Bob Boruchowitz

Abstract: Although based on the national Constitutional right to counsel, the widespread use of public defenders in the United States is only 36 years old, flowing from a Supreme Court decision in 1963. The right to counsel is a federal right, but it is implemented primarily by states and local governments, and as a result varies widely in quality and effectiveness. Where resources and independence are secure, defenders can do an effective job and protect their clients’ rights. Where they are not, terrible injustices can occur. Because of demands on local government budgets, defenders often face severe financial pressures which can affect their independence and their ability to represent their clients. Bar Association standards have been helpful in preserving some independence and in supporting requests for adequate funding.

Litigation has been of modest assistance toward the same ends.

American history and literature are full of examples of courageous lawyers standing up for basic American principles of freedom and justice--Clarence Darrow, Daniel Webster, Thurgood Marshall, and in fiction, Atticus Finch, in To Kill a Mockingbird. Contemporary television and film actors have glamorized attorney heroes, and several lawyers have stepped from the courtroom to the television studio as celebrity lawyers and commentators.

A no less important although less glittering struggle occurs every day, as public defender lawyers represent hundreds of clients in cases ranging from shoplifting to murder, in juvenile cases, dependency cases, and mental health commitment cases. Instead of being responsible for one client for months at a time, like Perry Mason or Johnnie Cochran, these defenders often have five hearings in one morning, handle arraignment calendars with 30 clients, or spend the weekend preparing for three jury trials the following week. Their clients do not have money, but they have the same fundamental right to counsel as their richer fellow citizens. The same Constitution that prevails in the most serious murder prosecution applies in the thousands of misdemeanor cases in Seattle Municipal Court.

It has been 36 years since the United States Supreme Court made clear that accused persons in state court criminal proceedings had the right to court-provided counsel.

From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:

The states have a variety of court rules, local ordinances, and bar association standards relating to public defense. There are nearly as many types of defender systems as there are states and counties. Some have local government agencies providing defender services. There are state-wide systems of organized offices, state-wide systems combining organized offices with individual appointed counsel, county contracts with non-profit law firms, county and city contracts with for-profit law firms, bar association panels administered by local government officials, and totally ad hoc systems run by judges with some of the worst aspects of patronage. Increasingly, there is movement toward state-funded, as opposed to locally funded, defender services, recognizing the enormous strain on local governments of funding growing defender needs. There also has been a trend toward the establishment of "alternative public defender" offices, to handle conflict of interest cases for the main defender office in a jurisdiction.

Washington state has a locally-based and funded defender structure at the trial level, with some state funding subsidizing portions of the practice. The state provides funding at the appellate level, with contracts in one part of the state and a variety of ad hoc provisions in other parts of the state. The largest urban area, King County, uses a non-profit defender model, in which the County contracts with four different non-profit corporations to provide defender services. The two next largest counties use government agency defender offices.

After several task force reports and legislative studies, the state legislature passed a law requiring local governments to establish certain standards for eligibility and accountability, but did not provide the funding which the task force recommending the standards had suggested. The two primary advantages of the statute are that it defines thoughtfully eligibility for public defense and it refers to a set of standards developed by the Washington Defender Association and endorsed by the Washington State Bar Association. These standards, including maximum attorney caseloads, have allowed many local defenders to obtain improved funding.

There has been one Washington appellate court case referring favorably to the standards. In Mt. Vernon v. Weston, the Court held that denial of a motion to withdraw by over-worked trial counsel was an abuse of discretion and new counsel should be appointed on appeal. The court noted the trial judge’s "failure to consider the undisputed evidence of the high caseloads of the public defenders." This case is an example both of the obstacles in the way of effective assistance, including high caseloads and judges insensitive to the effects of them, and of the possibility that persistent advocacy can result in relief.

