
Nor should she.  What we do is defend people who do stupid things, guilty or not.  That she screwed up big time is irrelevant.  She still deserves representation by a lawyer who hasn’t surrendered before he met her.  That’s how our system is supposed to work.

Of course indigent funding is a disaster.  But this example shows a system of failure at every level, from every individual involved, not just indigent funding.  No amount of money is going to change what happened here.  They say it may not be perfect, but it’s the best there is.  Just keep repeating that to yourself and you can sleep soundly at night.

18 comments on “Newsflash: Indigents Need Lawyers. Judges too

  1. Anne

    Wow, where to start?

    A few helpful hints:

    * The coochie-purse is seldom, if ever, a good idea.

    * If you don’t want the cases, get off the court-appointed list! (Except for South Carolina lawyers, who can’t, but they knew what they signed up for.)

    * We are plea-happy. I heard one judge tell a heartening story about how, after he learned a little about psychology and group-think, was able to stem the tide of group pleas (yes they existed) in his jurisdiction. Everyone on all sides needs to step up to the plate on this to make sure they’re knowing, voluntary, and oh what’s the other thing?

    * There seems to be some role confusion. Girlfriends are not your drug dealers. The DA is not the judge’s scheduling assistant. The public defender is not the DA’s helpmate.


    Thanks for posting this, even if it isn’t exactly “news” to most of your readers.

  2. SHG

    Thank you for an excellent perspective.  It took me a moment to figure out what “coochie-purse” meant.  I’m such a curmudgeon sometimes.

  3. Cindy

    You want to know where to start? How about with a dictionary!

    What is worse slang or text messaging lingo???? Opppss borderline again.

  4. Anne

    You’re a criminal defense lawyer and you never heard that term?!

    I heard it from my sibling, who works in law enforcement.

    OK that’s all I’ll say about that! This conversation can go nowhere but down…

  5. Cindy

    omg a cavity search! I hope I’m never arrested, a cavity search should be illegal.

    There are xray machines that can now scan the body and you can see through the cloths down to the bones. If these searches are still going on, where are the good lawyers that will step up and call this sexual assault at the hands of the government knowing full well we have these x-ray machines.

  6. SHG

    I work with a different sort of person than your sibling.  No, that term is not the sort of thing I would normally run across.

  7. SHG

    They don’t do the cavity search because there’s no alternative.  They do it because they are “hands on” kinda guys, if you get my drift.  Though the reason they video tape it is entirely different.

  8. Cindy

    a sweeping stereotype of “all” police from a criminal lawyer? Oh great!

    I need to stop shaking my head everytime I come here!

  9. SHG

    Aw, that was a sad effort.  Come on, you can do much better than that.  At some point, you’re going to actually add something of substance rather than just mention your head-shaking issues.

  10. Jennifer

    Suppose she did have an attorney who had all the time in the world, and who fought zealously, and filed every possible motion and then went to trial. What are the chances she would have won? The law is against her. The cops are allowed to lie to people. Prosecutors are allowed to charge people with the most serious crime they can come up with, and don’t have to reduce the charge or offer a plea bargain if they don’t feel like it.

    So let’s say she’s got a 5% chance of winning at trial. The flip side of a “plea bargain” is the fact that if you exercise your constitutional right to a trial and then lose, most judges will punish you with a sentence much much worse than the one the prosecutor offered. The public defender, handling hundreds of cases, probably had a very good idea of the sentence this woman would have gotten. 5 years in prison, maybe?

    Those facts aren’t going to change, no matter how much free time her lawyer had. It sounds like a tough case, with bad facts, and a decent offer from the state.

  11. SHG

    What are the chances?  Better than surrender.  Better than giving up all hope.   Better than lying down and dying.  If that’s what you propose, then I reject it completely.

  12. John R.

    I dunno. Jennifer has a point.

    You have to pick your battles carefully. PD’s I would think, develop a pretty good sense of this rather quickly, what with the volume of cases and all.

    How often are defendants up for a fight where there is so much to lose? Attorneys have an interest in keeping the system honest for the sake of lots of cases, but the defendant wonders only about his own.

    Ideally, yeah, everyone should fight for themselves and for what’s right. In the real world, people mitigate risks. The system doesn’t get it right all that often when you wage a big fight. There’s a lot to be said for compromise when the offer is there, from the particular defendant’s point of view.

    It’s a very, very hard reality.

    Elsewhere it has been stated that a trial attorney’s ego has to be pretty healthy. It shouldn’t be the enemy of the client.

    Laymen think the big moral dilemma in criminal defense is defending the “guilty” client. The truth is that the big moral dilemma is when to draw a line in the sand. It is rarely in the client’s interest, from a practical standpoint, to do that. Because the reality is every DA has about a 90%+ conviction rate at trial.

    And I don’t think it’s a myth that the judge will punish the Defendant for going to trial.

  13. SHG

    All of that is true, but here was the fault of Jennifer’s comment.  You don’t know any of this until after you’ve done, at absolute minimum, basic work on a case.  While one could predict in the first 2 minutes where the case is going to end up most of the time doesn’t mean you don’t do anything, rush to the predicted conclusion and fail to fulfill the responsibility of a lawyer to a client.  Is this the 90% or the 10%?  You wouldn’t know, but the defendant surely expects a lawyer to do his job first and figure it out.

    When we talk about the “real world,” always remember that it’s a real world for the defendants too.  Their real world can be prison because their attorney couldn’t be bothered being a lawyer.  That’s real world.  Only after the attorney has taken the time to hear the client, research the issues, investigate the case, consult with the prosecutor, is he in a position to “know” what’s going to happen.  Everything else is hubris, where we are so confident of ourselves that we don’t need to bother doing our job.  That’s not a lawyer, and it’s certainly not what Gideon requires.

    Don’t assume that the answer was to go to trial on every case.  But the answer most assuredly is not plea your client out to a felony without lifting a finger. 

  14. John R.

    Agreed. You have to do your job, no matter the odds. Don’t err on the side of fighting every little thing, but don’t just lay down all the time with no effort either.

  15. SHG

    Exactly.  We can’t give up before we’ve started, even if there is a chance that we will end up in the same place.

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