A new blawg, Public Defender Revolution, has joined the blawgosphere, with an interesting 6 year old tale of being pushed to trial unprepared. By the somewhat anonymous carol d, a 15 year veteran of the trenches:
Six years ago, when a judge ordered me to conduct a trial for which I was not prepared, I was shocked. . . Before that day, I knew that a judge would respect the fact that I had conducted over 100 jury trials, and that when I said I wasn’t ready, I wasn’t ready. And if I wasn’t ready, it would be unconscionable to order me to trial.
The judge rejected her request for time.
When the judge denied my motion to continue, I was dumbfounded–the judge had just been appointed to the bench and had never practiced criminal law, but I didn’t know what to do when he said, “I understand why you are not prepared, Ms. Defender, and I find it is not your fault, but the citizens of Washington have the right to have this matter resolved, and you have to start the trial on Monday.”
Her reaction to this order was to post a “panicked” inquiry to the Washington Association of Criminal Defense Lawyers, an association she had recently joined, looking for “support and advice.”
After considering the advice–most of which was to proceed with trial while making a careful record–I decided that I was going to refuse to conduct the trial.
She then explains:
This post isn’t about that decision process (because many of the factors were case-specific), but my philosophy can be summed up by the “You Can’t Make Me” icon: You can’t give me too many cases, too many clients, too many prosecutors, and then tell me I have to conduct a farce of a trial when you know I am not ready. A system that will force me to betray my client by failing to represent him adequately at trial, is a system I won’t play along with. You can’t make me fail my client.
Ultimately, carol d’s trek through judicial coercion, panic and bad advice to the ultimate decision to put the client’s interest first, to not “fail [her] client,” isn’t unique, but a fascinating insight into the fortitude required of the criminal defense lawyer and the obstacles in the way.
The story bears similarities to the Portage, Ohio public defender who was ordered to go to trial on one day’s notice and refused. He was held in contempt and jailed for his insolence. But the differences stand out more than the similarities. Fortunately for Carol, another lawyer came to her aid, and her judge backed down, allowing her 6 weeks to prepare.
But in the Portage case, the PD didn’t post a panicked email to a listserv. The PD said no, he would not sell out his client, and took the hit. He didn’t need support and advice. He knew what his duty was. Ironically, the predominant response Carol received from her WACDL colleagues, by her description, was to cave in to the pressure. Make a “careful record,” but go with the flow. How very defense lawyerly of them to be so circumspect with the defendant’s life by suggesting she make a careful record as he was railroaded.
To her credit, Carol didn’t heed those for whom CYA is the first rule of criminal defense. It may have taken her a bit longer than necessary to recognize to whom her duty was owed, but she did. That a fellow member of the bar came to her aid is a much finer reflection of what it means to be a criminal defense lawyer. It’s a shame that others on her listserv would urge her to place her own interest above that of her client’s, but that’s the nature of listservs, plenty of advice, most of it horrible. Nothing reveals a lawyer’s inadequacies, and causes a loss of respect, more than reading his “off the cuff” responses on a bar association listserv. And yet, this is where lawyers seek friendly advice.
After recounting her story, Carol launches into her pitch against excessive caseloads for PDs:
The whole point of that “zealous defense” thingy is that one person, a criminal defense lawyer, is charged with the duty to stand between the defendant and the world. Panic won’t help you nearly as much as keeping an extra toothbrush in your bag. Just in case you have to be a criminal defense lawyer today.
The story bears similarities to the Portage, Ohio public defender who was ordered to go to trial on one day’s notice and refused. He was held in contempt and jailed for his insolence. But the differences stand out more than the similarities. Fortunately for Carol, another lawyer came to her aid, and her judge backed down, allowing her 6 weeks to prepare.
But in the Portage case, the PD didn’t post a panicked email to a listserv. The PD said no, he would not sell out his client, and took the hit. He didn’t need support and advice. He knew what his duty was. Ironically, the predominant response Carol received from her WACDL colleagues, by her description, was to cave in to the pressure. Make a “careful record,” but go with the flow. How very defense lawyerly of them to be so circumspect with the defendant’s life by suggesting she make a careful record as he was railroaded.
To her credit, Carol didn’t heed those for whom CYA is the first rule of criminal defense. It may have taken her a bit longer than necessary to recognize to whom her duty was owed, but she did. That a fellow member of the bar came to her aid is a much finer reflection of what it means to be a criminal defense lawyer. It’s a shame that others on her listserv would urge her to place her own interest above that of her client’s, but that’s the nature of listservs, plenty of advice, most of it horrible. Nothing reveals a lawyer’s inadequacies, and causes a loss of respect, more than reading his “off the cuff” responses on a bar association listserv. And yet, this is where lawyers seek friendly advice.
