public defender

public defender

public defender, governmental official who represents indigent persons accused of crime. U.S. Supreme Court decisions expanding the right to counsel to pretrial proceedings and holding that a person cannot be sentenced to even one day in jail unless a lawyer was provided have created a need for more lawyers to represent the indigent. Proponents of the public defender office claim that it is the most efficient and effective method of protecting the indigent. Other systems include court-appointed counsel from the local bar, clinics operated by law schools, and legal aid societies. The societies are privately funded and offer civil and criminal representation.
In the United States, a public defender is an attorney whose duty is to provide legal representation to people who are charged with a crime or other offense or are threatened with having their children removed from them by the government. Anyone who is unable to afford to pay for his or her own defense is entitled to a public defender. Public defense services are paid for by the state or the local counties in which the person is being prosecuted or by the Federal government if it is a federal prosecution.

Different jurisdictions use different approaches to providing such counsel. By far, the most common is a public defender office, which means that the office is an agency of the government and the employees work for the state or the county. There are also a large number of not-for-profit agencies, often referred to as Defender Service, Defender Office or a Legal Aid Society that is paid to provide legal services. Another method used is by way of a panel of private attorneys who are compensated for their appointed work on an hourly basis or by the case. Appointed attorneys are often used, as well, when there is a conflict of interest. So, for example, if more than one person is arrested, each of them is entitled to a separate attorney.

Legal background and history

The landmark case that helped pave the way for all Americans to be guaranteed an attorney in criminal proceedings was the case of Gideon v. Wainwright, . Gideon was a middle-aged Florida man who was charged with breaking into a bar and stealing money and beer. He argued at his arraignment that he could not adequately defend himself, and that a system that puts an uneducated man against a trained attorney is fundamentally unfair. The Supreme Court agreed.

Although there had been some provisions for free attorneys prior to Gideon, it served as the catalyst for a wave of change. Following the landmark 1963 decision, the 1960s witnessed the creation of programs across the country to make this right available to virtually all people charged with crimes who could not afford an attorney to represent them.

The first person to propose the creation of a public defender's office was California's first female attorney, Clara Shortridge Foltz. In a time before there were public defenders, young, inexperienced attorneys were often ordered by courts to defend indigents pro bono, and in that capacity, Foltz saw firsthand the inequitable results of that system. As a result of Foltz's energetic lobbying, Los Angeles County established the first public defender's office in the United States in 1914 In 1921, the California Legislature extended the public defender system to all state courts.

Public defender agencies of all kinds are supported by public funding, but are ethically bound to be independent and do not take direction from the government as to the acceptance or handling of cases, or to the hiring of staff attorneys. One of the most well established statewide public defender systems is in Wisconsin. The Wisconsin State Public Defender has been used as a model for other states and several foreign countries. Wisconsin has a program that uses both staff attorneys and appointments to attorneys in private practice.

State public defender systems can vary widely from state to state, county to county, and from federal defender organizations. Most chief public defenders are appointed. The chief public defenders in Florida, Tennessee, Lincoln, Nebraska, and San Francisco are elected.

Defenders vary greatly regarding the types of support staff they employ to support the work of their attorneys. In addition to clerical staff, defender offices may employ investigators, social workers, and forensic experts, such as psychologists. These human resources may help defenders provide more professional service than an appointed lawyer without this type of staff or funds to employ them. Private appointed attorneys are entitled to apply to the court for the services of an expert or investigator and the government is required to pay for those services if they are essential to the defense of the accused person.

Problems of excessive case loads and low salaries still plague many state public defenders' offices. To avoid these problems the American Bar Association and the National Legal Aid and Defender Association have promulgated standards relating to the performance of and appropriate case loads for public defenders. Research has indicated that indigents receive the highest level of representation when assisted by a well funded professional office dedicated to criminal defense. Some of these studies have indicated that the outcomes for properly funded and independent public defender clients are no worse than for clients of private attorneys in the same jurisdiction.

Issues often arise in state jurisdictions with regard to appropriate levels of public defender funding. If attorneys are under-funded, their case loads can become so excessive that they are unable to provide adequate representation. Further, funding issues can keep salaries too low to attract the best (or even adequate) legal talent or to keep experienced lawyers on staff.

