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"Georgia's Public Defense System Needs A Major Fix"

http://www.northwestgeorgianews.com/rome/opinion/colums/georgia-s-public-defense-system-needs-major-fix/article_b66d816a-6403-5118-880f-3cb759e862cc.html

It's an older article, but I think the issues is raises still apply. 

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"Court-Appointed Attorneys Do Little Work, Records Show"

"Court-Appointed Attorneys Do Little Work, Records Show"

Here we go again, this time from the Detroit Free Press:

Court-appointed attorneys rarely put up much of a fight for their clients, a State Journal review of 2015 invoices for felony cases in Ingham, Eaton and Clinton counties showed. Less than 2% of criminal cases with indigent defendants went to trial, meaning defendants took plea deals in almost every case.

The records also indicate attorneys sometimes reached out to prosecutors to begin plea-deal negotiations before even meeting with their clients.

Preliminary hearings, which are supposed to determine if prosecutors have enough evidence to proceed, were waived in three-quarters of criminal cases. Motions challenging the prosecution were filed in only about 8% of cases and the counties paid for outside experts and private investigators in only 2% of cases. Several attorneys told the State Journal they don't often ask for experts because they know they'll be denied or won't get enough money to fully pay for an expert even if the request is approved.

Even when charges include a penalty of life in prison, only about 12% of cases went to trial and prelims were waived in 42% of cases, the records show. 

The problem isn't the lawyers.  The problem is the perverse incentives created by a system where the government is forced to fund lawyers to work against the government.  The system works best for everyone else (judges, prosecutors, police, etc) when those lawyers don't work very hard and don't get paid well for the work they do.

An attorney that does NOT waive preliminary hearings would probably not be appointed any more cases.  An appointed attorney who does more work than other appointed attorneys would do on the same case will see his billing invoice scrutinized and reduced.  In other words, he will be punished for working too hard.  Think about that:  The more work an appointed attorney does on a case, the less likely it is that he will be paid for his time on that case, and the less likely he will be appointed to any more cases.  

Instead of rewarding the attorneys who do the most work, the appointed attorney system ends up rewarding the attorneys who close cases most efficiently.  

“I think that it’s a broken system," area defense attorney Jamie White said. "It's not only broken in our community and our state, but it's broken across the nation.” White said he rarely does court-appointed work, but his law firm is often hired by defendants who previously had public defenders.

Stories like these usually end with someone calling for more funding for indigent defense, but the government is never going to adequately fund the lawyers who are working against it.  The only reason the government funds indigent defense at all is because the Supeme Court has said it must:  

U.S. Supreme Court decisions in the 1960s guaranteed more rights to criminal defendants, such as the right to an attorney and protections from unlawful search and seizure. That made cases more complicated just as lawmakers across the country got tough on crime and funneled more defendants into the criminal justice system by cracking down on drugs and other offenses and boosting police budgets.

One would think that it would be more difficult for the government to incarcerate someone after the advent of the right to a public defender in 1963, but just the opposite has happened:   

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Some of the problem may be the abuse of the indigent defense system.  In many counties, there is little or no screening of who qualifies for a public defender.  As such, the public defender ends up saddled with defending people who should and could hire their own attorneys.  That leaves even less time and resources to spend on the truly indigent defendants.  Unfortunately, there's little political will to reduce the public defender workload with better screening, because the government likes to keep public defenders overworked and underpaid.  

Most counties in Georgia use a full-time Public Defender, including Fulton and Dekalb Counties.  A few of the more populous counties outside of Atlanta use an appointed attorney system, such as Cobb, Gwinnett, Cherokee and Forsyth.  Wherever a person is arrested in Georgia, there is some sort of indigent defense system in place.  But defendants who can afford to hire their own lawyers should probably do so.  Lawyers are more affordable than people think.  

 

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Related:

AG Holder Says Public Defenders Rendered "Less Effective" by Shortages

Gideon Has Failed, Says NPR

Fifty Years Later, And It Still Doesn't Work

Fifty Years After Gideon v. Wainwright . . .