After recounting her story, Carol launches into her pitch against excessive caseloads for PDs:
We have to refuse excessive caseloads, and to do this, we have to be bold, but smart. First, we already have powerful legal authority to support refusing excessive caseloads–ABA Formal Opinion 06-441 not only permits us to refuse to accept too many cases, it requires us to refuse them when the excessive nature prevents effective assistance of counsel.While the concept isn’t exactly treading new turf, given how public defenders offices have threatened, and in fact refused to accept new cases in the face of their crushing caseloads that preclude their ability to provide effective representation, I guess every lawyer has their epiphany in their own time, no matter how well-worn the path. But she shouldn’t wait for some ethics professor, or worse still, a statement by the NACDL (as if that will carry the day), to do the heavy lifting for her.
When refusing additional cases, we should also get an expert opinion from an ethics professor and/or a statement from an organization like NACDL to support the refusal to accept cases. I hope to recruit a number of criminal law and ethics professors who are willing to assist us.
Then, when we say, “You can’t make me!”–whether we are making this point to a compromised boss, or a court, or a department of assigned counsel, we need to have lawyers with us to help enforce not only our client’s right to have effective assistance of counsel, but also our right to render it, and to show that we mean business.
Yep, we can!
The whole point of that “zealous defense” thingy is that one person, a criminal defense lawyer, is charged with the duty to stand between the defendant and the world. Panic won’t help you nearly as much as keeping an extra toothbrush in your bag. Just in case you have to be a criminal defense lawyer today.
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The CDL listserve advice brings to mind something someone said. It was something like
“CDLs who become judges are, more often than not, the nastiest, hardest-assed, laziest SOB judges around.”
Actually, Carol’s post makes it clear that she isn’t waiting for the NACDL or an ethics professor to do any “heavy lifting.” The post says that she wants to get those things, but in the meantime she’s doing other work, which she outlines in the paragraph before she mentions the NACDL and the ethics professors.
Just thinking off the cuff here, has anyone ever attempted to move for a temporary restraining order and/or preliminary injunction enjoining a criminal trial judge from pushing ahead with a trial?
While I’m not sure whether I would characterize that as anything more than an example, thanks for mentioning it. I think everyone should read Carol’s post in its entirety to get the full benefit of her ideas.
Rick Tessier, a public defender in Louisiana, complained about caseloads, funding for experts, and his ability to proceed. The trial court held hearings about the funding of the system. The case went to the Louisiana Supreme Court. Here is the remand order in State v. Peart, 621 So. 2d 780 (1993):
“We instruct the judge of Section E, when trying Leonard Peart’s motion and any others which may be filed, to hold individual hearings for each such moving defendant and, in the absence of significant improvement in the provision of indigent defense services to defendants in Section E, to apply a rebuttable presumption that such indigents are not receiving assistance of counsel effective enough to meet constitutionally required standards. If the court, applying this presumption and weighing all evidence presented, finds that Leonard Peart or any other defendant in Section E is not receiving the reasonably effective assistance of counsel the constitution requires, and the court finds itself unable to order any other relief which would remedy the situation, then the court shall not permit the prosecution to go forward until the defendant is provided with reasonably effective assistance of counsel.”
Folks in Louisiana might want to weigh in on whether this actually led to better funding or improved services.
Why should I be required to go to that extra effort and time I don’t have(unless absolutely and completely necessary) for a judge who is so wrong. Screw him. Make him do it again.
Why? 1) Because apparently asking for the adjournment hasn’t worked, and 2) Because the embarassment of being publicly enjoined by another judge so as to prevent the imminent irreparable violation of a defendant’s rights, if such a thing would ever happen, might help your client and other clients in the future.
As for making him do it again, I have no idea what you mean. Again?
Let me see if I understand this. A PD seeks advice on a listserv and you criticize that? Had this PD done something wildly stupid or borderline unethical would you not have asked “couldn’t she have sought the advice of a local criminal defense lawyer? Isn’t the best use of a listserv of criminal lawyers, the fact that a criminal lawyer in court can ask a time-of-the-essence question and have it answered? What if the question was “I need a case on________ now because the judge just___________? Would it make you unhappy to know that someone on the listserv sent the case along? Do you expect all lawyers to know what to do in every single situation known to man? She panicked. So the hell what? She asked questions. Would you have rather (I know I’m asking a lot of questions here) have told the judge to screw off?
I will bookmark this post and await your answer.
