A pitch was sent out to the blawgosphere yesterday from a flack for the Washington Post about an op-ed by public defender, Tina Peng.
I’m a public defender. It’s impossible for me to do a good job representing my clients.
It’s not that anyone who gives a damn about the plight of indigent defense minds another op-ed about the inadequacy of funding. It’s worthy of repeating, and the inadequacy impacts defendants and indigent defenders every day, day after day, because we may have screamed about the problem but it hasn’t been fixed. Not even close.
On the other hand, it would be more easily accepted if it wasn’t promoted as an epiphany, an issue no one ever thought to raise before, a lone cry in the woods of a horror that society has failed to recognize. But this is in the Washington Post, so it must be newsworthy. Cool.
But Peng’s op-ed eventually gets to a different place. While her plea for funding, despite her failure to acknowledge that this isn’t exactly a new concept, wouldn’t be worth a read for those who know, and care, about the problem, there was reason to read further down.
Because we don’t have enough lawyers on staff, the week I passed the bar in 2013, I began representing people facing mandatory life sentences on felony charges. In Louisiana, people with as few as two prior nonviolent felony convictions can face mandatory life imprisonment on charges as minor as possession of a syringe containing heroin residue or, until recently, possession of a single joint. Defendants who cannot afford to make bond can sit in jail for 60 days while the district attorney decides whether to arraign them. An unconstitutionally high caseload means that I often see my new clients only once in those two months. It means that I miss filing important motions, that I am unable to properly prepare for every trial, that I have serious conversations about plea bargains with my clients in open court because I did not spend enough time conducting confidential visits with them in jail. I plead some of my clients to felony convictions on the day I meet them. If I don’t follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months.
Wait, what? Did you just announce in a major newspaper that you have engaged in mass ineffective assistance of counsel, knowingly, willfully, deliberately? Did you just tell the world that you are personally complicit in the destruction of lives by making the individual choice to fail to competently, no less zealously, represent your clients?
Lack of funding is a nearly universal problem for indigent defense. No, it’s not just you. We get it. We always have. We got it before law school was a gleam in your mother’s eye. And it’s very nice that you wanted to be a public defender and forgo the big bucks that people seem to think the rest of your classmates are making while you serve a higher cause. Good on you.
But get off that white horse. The volume, the pressure, the burden and the allocation of scarce resources do not inherently force you to be incompetent, or complicit in the destruction of lives. You have a choice. You have a duty. You don’t get to forsake that duty because things are really, really hard.
But that’s impossible? Too many defendants, too many needs, too many demands on time and resources? Yes, for you and every other public defender. Again, we all understand the excuses, but you don’t seem to grasp that they’re excuses, not justifications. You don’t get to reinterpret the duty of a lawyer because you’ve chosen a hard life.
What that means is that you can’t “represent” them all. If you can’t represent someone competently, then you have a duty to not represent them.
This means there will be people left unrepresented. Damn straight. That’s exactly what it should mean, that society has failed to satisfy the requirements of Gideon, and that the cost of this failure is unrepresented indigent defendants, a society that fails to fulfill its obligation to meet constitutional demands. People will suffer. Innocent and guilty alike will suffer.
Nothing will change while public defenders cover the gap by pleading out people they don’t know to crimes they know nothing about. You become a willing cog in the wheel that grinds up people’s lives and creates the outward appearance that all is going pretty well. After all, look at all the cases completed, defendants pleading guilty with the assistance of counsel. Your counsel.
You allowed yourself to be used by the system to pretend that these defendants were represented, when all they got was a warm body. You aren’t a lawyer, but the person who shoves bodies into the meat grinder.
If you can’t provide defendants with effective representation, then what the hell do you think you’re accomplishing? Covering hundreds of cases beyond your capacity isn’t helping the indigent. It’s concealing the failure of indigent defense, the failure to fund, staff, provide effective representation.
This is part of the problem, that to the outside, people who fail to do their job make it appear that Gideon is kinda working.
Sure, no one who gives a damn wants to see defendants standing before a court with no lawyer next to them. We all get it. But as long as you stand in the spot meant for a lawyer, and yet fail to be a lawyer, you are giving the impression that defendants are receiving their constitutional right to effective assistance of counsel. And you not only admit it, but don’t grasp why this isn’t you doing the best you can under very hard circumstances.
Sorry to make you the poster child for this point, but when you write an op-ed for a major newspaper that includes a confession of sheer incompetence, what did you expect?