Despite the "True Believers," The Public Defender System is Broken

Indigent Defense Horror Stories

Most Would Not Trust A Public Defender

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No Incarceration = No Lawyer = Debtor Prison

No Incarceration = No Lawyer = Debtor Prison

It seems that North Carolina has may try to save money by reclassifying certain crimes to carry no jail time and thus carry no entitlement to a taxpayer-funded attorney

Earlier this month, in an attempt to cut $2 million from its budget, North Carolina eliminated access to public counsel for thousands of poor criminal defendants each year. That’s not what the new law says: Tucked inside the state’s new budget, it reclassifies more than a dozen crimes into misdemeanors that cannot result in jail time. This is part of a pattern. Over the past two decades, swelling caseloads and fiscal belt-tightening have led several states, including Virginia and Minnesota, to create classes of crimes that can only be punished with a fine. In other states, the same thing happens case by case in the courtroom, where judges and prosecutors routinely declare they will not pursue jail time for minor infractions.

What’s not to like, if you’re caught with a small amount of drugs or driving without a license? The problem is that, left to fend for themselves in the courtroom, most defendants lack the basic legal skills to argue their innocence or reduce their punishment, and they’re often not told of the lifelong consequences that even minor convictions can carry. In an era when getting marked as criminal is often the severest punishment in itself, it makes increasingly little sense for only those facing incarceration to have a right to counsel.

The significance of petty convictions has changed a great deal since 1979, when the Supreme Court solidified this standard. Over the past three decades, the Internet has made criminal records available at a click, while public and private institutions have created myriad new restrictions on those with past convictions. More than ever, people with a record of misdemeanors, as well as felonies, are excluded from employment opportunities, student loans, food stamp eligibility, and professional licensing. A guilty plea to one of North Carolina’s new array of misdemeanors can enhance punishments for subsequent convictions. Also, an immigrant who racks up three or more misdemeanors can be deported. The same can happen with any one misdemeanor involving what the government deems “moral turpitude,” such as prostitution, selling drugs, or even writing a bad check.

Even before North Carolina’s new law took effect, judges commonly waived appointed counsel on small yet criminal marijuana charges, according to Matthew Suczynski, a criminal defense lawyer. “Most people being charged with marijuana possession are African-Americans, when they’re 17, 18 years old,” Suczynski told me. “Once they get convicted and have that mark against them, it’s nearly impossible to overcome. Those records are out there forever. It’s a system that just runs people over.”

More than 80 percent of defendants across the country are considered poor enough to be eligible for free defense counsel. At least 90 percent of all defendants will plead guilty to the charges they face. Research shows that defendants who don’t have lawyers are even more likely to simply enter a guilty plea, pay a fine, and be done with the process. That makes it cheaper for courts to run efficiently. The price, though, is often a clear understanding of the ramifications of pleading guilty.

In response, the effort is to reclassify crimes as not carrying incarceration so they defendants are not entitled to attorneys:

These efforts ease the caseloads of overburdened public defenders, allowing them to devote more time to the cases that do land in court. Last year the Brennan Center found that, on average, public defenders often spend a scanty total of six minutes with their clients at arraignment. By focusing on just one crime—driving with a suspended license—Boruchowitz says that Spokane’s diversion program reduced public defender caseloads by a third. That sounds a lot better than saddling poor defendants with consequences they’ve had no help thinking through.

Six minutes at arraignment?  If that's not enough to send someone running to hire a private attorney, I don't know what is.

