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Chronological January 26, 2015

Achieving True Justice for Public Defense Clients

Written by andre.vitale

This is a continuation of a conversation between Andre Vitale and John Gross prompted by a video of Gerry Spence.   You can catch up on the conversation with the links below
 

Recently I spoke out against some opinions frequently expressed about public defense lawyers.  In his article “The Truth about How Public Defenders Handle Excessive Caseloads,”Professor John Gross takes issue with my position that we have the ability to provide high quality representation to each person we represent.  Professor Gross states that “(w)e cannot continue to claim, that despite the fact that we function in a system that sets us up for failure, it never happens and we somehow always find a way to snatch victory from the jaws of defeat”.  Professor Gross is correct that the system in which we are asked to operate is not one designed to enable us to succeed.  As a public defender who has served for more than 15 years, I have been hearing since the day I started: change is coming.  I have seen numerous efforts to provide us with more resources, adequate pay, adequate staffing, and more access to discovery.  For the most part, each one died on the vine.  Little has improved in the conditions in which we are asked to operate.  Instead, we are constantly asked to do more with less.

As a public defender who has remained on the front lines of this battle, I realize that if change is going to happen for the people we serve, the work needs to be done on the ground level, by the defenders themselves.  I know that we cannot simply sit by and wait for improvements in the conditions under which we are asked to work.  I understand that for my colleagues and I to achieve justice for the people we represent, we cannot rely on others to do it for us.  I am a trial lawyer.  A trial lawyer who waits for others to do the work for him or her is destined to fail.  If we passively wait for the system to improve, will see a similar outcome for our clients.  I support Professor Gross’ efforts to convince governments to treat us and our clients equal to the prosecution and the police.  But, if it comes to placing my money on the “black” of improving the work of public defense by focusing on the work being done on the ground, defending and supporting those engaged in that fight against all attacks, as opposed to the “red” of waiting for governments to provide the funding and resources we need, I’ll bet “black” every day of the week and twice on Sunday.  While policy makers work to improve funding and reduce caseloads, I will not stand down in my efforts on the ground.  I cannot, because the lives and liberty that will be lost in interim are too important.

Reform in public defense will never succeed if it is a one-dimensional attack.  Instead, the battle to achieve justice must be fought on three fronts.  One is fighting in the halls of government.  The second is in the public forum, advocating for public defense lawyers, the people we represent, and for the government (prosecutors, police, and courts alike) to give full force to the individual liberties essential to our Constitution.  The third is changing the culture and quality of public defense on ground. All three are essential.

Reforms focused on improving the level of representation provided to public defense clients have already started.  Culture change in both the individuals and offices engaged in these battles is sweeping across the country, based around the client–centered goals of reformers like Gideon’s Promise and the National Association of Public Defense.  A commitment to client–centered representation beats at the heart of the reform movement.  Client–centered representation must be the standard around which all reform is based.  Without it, the quality of work being done on behalf of our clients will not improve to the degree necessary.  Simply throwing money at the structural problems of public defense systems alone, will not enable us to accomplish the mission we should be striving to achieve.  The quality of public defense representation is improving.  It is improving because of – not in spite of – advocacy being done on the ground level of the reform movement.

As a Training Director, CLE Instructor, advocate, and full–time line attorney, my focus is on the second and third prongs of this reform effort.  I remain vigilantly focused upon improving the quality of public defense representation, developing a client–centered culture, and assisting in the development of a supportive community.  As a line attorney, I work every day to go above and beyond in my fight for each and every person I represent—an effort in which I am not alone.  As a trainer, I strive to give public defense lawyers both locally and around the country, the tools to succeed.  As an advocate, I understand the importance of praising, supporting, and inspiring those actively engaged in this fight.  As a foot soldier in this movement, I understand that success on the ground requires the development of a strong, supportive public defense community.  A community which supports, encourages, and inspires those commitment to this work.  Developing a community in which all those actively engaged in these struggles know they will never walk alone, is essential to our success. I became a loud, vocal advocate, within our community of advocates because I knew we could not wait for reform to happen in the halls of government.

An essential element of creating a strong, supportive public defense community is instilling line attorneys with public defender pride; advocating on behalf of those committed to this work, who sacrifice of themselves as they fight for the lives and liberty of their clients.  Too many times, I see people both in larger society and criminal defense circles cutting public defense lawyers down at their knees.  As someone who has been shoved down and pushed aside more than once – even by those that one would think would support my efforts – I will not do the same to the people alongside of whom I am engaged in this fight for justice.  My primary focus is both on those fighting beside me and the lives of the people for whom we do battle.  I will not turn my back on those attorneys fighting these battles, as they fight against seemingly insurmountable odds.  Public defense lawyers are committed, passionate, and talented.  They fight tirelessly to achieve justice, equally for each and every person they represent.  The people for whom we fight deserve nothing less.  We will not turn our backs on those for whom we fight.  I will not turn my back on those fighting for them.

