Who else but Gideon at A Public Defender would rush to read lawprof Alexandra Natapoff’s upcoming law review article, Gideon Skepticism? After all, how else would he know what he was doing wrong? As it turns out, Natapoff (who also runs the Snitching Blog) wasn’t talking about him, but the real Gideon, or more precisely, how the good of Gideon deflects attention and responsibility from all the other faults of the system that having counsel for the accused doesn’t fix.
The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic injustices. A defendant may be the victim of overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences, none of which his lawyer can meaningfully do anything about.For those of us inside the system, we recognize that providing competent counsel is just one aspect, one “fix” if you will, to a very complex system replete with flaws. To outsiders, the existence of a lawyer to defend the accused shifts responsibility and concern onto the lawyer. Whatever the system does wrong, the lawyer is there to fix.
I can’t remember how many times a defendant or family member has responded to a discussion of a problem facing the defense with the pointed remark, “well, you’re the lawyer. You should know what to do.”
In this world, the presence or absence of counsel is just one piece of a much larger puzzle of systemic dysfunction. Accordingly, while the right to counsel remains an important ingredient in fair trials and legitimate convictions, it cannot bear the curative weight it has been assigned in the modern era of overcriminalization and mass judicial processing. Other legal actors and institutions should share more responsibility for protecting defendants, a responsibility that now rests almost entirely and unrealistically on the shoulders of defense counsel.Natapoff gets this. Gideon too.
There is an assumption that as long as a defendant was represented by counsel, who advised him on the best course of action, all other flaws in the system are waived. As the “right through which all other rights of the accused are protected”, Penson v. Ohio, the Right to Counsel is being used as the one (sole?) indicator of the fairness of a conviction.Gid notes that, in the eyes of the defendant, the lawyer plays a “clearinghouse role,” expected to not only handle all the system can throw at a defendant, whether in the particular case or in the system as a whole. While it’s true that the lawyer is far better at recognizing and addressing the myriad flaws of the system, the expectation that having a lawyer along is sufficient to right the system as a whole is, well, mistaken.
As I routinely tell clients and readers of this blog, the system is far bigger than I am and I’m able to exercise only limited control over what’s in front of me. Try as I might, I’m going to be unable to ever single-handedly bring change to the suggestive show-up procedure, or answer the question of why only one side in a fight gets arrested, or why the vast majority of clients are minorities.We don’t decide what crimes to charge; we don’t decide what offers to make and we don’t decide how harshly to punish crimes. We take individual that comes before us and try to make the most of the tiny amount of wiggle room we’re given and yet then are trumpeted as a sign that all is well in a quite sickly system.
Like the proverbial onion (the veggie, not the satirical website), at every level there is a new problem to confront and address. The extent to which counsel has any control over outcome is often limited, and sometimes completely missing.
We take our cases, and our clients, as we find them, and part of how we find them is in a system that is designed to crush them. The platitude chiseled into the courthouse lintel may speak of justice and fairness, but the wheels of the machine inside are meant to crush and grind. The platitudes are no more than banal puffery, like the new and improved on the reduced size package of laundry detergent for the same old price.
But where Gid takes it more personally, given that he’s the public defender sitting at the core of Gideon, the guy whose very existence is supposed to make everything alright and magically turn a crushing system into fairness and justice, Natapoff raised the specter of the distraction Gideon causes the system. By shoving a PD into the courtroom, nobody bothers to focus on all the other aspects of the system that are wrong, unfair and utterly outside the lawyer’s control. After all, the defendant has a lawyer now, and all is right with the world. Problem solved!
It’s hardly surprising that people prefer to point to a simplistic, magic bullet approach to fixing whatever ails the criminal justice system, and the attention given to counsel for the indigent, while critical in its own right, serves that purpose to outsiders to the system. Natapoff’s article puts into words the vital point that it addresses only one of many faults, the others being completely outside counsel’s control.
Sadly, the people who need to realize this point, the public, legislators, judges, won’t bother to read the law review article. As Gideon at 50 may be on a lot of people’s minds these days, the other flaws will be ignored or forgotten. But their impact will be just as bad as always. Gideon is great, but it’s not enough. And there isn’t any anniversary celebration for judicial hostility to defendants coming any time soon.
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Americans, in general, have difficulty with problems that don’t have permanent solutions. We’re fine with problems that can be fixed in one go (barn burns down? build another one.) but with problems that require constant management…not so much. So, people want to believe that the one solution (a defense attorney for every client!) will solve the problems, because the alternative is a lot of unending work that will never finally solve the problems.