Coincidentally, a recent and relevant Georgia case on this issue is the Ham v. State, 307 Ga.App. 485 (2010) holding that people have a right to an attorney in traffic cases because in traffic cases people can be sentenced to incarceration: 

In Jones [Jones v. Wharton, 253 Ga. 82,  316 S.E.2d 749 (1984)], the Supreme Court held that under Argersinger v. Hamlin, 407 U.S. 25,  92 S.Ct. 2006,  32 L.Ed.2d 530 (1972), regardless of whether the charges are felony or misdemeanor charges, when an accused is put on trial and faces a term of imprisonment, he is constitutionally guaranteed the right to counsel. Id. The accused may make a knowing and intelligent waiver of this right, but we may not presume such a waiver from a silent record.

 Ham v. State., 307 Ga.App. 485, 705 S.E.2d 301 (Ga. App., 2010)

Ham prevailed because there was no record of what happened in traffic court, so the appellate court had no choice but to give him the benefit of the doubt.

But this all raises another question.  Without incarceration, what are these places supposed to do when people don't pay?  Apparently, this

[P]eople struggling to pay overdue fines and fees associated with court costs for even the simplest traffic infractions are being thrown in jail across the United States.

Critics are calling the practice the new "debtors' prison" -- referring to the jails that flourished in the U.S. and Western Europe over 150 years ago. Before the time of bankruptcy laws and social safety nets, poor folks and ruined business owners were locked up until their debts were paid off.

Reforms eventually outlawed the practice. But groups like the Brennan Center for Justice and the American Civil Liberties Union say it's been reborn in local courts which may not be aware it's against the law to send indigent people to jail over unpaid fines and fees -- or they just haven't been called on it until now.

Opponents say that the use of incarceration to collect fines and fees costs more than it collects.

"It's a waste of taxpayer resources, and it undermines the integrity of the justice system," Carl Takei, staff attorney for the ACLU's National Prison Project, told FoxNews.com.

"The problem is it's not actually much of a money-making proposition ... to throw people in jail for fines and fees when they can't afford it. If counties weren't spending the money jailing people for not paying debts, they could be spending the money in other ways."

. . .

Fines are the court-imposed payments linked to a conviction -- whether it be for a minor traffic violation like driving without a license or a small drug offense, all the way up to felony. Fees are all those extras tacked on by the court to fund administrative services. These vary from jurisdiction to jurisdiction, with some courts imposing more than others.

As states and counties grapple with shrinking budgets and yearly shortfalls, new fees are often imposed to make up the difference, though they can be quite overwhelming to individuals passing through the system -- 80 percent of whom qualify as indigent (impoverished and unable to pay), according to the Brennan Center. Florida, for example, has added 20 new fees since 1996, according to the center. North Carolina imposes late fees on debt not paid and surcharges on payment plans.

 . . .

At the very least, according to the high court, the courts must inquire and assess whether a person is indigent and might benefit from an alternative method of payment, like community service, before sentencing.

"Even though a lot of jurisdictions do have statutes on the books that allow judges to waive fines and fees, it doesn't always happen," explained Lauren Brooke-Eisen, counsel for the Brennan Center's Justice Program.

Much of the time, probation or the conviction itself will hinder individuals from finding employment (Brennan estimates that some 60 percent are still unemployed a year after leaving jail). But another incarceration over debt could either ruin the job they managed to get or make it even harder to find one.

To try to make it more efficient, municipalities are turning to private probation companies:

Many jurisdictions have taken to hiring private collection/probation companies to go after debtors, giving them the authority to revoke probation and incarcerate if they can't pay. Research into the practice has found that private companies impose their own additional surcharges. Some 15 private companies have emerged to run these services in the South, including the popular Judicial Correction Services (JCS).

In 2012, Circuit Judge Hub Harrington at Harpersville Municipal Court in Alabama shut down what he called the "debtors' prison" process there, echoing complaints that private companies are only in it for the money. He cited JCS in part for sending indigent people to jail. Calling it a "judicially sanctioned extortion racket," Harrington said many defendants were locked up on bogus failure-to-appear warrants, and slapped with more fines and fees as a result.

Repeated calls to JCS in Alabama and Georgia were not returned.

I happen to be good friends with a JCS probation officer.  Nice guy. 

