What It Takes To Fail

Via Grits For Breakfast, the head of the Innocence Project of Texas, and one of the Lone Star State’s most fascinating dinner conversationalists, Jeff Blackburn, ripped criminal defense lawyers a new one:

 “The real cause of unlawful convictions in Texas is indigent defense. … I have never handled an innocence case in which a good lawyer did a good job at trial. Virtually all of [those defendants] have had court-appointed lawyers,” wrote reporter Callie Enlow, “This has made Blackburn deeply cynical about what he calls (in his typical colorful language) ‘a pretty goddamned awful’ indigent defense system in Texas.”

Jeff isn’t the sort of guy to temper his words so that no one’s feelings are hurt. I like that about him, even though others in need of a tummy rub may find him harsh.

This quote is the sort that is likely to piss off a whole lot of lawyers, most notably those who handle indigent defense.  On the one hand, they are treated poorly to begin with, clients often asking if they’re “real lawyers,” assuming that the poor are given access to the third stringers if they’re real lawyers at all.  To borrow from Rodney Dangerfield, they get no respect.

But if you look beyond the knee-jerk sensitivities of lawyers who do indigent defense, and aren’t blinded by the anger of always being treated like dirt, it becomes clear that Jeff isn’t saying that lawyers who do indigent defense suck, per se.  Rather, he approaches it from the other side, the outcome end of the equation.

I have never handled an innocence case in which a good lawyer did a good job at trial.

There are lawyers defending indigent defendants who do excellent work.  That means that the work of these great lawyers don’t end up before Jeff at the Innocence Project.  It also means that the ones whose innocent clients come onto Jeff’s plate do so because they failed to do an adequate job at trial.

It’s unclear whether this quote was meant to push a point, rather than reflect the results of a scientific survey, but if so, then the point is clear: there is a segment of the indigent criminal defense bar that fails miserably to do its job, and these criminal defense lawyers, perhaps more than anything the cops, the prosecution, the judges can do to fail, are responsible for the convictions of innocent people.

Jeff’s view may be a matter of weight and sufficiency;  We don’t have high hopes for the cops, prosecutors and judges in providing innocent defendants with due process and fairness.  While it may be their job theoretically, life in the mean trenches tends not to support the belief that truth and justice are their foremost concerns.  Nobody serves defendants apple pie during trial.

But the criminal defense lawyer, whether well-paid or sucking on the indigent defense teet, is the one person who is ultimately responsible for standing between the criminal defendant and the bullet aimed at his head.  It’s his job to defend.  The lawyer is the defendant’s last hope.

The Texas Tornado, Mark Bennett, offered a list of some indigent defense lawyers’ caseloads.  The numbers are insane:

That’s ten lawyers doing the work of roughly thirty. Some of these people are my friends, and I feel terribly for them, being driven so hard by judges forcing court appointments on them. Some of them have private practices as well; there is no way that this much work—doing a thorough, conscientious job on every case—leaves them any time for sleep or meals, much less fun.

For the snark-impaired, Mark is being a bit sarcastic.  No one forces lawyers to take more cases than they can properly handle.  The problem is money, as indigent defense can, if you couldn’t care less about how many lives you destroy, be easy money, but just not much of it.  So, you make it up in volume.  As always, quality and quantity don’t like each other, so something has to give so that these lawyers can enjoy a decent income.  What “gives” is the lives of the innocent.

That’s where Jeff picks up the story, and why Jeff rightfully puts the blame on the last person standing between the government and the defendant.  Even if every other player in the system fails, the burden remains on the defense lawyer to make up for it.  Sucks, I know, and a very heavy responsibility.  It’s too much for most lawyers, which is why most lawyers have no business standing in the well of a criminal court.

Some sensitive and empathetic souls will react to this brutal beating of their “best efforts under the circumstances” with a loud and angry whine.  “You don’t understand,” they cry.  “It’s hard out there.  We need to earn a living. We have hungry children and a Porsche Boxster lease with another 18 months left.”

On the contrary, we all understand.  Nobody hands us free food at Underbelly.  And yes, the legal profession suffers from a structural income problem that eludes the overweight academics and the official-people staffing bar associations.  Oh, we get it.  But that goes to whether you want to be a lawyer or would rather become a world famous rock and roll star.  If you’ve got the chops to make millions, do it.

But once you’ve made the decision to step into the well as a defendant’s last hope, it’s no longer about you, your needs, your desires, your Boxster payments.  If you don’t want Jeff Blackburn saying you’re the “real cause” of innocent defendants being convicted, then do better.  And if you would rather whine about your hurt feelings than put in the time and effort to represent indigent defendants zealously, then find another job.

35 thoughts on “What It Takes To Fail

  1. Alex Bunin

    Since Jeff is my friend, and he wrote that report with my employee, I take no umbrage, even though my only job is representing indigent defendants. Neither, do I mind when Steve Bright labels Harris County as ground zero for sleeping lawyers. Until everyone accepts responsibility for inadequate indigent defense nothing will improve. However, I did get a free meal at Underbelly when you picked up the check.

    1. SHG Post author

      I’m hoping someone appreciates my secret snark throughout this post. Someone? Kathryn? Mark? Jeff? Anyone?