The Arizona Supreme Court, citing national standards, found that a low-bid system which awarded contracts without regard to caseload or experience of the attorneys was presumptively ineffective:

In King County, Washington, local government has provided a public defense system which is designed to provide effective representation. County law requires that public defense will be provided by non-profit defender organizations and individual assigned counsel. There are caseload limits, which make it possible for lawyers to do a good job for their clients, but the increasing complexity of the law makes it a real challenge for defenders to meet the demands of 150 felony clients per year. But even in King County, defenders struggle with limited budgets for investigation and other support services, even as cases have become more complicated and sentencing more severe. They carry caseloads higher than Washington Bar Association guidelines. Their investigators earn salaries which on average are 31 per cent lower than their counterparts in government positions. They make do with aging equipment and they have sustained budget cuts in the last several years. And funds for experts and new technology are limited.

In other counties and small cities, the situation is more troubling. In many, caseloads are so crushing and resources so limited that on a daily basis accused citizens are convicted in trials and guilty plea proceedings which make a mockery of justice. In many areas, juvenile clients face either denial of counsel, based on "waivers" obtained by the court, or are represented by terribly over-loaded and inexperienced appointed counsel.

Federal courts have reversed death penalty verdicts because of ineffective assistance of counsel by inexperienced defenders who did not have the resources they needed. In Washington, numerous cases have been reversed because of ineffective assistance of counsel and related issues in a series of child sex abuse cases.

An example of the high cost of ineffective representation occurred in a death penalty case in Tacoma, Washington. In Harris by and through Ramseyer v. Wood, the U.S. Court of Appeals for the Ninth Circuit found that the number and gravity of the errors by the appointed trial counsel were so serious that the trial was fundamentally unfair. The lawyer did not thoroughly investigate facts surrounding the charge and possible defenses, and he failed to prepare adequately for trial. He did not obtain an expert to prepare a social history, did not retain an investigator to interview witnesses, and interviewed only three of the 32 persons in the police reports. He did not obtain an independent evaluation of the forensic evidence and spent only one hour and 48 minutes consulting with his client before trial. He failed to conduct proper jury selection. The Court found that in closing argument he attacked his own client’s credibility "and even his humanity." The result was that an accused person was given a death sentence, in a case in which his co-defendant was found not guilty, and after years of litigation, the conviction was reversed.

Equally horrible examples abound throughout the United States, and recently twelve death row inmates were released as a result of extraordinary efforts by students, journalists, and attorneys in Illinois.

The promise of Gideon remains unfulfilled. Defendants have been convicted and sentenced to death in cases in which their lawyers were drunk, their lawyers did no investigation, the court denied resources for expert witnesses, the lawyers had no criminal experience.

But with resources and independence, defender services can be effective. The Defender Association in King County, Washington, has been praised nationally as a model defender program, with experienced supervisors, social workers, investigators, training, and reasonable caseloads. Its attorneys have won national awards and it has helped to pioneer a project called TeamChild which provides legal assistance to juveniles facing criminal charges who also have significant needs such as special education. It has the resources to investigate cases, to test the prosecution’s case, to challenge in the appellate courts new laws and procedures which threaten their clients’ rights. They have proved clients innocent who were charged with murder, they have developed alternative sentences, they work to help parents keep rights to their children against arbitrary government action. They have a strong legal intern program, which draws law students from across the nation, and a strong investigator intern program to supplement staff work.

Yet while some defender programs across the country provide outstanding and dedicated representation to their clients, others simply do not have the resources to do so. Stephen Bright reports the story of [a] public defender in New Orleans [who] represented 418 defendants during the first seven months of 1991. During this time, he entered 130 guilty pleas at arraignment and had at least one serious case set for trial on every single trial date during the period. In "routine cases," he received no investigative support because the three investigators in the public defender office were responsible for more than 7000 cases per year. No funds were available for expert witnesses. The Louisiana Supreme Court found that, because of the excessive caseloads and insufficient resources of the public defender office, the clients served by this system are "not provided with the effective assistance of counsel the [C]onstitution requires."

In some cases, defenders who have advocated publicly for greater funding have lost their jobs. In other cases, offices have been closed or contracts not renewed. Budget decisions constantly threaten the effectiveness of defenders. Some local governments have opted for "low bid" contracts, ignoring Constitutional requirements of effective assistance of counsel.

