Tuesday, February 16, 2010

Who You Gonna Call?

Say you're charged with a crime - drunk driving, election fraud, aggravated murder with death specs, running a ponzi scheme that involved stealing billions of dollars, for instance - pretty much any crime.

If you're sufficiently poor (and, frankly, if you're charged with a crime, you probably are though the ponzi scheme guy will be an exception), you get a free lawyer.* If you're sufficiently rich, you can hire a dream team. (Think OJ, though for younger readers that example may soon be as barely meaningful as a reference to Leopold and Loeb.) If you're anywhere in the middle, you're on your own. (Actually, you're on your own if you're rich, too; but that's not so much of a hardship.)

For the folks in the middle, that's a real problem. And it's not clear that it's a fair burden even for the rich. There's something troubling about the government charging a crime and making the presumptively innocent defendant pay for the privilege of protecting that presumption. The solution that's been roiling at least a few of the usual suspects on the blawgosphere lately is universal public defense.

John Kindley seems to have floated the idea first, back in April last year, in a comment at Simple Justice. Then, on Sunday, Norm Pattis resurrected it with a vengeance, giving it its own blog (to which I've put a link in the blogroll). Since then, Scott and Bennett and Gideon (and Scott again) have weighed in and Norm's been pushing hard.

I've been sitting it out for a couple of days watching the fireworks. I think it's time to join the fray.

First, some background and full disclosure.

I'm a lawyer in Ohio which is the state whose systems (plural for a reason) I know best. Ohio has 88 counties, and each has its own mechanism for providing counsel for indigents. Some have public defenders and make one or another sort of provision for conflict counsel. Some use only court-appointed counsel, mostly selected off local lists maintained by the court administrator or the individual judges and appointed by the case judge. Some have contract arrangements where one or more lawyers have signed on to take some percentage (which could be 100, of course) of the county's indigent cases in exchange for xx per case or xxx per month or per year or something. Some use a combination of two or more of these systems, and I wouldn't be shocked to hear that some county has something else going on.

Each county is also responsible for most of the cost of providing that counsel, and each has considerable control over what that cost will be. Each county, for instance, has its own schedule of fees for appointed counsel (none even close to adequate) with hourly rates and fee caps. Some counties provide for the possibility of extraordinary fees. Some don't. The judges authorize payments on a case-by-case basis and can (and in some cases do) cut the billed fees because they don't believe all that work was necessary, or maybe just 'cause they want to - no explanation is required.

Funding for experts and investigators and the like also comes mostly from the county budget. The elected judges commonly view themselves as guardians of that budget. Some few judges are generous. Most are not. Some are downright hostile. The standard on review of denial is whether you've made a showing that the expert was necessary to an adequate defense. That's too often understood as something like whether you can prove that the jury would not have found you guilty if you'd had the expert. Best of luck.

Besides, as one federal judge told us in reviewing a capital case where we complained about the lack of an arson expert (I'm paraphrasing here, but not misrepresenting): Since the state's guy said it was arson, your expert would just have agreed. So where's the harm?

Where there are public defender offices, they are almost all severely underfunded. And while they have some money for experts and may have an investigator or more on staff, it's woefully insufficient.

Ohio also has a statewide public defender. Its charge is primarily post-trial. It's suffered severe budget cutbacks in recent years, and has never had the degree of funding it should have had.

That's the background. Now the disclosure.

I've done a whole lot of court-appointed work. I believe it's important to do. I've struggled to get the resources to do the work adequately, been significantly underpaid when my hours ran past the fee caps. The Supreme Court says that the Constitution requires that the criminally accused have access to necessary experts at government expense if they can't afford their own (Ake v. Oklahoma). It's not that simple, of course, as Norm Pattis explains.
Ake's guarantee that a person can seek state funding for an expert once they become indigent is cold comfort for the family forced to their knees by a criminal prosecution. And while Ake speaks of the need for expert testimony to defend a claim that the defendant lacks the intent necessary to commit a crime -- the grand daddy of all defenses -- it is a holding rarely applied in the state courts for such things as handwriting experts, toxicologists and forensic interviewers. Ake is, in my view, mere window dressing.
He's right. I've fought judges over expert fees and investigator fees. For instance:
  • Three defendants: Why do you need more than one expert? You can share. (Conflict, anyone? Doesn't matter. One expert is what we got.)
  • I know your expert was from out of town. I know I authorized up to $2,500 for him. And I know his total bill was less than that. But I'm not paying for his travel time. You want to reimburse him for that, do it out of your pocket.
I also served a term on the Ohio Public Defender Commission. That's essentially the board of directors of the state public defender. We worked to get resources and to be sure that the resources the office had were used both efficiently and effectively. I'd like to say we were always effective, but we weren't.