Defenders of the collection programs say the money is owed to the state and it's the government's right to go after it. "When, and only when, an individual is convicted of a crime, there are required fees and court costs," Pamela Dembe, president of the First Judicial District of Pennsylvania, which oversees Philadelphia, said in a statement to reporters in May. An earlier review by the courts found an estimated 400,000 residents owed the city money. "If the defendant doesn't pay, law-abiding taxpayers must pay these costs."

The ultimate power of the state over the citizenry is physical force.  "It's all physical in the end", some say.  There has never been a civilized society in the history of mankind that didn't eventually use force to compel its most misbehaving members to either behave in a certain way or be segregated from the rest of society. 

For the guy who owes the city $100 and simply refuses to pay, what's the solution?  Ask him nicely?  Beg him?  Say "pretty please"?  At some point the state will incarcerate that person to make the point to other people that if they don't pay they will be incarcerated too.  It isn't about money.  It's about setting an example for everyone else out there. 

I think it's a little misleading to compare the cost of incarceration to only the money collected from the incarcerated people.  You have to compare the cost of incarceration to ALL the money collected because that money was collected under the believable threat of incarceration.  Keeping that threat believable isn't cheap, but it's an effective tool for collecting fines and fees from everyone else. 

 

 

 

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South Georgia Public Defender Office Sued

A lawsuit filed in January alleges that a public defender office in southern Georgia doesn't properly represent their clients, reports the AJC

The Atlanta Journal-Constitution
A South Georgia public defender office lets juveniles go unrepresented and processes adults through the courts in assembly-line fashion, a lawsuit filed Tuesday alleges.

The lawsuit targets the defender office for the four-county Cordele Judicial Circuit. It contends the office is so grossly underfunded and severely understaffed it cannot provide effective representation for indigent people accused of crimes.

“The right to counsel — essential for fair trials, equal justice, reliable verdicts and just sentences — is routinely violated or reduced to a hollow formality in the Cordele Judicial Circuit,” the suit alleges.

Gov. Nathan Deal, the head of the state’s public defender system, judges, prosecutors and commissioners from Ben Hill, Crisp, Dooly and Wilcox counties are among the defendants in the case. The suit seeks class-action status on behalf of other juvenile and adult defendants prosecuted in the circuit under similar circumstances.

The suit was filed by mothers of four juvenile defendants and by four adult defendants prosecuted in the Cordele circuit. They are represented by lawyers from the Southern Center for Human Rights in Atlanta and by the Washington firm Arnold & Porter.

This echoes what United States Attorney General Eric Holder said in 2012:

"Across the country, public defender offices and other indigent defense providers are underfunded and understaffed.    Too often, when legal representation is available to the poor, it’s rendered less effective by insufficient resources, overwhelming caseloads, and inadequate oversight.

As a result, too many defendants are left to languish in jail for weeks, or even months, before counsel is appointed.    Too many children and adults enter the criminal justice system with nowhere to turn for guidance – and little understanding of their rights, the charges against them, or the potential sentences – and collateral consequences – that they face.    Some are even encouraged to waive their right to counsel altogether."

 Related:

Philadelphia Abandons Government-Run Public Defense?

Gideon Has Failed, Says NPR

Fifty Years Later, And It Still Doesn't Work

Fifty Years After Gideon v. Wainwright . . .

Despite the "True Believers," The Public Defender System is Broken

Indigent Defense Horror Stories

 

 

 

 

 

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New York Public Defender's "Persistent Failure"

In New York, a trial is pending regarding the state's "persistent failure" to provide adequate representation through the public defender system. 

The case was first filed in 2007, and seeks to remedy a "persistent failure" to deliver meaningful counsel to the poor by forcing a state takeover since New York's system places the responsibility of providing public defense on the counties.

. . .

After six years of back and forth, state Supreme Court Justice Eugene Devine wrote in a decision on Monday that the court "has observed that the reputation of the public defense system in this State has deteriorated" and that "there are substantial issues of fact to be resolved at trial." The trial is scheduled for March 17.