Professor Gross states that “Public defenders who soldier on no matter what and act like they have everything under control aren’t just deluding themselves, they are unintentionally demoralizing some of their colleagues”.  An unfortunate casualty in this fight for justice are those talented attorneys who become frustrated and chose to leave.  Public defense lawyers have excessive caseloads and as a result, suffer a high rate of burnout.  Their loss from our ranks is tragic.  However, those who work extremely long hours in response to the unjust environment in which we are expected to succeed are not the problem.  Rather, the problem is the system.  The only way we know to overcome unfairness in the system is through hard work and a singular dedication to our clients.  Our sole focus is on those for whom we fight.  We work tirelessly because the interests of our clients come before all others.  This reality is sad, that is true.  But it is the reality.  This is the only reality we know.  It is the only reality many believe will continue, for the foreseeable future.

I work every day to be a leader in this movement.  I know that I cannot truly lead unless I live the life I preach.  My wife has a saying that “Water seeks its own level”.  Those who remain in the throes of this battle must lead by example.  To be a true leader, you need to walk-the-walk, not just talk-the-talk.  Client–centered representation demands that our real focus be on the people whose life and liberty is being hurt by this unfair system.  Every single one of those lives matter.  Until the system changes, those who remain in this battle must do everything within our power to ensure that no single life is lost while we wait for the “victory” about which Professor Gross speaks.  He states “unless more public defenders find the courage to admit that excessive caseloads make it impossible to render effective representation in every case, we will never achieve NAPD’s goal of systemic reform of indigent defense”.  I say that unless we do everything within our power to improve conditions on the ground, while we wait for that systemic reform to occur, the lives of the people for whom we fight will be lost in the balance.

Professor Gross is correct that if public defenders turn a blind eye to the failures that exist in the ranks of public defense, we will never improve.  Simply because I advocate for and praise the work being done by those dedicated to this work should not be taken to mean that we are turning a blind eye to the improvements that need to be made.  As an attorney who has both remained active in court as well as in advancing this movement, I understand what needs to be done to make meaningful and lasting change in public defense. To achieve true justice for ourselves and our clients, we must all work together and support one another.  We must admit the areas where we are falling short.  At the same time, we must praise and support those who are fighting against and beating the odds; achieving our mission of providing not just effective, but high quality representation to each person we represent.

Professor Gross states that the “idea that those who perform what many believe to be a heroic service should be immune from criticism is the type of sentiment that typically comes from law enforcement.”  I have never once stated that we should be immune from criticism or the need to improve.  I have never stated that we are above critique, either internally or from the outside.  Anyone familiar with my work as a line attorney and leader knows that I constantly work to improve my own work and the work we do as public defense lawyers.  I fully understand what it is to be criticized.  Public defenders are criticized every day of our lives.  We are criticized in court.  Criticized in the media.  Criticized by our clients and their families.  For every person who argues I am being too kind to public defense lawyers, there are just as many within our own ranks who argue I have nothing new to offer and that we should just continue to do things the way they have always been done.  In my efforts to reform public defense, I have faced opposition from all fronts. I only ask that the criticism constantly hurled at us be fair and accurate.  The opinions expressed by Gerry Spence, which started this discussion were not.  The reform movement in which I and other public defense lawyers are actively engaged means identifying and changing those areas where we need improvement.  We are improving and remain committed to improving.  Excellence requires that you always reexamine yourself, making an effort to grow, and changing those areas where improvement is needed.  That’s what many are doing on the ground.  Some say excellence in public defense can never be achieved.  I say it already has.  Is it consistently high across the country? — No.  Are we as public defense lawyers perfect? — No.  Have we ever failed? — Yes.  Can we continue to improve? — Yes.  Are we capable of overcoming the unfair environment in which we currently are and likely will continue to operate for the foreseeable future? — Yes.  It can be done.  It is being done. This is excellence.

One area in which I have focused my efforts to improve public defense representation is in more consistent and effective training.  When I started as a public defender, one thing that was woefully inadequate was the training we received, or rather did not receive.  Public defense lawyers were asked to excel, without being given the tools to accomplish that mission.  To enable this mission to be accomplished, we as leaders must put public defense lawyers in a position to succeed.  The new training programs we are developing are being provided to lawyers both young and experienced; both public defense and private retained lawyers.  One area in which we are now focusing our training, is how to properly investigate multiple cases and develop a theory of defense for each, even those which may end in a plea.