These issues have come to the fore with recent studies disclosing that innocent people have been condemned to death in part due to inadequate representation in Cook County, Illinois (Chicago), although none of the overturned "death penalty" cases were actually represented by the Cook County Public Defender.

The elected public defenders in Florida have engaged in extensive litigation regarding underfunding and excessive caseloads. This litigation is based on their ethical and constitutional duties to provide effective counsel to their clients and their independence from the judges who appoint them.

There is currently a lawsuit in New York State as well, in which the New York Civil Liberties Union has filed on behalf of 20 accused individuals claiming that the provision of public defense services has been inadequate. In New York State, may public officials have supported that claim, including the Chief Judge, Judith Kaye.

In some jurisdictions, an indigent criminal defendant may be ordered to reimburse the state for the costs of his or her defense, based upon the defendant's ability to do so. However, these orders, when issued, are largely unenforceable, and do not reflect the real cost of defense, since the defendant is, by nature, without funds.

There are often debates about whether a public defender agency should be headed by an elected official. Average people often do not understand or care about the importance of having good and independent attorneys for poor people. However, since the vast majority of people who are arrested are poor, the role of the public defender in our criminal justice system is extremely important. Without a concerned group of attorneys making sure that the prosecutors and judges are being fair and equitable and that the police are following the law and arresting people for good reason, our system of justice can become markedly unbalanced.

This potential unbalance was at the heart of most of the constitutional principles set up by the founding fathers of America. Thus the right to counsel (US Constitution 6th amendment) is specifically listed as something everyone is entitled to in America.

Some public defenders follow a "holistic approach" to providing public defense services to their clients (see e.g. The Bronx Defenders). This means that because the public defender office is working with people who are living in poverty, they have an opportunity to make a positive impact on the lives of the clients, families and communities they work in. One example of holistic representation is the use of social work services to identify the reason for the criminal act and try to work on that problem. In many cases, people who are arrested are suffering from a drug problem or may even have an undiagnosed mental illness. A holistic public defender would be able to find an appropriate treatment program for such a client and advocate to the judge and the prosecutor to allow the client to receive treatment rather than go to jail. This helps the family and in turn improves the drug problem in that community one person at a time. Some public defender offices also have community based services to help prevent criminal activity.

Full-time public defenders are specialists who only handle criminal matters (although some public defender officials handle quasi-criminal civil cases, on which defendants are entitled to appointed counsel), and can tap into a nation-wide network for guidance and assistance.

Many, if not most, public defenders enjoy some form of civil service protections, such as a requirement that any employment termination be only for "good cause." Many staff attorneys belong to unions. These protections may allow public defenders more freedom in vigorously handling their caseloads. In Florida, staff attorneys have no civil service protections. This allows management greater latitude in maintaining high professional standards, with reasonable effort.

Areas with vigorous public defenders may be more able to challenge the system and give defendants more of a fighting chance when charged with a crime. Unfortunately, because of the wide variance of criminal justice systems between states, and even between jurisdictions within each state, no reliable large study has been performed to show how effective having a public defender system is versus a private or appointed system.

Pay

In jurisdictions where indigent defense is handled on the basis of contracts or ad-hoc appointments, there has been increasing concern about the low pay and minimal resources given to public defenders. Public defenders in Missouri can spend about six hours per case regardless of whether it is a misdemeanor or a murder case. For indigent criminal defendants, low-paying assigned-counsel systems offer the worst of all possible worlds. They virtually guarantee sub-par representation, given that low assigned-counsel rates almost always imply huge caseloads—a nightmare for poor defendants desperately in need of legal attention.

In jurisdictions where the public defender is a government agency, public defenders are generally on the same or similar pay-scale to prosecutors. This rate of pay is generally (but not always) below that of the private sector. In addition, often the number of attorneys alloted to the public defender may not be sufficient to handle the number of cases they are required to handle. Government agencies also do not always provide collateral services, such as investigators and/or social workers who can work with the poor people who get arrested.