Corey Stoughton, lead attorney for the plaintiffs and a lawyer with the New York Civil Liberties Union, said this case would be the first time an entire state's system of indigent defense would be put on trial.

She said there have been similar court cases in a number of states, including Montana, Michigan and Georgia, though all have settled.

. . .

"The ultimate relief we're seeking is for the state to live up to its responsibility," Stoughton said. The U.S. Supreme Court began the right to counsel under the Sixth Amendment in 1963.

This doesn't shock me, nor should it shock anyone who works in the system.  It is always in your best interest to hire your own attorney rather than take your chances with whatever lawyer the government assigns to you.

Original source here.

Related:

Gideon Has Failed, Says NPR

Fifty Years Later, And It Still Doesn't Work

Fifty Years After Gideon v. Wainwright . . .

Despite the "True Believers," The Public Defender System is Broken

Indigent Defense Horror Stories

Most Would Not Trust A Public Defender

 

AG Holder Says Public Defenders Rendered "Less Effective" by Shortages

 

 

 

 

 

 

 

 

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Can I Withdraw My Guilty Plea?

Can I Withdraw My Guilty Plea?

Some clients experience regret about pleading guilty and want to know whether it is possible to withdraw their plea and go to trial instead.  That's not as easy as it may sound.   A negotiated plea is essentially a contract between the prosecution and the defense.  

Official Code of Georgia § 17-7-93 (b), provides that “[a]t any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty.’” The phrase "at any time before judgment is pronounced" means at any time before the judge orally pronounces sentencing in court.  Therefore, the client had an absolute right to withdraw the  plea before sentence was pronounced, but not once sentence was pronounced. 

After sentencing, the decision whether to allow withdrawal lies within the trial court's discretion.   In order to withdraw a guilty plea after sentencing has been pronounced, the client has to show that it is necessary to correct a “manifest injustice”.   (An exception is in those situations where the plea is a negotiated plea and the judge sentences someone above and beyond the negotiated sentence.) 

Mere regret does not constitute manifest injustice.  The client has to show that the plea was not a knowing, intelligent and voluntary plea.  Clients can argue that they were not in their right mind, were misinformed, or for some other reason did not understand what was happening.  The trial court is the final word of all factual issues, and after sentence is pronounced a guilty plea may be withdrawn only to correct a manifest injustice. 

It would not be feasible for the client to use the same attorney to withdraw the plea as the client used before.   For example, one of the reasons the client may want to argue is that the plea was not knowing, intelligent, and voluntary because the lawyer misinformed the client.  Obviously, the same lawyer cannot make that argument against himself, and  certainly can’t cross-examine himself.  That’s why I advise the client to speak with an attorney other than the original one about withdrawing the plea. Clients are entitled to an attorney on a motion to withdraw a plea if the client cannot afford one and if the client is raising the issue of ineffective assistance of counsel in the client's motion, but if it was a public defender that got the client into a plea that the client now wants to withdraw, why would the client use a public defender again?

The client must also file the motion to withdraw a guilty plea in the same term of court as the plea.  After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea.   Thus, after the expiration of that term and of the time for filing an appeal, the only remedy available to the client would be through habeas corpus proceedings.   If the client is successful at withdrawing the plea, neither the client nor the prosecutor can mention the plea or the negotiations at trial.

Even if the client does not withdraw the plea in time, the client has four (4) years to challenge a felony plea (and one (1) year to challenge a misdemeanor plea) via a Writ of Habeas Corpus.  But the client has to have a reason to challenge the legality of the plea.  Regret is not a valid reason.  Valid reasons include that the client's attorney misrepresented something or that the client was promised something in exchange for the plea that the client did not get.  Most of these issues are covered in the long list of questions the client has to answer before a court accepts the plea, which is precisely why they ask the questions.