Professor Gross states that “the idea that public defenders have developed a special set of skills that allow them to cope with excessive caseloads is, at best, wishful thinking”.  The truth is that public defense lawyers do have specialized skills.  specialized skills developed as a result of the volume and complexity of cases we defend.  Skills were developed not as a result of resources or money, but a tireless and unrelenting pursuit to improve our craft (thank you Chris Flood for that phrase).  Similar to how medical procedures saw their greatest advances in times of war, our skills develop as a direct result of our work, sacrifice, and dedication; overcoming the chaos and unbearable conditions in which we are asked to succeed.  Never accepting defeat.  Fighting against all odds.  We develop these skills because we must.  It is not wishful thinking.  Public defense lawyers defend cases that many if not most private retained lawyers have never, nor will ever handle.  Would be ill-equipped to handle. Cases for which the resources needed to retain a competent retained lawyer would be beyond the means of people even in the upper middle class.  Public defense lawyers become experts in a number of different areas. Our caseload is significant, the issues are complex.  We cannot, unlike a private retained lawyer, inform a client we need more money in order to take their case to trial.  Instead, we do what we must, even if that means sacrificing ourselves, our free time, and time with our families, to get the case ready for an unrelenting defense.  Is it fair? –No.  But we know it must be done because of our commitment to each and every person we represent.  That’s what we do on the front lines.  We identify what needs to be done and we do it.   

Professor Gross talks that “(t)he truth is that public defenders triage their cases”, focusing on those where a difference can be made; doing less on those more likely to be lost.  A senior public defense lawyer once told me that our work involves accepting that you will commit ineffective assistance every day.  This mindset is one against which we must fight every day.  If accepted without response, it can become part of a culture.  Well–meaning and passionate public defenders can lose their drive to excel, because of the mindset that it is the way things are and always will be.  It becomes easier to just let the tide take you, rather than put in the effort to swim upstream.  As leaders in the client–centered reform movement, we must constantly demonstrate both with our actions and with our words, that this mindset is not acceptable.

Public defense lawyers who live by the tenants of client–centered representation, provide all clients – equally – the same level of quality representation.  We zealously investigate and develop defenses in every case, no matter how difficult it may seem.  Professor Gross states that he and his colleagues would talk about “dead cases”.  The phrase “dead case” nor any variation thereof, has ever passed my lips or entered the mindset of me or any public defense lawyer committed to client–centered representation.  Public defense lawyers committed to client–centered representation do not handle “cases”, we represent people.  When the mission of client–centered representation takes hold in a lawyer, it becomes part of who you are; it drives you; motivating everything you do.  You work harder. You work better.  You understand that the life of every person placed in your care, matters.  No person’s life becomes “dead” or not worthy of a fight.  We fight hard, doing everything within our power to try and achieve the best possible outcome for every person we represent.  To do anything less is not acceptable.  Quitting and admitting defeat when faced with difficult or near impossible odds is not an act of courage.

Professor Gross asks, “Why is it that we can all agree that public defenders have excessive caseloads but that we almost never see public defenders trying to withdraw from cases?” We don’t because we know that when a client’s life is placed in our hands, we will do everything to try and achieve the best possible outcome for them.  We know how much passion and fight we will give to their defense; to do everything in our power to save their life and liberty.  If we were to withdraw from cases when conditions got difficult, we would have no assurance that those who take over would provide the same level of committed or quality representation.  More times than not they will not.  Public defense lawyers who are committed to client–centered representation fight dearly for the life and liberty of every person we represent.  To the client–centered public defense lawyer, no life should be sacrificed or abandoned in this battle.  The life and liberty of every person for whom we fight matters.  Public Defender is not merely a professional title.  It is a calling.  It is a way of life.  Being a client–centered public defense lawyer is not just a job, it is a passion.  Public defense is a commitment to a cause and to every person we represent.  Those committed to client–centered public defense services understand that the life of every person we represent deserve nothing less than everything we have to offer.  If a case appears seemingly hopeless, we understand we must work that much harder.  And that is what we do.

The reform effort has already started due to the work being done by the client–centered advocates and public defense community movements.  Successes are being seen every day.  True justice will never be achieved unless the ranks of public defense are filled with passionate, dedicated, and talented lawyers, truly committed to client–centered representation; inspired to fight through the tough times; operating in a strong, supportive public defense community, knowing we will always have their backs.  I appreciate Professor Gross’ desire to help improve public defense.  If you want more from me to assist in this effort, I will give you everything I have left to offer.  While you are engaged in that effort for structural reform, I will continue to fight tirelessly for my clients, supporting those with me on the front lines of this battle.  I, and the rest of us who remain committed to the lives and liberty of our clients, will never stop.  We will never stop our advocacy.  We will never stop our successes.  Because if we do, the lives and the liberty of too many will be lost in the balance.

What is your opinion?

NAPD Members can join the discussion at the Forum page on MyGideon.org