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I got a Public Defender. That’s bad, right? Slow down, Brewster

December 5, 2011

6. Trial

I got a Public Defender.  That’s bad, right?  Slow down, Brewster

Cutting to the chase of the Constitution, when a person faces the risk of incarceration over a criminal case they are entitled to an attorney free of charge if they can’t afford one out of their own pocket.  It’s quite the requirement to satisfy as a fundamental aspect of our criminal-justice system.  In my judicial district, upwards of 90% of the criminal cases are handled by a Public Defender.  Ninety percent.  Nine out of ten.  That’s huge.

I’m in a somewhat rural area.  The county has just shy of 70,000 people; the town where I live, which is the county seat, just under 13,000.  We’re joined in the judicial district with the neighboring county which adds about 18,000 folks.  Our criminal-justice budgets (which are generously helped by the state government) are not large enough for a public-defender office filled with a Chief PD and Assistants.  Instead, we have a private attorney that annually bids on the job.  He has his own practice, too.  The judge then assigns work to other members of the local bar.  We call these folks “conflict counsel.”

In theory, cases are assigned to conflict counsel when there’s, well, a conflict in assigning the case to the PD.  Conflicts can be grounded in past representation of the victim.  Another common ground is when a crime is committed (oh-ever-so allegedly) by more than one suspect – Billie Joe is going to place the blame on Jesse Clyde, who, in return, will blame Billie Joe.  One attorney cannot handle these competing interests.  Enter conflict counsel.  Another basis for assigning work outside the PD’s office is sheer quantity – the judge recognizes that the PD can only handle so many cases, so he helps the scheduling by distributing work.  In all of the counties within which I have practiced as a home base, accepting PD work has been a requirement.

So in a rural area, who will be your attorney?  I have no idea of the split, but you’ll either get the contracted PD or another private attorney (like me, for example).  Are they any good?  Are you going to get quality representation?  I guess – and I don’t mean to impugn anyone by this – but it depends.

In a previous county, it was not uncommon for the PD in the spaciousness of his private office to yell at his PD clients.  I suspect, but don’t know, that the subject was whether to accept a guilty plea.  That made me shiver; not cool.  I’ve been in larger counties where a defendant never saw his or her PD unless in court – no prep, no investigation … pure criminal procedure.  Sad.

Now that we have the bad parts out of the way, let’s look at it from the other side.  Being a PD – full-time, contracted, or assigned – is a label attached to the forehead of an attorney.  It doesn’t change a good attorney into a bad one, albeit it may up the workload substantially.  How does the attorney – not the PD – respond to an increased workload?  Depends on how good a manager he or she can be.  A typical workload for me several years ago was to have 100+ cases open at any given time and around 30 cases active (meaning that I had some billable work during the week).  I managed those numbers.  It kept me busy, kept my bills paid, and rarely resulted in falling behind.

Now take away that ability to control the numbers.  When the temperature spikes in August, the wife beaters emerge.  January is a busy time for new divorces (many criminal attorneys add family law to keep the billable time flowing).  New criminal cases demand action now – a Preliminary Hearing, Bail Reduction, Arraignment, investigation, motions – it all happens within a month of so of the arrest.  The attorney has lost the ability to manage her schedule.

And here’s the problem:  Perception.  To the client, the criminal case is the most important thing – each and every stage.  No attorney would argue that.  But to the attorney, the case has an arc:  Some stages are more important than others.  For example, follow me here … I wrote about Preliminary Hearings.  Important stage; no issue.  However, preparation for a PH can be done without hours and hours of client consultation.  What is most important about a PH is the hearing itself:  Committing the prosecution witnesses to a story line, learning how they react to cross, sensing the strength of the case in total.  While it may not sit well with a client, these important aspects can be done with the bare minimum of advance client work.  Arraignments?  Pure procedure.  Defendants always plead Not Guilty at Arraignments because of the sheer volume passing through the Court – taking a Guilty Plea is much more detailed and is scheduled later.  So when you haven’t spent a lot of time with your PD early in a case, just chill – the dude is managing his workload.

But then the call comes about pleading out, and you’re all “WTF?  You never even talked to my witnesses!”  OK, Houston, we’ve got a problem.  I get it.  Now the issue becomes more fundamental to the attorney:  Would he handle the case in the same manner if the client had walked in with a fat retainer and paid the hourly invoice each month?  As I’ve laid out the interaction between you and your attorney, the answer is probably, no, he wouldn’t treat a “paying” client like that.

Now, therein lies the rub.  Are you actually a “non-paying” client?  Absolutely not.  The government is paying your tab, granted, at a reduced rate (about 1/3 normal rate).  But that shouldn’t matter to an attorney.  The US and Pennsylvania Constitutions do not set up economic classes and assign different rights to the different classes.  Your rights within the 4th, 5th, 6th, and 8th Amendments are equal to the rights of the scumbag rich clown that thought the laws didn’t apply to him but found out differently when the Arrest Warrant was issued.

Does this money issue matter to an attorney?  Ah, and this is my point – remove the “attorney” label.  Now we are taking about the person.  Does the person (who just so happens to be an attorney) view indigent clients different than full-fare clients?  Some do, and I find that utterly repulsive.  It’s also bad business.  Lots of work can originate from the oddest places.

Thou shalt treat equally every client.  Good rule.

You got a PD for your case?  Don’t jump to conclusions about whether she’s good or bad based upon the label.  Persons who are attorneys are good or bad – not public defenders.  Do your best to understand the process and to help your attorney to prepare your case.  Understand that there’s only 24 hours in a day, and that the dude’s got a life outside the law.  But always demand, when appropriate, the representative to which you are entitled … just don’t be a dick about it.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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