So from all that . . . .

Justice has a price. If the government is to seek justice, the government should pay for it.

Individuals shouldn't have to foot the bill to defend themselves against the forces of the state. As long as the Constitution contains a right to counsel (which it does at least until the folks at the Supreme Court get their hands on the question again), government has an obligation to see that counsel is provided. And since the right to counsel is both separate from and also part of the right to present a defense, and since that right, too, is constitutionally guaranteed, the government has an obligation to ensure that the accused has access to the resources needed to defend. And that applies regardless of whether counsel is retained of appointed or simply made available for the asking.

I'm comfortable with that in theory. More, I think it's ineluctably right. The problem is that there's a real and dangerous space between theory and practice.

Gideon may have whatever resources he needs.
We are fortunate enough to have vast resources at our disposal. I need an expert? I got an expert. I need to send my investigator to Florida to contact a witness? The investigator is on a plane/train/automobile. The same applies to our Special Public Defenders, although it may take slightly longer.
Good for him. Good for Connecticut. Most of us don't live or work there.

In too many places and too many cases, there just aren't the resources for any of that. And the publicly paid lawyers don't defend, they process. Grab the file, get a plea offer from the prosecutor, meet the client and tell her to take the deal, enter the plea. There's no time and no money to do more. On the other hand, in too many places and too many cases, retained counsel do the same thing.

Here's a reality. Public defenders include some of the best, most passionate, most committed, hardest working lawyers around. I've watched as defendants fired their PDs, raised the money for private counsel, and went down in flames before the jury precisely because they dumped a terrific, publicly paid lawyer for a privately retained, lazy, indifferent, incompetent. In a number of those case, I've come along afterwards and tried to pick up the pieces. Better to get it right the first time.

Here's another reality. Some of the worst lawyers around are public defenders. They view the job as a sinecure. They don't get paid enough to bother, and maybe they wouldn't bother if they could. Too many appointed counsel are even worse. Judges will appoint political cronies as a form of patronage or reward (some reward, given the lousy pay, but it's true anyway) or seek out the lawyers who won't make them work. Besides, there are superb attorneys available to be hired - sometimes for quite reasonable rates.

Here's today. The sufficiently poor get something. The wealthy get something else. The folks in the middle - especially but not exclusively the folks barely in the middle - get the worst of both worlds. They get to impoverish themselves and then hope it's adequate or that the government will, after they're impoverishment, help them out.

And not every case requires (or will even benefit from) investigators or experts.

But who's to decide.

Scott worries that it's the Man. Andrew Oh-Willeke suggests something akin to a loser-pays system but with government footing the original bill. (Kindley suggests something similar.) Gideon talks about reworking the formulas for determining indigency and then about fully and adequately funding public defenders everywhere (not just in Connecticut). Pattis, too, focuses on the problems for the middle class. That's fair since the middle class defendant is the obvious loser today. But one way or another, they're all saying that we need to cough up the cash.

They're right. We've been working, in Ohio, on finding better ways to provide and fund (or maybe it's fund and provide) indigent defense. But it's still indigent defense. And however much we increase the funding for it, and however much we dance around the margins of who is sufficiently poor to qualify, we're still saying that if you can afford to pay, you must.

If we're going to engage in a sort of wishful fantasy here, and the whole discussion is built on what we might like rather than what's really attainable (despite Oh-Willeke's rose-colored glasses), then we should push for what's right. Take things one small step at a time if necessary, but begin from strength at the top rather than weakness at the bottom. And here's what's right:

True universal public defense. No means test. No nothing. Everyone's entitled. And everyone's entitled to match what the government has. Without begging. Without fear or favoritism. As a matter of course. Because it's right.

I said it earlier in this post, but this time I'll quote Bennett:
Why should the (presumptively) innocent, whether wealthy or working-poor, have to dig into their own pockets to defend against charges that are (presumptively) false?
The answer, of course, is that they shouldn't.

*That "free" part may not be strictly true. In Ohio for instance, and likely elsewhere, if you end up convicted of a crime, you may be ordered to repay the government the money it put out for your defense. And you may (again in Ohio, but not exclusively there) be ordered to pay a fee in order to qualify for a lawyer without cost. (Yep, if you can't afford a lawyer, you may have to pay for the privilege of having one appointed.)

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