The Special Value of Public Defenders
posted by Dan Filler
As I’ve suggested, one of the big poblems with Alabama’s death penalty is its system of indigent defense. The committee recommended a more systematic approach to assigned counsel in capital cases, but I want to focus on one particular approach to indigent defense that I personally believe is clearly superior to others: the use of public defender offices.
In most of America’s big cities, indigent criminal defense work is primarily provided by public defenders. In Alabama, however, the only urban area served by a public defender is Tuscaloosa (population 78,000). The state’s major cities – Birmingham, Montgomery, Mobile and Huntsville – do not have public defenders. In a state of 4.6 million people, less than 10% of the state lives in areas covered by public defenders. Everywhre else, indigent defense is provided by appointed counsel.
Why do I think services provided by public defenders are better, on balance, than those provided by individual appointed defense lawyers? Four reasons. First, there is the matter of expertise. Public defenders typically handle only criminal work. They know statutes and caselaw better simply because that’s all they do. And because they handle a large volume of cases, they tend to make fewer silly mistakes – forgetting to file motions, for example. My wife – a doc – always tells me that when you need surgery, you want a doctor who does the procedure frequently. If you plan to get Lasik surgery on your eye, go to the (high quality) factory – the place where they do 20 a day, and have every protocol down pat. An experienced technician will make fewer errors and will also have more experience dealing with those problems most likely to surface. So it is with lawyers Obviously, there are brilliant lawyers (and doctors) who handle a small number of cases very effectively; but most people are not brilliant and the typical lawyer will be most effective once she’s got the drill down pat.
Because of their size, public defender offices also do a better job supporting good lawyering. It’s hard for individual lawyers to keep up with changes in the law. It takes a fair amount of time. In a public defender’s office, one attorney can be assigned the job of reading all the new cases and statutes. He can then circulate the news to the office on a regular basis. When I practiced in Philadelphia, public defenders were often the first people to learn and argue new developments in the law. In this respect, public defenders improve the quality of lawyering for everybody, because private practitioners (and DA’s and judges) hear about new cases simply by listening to PD’s cite and discuss them.
A third plus: public defenders raise expectations for other defense attorneys. I have been surprised the degree to which Alabama judges tolerate lousy criminal lawyering. This is probably due, in part, to the fact that they don’t see many great indigentdefense lawyers. (In a slightly different context, I have a friend in Birmingham who serves as a guardian ad litem (GAL) for kids in foster care. She routinely meets the families, attends school meetings, and the like. Other lawyers, and even judges, find this involvement quite surprising. Many GAL’s show up in court, talk to the client, and step up to the bar. If judges came to see the more active approach to GAL as the norm, I suspect they would be less tolerant of these slackers.) Most appointed lawyers will perform up to (but not necessarily beyond) the level of practice expected by the court. Publc defenders have to answer to supervisors and the norms of their offices. Once a courthouse is populated with lawyers who operate at a higher level, most other lawyers will hustle to be seen as at least the equal of the public defenders.
Finally, public defenders create – and support – a community where criminal defense is seen as virtuous and worthy of effort. Outside of the office, criminal defense lawyers are always subject to informal community sanctions. Ask any public defender, and she’ll tell you how frequently she’s asked “how do you defend those scum?” (Quite literally, a criminal defender cannot expect to attend a party and NOT hear this question. It follows, like night from day, the question: what do you do for a living?) In public, and even in court, DA’s wear the white hats. Not only is the work unpopular, but it’s also very difficult on a personal level. An indigent defense attorney must find ways to communicate, and build trust, with socially unattractive folks. Criminal defendants have often done very bad things. (Yes, even public defenders recognize this.) They’re often very poor. They’re sometimes homeless. They also aren’t necessarily respectful of their attorneys. How do you do a good job for such a different, and perhaps unfriendly, person? It’s hard, but the public defender community helps. Everyone supports each other, helping reinforce a commitment to the broad agenda (providing good service to a marginal population) and the narrow one (fulfilling the lawyer’s duty to provide zealous representation to her individual client.) There’s a lot of dark humor in the halls of the PD, but you’ll never find more espirit de corps.
None of this is to say that appointed individual counsel never provide good criminal defense. But there are institutional benefits to public defender offices that are hard to match. And even those individual lawyers are likely to do a better job in a community where a public defender has a dominant place. In the context of capital defense, I always point to the Defender Association of Philadelphia. The Defender’s capital unit has been taking cases since around 1991. In those fifteen years, over scores of clients, the office has amassed an enviable record: not a single client has ever received a death sentence. Why? Partly, it’s because the lawyers try cases exceedingly well. But perhaps more importantly, it’s because the lawyers investigate and work cases very hard, and build client trust slowly and persistently. As a consequence, they are usually able to obtain a plea offer less than death. And more importantly, they’re able to convince clients to take these deals.
There is more to indigent defense than simply appointing a lawyer. Public defender offices are an efficient and effective way to bring up the baseline quality of criminal defense. In my view, Alabama should create a statewide public defender. At minimum, it should do so for those charged with capital murder.