It is critical that defenders have the independence to be able to seek the resources they need and to represent their clients as they see fit. The American Bar Association Standards of Judicial Administration, Volume II, Standards Relating to Trial Courts (3d ed. 1992) recognizes the need for adequate funding. Standard 2.22 states: "Counsel for persons entitled to assistance of counsel should be provided through a systematic plan that is sufficiently funded to provide qualified and independent counsel, adequately compensated and supplied with necessary supporting services." The Commentary to Standard 2.22 notes: "The quality of representational services is very largely dependent on the level of funding provided for them. The judiciary should encourage legislatures to provide for needed authority, organization, and funding."

The Champion, the magazine of the National Association of Criminal Defense Lawyers, recently published several articles about the crisis in public defense funding. Terence F. MacCarthy described his successful efforts to obtain support of the ABA for increased funding for appointed counsel in federal court. He discussed extensive literature on the subject of poorly paid defenders. In "The Eleventh Commandment: Thou Shalt Not Be Compelled to Render the Ineffective Assistance of Counsel," Professor Richard Klein cited various studies showing the perils of inadequately funding appointed lawyers. Klein found that it is more difficult to attract qualified lawyers in areas where appointed rates do not even meet the lawyers' overhead. As the Florida Supreme Court recognized: "The relationship between an attorney's compensation and the quality of his or her representation cannot be ignored."

Inadequately funded defender programs can reinforce racial disparities in the justice system. "If the criminal justice system deprives the poor generally of the right to a fair trial, that burden will fall disproportionately on communities of color because of the greater incidence of poverty in these communities and, hence, their greater reliance on public defender services."

Fortunately, leading prosecutors, private bar leaders, and judges have been willing to speak out on behalf of adequate funding for defenders. Attorney General Janet Reno wrote an article for USA Today noting that indigent defendants "do not invariably receive effective assistance of counsel." . * * * [The Gideon decision] beckons us all to work to ensure that our justice system fully provides in both fact and spirit, liberty and justice to all, rich and poor alike." USA Today, March 18, 1998 at 13A. In December, 1997, Ronald Goldstock (Chair of the Section of Criminal Justice of the ABA), Gerald Lefcourt (President of NACDL) and William Murphy (President of the National District Attorneys Assn) jointly authored an article entitled, "Justice That Makes Sense." In it they say, "despite our differing perspectives, it was clear to each that we - and the entities we represent - tend to agree on most criminal justice issues....Adequate funding for indigent defense services at the federal, state, and local levels is, without question, essential to the fair administration of criminal justice....Starving Gideon not only threatens wrongful convictions and even executions; it starves America's sense of justice." "Justice That Makes Sense," Criminal Justice, vol. 12, no. 4 at 1 (ABA Section of Criminal Justice)(Winter 1998); The Champion at 20 (NACDL)(December 1997).

Sometimes citizens frustrated with crime do not consider fully the impact of cuts in the justice system. Yet as Anthony Lewis, author of Gideon's Trumpet, wrote, even a public angry at crime "understand that society has an interest in the legal defense that makes justice possible." The American Lawyer's editor, Steven Brill, wrote that defenders are "the soul of the machine called the rule of law." It is a challenge for those responsible for providing public defense to ensure that even in times of budgetary limitations, resources are provided for defending the accused. In a way, defenders are the "tail end of the dog", in that decisions made by others in the system, legislators, prosecutors, police, judges, jailers, all affect how much work defenders will need to do and how many clients they will have. If budgets for police, prosecutors, courts, and jails increase, and the number and complexity of cases increase, then defenders will need more resources to be able to provide effective representation. Alternatives to incarceration, prosecutorial willingness to settle cases with less severe sanctions, deferred prosecutions, the use of drug courts instead of traditional prosecution, all can reduce overall costs in the system including public defense. If governments seek to punish more people more harshly, or to take children away from their parents or to incarcerate mentally ill people, they must also provide resources for public defense. Not to do so is to undercut the integrity of the justice system and the respect for law.

The recent opening of the new Star Wars film renews the story of the Jedi warriors, the defenders of peace and justice in the galaxy. Public defenders need the same courage, resources, ingenuity, and independence of the cinematic Jedi, in order to defend justice in the 21^st century republics.