THE TRUTH ABOUT THE WORK AND TALENT OF PUBLIC DEFENSE LAWYERS
I have proudly served as a public defender for more than 15 years. When I speak to any audience whether undergraduate students deciding whether or not to pursue a career as a lawyer; law school students on the cusp of starting their legal careers: or lawyers both young and less than young, one topic I always address is the pride and honor of serving as a public defender. I discuss this topic because the reality, in contrast to the public perception of the work we do, are worlds apart. There is no profession that will enable you to develop and showcase your skills or provide more fulfillment, than working in the area of indigent defense. No career decision is more honorable than turning away from a potentially lucrative career and instead, choosing to dedicate yourself to fighting for the lives and freedom of human beings who do not have the resources to pay for the high quality representation you provide. Not only do many in the general public fail to recognize the sacrifice and talent that exists in the ranks of public defense lawyers, but what’s more disturbing is that many in the legal community miss the mark as well.
Every several months it happens, you see the headline "What Would have Happened if (blank) had been Represented by a Public Defender". The question is premised on the theory that the positive outcome would not have been achieved, had the person been represented by a public defender. This premise is simply not true. I became engaged in this very debate after George Zimmerman was acquitted. A news reporter wrote an article arguing that Zimmerman would have been convicted, had he been represented by a public defender. The reporter eventually backpedaled a little, but held fast to his theory that a public defender would not have achieved the same result. When I personally challenged him to defend and debate his claims, all I heard in response was the sound of crickets. The reason he could not even try to defend his position is because it is fundamentally flawed. It rests upon baseless opinions and not facts. Unfortunately though, it is a common misperception. A misperception against which we must fight every day in the public arena and many times, with our clients themselves.
Recently, I saw a blog on a professional networking site which raised a similar ill-informed idea. The blog included a link to a Gerry Spence lecture, in which he stated that public defenders do not have the resources or time to provide proper representation. I have a feeling Mr. Spence was sincerely trying to be supportive. But in his words of support, he left many listeners with a misimpression about the work being done, or rather failing to be done, by public defense lawyers. The underlying “facts” on which his talk was premised, are fundamentally wrong. Unfortunately, those facts become reality in the eyes of many in the general public, the media, and even with other lawyers, because of how much people know of and respect Mr. Spence. The false impression created by these types of speeches are extremely damaging to the reputation of and respect for public defense lawyers. I truly appreciate Mr. Spence’s call for more support for public defense. We could have no better advocate. He is correct that there is a need to provide further support and assistance to public defense lawyers. Support that will enable us to be more effective and successful in our fight to save the lives of our clients. Notice I said “more”, because the successes and accomplishments of public defense lawyers are there. You really don’t even need to look that hard to find them.
In his lecture, Mr. Spence seems to argue that the American Criminal Justice system will never be fair or achieve true justice until public defense lawyers are adequately funded. That is true. Mr. Spence stated that if he had as many cases as a public defender, he would never see his clients until the day of trial. If he had as many cases as a public defender, no investigation would occur. If he had as many cases as a public defender, that instead of properly fighting for and defending his clients, he would always be trying to convince them to take a plea. I appreciate Mr. Spence’s concern for the plight of public defense lawyers. The difficulties public defense lawyers face every day are very real. But those challenges exist not because of the lack of talent or commitment in the ranks of public defense lawyers. Rather they exist in spite of the dedication of public defense lawyers and our commitment to fighting for the people we represent.
People should come to understand the truth about the dedication, work, passion, and talent of public defense lawyers. Public Defense lawyers see the people we represent very early in a case and maintain consistent and regular contact with our clients. If they are in jail, we go inside to see them. There have been a countless number of instances in which I have been in the jail and heard from clients who either retained or were assigned new counsel (got themselves a “real lawyer” as some like to say), who bend my ear about how their new lawyer never comes to see them. When they are out of custody, we regularly see our clients even if it means going to meet in their own homes. Many times, the people we represent are too poor to afford bus fare, much less own a car, which makes keeping regular, face–to–face contact more difficult. However, we understand the importance of keeping regular, meaningful, face–to–face contact with our clients. As a result, to make sure they receive the personal contact they deserve, we will go as far as to see them where they live. I found the assertion that public defense lawyers don’t see their clients particularly interesting this week. Even though it was Christmas week, I have been to the jail every day seeing clients—which makes it different from no other week. I was in the jail on Christmas Eve and again on the day after Christmas. Both days, I either sat alone in the area reserved for professional visits or was surrounded by colleagues with the Public Defender’s office. In spite of the belief that only private retained lawyers have the time to meet with their clients, public defense lawyers are, in fact, doing that very work every day. We do not, wait until the day of trial to meet the people we represent, only to then, try and force a plea down their throats.