 

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Philadelphia Abandons Government-Run Public Defense?

The public defender system is the legal version of Obamacare, except 50 years older.  I.e., it is a government system which tries to use public dollars to entitle individuals to the service of another individual.  Predictably, it often fails.  At least for a part of the system, the city of Philadelphia wants out of the business:

In a controversial plan, the city of Philadelphia is planning to retain a private law firm to handle all court-appointed defense work for indigent individuals at an expected savings of $1 million annually.

. . .

Currently, some 300 to 350 lawyers accept court appointments at notoriously low fees. Although the plan is not yet a done deal, it appears that attorney Daniel-Paul Alva is likely to strike a deal with the city to create a 75-attorney firm to handle the public defender's overflow work for $9.5 million a year, the Inquirer says.

He says his firm will be more efficient than farming out the work to individual lawyers. Hence, it will improve on the "hopelessly flawed" current system by providing better representation at lower cost, according to Alva.

Considering what prominent speakers and organizations have said about the state of public defense in the US, it is no surprise that a major city like Philadelphia is distancing itself from responsibility.   

As I've said elsewhere, the public defender system if only for people who CAN'T afford an attorney, not those who don't want to.  It was never intended to be a "public option" for those looking for free legal representation.  If you are able to afford an attorney, you should. 

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 Related:

Gideon Has Failed, Says NPR

Fifty Years Later, And It Still Doesn't Work

Fifty Years After Gideon v. Wainwright . . .

Despite the "True Believers," The Public Defender System is Broken

Indigent Defense Horror Stories

Most Would Not Trust A Public Defender

 

AG Holder Says Public Defenders Rendered "Less Effective" by Shortages

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Ex-Prosecutor Tries to Represent Himself; Loses Big

Ex-Prosecutor Tries to Represent Himself; Loses Big

In yet another example that anyone who represents themselves has a fool for a client, a NJ jury has convicted a former prosecutor who decided he would represent himself.  Note, this appears to be an experienced veteran of both the state and federal system.  He knows the rules.  He knows his way around a courtroom.  However, to the jurors it was obvious that he should have stayed at the table quietly while his attorney did the work: 

As he himself questioned witnesses at his federal trial in Newark, N.J., attorney Paul Bergrin couldn't help but reveal more of his personality than would ordinarily have come to the jury's attention, juror Tad Hershorn, an archivist for the Institute of Jazz Studies, told the Star-Ledger.

"The risk is that you show character," he explained to the newspaper, adding: "As smart as he is and he thinks he is, you cannot totally disguise who you are."

A defense lawyer handling the trial also would have helped prevent witnesses saying to Bergrin, essentially: " ‘No, Paul, this is what you did to me; this is what you said to me,’ " Hershorn noted.

Hershorn said the accumulated evidence of Bergrin's criminal activity mounted during the eight-week trial, showing a pattern of criminal activity that supported his conviction.

He should have known better.  Don't make the same mistake.  The last time I went to traffic court, I had a lawyer.  While most people won't go that far, any offense that can result in jail time should involve a retained attorney of your choosing.  Don't try it pro se or even with a public defender.

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Georgia Lawyer Faces Theft Charge

Georgia has a crime called "Theft of Lost or Mislaid Property."  Basically, it means that just because you find something that someone else has lost doesn't mean you get to keep it.  One would think that a Georgia lawyer working as a Public Defender would know that.  Unfortunately not, according to the Augusta Chronicle

An Augusta lawyer surrendered to authorities Tuesday morning on a felony charge in connection with a lost diamond ring.

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Gideon Has Failed, Says NPR

Gideon Has Failed, Says NPR

NPR weighs in with their own doom-and-gloom take on the 50th Anniversary of Gideon v. Wainwright:

Next week marks the 50th anniversary of the landmark Supreme Court decision in which the justices unanimously ruled that defendants facing substantial jail time deserved legal representation in state courts, even if they couldn't afford to pay for it.

