Tuesday, July 16, 2013

Defending the public defenders

This article is probably the most offensive thing I've read about public defenders in a long time. It's so full of ridiculous assertions I barely even know where to begin. Let's review the idiocy put forth in this moronic article, bc I'm angry about it and feel like eviscerating it. 

What if Zimmerman, like most criminal defendants in the United States, was relying on a public defender with little emotional or financial investment in winning the case and no resources with which to pursue a robust defense even if he'd been inclined to do so. 
Well this is stupid assertion #1. Anyone who's read my blog at all knows that I am extremely emotionally invested in my clients' cases. Just recently I posted about how worried I am for a current client that I have. Not to mention that I constantly talk about how much I love winning, whether it's a trial or an omnibus/suppression motion, etc. Why is he assuming that just because we aren't paid directly by the client, public defenders have no emotional or financial investment in the case? Bc FYI--I actually CAN get fired if I do a crap job. And since I do get paid for the work I do, I would like to maintain my source of income. What a ridiculous statement! Public defenders get paid well below the market for criminal defense attorneys--if we didn't have our hearts in the work, what exactly would our incentive be to do this job??

Wouldn't that defender have told Zimmerman that the smart way to avoid a second-degree murder sentence was to plead guilty to manslaughter and work out terms of incarceration that would be less onerous than what he'd end up with if he fought and lost.

Why would he assume that a public defender have told the defendant to plead guilty? I have had cases where the offer was absolutely fantastic but I didn't think the client should plead guilty and I've given that advice to people.  Some people want to take a deal despite my advice not to do so. So, this notion that public defenders would tell Zimmerman to just plead guilty--baseless and stupid. 

Proof beyond a reasonable doubt is a very difficult evidentiary burden to meet if the state is facing off against a competent, well-financed, and highly motivated defense team.

Who the hell says we're not competent and highly motivated? Fine--I'll grant the "well-financed." We're not. But that doesn't mean we aren't competent and highly motivated. And we do have some financial resources to get experts/testing/etc. And, at least in Minnesota, if we don't have the money in our budget, we can request that the court order the county to pay for the cost of the experts/testing/etc. So, we may not be as well-financed as private defense attorneys are, but we don't simply throw up our hands and say, "Well, we'd love to have an expert to counter the state's expert, but wah, wah, we're just lowly public defenders w/o any budget so tough shit, defendant!" 

Up against the big fish, it's the prosecutors who'd be outgunned and outresourced and forced to ask themselves if it's really worth the time and energy when there's a deal on the table. It's much more cost-effective to punch down and prosecute the guys you can beat.

Really? Really?! For some reason, I think if you asked the prosecutors I've gone up against--the prosecutors who have lost suppression motions and dismissal motions and jury trials to me--would tell you that there's no guarantee that they can "beat" a public defender just because they are a public defender. The simple fact of the matter is you're either a good attorney or you're a bad attorney.  It doesn't matter if you're a public defender or you're a private attorney.  You're either good or you're bad.  You either know your stuff or you don't. Just because the client is paying the bill doesn't somehow magically convert the attorney in to some super smart, competent criminal defense attorney. 

Don't believe me? Here's a fun story for you then. I worked on a very serious felony case for over a year. We had experts lined up to testify that based on the evidence, there was no possible way for the defendant to have committed the crimes he was charged with.  We had volumes of information, all lined up and ready to go to trial.  The client's family hired a private attorney about 2 months before the trial. The private called me and said he'd pick up the file from us, along w/ all our experts' information and reports.  The attorney never did.  In fact, he never spoke to either me or my co-counsel ever again. And then, he pled the client out. Despite the fact that, had the attorney bothered to look at the information we had, then he would have known that the experts' information was overwhelmingly pointing to the fact that the client was innocent. 

You think that money = better attorney? You're sorely mistaken. Sure, there are some crap public defenders who do a bad job. There are also crap private attorneys who do a bad job. But, to assume that the prosecutors only prosecute people who have public defenders because they know they can "beat" the public defenders--that's so insanely stupid it blows my mind. 

Could Zimmerman have possibly won with the public defender? 

Yes. And a public defender wouldn't have used that stupid ass knock-knock joke in the opening argument, either. 

Would he have even gotten a trial?

Yes, if that's what he'd wanted. My clients make the final decision on that. If the client wants to go to trial, we go to trial. 

 Instead 97 percent of federal cases and 94 percent of state ones end in plea bargains.