A warm welcome to the company man. Is there a question that requires an answer when the choice is posed, you or your client? Apparently so, on the listserv. Did you miss the part where the responses she received were to comply and make a record? Had she followed the sage listserv advice, she would have sold out her client.
Fortunately, Carol D. didn’t follow the sage wisdom of the listserv. Instead, she chose the right course. Rather than ask the listserv the next time you’re stymied by some critical question like whether it would be unethical to stand there drooling while your client was being railroaded, call Carol. Even though the two of you have about the same length of time in the trenches, she knew enough to do the right thing, against listserv advice.
Yeah, I’m a company man. I’m an association guy. I think criminal defense associations have value. Shoot me. I’m also known as the “meanest” person on my own state’s listserv, for various reasons – including that people give advice when they shouldn’t even be practicing law. I’m happy to see that your problem is the advice, not the fact that she sought it out, I hope.
Possibly naive, but honest layman question:
Can’t a PD resign from a case when s/he is being forced into a position to sell out the client? Throw it at the judge? What is the downside of such action? What would happen next?
No. In fact, once a lawyer has appeared on a case in court, he can’t “resign”, meaning withdraw from the case, without the court’s permission.
I think they could and they should have value. Whether they do is according to what they do; the clarity of their purpose and their will to fulfill that purpose. But that’s a post for another day.
As for Carol having sought advice, I’m sorry that she didn’t know the answer without having to seek advice. Given that she didn’t, I’m glad she did. Given that the advice was wrong, I’m even more glad that she ignored it and did what she believed was right. Given that she ignored the advice and did what she believed was right, it’s unfortunate she didn’t just do that in the first place.
I’ve heard that you’re the meanest person on the FACDL listserv. Everyone says so.
Actually, yes, depending on the jurisdiction, a defense attorney can declare a conflict of interest and withdraw from a case. Excessive caseloads causing the inability to provide effective assistance would be one such conflict and such a declaration is what Carol’s blog is advocating in such situations.
RainerK, from one layperson to another, let me give you the shorter version of both these lawyers’ answers: It depends.
In your jurisdiction, you can withdraw in the middle of a case without the court’s permission, or more precisely, even if the judge disagrees that there’s a conflict? I’ve never heard of that before.
Who did Carol know to ask, in private? We all know some one or more CDLs locally from whom we can talk over a major problem and get good advice, and quickly. At least after having been around the block a few times we should, because a safety valve is critical. When we know each other we are here for each other. That’s what bugs me about her asking a listserv.
I would take it a step farther. I assume (since I don’t know enough about Carol) that she is not the head of her public defender office, and that she works for somebody. If so, wouldn’t her first step be to raise the question with her supervisor or others in her office whom she respects? Why would a PD turn to a listserve before her colleagues or the person who signs her paycheck?
True. But if it is a political appointment Top may not be the best one to ask. We all need a warhorse or two.
I don’t want to beat this to death, but where does that leave the defendant client? What if the client says “I do no longer trust my attorney.” I realize the potential for abuse by defendants here, but hey, ideally this playing field should be level.*) Is this just another area where the rules are made to elevate form over substance? To keep the wheels greased?
*) I’m sure you weary guys in the trenches find that worth a chuckle. You can call me naive or idealistic, I don’t care. Were it not for idealism, we’d never have change for the better, only a slide down to the worse.
If I give you less than a legal treatise, the standard 127 page fully comprehensive (with footnotes) response, somebody (Lee?) will tell you I missed something and its different in Santa Clara. So, I’m going with Windy on the short answer. It depends.
Or if you’ve got a spare $120,000, you can always go to law school.
You aren’t naive or idealistic, but there are always a ton of variations on a theme, and hence even simple questions have complex answers based upon the specific circumstances. So, the only viable blawgerific answer really is that “it depends.”
The fact that Carol didn’t know what to do right off doesn’t say anything negative about her, but says something quite positive about the courts she practices in. She’d never faced the situation before. Until you face it, how do you know what to do? The best strategy is usually to take a step back and think. Which is what she did. Why critize her for not knowing, in an instant and on the spot, the exact right thing to do and exactly how to do it?
As to listserves, I find very useful advice on ours (TDCLA) and if a lawyer does give bad advice, such as CYA over the interest of the client (which is rare), you can bet twenty other lawyers won’t hesitate to call it out. I use it for advice in addition to asking lawyers I know. Most of the lawyers I know are in my office, and, being a small office, sometimes you run across an experience none of them have had. The listserve can be invaluable. Not all of us have the luxury of having the best criminal defense lawyers in the country in our rolodex (do people still use those?)
But some of your assertions are problematic.
