Following the New York Times front page story about public defenders being constrained to reject representation of the indigent, characterized as a “revolt”, there was renewed interest in the plight of Gideon.  On the heels of this, the  Legal Talk Network podcast, Lawyer2Lawyer, conducted an interview of  some public defenders by  Bob Ambrogi and J. Craig Williams, “two of the top webloggers in the legal profession.”

It was shocking.  No, not the plight of public defenders.  This is nothing new to anyone who’s kept at least one eye partially open for the last generation.  What I found incredible was how little the interviewers understood about public defenders, as if this problem materialized out of thin air overnight. 

Then Skelly at Arbitrary and Capricious pointed to a post at the Faculty Lounge by Dan Filler, where he wrote:

As states feel serious tax revenue loss, they will inevitably look for ways to hack costs.  We know that one common site for this trimming is compensation for appointed counsel.  Public defender money seems comparatively constant – even though these offices can take hits during recessionary periods.  But the hourly/piecework rates for individual appointed counsel sometimes seem like an easy cut.

I realize that lawyers practicing in other fascinating areas of law truly wish in their secret hearts that they were criminal lawyers, fighting the good fight and doing something that would hold just a bit of interest to others.  I know that lawyers who spend their days in deposition rooms call themselves trial lawyers as if they’ve ever stood before a jury.  I realize that criminal law stories are much more interesting then the wild and crazy world of contracts.  But people, get a grip.  You are still lawyers, and others operate under the assumption that as a lawyer you have some slight notion of how “the law” works, including criminal law. 

There is nothing new about the fact that lawyers who represent the indigent have been forced to labor under unacceptable conditions forever.  This isn’t a product of the economic downswing, but a basic fact of life.  What is amazing about the current discussion is that public defenders are discussed as if they are some other, lesser, breed of lawyer.

Public defenders are lawyers who work for a group, whether quasi-public as in the Legal Aid Society, or private as in The Bronx Defenders under a contract with the government, to provide legal representation to the indigent.  There are also indigent defenders, who are private attorneys who represent the poor, usually by dint of being a member of a panel of private attorneys who accept cases at a dictated hourly fee, such as CJA or 18B lawyers.

But each of these individuals are still attorneys, just like every other attorney.  They are ethically bound to provide effective representation of counsel to each and every client they represent, regardless of the mechanics of how they are paid.  They aspired to do great work for their clients, just like the rest of us, only to find that the job being asked of them was to make sure that the wheels of justice kept grinding, no matter what.

Under Gideon and its progeny, state and federal governments are required to provide legal counsel to represent any person being prosecuted for a crime who is unable to afford counsel.  How indigency is defined varies wildly from place to place, but there has long been far more indigent defendants then resources to defend them.  It has been a crazy struggle, often to the point where public defenders were stretched to the breaking point.  This has been the case forever.

The questions posed in the Lawyer2Lawyer podcast, like Dan Filler’s post, suggest that this is problem just arose as a result of the economic crisis, that suddenly boatloads of defendants showed up at the Public Defenders’ doors in need to counsel, forcing them to turn these poor defendants away. 

PDs never had the luxury of functioning like private lawyers.  They could never say to an indigent defendant, “sorry pal, but you’ll have to find somebody else to take your case. I’m all booked up.”  The burden of providing counsel to the poor is a responsibility of the state, yet they carried it on their shoulders, taking on hundred plus defendant caseloads so the rest of us could enjoy the leather chairs in our corner offices. 

The only difference now is that each day’s crop of defendants, and each day brings a new crop of defendants as we are stuck with the zillion laws criminalizing everything under the sun, includes ever-increasing number of indigents.  Defendants who before would hire a lawyer are now unemployed, or have lost their savings, and are left to beg for representation. 

So the same number of PDs, with the same crappy salary, are watching as the defendants who need their services grow like mushrooms under a judge’s bench.  The same number of indigent defenders with the same crappy hourly fee (doesn’t anybody remember that New York 18B lawyers fought for years to get an increase from $25/$40?) are being asked to pick up the slack, except that they aren’t required to carry the crushing burdens that have fallen to the PDs.