There is a belief that since private retained lawyers have less significant criminal case loads, they are better able to focus on their cases. People believe that due to our far heavier criminal caseloads, we are not able to adequately focus on our cases or develop a successful defense. In contrast to this perception, the fact is that public defense lawyers conduct very rigorous investigations in developing a Theory of Defense for every client we represent. We have the skill, knowledge, dedication, and talent to conduct numerous investigations at the same time. We develop these skills out of necessity, because we know the importance of each life for which we fight. To us, unlike certain elements in society, all lives matter equally. We do not have the luxury to be able to focus on one single case for six months. But that does not mean we are not doing vigorous work on behalf of our clients. We go out and try to find the witnesses and evidence that will assist in our development of a strong theory of defense. Not only are these investigations being conducted, but many if not most of the time, it is us the public defense lawyers who are beating the pavement along with our investigators to review the scene, meet with witnesses, and knock on doors—in some of the most dangerous areas in our communities. We willingly do the work, because we know so much depends on us. Just because we have 150 to 200 cases pending at a given time (a point on which Mr. Spence is correct), does not mean that we are not out there doing the work.
The list of what we need as public defense lawyers is seemingly endless. We need more resources, so we can provide our clients not only the representation they need in court, but also assistance in getting into housing, treatment, education, and job training. Services many need to move forward in a positive direction following their arrest and to give life to the rehabilitation—not just the retribution—element of criminal sentencing. We need more lawyers on staff, so we can have more manageable caseloads and so we can provide high quality training both at the beginning of and throughout their careers. We need more and better trained investigators. We need prosecutors, police officers, and Judges who truly understand the rights guaranteed by the Constitution to every person charged with a crime—rather than just mouthing the words. We need prosecutors who actually give life and meaning to those rights in more cases than those in which the police are accused. We need laws which provide the same level of, if not more access to, discovery materials in criminal prosecutions—similar to what the defense gets in civil cases. We need the ability to achieve True Justice for the people we represent. To be given the same level of resources as are provided to the prosecution and the police. What we need is for politicians, lawyers, and Judges alike to pay more than lip service to their support for public defense. For governments, successful private lawyers, philanthropists, and large law firms to back up words of support with greater financial assistance to public defense offices and organizations like Gideon’s Promise and the National Association of Public Defense (NAPD) which work tirelessly to foster a culture of client–centered representation and raise the quality of indigent defense around the country. What we want and need is Fairness—Fairness in resources; Fairness in time; Fairness in the reading and application of the protections “guaranteed” to individuals by the Constitution, so we can be placed in a position to succeed on behalf of the people we represent. Fairness and Equality do not define the current state of the criminal justice system.
What we don’t need are well intentioned statements of support which appear to be supportive, but actually provide false and misleading information. Statements which leaves the impression that public defense lawyers are failing in the face of the near impossible environment in which we are placed. That impression is completely wrong. Public defense lawyers face enormous obstacles every day—many times repeatedly every day. However, we are not falling down when faced with these challenges. Instead, we are fighting and clawing to achieve justice for each person we represent. For every obstacle that gets thrown in our way, we fight to go over, around, or through them. We have faced them all and then some. Challenges that those outside the public defense community, probably have never seen nor could even imagine. While others may see these challenges as immovable obstacles that should be removed to be able to push forward, we in public defense identify and develop a plan to overcome them, realizing that in our fight to achieve our mission of saving the lives of the people we represent, we cannot afford the luxury of stopping to complain. In spite of these unfair obstacles, we in the public defense community are succeeding. We have no choice, but to find ways to succeed. Because to us, stopping to complain is not a luxury. Quitting is not a consideration. Losing is not an option.
That is not to say that the system should not be improved to make the field of battle on which we wage this fight more equal. It should. The criminal justice system is unfair; it is not color–blind; and it is biased against the rights of indigent people accused of a crime. This reality is that in which we live and work every day. We choose to live in and fight against this reality, because if we didn’t the lives and liberty of the people we represent would be lost. We would never allow that to happen. The system needs to change. But please stop advocating for these changes by wiping your feet on the backs of those sacrificing themselves to fight these battles every day on behalf of the poor. Instead, give us the credit, respect, and support we deserve. So while I appreciate the sentiment, it is important for people who truly want to help, to support public defense in a way of which we can actually make use, in order to continue our work; continue to raise the level of indigent defense; and continue the fight for the liberty of our clients.