      1. Alex Bunin

        Secret? Oh, and thanks for mentioning Callie Enlow, a brilliant young journalist, until recently based in San Antonio. After she got interested in the slow demise of the Bexar County PD office, I insisted she continue to report on indigent defense In Texas. Although she has relocated to California, I am hoping she has a book coming out on it as a national issue.

        1. Bettie Page

          There is a book on the subject of crappy PD’s and the rest of the muck and mire that comprise our system of injustice.. it is called Ordinary Injustice – How America Holds Court by Amy Bach. It was written in 2009.

            1. Bettie Page

              Well since you are using the royal “we” I can presume that I can include the royal “you” meaning you and your kind as you seem hell bent on condemnation but offer no solutions.

              Please if it makes “you” feel better to misdirect your anger and resentment to others on the internet without resorting to being a troll then feel free to do so.

              Have a nice day.

            2. SHG Post author

              I’m sure you were well-intended by bringing up Amy’s book (yes, I know Amy, so I can call her by her first name). However, when you first grossly misstate the content of Ordinary Injustice, then rush to defend your overly sensitive reaction (you call the person whose blog it is a troll? That’s flaming nutjob territory) by adding a second flagrantly stupid assumption (no, it’s not the royal “we,” but me and tens of thousands of other readers here), you make it pretty clear that you really have no business on a law blog.

              Go get your tummy rub with people more attuned to your sensitivities. I’m sure they will show you the appreciation you feel you deserve.

          1. Alex Bunin

            You need to read the book, not just the dust jacket. There is one section about an overloaded PD in rural Georgia. However, the premise of the piece is that when he moved on to an office with a culture of fighting for clients he was no longer “crappy.”

            1. SHG Post author

              It would appear Bettie is one of the many dumbass day-trippers who stop by to enlighten the dopey lawyers and then leave in a huff when they aren’t showered with adoration for their brilliance. Getting past the dust jacket blurb level of understanding is too much to ask.

              See all the fun I have dealing with comments on SJ? Ironically, I fished her out of the spam folder, where she was because someone had already marked her as spam. I guess I should have left her there, but I felt badly since she mentioned Amy’s book.

            1. SHG Post author

              The original Bettie Page was anything but fat. A rather comely woman. (H/T Alex) Whether this Bettie Page is similarly lithe, I can’t say. Whether the original Bettie Page was as fragile as this one, I also can’t say.

  2. nidefatt

    You totally miss his point. He’s not talking about PDs that are too lazy to do a good job. He’s talking about people who don’t even realize they’re not doing a good job. People who accept the cop’s word in the report, match it as best they can do the law, and tell the client to plead. You can talk till your blue in the face about duty to the client, these people think they’re doing that because, after all, the client is guilty and taking responsibility for doing wrong is good for the soul. Blackburn has been saying the same thing since ever (seriously, google his name and you’ll see article after article with the same message). Texas’s entire system needs to be redone. It’s garbage.

    1. SHG Post author

      Did you see PD’s mentioned anywhere in the post? Did you happen to click on the link to Bennett? You have got to stop commenting before you permanently destroy any potential future credibility you might have.

      “It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt.”
      – Mark Twain

    2. Myles

      As a public defender, I’m begging you to stop making us look like whiny, stupid bitches. Just STFU already. Seriously.

      1. Alex Bunin

        I am a PD also, and if you are replying to SHG then you really do not get it. There are private lawyers and PDs that phone it in. I have no idea if you are part of the solution or the problem, but nothing will be improved by following the suggestion of your sophomoric acronym.

            1. Myles

              No offense taken, except as to my “sophomoric acronym.” I learned that from a federal judge, and if it’s good enough for him, who am I to disagree?

            2. Alex Bunin

              As a former Federal Public Defender for 20 years, I would need to know which USDJ before I accepted that as persuasive authority. There are plenty of them that use acronyms in place of spelling.

  3. John Barleycorn

    The client portfolio is based on what’s available and what bounty the court has bestowed.

    The latest story in criminal defense is reflected in today’s lunch specials*.

    Seared by-catch matching the description. Served to order and toped with twelve baby felony count sprigs crystalized into one plea. Served on a bed of, its the best you are going to get from me, rice then drizzled with a local expedience wine sauce reduction and plated before discovery.

    Mumbo jumbo gumbo. But I’m innocent! Relax, so is our vegetarian mumbo jumbo gumbo. Trial tested! Spicy enough temporarily seize your vocal chords and keep the pen out of your hand during a few hours of preparation and throughout the day long trial. This gumbo will put the aggressive back into your passive rhetoric. Flavorful enough to keep you from objecting to anything. Only your client will be close enough to smell the true fire on your breath. No one else, not even the jury will know or notice that the zealous confidence you radiate is coming from the lingering flavors of your lunch as your strategy unfolds in the courtroom.