Federal Public Defender systems

Federal Public Defender offices follow one of two models. The first model, the Federal Public Defender, is a federal agency which operates under the Judicial Branch of the federal government, specifically administered by the Administrative Office of the United States Courts. However, they perform administrative and budgetary duties only as the respective circuit courts of appeals of the United States are in charge of appointing Federal Defenders, who in turn hire lawyers and support staff and manage the office, for each individual judicial district in their circuit. The procedures for appointment, re-appointment and other administrative matters vary from circuit to circuit but the Federal Public Defender is appointed for 4 year terms. The second model is that of the community defender. Although similar to a federal public defender, technically it is actually a corporation that receives federal grant money and acts more independently from the federal judiciary. Although both type of defender offices are supported by public funding, they do not take direction from the government as to the operation of the offices.

The Federal Public Defender offices are well-funded. By law, lawyers employed by Federal Public Defender offices have salaries set to match those of lawyers in the U.S. Attorney's office. The combination of decent salary, benefits and support team tends to attract, and more importantly retain, highly qualified attorneys. Especially in more rural areas, where federal criminal work is considered well-paid, many federal defenders have risen up through the state systems before becoming federal defenders. However, since each judicial district has a separate Federal Public Defender who administers and staffs each office in their district and manages the budget, the quality of representation varies from district to district. For example, their approval of the expenditure of funds for expert witnesses and training is up to each individual Federal Defender in their respective district and a few defenders are known to withhold those funds for important matters like those experts or transcripts that are critical for effective trial preparation Therefore, though rare, in some jurisdictions an indigent defendant may be receiving better representation from appointed counsel who can petition the Court for the expenditure of expert witness funds and funds for critical items like official transcripts of hearings for use at trial.

The Office of the Federal Public Defender operates under authority of the Criminal Justice Act of 1964 (CJA),18 U.S.C. § 3006A. It provides defense services in federal criminal cases to individuals who are financially unable to obtain adequate representation. A person's eligibility for defender services is determined by the federal court. Defender organization attorneys may not engage in the private practice of law. Those accused who are found to be indigent in jurisdictions without a Federal or Community Defender, and those for whom there is a conflict or those charged at a time the Defender in their jurisdiction is short staffed or has a full caseload, will be appointed private counsel who are paid an hourly rate from an approved list of qualified lawyers who have the requisite experience to handle a federal criminal case.

Comparison of state and Federal PD systems

A federal defender's case load is usually substantially lower than his state counterpart's. While a state public defender may have to juggle over one hundred cases, an Assistant Federal Public Defender routinely has 30-50 cases, a very manageable number, though the severity and complexity of such cases may be greater. The federal system has over 4,000 separate offenses, and uses a very mechanistic, sentencing scheme based on a set of "advisory" sentencing guidelines. That said, state public defenders (as well as state prosecutors) often begin their careers handling misdemeanor cases. Since misdemeanors generally do not involve serious injuries, the parties are often more willing to ask that charges be dismissed, and less likely to appeal a dismissal by a judge. Therefore, although the volume may appear high, the work-per-case is significantly lower for misdemeanors.

Furthermore, in jurisdictions without an organized public defender agency, some courts and legislatures in some states tend to "cap" the amount a panel attorney who does not work for a public defender agency can receive in compensation on a case, there is much more pressure on the "panel" attorneys to resolve a case or issue quickly than there is for a full-time Federal Public Defender, who can afford to invest all the time necessary to fully develop an unusual motion or issue. In this federal system, the title of Assistant can create a belief in some clients that their attorney is new. The title has nothing to do with the attorney's experience or ability. There is only one United States Attorney for a district (all the other federal prosecutors are called Assistant United States Attorneys), and there is only one Federal Public Defender for a district. Thus, an attorney with thirty years experience, who supervises twenty other attorneys, could still be an Assistant Federal Public Defender.

There remain some perceived differences between the quality in state versus federal public defenders offices, and the difference between poorly supported state programs versus properly supported state offices has caused much confusion in the general public. The horror stories have created a frequent public perception that all* defenders are over-worked and have to "dump cases". "Dump truck" and "public pretender" are terms sometimes used by defendants when complaining about their public defender. (The origins of the phrase "dump truck" are somewhat obscure, however it probably means that in the eyes of the defendant, the public defender is simply trying to "dump" him by encouraging a guilty plea rather than afford him a vigorous defense.) Ironically, particularly in the federal system, it is the public defender, free of the pressures of hourly billing, who can actually afford to spend time developing unusual issues, motions, and trial strategies. Nevertheless, client-attorney relations are frequently strained by that perception and the horror stories. Although public defenders are available because of the United States Constitution's 6th Amendment right to counsel guarantee, they are perceived as being a form of welfare, and like anything else that comes for free, are looked upon with some distrust. It is a sad truth that many criminal defendants would prefer to have any private counsel rather than a public defender, regardless of comparative competence.