The ruling came in the case of Clarence Earl Gideon, a drifter convicted of breaking and entering [of a pool hall after closing] after he was forced to defend himself [in court]. His handwritten appeal made it to the high court, and the decision in his favor became a rallying cry for the idea of equal justice.

But a half-century after Gideon v. Wainwright, many lawyers say the system for providing defense attorneys for the poor is in crisis.

By "crisis", they mean "underfunded."  They are using the 50th anniversary of the Gideon decision to point out the flaws in the system in a not-so-subtle appeal for more taxpayer funding.  But more money is not the answer and never will be.

In a nutshell, the nation's public defenders are saying "we can't do our job because you taxpayers won't give us enough money." NPR, the ABA and the US Attorney General are just a few of the voices advancing this narrative. I think they are doing a long-term disservice to public defenders, though. First, taxpayers are tapped out. Consumer debt is high and we are years into the Obama Recession. Second, these are public defenders for people accused of crimes, not cops and teachers and firemen. Many taxpayers (unfairly) see these attorneys as the "bad guys" (or at least the lawyers for the "bad guys") and are unlikely to give these lawyers a cent more than they already do, even while opening their checkbooks for more teachers, cops and firemen (the perennial "good guys" of government funding). So while major groups are using the 50th anniversary of Gideon to call for more funding, I think it will fall on deaf ears. The result will be alot of loud public criticism of public defenders but no real effort to solve the problems. All the public will remember is the criticism. 

Indigent defense is a government program like any other:  If it works well, it won't get any additional taxpayer dollars next year.  But if it can convince enough people that it's broken and "in crisis" then the taxpayer dollars will fall like rain.   Failure is rewarded while success is ignored, as if often the case in government programs.   It's the same mentality that keeps the UK's National Health Service (NHS) in a constant state of crisis with politicians promising an endless string of "overhauls" if taxpayers will spend just a little bit more than last year.  It's the same mentality that causes our own government to spend the most money on the worst public schools while ignoring the good ones.

The people who work in these programs labor under the same perverse incentives as most other government workers:  they get paid the same whether they win or lose, and regardless of how hard they try.  It doesn't take long for that to crush the motivation out of even the most idealistic young lawyer, doctor, or teacher.

[Attorney] Norman Lefstein started working for poor criminal defendants in Washington, D.C., a few months after the Gideon ruling on March 18, 1963.

Lefstein [says] . . . he's troubled by what he sees and hears today, like a call he got from a defense lawyer for poor people in a Northeastern state.

"In my judgment, his caseload was absurd," says Lefstein, who's written widely on indigent defense issues. "I mean, just try to imagine simultaneously representing competently over 300 clients. And he was in an impossible situation."

Public Defender caseloads ARE absurd, but not always because they are underfunded.  The system is abused by people who pretend to be indigent so that they can get a free attorney.  Judges and prosecutors do not scrutinize applicants very much, perhaps because they know that the cases will flow more smoothly through the system when public defenders are too overloaded to give any one case much attention.  The result is an overloaded system originally designed for a few and now being [ab]used by many, where well over 90% of defendant's plea guilty. 

Those caseloads can have some pretty bad consequences, says University of Georgia law professor Erica Hashimoto.

"There are a lot of stories of what are called meet 'em and plead 'em lawyers — lawyers who show up at the courthouse and represent the defendant for about five minutes, where they tell the client, 'You have to plead guilty,' " Hashimoto says.

Those aren't just stories.  That's reality.  And it's reality not because the lawyers are bad lawyers.  It's reality because the lawyers are overloaded from defending people who shouldn't qualify for a public defender.   Then, AFTER the defendant pleads guilty to something he didn't do, his family calls private attorneys to clean up the mess.  If the money is available to hire an attorney to clean up the mess, then the money was available to hire an attorney to avoid making a mess in the first place.  The time to hire an attorney is the day you are arrested, not the day after you are convicted.