Whether this is an American issue, I can’t say. Most people think that every problem has a solution, in a Menckenian sort of way.
Another article that is right on. I love public defenders, even the ones who are “public pretenders” because the system causes them to be (lack of money and resources; court decisions unfriendly to defendants or the Bill of Rights, etc.). One reason I won’t use a lawyer, even though it makes some lawyers and judges look down on me, is because the system limits what a public defender can do (I don’t advocate that very many people go it alone, pro per, however, because the courts can eat ignorant pro pers as a pre-lunch snack). In other words, I think everybody should have a lawyer, but since they don’t have one or the system limits them anyway, some of us pro pers have personally taken on the system.
First, it appears you missed the point of the post. Second, you’re wrong about PDs. Third, self-assessment of your pro se skill is notoriously unreliable. Fourth, after you’ve done a thousand cases, then you get to have an opinion.
I’m not wrong about PDs in general. As a former cop, I’ve seen many of them as they do their thing in court. (Here where I live, for example, I have seen them read a police report the first time just before a probation revocation hearing.) I was impressed by a lot of the PDs (for example, some were so good at cross-examination that occasionally I wasn’t even sure I was right, and I even learned from them). A few others were totally incompetent. I have actually continually been studying and keeping up on the law since I was 16 (I’m 59 now), so I know more about the law, especially the criminal law, than many criminal attorneys. Thus, I have a pretty good assessment of my own skills (for example, I won a pro per misdemeanor jury trial, and a local PD told me that it was the best cross-examination she had ever seen and I presume she meant compared to other pro pers). Sorry to have hit a raw nerve. I have always given others the right to have an opinion, even if I think it is wrong.
That’s inductive reasoning, a particularly bad thing to do. You generalize that all PD’s such because the ones you know sucked. Interestly, you use a PD’s assessment of your skill to justify your self-assessment. So if PD’s suck, her assessment is meaningless, and yet you rely on it. You can’t have it both ways.
You misrepresent what I said. I didn’t say (and don’t think it either) all PDs are bad. Too many PDs, however, are a victim of circumstances (too large a case load, conflict PD $300 pay per defendant no matter the length of trial, or whatever), so I don’t necessarily think any particular “bad” PD could be any better no matter how much skill they have. It’s usually not PDs trial skills or writing ability I’m talking about when I say a PD is “bad”–I’m usually talking about being unable to do their job). Many PDs, for example, read the police report and say in essence, “You don’t have a chance, might as well plead guilty.” Sorry, but I have personally seen too much assembly line “justice” to think all PDs are good even if it isn’t their fault, but almost always I think it is probably because of their atrocious workload or other circumstances beyond their control. You are taking it too personal.
Another example of an incompetent PD is one who represented me. On cross-examination, the prosecutor kept asking me if I was claiming the police were lying (they were, but I thought it should be up to the jury to decide whether they were lies or if they were “mistaken”), but that is an improper question and I tried to object because the attorney wouldn’t, but the judge wouldn’t let me. It threw my testimony off some too because I knew the “are the police lying” questions were highly improper and prejudicial but the PD was too incompetent to object (he really didn’t know to object). The judge on my case was corrupt and I couldn’t get the PD to do anything about her, and about a year later the state removed her from the bench after she was acquitted of drunk driving and tearing the telephone out of the wall in a fight with her Lesbian lover, ironically named Dykeman.)
I will let your opinion of my legal skills go, because you are generalizing about me like you are claiming I do about PDs. Shoot, I also say that most pro pers are incompetent, but I still don’t hate them because they are bad at their “job” of defending themselves, and I have usually urged them to get an attorney or the PD.
I already knew how good I was at cross-examination, I was just surprised that a PD would admit that I out-shined the prosecutor. I also admit that the police made my cross-examination easier because they did everything a cop who thought the suspect was guilty wouldn’t do, and as a former cop I knew what they were supposed to do. They didn’t call dispatch (I suspected as such and requested (the lack of) dispatch tape in pretrial discovery). They didn’t stop me in my vehicle. They claimed they couldn’t stop me because the van was full of police explorers, but they didn’t call another police unit to stop me. One of the (honest) witnesses didn’t do a police report, because he didn’t see anything (it was because the other cops were lying)even though the cops claimed I committed “felony assault” with my vehicle, although I was charged only with reckless drivin
Whatever.