And I’m very happy for you that you find your listserv invaluable. Not knowing you, your experience, your competence, your personal opinion doesn’t provide much information about its objective quality, but it’s certainly better than your saying that it sucks. However,
Why not? Why don’t you know great criminal defense lawyers? What makes you think if you needed a hand, they wouldn’t take your call or help you out? I bet they would, and if you are just saying this because you’ve never spoken with a great criminal defense lawyer, give it a try. They’re people too, and they’re usually happy to help any criminal defense lawyer who asks.
“if you think the expectation that we be capable of dealing with issues as they arise, even when they come as a surprise, is too much to ask, then this probably isn’t the job for you.”
Greenfield, I know it’s been a while since you pressed the “down” button on the elevator and walked over to your local PD’s office, but there you will find young, inexperienced, untrained, overworked lawyers, many whose ink is not dry on their diplomas.
What ever thought you have that there is wonderful training throughout the country in the public defender’s offices, must be tempered with something called “reality.” I watch my own listserv daily and can tell you that there are PD’s offices in areas where there are 3 PD’s and 2 of them are morons. Then there are those with 100, and a a young lawyer too embarrassed to ask questions. Yes, that’s their fault, and should not happen.
But let’s not discount all of these issues and have some pipe dream that every lawyer who works as a result of the Sixth Amendment is fully “capable of dealing with issues as they arise,” or industrious enough to call a Scott Greenfield in a panic and seek the advice of a sage.
I stand corrected. I was not aware of the moron to lawyer ratio. Carry on.
Yes. “At this time, the public defender’s office declares a conflict.” The judge cannot except in very rare instances look behind that or inquire into the basis of the conflict.
In fact, a judge once tried to force me out to trial when I wasn’t ready (was seeking a one week continuance because a transcription hadn’t been completed in time) and I threatened to conflict a case that has taken about 9 months to prep for trial. After stating that he would not accept my declaration he did some research, relented and gave me the continuance.
Are you required to state the reasons for your conflict of interest? What if you’ve discovered evidence that a 3rd party, who is your client, committed the crime? Would you need to disclose that to the court? You couldn’t.
Incidentally, this arrangement is routinely abused by hack privates who take money to do a prelim and then “conflict” at the information stage when the family can’t come up with money for trial.
I think you’re asking what happens to a defendant that does not want his counsel? In MY jurisdiction :), if you’re retained, you can be fired basically anytime, but judge’s will often make a substitution of counsel contingent on the new counsel’s being ready in a fairly short time period (something I don’t think they have authority to do) in order to prevent defendant’s from using it as a delay tactic. If you’re counsel is appointed, you can ask for a Marsden hearing where you get to explain to the judge Ex Parte why you wish to fire your lawyer. They are almost never granted, but breakdown of communication is one ground on which they can be.
So are you blind, deaf or…?
Now we’re mixing apples and oranges. If the point is that the PD has an excessive caseload, that’s not the same as a direct conflict, where you announce to the court that a conflict exists with some minimum level of specificity (represented a witness, a victim, a co-defendant) and the judge relieves you. An excessive caseload isn’t a conflict, but a failure of effective assistance and denial of the defendants right to counsel due to the inability to represent for lack of time.
I can see how the arguments are very similar, but situation isn’t the same. I can also see, if you get relieved as a matter of course, why hacks would abuse it, which is always the flipside of the problem.
You have to ask?
The argument would be that we have a duty to provide effective assistance and an inability to do so presents a conflict of interest.
Scott, I’m interested as to whether you have ever refused to conduct a trial after declaring yourself not ready in the face of a court’s order that you nevertheless proceed to trial? I ask because I think you sometimes fail to understand or appreciate the differences between te practice of a private defense attorney and a public defender and it appears, based on your post above, that you’ve probably never faced such a situation. I’m not saying this to say you can’t take a point of view on the matter, obviously, but as the bench is so fond of saying: it goes to weight.
I have, and I have. I’ve had judges try to push me ahead when I still had things left to do to be fully prepared, and the response I’m typicall given is “I’m sure that an experienced lawyers like you can manage to do whatever you need to do and be ready for start trial.”
To that, I respond, “As much as I appreciate the court’s confidence, as an experienced lawyer, I would never proceed to trial without being ready. I am not ready. I cannot try this case tomorrow, and if I did, I would render grossly ineffective assistance of counsel. I’m sure the court does not intent to order me to render ineffective assistance of counsel, and so, despite your confidence, I’m afraid that it is impossible for the defense to proceed to trial yet.”
I’ve never had a judge not grant an adjournment after I say that. But then, this is not the norm for me, as I am almost always ready for trial long before the prosecution.
All too often, it’s only due process theater, not due process.