Public Defender’s Fight for our Client’s Rights But We Can Do More

This article was priginally published in Delaware Online, on Friday, March 15, 2018. It is being reprinted with permission. You can read the article here: https://www.delawareonline.com/story/opinion/contributors/2018/03/15/delawares-public-defenders-fight-our-clients-rights-but-we-can-do-more/428169002/

Last June, a poor young man was arrested and jailed for a crime for which he insisted he was innocent. The charges were serious, stemming from a shooting in Wilmington in which a young child was critically injured.

However, the accused did not commit that crime. 

In fact, he was not present at the location of the shooting when the incident occurred. Fortunately, his family headed to the Office of Defense Services where an attorney met with them immediately and requested that one of the office investigators secure video surveillance tapes which would show that the accused was actually elsewhere when the crime occurred.  

The charges were dismissed and the accused was able to rejoin his family after four traumatic days in jail.

One month before, another indigent man was in jail awaiting his trial on Murder First Degree and related charges. He was accused of stabbing his mother to death and then setting her apartment complex in Claymont on fire.  

Unfortunately, the prosecution failed to follow up on an alibi defense by securing the necessary videotape surveillance from multiple area businesses.  His public defender’s diligence in requesting a dismissal by the Court was persuasive — the prosecution then dismissed these charges as well.

What would have happened if these young men did not have the right to assistance by an effective lawyer? Would they have been found guilty by a jury of their peers?

How long would they have remained in jail for serious crimes for which they were innocent? Would their convictions have been upheld on appeal?  

Fortunately, because these cases were handled by a public defender, those questions will not need an answer.

In the 1963 case of Gideon v. Wainwright, the United States Supreme Court made it clear that every person charged with a crime has the right to the assistance of a lawyer and that this right is both fundamental and essential for a fair trial. This decision established the right of counsel for every defendant even if they cannot afford to pay for an attorney.  

Today, on the 55th anniversary of that landmark decision, we must reflect upon and acknowledge what it means to have a robust and effective defense system for indigent people in our state.  

In Delaware, the Office of Defense Services (ODS) is comprised of the Public Defender’s Office, the Office of Conflicts Counsel and Central Administration. ODS represents nearly 85 percent of people, including juveniles, who are charged with crimes.  

Lawyers from the ODS, including Assistant Public Defenders and Conflict Counsel, provide the primary lines of defense against the very real and devastating consequences that can result from being ensnared in a lopsided criminal justice system.

The job of every ODS lawyer is to protect every client’s constitutional rights and to ensure that no client is convicted unless proven guilty beyond a reasonable doubt.  
Each day ODS lawyers work in courtrooms in all three counties in order to protect clients against overcharging and prosecutorial overreach, suppress unlawful searches and seizures and try to ensure that the scales of justice stay balanced.  

However, the work of ODS does not stop in the courtroom. The ODS has hosted multiple expungement clinics over the last 18 months and our agency aggressively pursues sound criminal justice policies in the General Assembly.

In Delaware, we are fortunate not to have experienced the drastic funding hardships which challenge other indigent defense systems. For example, in 2017 New Orleans public defenders stopped taking felony cases because their caseloads were too high.

This year in Idaho, the ACLU filed a class action lawsuit alleging that their state’s system is failing due to understaffing. Although the ODS does need some additional resources, Delaware’s state government has done its best to adequately fund its indigent defense system.  

But the ODS still has plenty of work to do.  

For instance, ODS does not currently have the resources to make attorneys available at every client’s initial court appearance. The initial appearance is when the judge first sets bail and is therefore a critical court proceeding.  

When defendants appear at an arraignment without a lawyer, they are at a distinct disadvantage. Unrepresented defendants do not have an advocate to fight for bail conditions which they can meet so that they can be released while their charges are pending. Although legally presumed innocent, many defendants are unable to pay for their release pending trial.  

Experience teaches us that defendants who are jailed while their cases are pending often remain in jail. Defendants who are released have a greater chance of staying out of jail after their charges are resolved.  

This lesson reinforces the importance of providing lawyers for all defendants at their initial court appearances.

Lawyers and staff at the ODS work hard to protect the rights of accused persons who cannot afford to pay for an attorney. The work is not always popular, but it is critical to a fair and constitutional system of justice. The ODS needs the resources to enable its employees to continue the unrelenting work which is necessary to protect the constitutional rights of all of its indigent clients.

The criminal justice arena has changed dramatically since the Gideon decision 55 years ago. What has not changed is the constitutional promise that every client, rich or poor, has the right to an effective lawyer.  

What has also not changed is the challenge of keeping that promise. I am confident that Delaware can and will continue to meet that challenge of providing each indigent defendant with an effective lawyer.