Legal issues

Conflict of interest

Because conflict of interest problems could exist where multiple defendants participated in a single crime, such as a bank robbery or a drive-by shooting, only one person in a group of co-defendants will be assigned an attorney from a public defender office. For many defendants, it is in their best interest to testify against co-defendants in exchange for a reduced sentence. To ensure that each defendant is afforded his constitutional right to an effective defense, jurisdictions may have several public defender entities, or a "conflict panel" of private practice attorneys. This enables the court to assign each defendant an attorney from a completely separate office, thereby guarding against the risk of one client's privileged information accidentally falling into the hands of another client's attorney. Some jurisdictions, like in Los Angeles County, employ a separate entity for legal representation called the Alternate Public Defender's office. Any further conflicts are handled by court-appointed private attorneys. Recently, Florida instituted an Office of Criminal Conflict and Civil Regional Counsel in each of its five appellate districts to afford indigent codefendants this need for due process of law.

A recent study by postdoc fellow Radha Iyengar of Harvard University found that private attorneys appointed under the federal Criminal Justice Act fare worse than their Federal Public Defender counterparts, often leading to sentences averaging eight months longer and costing taxpayers $61 million a year more than salaried public defenders would cost.

In civil law jurisdictions

In civil law countries, following the model from the Napoleonic Code of criminal procedure, the courts typically appoint private attorneys at the expense of the state. As a rule defense attorneys in such countries are not directly employed by the government. In Brazil, however, the constitution provides for a public defender's office at both state and federal levels. In some states, like Rio de Janeiro, the public defender's office has a long tradition of assisting the poor and lower middle-class in both civil and criminal matters while other, poorer states, are still struggling to set up a public defenders office. There the federal public defender's office has only recently began hiring attorneys and lacks in infrastructure, which causes the general public to rely on lawyers assigned and paid by the federal judicial branch on a case to case basis.

Regarding conflicts of interest, the public defender may also be precluded from representing a defendant if the office previously represented a witness to the crime charged—not only a co-defendant (other defendant)

Criticism

Although some hold a belief that public defenders tend to be less competent than private criminal defense attorneys, and that a rich person who can afford private counsel has a better chance of being found not guilty in a criminal proceeding than a poor person as a result, this belief may be unfounded. Public defenders tend to have extensive experience in all areas of criminal law, procedure and evidence and practice almost exclusively in one courthouse, whereas “private” attorneys must divide their time and resources as necessary to pay for staff and overhead. Likewise, larger public defender organizations have offices dedicated to training and investigation, as well as free continuing education programs, whereas attorneys in private practice are not part of an organized office and must pay for their own continuing education. Moreover, some have argued that people who do not qualify for public defenders, yet are not legally sophisticated, are simply unable to judge whether potential lawyers would competently represent them in the first place.

Miscellaneous

If a concern involves a local matter, local court staff can provide direction to the appropriate public defender organization. Note that in some states, the office is not titled as "Public Defender"; for example, Kentucky's public defender office is called the Department of Public Advocacy For federal matters, look under US government listings in the telephone directory, or contact the clerk's office of the nearest US Courthouse for information. Federal Public Defender offices are customarily located in larger metropolitan areas of the district, but serve clients throughout their assigned area.

If a concern involves a civil case (e.g., personal injury or a landlord-tenant dispute), as opposed to a criminal case, one needs to contact a legal aid office, as public defenders are typically prohibited from taking civil cases, although public defenders may be appointed in civil cases that are quasi-criminal in nature (e.g., removal of children from parents and civil commitments for alleged sexually violent predators) or in highly unusual situations where the civil proceedings may be highly connected to criminal proceedings.

Notes

See also

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