What is appalling about all this is the lack of recognition that this is not a different breed of lawyer with some lesser, bordering on non-existent, ethical obligation to zealously defend their clients.  Their obligation is no different then mine or yours.  These are lawyers, every bit as real a lawyer as the rest of us.  To view them as cattle herders, whose only responsibility is to steer 100 head into jails, is outrageous.

The problem isn’t about cutting funding to indigent defense.  The money was always bad, never sufficient, to staff offices adequately.  The problem is the ever-increasing numbers of human beings in need of representation because our police, our prosecutors and our courts want to put them away, without a commensurate increase in the number of lawyers to represent them. 

For as long as I can remember, PDs have been at the edge of a precipice, doing the heavy lifting of representing the poor so that the wheels of the criminal justice system can grind away.  They stood there trying to hold back the crush of humanity that threatened to swallow them, and the system.  The crush can no longer be held back, unless these offices give up any pretense of providing meaningful representation.  No one can represents hundreds of defendants at a time.  No lawyer can fulfill their ethical obligation when their caseload that increases at this pace.  They are literally drowning under a sea of humanity.

But the problem for PDs translates into a problem for the system.  If indigent defendants are prosecuted, but there is no lawyer to represent them, the system stops dead in its tracks.  Caught between a constitutional mandate and lawyers who have reached, and passed, the breaking point, courts have chosen to beat up on the easiest target, the PDs.  Just “order” them to represent more people.  Just “order” them to stand in the well as a never-ending stream of humanity is trotted out in front of the bench to be disposed of.

Ambrogi asked “where do these defendants come from?” (Bob Ambrogi says that he never asked or suggested this, so I’m removing it rather than having to listen to the podcast again to check).  The same place they always came from.  They are just poorer, needier and at greater risk because the courts have turned Gideon from a safeguard into a pretense.  As long as there is a warm body with a tie standing in the well, courts deem that sufficient to pretend that these indigent defendants are represented.

Public defenders have tried their best, as they have for so many years, to fill the gap.  Not because we, the rest of society, deserve it, but because they believe in this mission.  The numbers no longer make their best viable.  PDs can no longer shore up a system and take the weight of society’s burden to provide legal representation to the poor.  And the duty is to provide the same high level of legal representation to the poor as the wealthy and the powerful.  There is no difference.

What are the consequences of saying no?  Will police stop arresting people?  Will prosecutors stop prosecuting?  Will courts stop convicting and sentencing?  Or will the system continue as usual, but without anyone standing next to poor defendants?   Is absolute minimal representation better than none at all? 

At what point does the dignity, integrity and professional responsibility of PDs compel them to scream, “Enough!”  When individual caseloads hit 100?  200?  500?  When you don’t know the name of a single defendant anymore?  When you are expected to try the case of a person you’ve never met?  Where does it end?

There are few champions of the poor and indigent in government these days.  Who will stand up and demand that the lawyers who defend the poor have adequate resources and caseloads that allow the
m to provide excellent representation?  Courts demand that they push defendants through the system, regardless of whether they receive competent representation along the way.  PDs have finally hit the wall.

This isn’t about getting paid less per defendant, as Dan Filler thinks will happen when government looks for ways to cut costs.  Private lawyers can stop any time they want.  It’s about the bodies. How many bodies can get pushed through per $100.  It’s about the responsibility.  How many pleas can you take when you don’t know the defendant’s name?  Why should PDs be the only ones caught in the middle of this fiasco?  It’s everyone’s problem, not just theirs.

The cost of providing legal representation to the indigent must be paid by all of us.  We’ve been getting away cheap forever.  By underpaying and understaffing PD offices, while demanding that they represent all comers, they have paid the price of Gideon instead of us.   But there has always been a hidden cost, a dirty cost, that no one wants to talk about.  It’s the cost of one’s professional responsibility when forced to do a job that can’t be adequately done.

There is no mystery surrounding public defenders.  The only mystery is how lawyers outside the practice of criminal law have managed not to notice these problems for decades, and how PDs have made Herculean efforts to fill the void we’ve left for them. 

The only reason this comes on to their radar now is because it threatens to shut down the criminal justice system for lack of representation of the poor.  Where have the civil lawyers been all this time?

Addendum:  Doug Berman posts a “smorgasbord” of death penalty reporting.  Does this give anyone an idea of how to free up a ton of criminal justice resources?