So if Clarence Earl Gideon were alive and arrested today, what would happen?  There's a good chance that he would never meet nor talk to his public defender until his first day in court.  At that meeting, the public defender would flip through his large box of files for that day, find Mr. Gideon's file, take a brief look at it, Mr. Gideon's criminal history, and then tell Mr. Gideon to plea guilty.

Yes, Gideon has failed. 

 

UPDATE:  Anthony Lewis, author of "Gideon's Trumpet" about the Gideon case, has died.  He was 85.

 

READ MORE:

Fify Years Later, And It Still Doesn't Work

Fifty Years After Gideon v. Wainwright . . .

Despite the "True Believers," The Public Defender System is Broken

Indigent Defense Horror Stories

Should I Hire A Defense Attorney?

Most Would Not Trust A Public Defender

 

 

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Fifty Years After Gideon v. Wainwright . . .

Fifty Years After Gideon v. Wainwright . . .

March 18, 2013, is the 50th anniversary of the famous Gideon v. Wainright case in which the Supreme Court ruled that the U.S. Constitution entitled criminally accused individuals to the assistance of an attorney.  It is the case that required the creation of indigent defense systems to cover every criminal courtroom in the United States.  But like many idealistic ideas that came out of the 1960's, reality has proven much less idealistic than imagined. 

Jacqueline Dixon, President of the Tennessee Bar Association, writes this month that the indigent defense systems created by Gideon are woefully underfunded:

I have heard U. S. Attorney General Eric Holder speak, and, as he has on numerous occasions, he emphasized the need to reform the indigent defense system if the country is to uphold its promise of “equal justice for all.” When he received the Brennan Legacy Award in November 2009 and spoke at the Brennan Legacy Awards Dinner, he specifically mentioned Tennessee in his speech when he focused on the necessity of reforms for indigent defense and the current state of public defender networks in this country. He noted that in our state, a county public defender’s office had six attorneys handle more than 10,000 misdemeanor cases in 2006, which meant lawyers could spend an average of just under an hour per case. General Holder then commented that “high caseloads leave even those lawyers with the best of intentions little time to investigate, file appropriate motions, and do the basic things we assume lawyers do.”

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Despite the "True Believers," The Public Defender System is Broken

Despite the "True Believers," The Public Defender System is Broken

Here is a Hall County Public Defender who is a member of Gideon's Promise featured in New York Time's "True Believer" series. 

Note that the 5,000,000 cases handed to 15,000 public defenders each year averages out to 333 new cases per public defender per year, or about sever new cases per week.  In a typical 40-hour work week, that means each new case would get a total of about 5 hours of attention on average.  I spend twice that much time on minor cases. 

It is clear that the public defender system is broken.  It is horribly under-funded, under-staffed, and over-worked.  Defendants - many who should not qualify for public defenders at all - grasp at the opportunity for a "free lawyer" and overrun the system.  It is analogous to a bunch of people all trying to get in the same lifeboat until it finally tips over.   Perhaps the system will be fixed one day.  Until then, if you want your case to get the attention it deserves; if you want to have an attorney willing to walk the road beside you; then you need to hire a private attorney. 

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Indigent Defense Horror Stories

The failings of the indigent defense system are so widespread that the ACLU is building a bank of horror stories to raise awareness of just how bad the problem has gotten. The ACLU project has just started as of the posting of this blog entry, but it should be available soon so people can see for themselves just how bad the various systems around the country have gotten. 
 
If you're facing criminal charges, it is always in your best interest to hire a lawyer. Private attorneys typically have smaller caseloads and thus more time to spend per case.
 
Far too many people don't consider hiring private counsel until after their trial with a public defender has gone badly. By that point, many of the rights they had before trial are gone. The time to win your case is BEFORE trial, not after.
 
If you are serious about your case, your rights, your freedoms, and your reputation, then you also need to be serious about hiring the best lawyer you can afford as soon as you can. Call us.

- John
 
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