I could do an entire post on plea bargains. Maybe someday I will. For now, what I will say on this issue is that when I go through a client's rights w/ them at the initial meeting and I tell them they have the right to have a trial, there is at least 1/3 of them that immediately respond with, "I don't want a trial. I don't want to do that. I just want to get something worked out with the state." So, if this writer is thinking that all criminal defendants are shouting to their crappy public defenders that they want a trial and the crappy public defenders are telling them they can't have one, he is wrong. Many defendants don't want to have a trial, even if I think they have a decent shot at trial. 

Also, sometimes people are actually guilty of doing something wrong. And they could go to trial, but the evidence is really bad. They confessed to police, for example, or they are caught on video or audio doing the crime. They could go to trial and most likely end up with a felony conviction on their record--preventing them from voting while they are on probation/incarcerated; making it difficult and/or impossible to find employment in the future; preventing them from getting housing; etc., etc.  Or, we could reach an agreement w/ the prosecutor that has the defendant pleading guilty to a lesser offense, one that isn't a felony, one that won't screw them up permanently. 

My job isn't to try cases. My job isn't to plead out cases.  My job--and every attorney's job, whether we're private attorneys or public defenders--is to help our clients get through the system in whatever way is the best for that particular defendant. For some, that's getting the case dismissed prior to trial because the cops messed up. For others, that's trying the case and pulling out all the stops to win the case. And yes, for some, that is trying to get the best plea bargain possible out of the state. And guess what? That takes talent, too. I know that there have been plea bargains I've been able to get that other defense attorneys wouldn't have been able to get because I'm good at what I do and I know how to negotiate. I earned the reputation for being a good lawyer because I care about my clients and I help them decide what they want to do and what's in their best interest. Sure, sometimes they do things I don't recommend, but that's fine. It's their case, it's their life, they get to decide. 

The fact of the matter is that plea bargains aren't inherently bad just because they preclude a trial. For some defendants, for many defendants, that's actually a better outcome for them. But I never force anyone to plead guilty. If the person wants a trial, we're going to trial. 

And, for what it's worth, I like being in trial. It's nerve-wracking, it's stressful, but it's fun. It's the pinnacle of being a lawyer. It's when I feel the most "lawyer-y" in my job. I went into law because I liked the idea of being in a courtroom; I liked the idea of doing trials. I don't have any qualms about going to trial. It's fun to have trials to shake up the routine court appearances.

This article is so poorly informed and filled with so many baseless assumptions. All this does is perpetuate the stereotypes that public defenders are bad lawyers. We're not. Quite honestly, I'd want some of the public defenders I work with to represent me if I were charged w/ a crime because I know they'd work until they collapsed for their clients. But articles like this one just erode confidence in the public defender system even more. Which is sad because there's nothing to back up most of the assertions in the article and yet, people are going to read this and think it's right. 

Go to court and watch. Criminal cases are open to the public. Sit in court and watch public defenders represent clients. Then you can talk about what you've observed. Talk to some public defenders and listen to them tell you why they do what they do. Then you can make statements about what you've learned. 

And finally, read why I do this work. Then tell me I don't have my heart in it.


  1. Anonymous2:25 PM

    Excellent response. I second everything you say

  2. Anonymous3:22 PM

    PREACH. Thank you for calling out that ridiculous, baseless article.

  3. Anonymous10:41 AM

    I have been a prosecutor for over 25 years. I can truthfully say that every public defender I have ever dealt with cares passionately about achieving the best possible result for their clients.

    1. Thank you for sharing your experience working with public defenders!

  4. IMO unless you have OJ money you're better off to let the state pick up the legal tab and use your own resources for investigators and researchers. Geragos did a poor job for Scott Peterson, despite his occasional flashes of effectiveness. Mind you, how many private attorneys can deal with a 5 month trial full of nonsense and lacking actual evidence?

  5. Anonymous11:36 PM

    Add this study to the conversation:


    In 2007, a comprehensive study of federal cases found that professional, salaried public defenders had MUCH better outcomes than court-appointed lawyers paid by the hour. Generally speaking, those are most of the same lawyers who get hired privately. The study noted the better education and qualifications of the public defenders. Not only did the PDs negotiate better deals, but the study also found that while the hourly lawyers went to trial slightly more...they also lost more often. So...better deals when you want to plead, and better odds of winning when you want a trial. Hmmm.

    1. Excellent! Thank you for the link on this! It's great! :)