    *All of our lunch specials are guaranteed to be table-side in 15 minutes or less

  4. noah

    This is one of the worrisome things about D.C.’s recent reduction of the local CJA panel from 309 lawyers to 217. While the reduction was undertaken because the crime rate in D.C. has dropped in recent years, and I am unaware of anyone getting close to the caseloads described in Bennett’s post, there is definitely pressure on those left on the panel to take up the slack. There was a prior reduction about 4 years ago, but some expansion over the intervening four years. The reporting so far has been on the effect on the lawyers deselected, but as you note often, it shouldn’t be about the lawyers, but about representing clients well.

    And from what I can see, the D.C. system certainly has some strengths, including active periodic review to ensure that the lawyers on the panel can try cases. And they put enough money in available for each case so that there’s less incentive for lawyers to meet and plead (not that there’s ever an excuse for that).

    This is not about DC, but about whether there’s any system that the courts could adopt that would reduce the types of cases Blackburn sees. One thing I noticed from one of Bennett’s posts on appointed cases is that there are a few lawyers getting paid quite a bit from indigent defense – one guy made something like $400k one year. If a hard limit was put on the overall amount a person can make from indigent defense (such as exists in the federal CJA system), it would limit the number of cases one person could be appointed to, with hopefully a commensurate increase in the care taken by the lawyer in each particular case.

    1. SHG Post author

      While I think the problem is worse in smaller locations rather than bigger cities (though they have their slackers, certainly, as well) due to better oversight and control, your point about a hard limit is critical. Nobody should live off indigent defense, and a hard limit way below that needed for a reasonable living is critical for controlling those who will take as many cases as they can, milk them, then sell them out.

  5. noah

    I apologize, I misspoke (wrote) – it seems that the federal cja plan just publicly reports attorneys claiming over 1000 hours per year (an amount I have not gotten anywhere near), but DC does have a hard cap on annual compensation. There is an implicit limit in the federal annual limit by the hours available to work.

    I keep thinking four x 7 = 28, but maybe I’m wrong 🙂

  6. Joseph C

    Honestly this calls to mind the engineer’s dilemma. Quality, Cost, Speed, pick two.
    You can do an amazing job, and do it fast, but it is going to cost. Whatever you choose to prioritize, something is going to give. If public defenders are forced to focus on cost (do it cheap) and quantity (do it fast), then quality must be where the slack is. Until we decide to properly fund indigent defense, they are going to be forced to make up quality with quantity.

    My sympathy goes out to conscientious public defenders who want to do what is best for their clients, but until we as a nation decide if we want public defense to be fast (heavy case loads) good (a quality defense for their client) or cheap (seemingly the current trend) we will not provide the representation that our antagonistic system requires.

    As a system we seem to be focused on fast and cheap. One of these needs to give so that we are providing quality defense for indigent defendants.

    1. SHG Post author

      PD’s and indigent defense face somewhat different issues. The PD is given no choice; it’s his duty to defend anyone who can’t afford a lawyer, though this raises a separate issue when the burden becomes impossible based on numbers. Indigent defenders have a choice as to how many cases they take on, and if they take on more than they can handle, it’s their own fault. Either can be great or awful, but the incentives and motives can be very different.

  7. Jeff Gamso

    Too much of what we call indigent defense, whether by PDs or appointed counsel, is really just indigent processing. (Retained defense, too, but that’s a different issue.)

    Some is almost entirely structural. Being a PD does impose some constraints on the ability to refuse cases. But there are PDs who stand up to judges who insist that the case must be resolved by plea or trial within hours by god. And along with the offices that that allow themselves to be so overburdened that they can’t do the job, or as in Jefferson Parish, Louisiana, http://gamso-forthedefense.blogspot.com/2011/02/because-we-have-power-to-fuck-our.html [and yes, I know you’ll delete the link], actively choose not to represent their clients, we’ve also seen in recent years some that fight back – refusing caseloads, litigating over resources, and the like.

    Some is within the control of the lawyers who are willing to accept appointments knowing that they cannot do the job properly (my family will starve if I do the work the case demands; I’d need an investigator and the government won’t pay so I have to do it out of my pocket and I won’t) or aren’t willing to (lead counsel in a capital case who told his co-counsel “I won’t get down on my knees and beg for his life,” to which co-counsel replied, “I’d put on blackface and sing Mammy if it would help.”)

    On the other hand, I’ve had a couple of innocence cases where good lawyers did good work and still. Of course, Jeff (who back in the days before the Innocent Project when he was just a first-rate criminal defense lawyer in Amarillo and had the bad judgment to offer me, fresh out of law school, a job, sight-unseen, purely at the recommendation of another lawyer, a job I didn’t take because Amarillo) probably has too. Rhetorical flourishes are par for the course, and altogether appropriate.

    Sure, the public doesn’t care. And nobody wants to give us the resources to do the job right. All the more reason we have to. And if they won’t cough up the means? Then we look at what Judge Carney did to the death penalty in California last month. [I won’t burden you with a link to remove this time.]

    [Ed. Note: Just to spite you, Gamso, I left the link in. Ha!]

  8. Richard Dulany

    I won’t let my office be “overburdened.” It is my duty as chief PD to refuse appointments when our caseload limits are exceeded. See Texas Code of Criminal Procedure Article 26.044(j)(4).
    I hope Callie keeps writing on indigent defense.
    Richard Dulany

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