Tuesday, August 17, 2010

What's an Adversary System? Voices from the Show-Me State

Really, they shouldn't even be allowed to make suggestions.  OK, OK, there's that pesky First Amendment thing.  But why in the world would the Springfield News-Leader think them worth printing?
"They" in this case is prosecutors, specifically Jeffrey Merrell and Christopher Lebeck of Taney County, Missouri (Merrell is the chief prosecutor and Lebeck his chief assistant).  And the suggestions are about how best to provide counsel for indigents at cut rate prices.
Here's the backstory as M & L tell it.
In the late 1970s, Missouri found itself paying too much for private attorneys appointed to represent indigent criminal defendants, and, in some instances, paying for substandard representation. So, along came the creation of the Missouri State Public Defender.

This month the MSPD informed our local justice system that they would begin refusing the cases of indigent defendants in Greene, Christian and Taney counties due to an "overwhelming caseload crisis." As a result of this refusal, the state of Missouri has a $39 million state-supported public defender system that refuses to do what it was mandated to do: represent indigent defendants.

See some slanting there?  Maybe prosecutorial overreaching?  Assuming they've got the plot right, let's look at this from a different angle.
Missouri realized that an independently operated, professionally staffed, public defender office, properly funded, could provide trained experienced lawyers, paralegals, and investigators and do a better job, for less money, than relying on a judge-run, system of court-appointed cronies counsel.
But as case loads increased the public defender office came to recognize that it could not continue to provide competent representation without a concomitant increase in resources.  And because the public defender has a duty, both ethical and statutory, not just to process cases but to represent indigent clients competently, it was forced to say, "enough."
Same plot, different viewpoint.
In any event, M & L aren't primarily concerned with the underlying problem.  They're looking for a cheap fix.  (The real fix is for Missouri to provide adequate funding for indigent defense.  The same fix every state needs.)  Because they're prosecutors, or bean counters, or something, M & L have recommendations.
First, shut down the Missouri Public Defender.  Look at the millions you save immediately.  No more offices, no more staff.  And those administrators!  Used to be that administrative overhead was 5% of the budget.  Although there's no current information to base it on, M & L offer their "best guess" that it's now 25%.  You know all that's waste.  It's why prosecution is done without administrators or overhead.  Because prosecutors are all about saving money.  (Oh, wait, that's not true; M & L themselves are administrators.)
Of course, when you eliminate the public defender, you do need to put something in its place.  That annoying Supreme Court did say indigent defendants are entitled to counsel paid by the government.  So M & L offer their ideas for providing cheapo criminal defense.  Convictions R Them.  So here's the ideas.
Option 1:
We should return to the appointment model of volunteer private attorneys. This is a system that already works in other states, and currently works in the Missouri federal court system. Provide these attorneys with annual training, similar to that provided to attorneys who agree to take juvenile appointments, to ensure the attorneys appointed will provide constitutionally sufficient representation.
There's a plan.  There's only one way to make that cheaper though.  Underpay the private counsel even more.  The federal courts don't do that.  They pay appointed counsel far more than most states do.  And they often provide far more funding for experts and investigators.   Fortunately, you won't have a problem of the lawyers doing a bad job despite the financial disincentive to work because with a bit of "training" they'll all be "constitutionally sufficient."  What training will "ensure" that?  Let's remember that six judges on the 5th Circuit thought Joe Frank Canon provided Calvin Burdine "constitutionally sufficient" representation by sleeping through "significant portions" of his capital trial.  So maybe sleep therapy?
Option 2:
A voucher system, whereby defendants are able to use vouchers to choose from a list of private attorneys who volunteer to accept the cases of indigent defendants. At the conclusion of a case the voucher is turned in for a flat fee. There will be an obvious incentive to close cases efficiently that does not currently exist for many public defenders. Furthermore, it gives indigent defendants a choice in selecting an attorney that best meets their needs. This consumer choice will create competition amongst private attorneys competing for appointments, which will ultimately promote efficiency and better representation.
Ah yes, the "obvious incentive to close cases efficiently."  The less work you do, the better your hourly rate of pay.  Plead 'em guilty as soon as you're hired and you make decent money.  Go to trial?  Whoo.  There's a financial mistake.  But hey, I tend to forget that the job of defense counsel is to get cases finished "efficiently."  My mistake.
Option 3:
Put the operation of local defender offices up for competitive bidding to all attorneys interested in representing indigent defendants. This annual free-market bidding would ensure the most-efficient and cost-effective management of the defense of indigent defendants, and would keep the offices local - eliminating mileage and other administrative overhead.
Simple test:  Who'll represent the most people for the least money?  There isn't even the fig leaf of pretend service to the client in this one.
Option 4:
Return to the apprentice model of the practice of law in Missouri. Require new lawyers to volunteer 40 hours per year of their time to the representation of indigent defendants. Make this requirement mandatory for the first five years. The resulting court experience, along with the required annual training for these new attorneys, will put young lawyers miles ahead of where many of us were at year six of our legal careers.
Mark Bennett used to tell young lawyers and prospective lawyers who wanted to go into criminal defense that they should open a solo practice right out of law school.  A couple of months ago he concluded that it was bad advice.
I wanted to believe, because society is better served by having those who are dedicated to freedom serving that cause (rather than the State) from the start of their practices, and because here in Harris County the only way for a lawyer to serve freedom from the start of her practice is to start her own practice.
Forget all that. You can't do it. Those few who have managed to build practices from scratch right out of law school are aberrations. Take my word for it: you don't have what it takes. Not on your own.
M & L go Mark's bad advice a step further.  Make every lawyer do it.  Oh, sure, you never wanted to go into a courtroom, your only interest is mergers and acquisitions, you're working for a prosecutor.  No problem.  Put in your 40 hours a year defending poor people charged with serious crimes.  Don't know what you're doing?  That annual training thing again.  Besides, they're criminals.  How hard can it be to plead them guilty?
* * * * *
Look, it's easy to make fun of such ostentatiously bad ideas (though it's frightening to realize that they might get adopted).  But there are a couple of underlying serious points.
All of these suggestions are built on one of two implicit postulates.
  1. Criminal defense is assembly-line work, that anyone can do it because it benefits from neither talent nor skill nor commitment nor interest.
  2. Criminals defense is a worthless activity, something we undertake only because a bunch of guys with wigs a couple of hundred years ago were silly enough to think those accused of crimes had a right to contest the accusation and had a right to have lawyers help them do it.  So we have to go through the motions.  But since we know better, that's all we need to do.  Since the idea of the criminal justice system is just to get people locked up, any option that makes it less likely that cases will be  investigated or tried is a good one.
But, and this takes me back to the question I asked at the beginning, why would we take such tripe seriously?  Why would anyone publish it?
I've done two posts in the last couple of weeks about the breakdown of the adversary system excoriating those courts that permit prosecutors or statutorily defined victims of alleged crimes to participate in decisions about how cases are defended..  And a couple of months ago I wrote about Jamie West.  Jamie's the guy in Georgia whose appointed lawyers balked at continuing to work with no hope of getting paid.  When the court was stumped, the prosecutor suggested how to get Jamie's case moving and who should represent him - a plan the court readily accepted.
Well, here we are again.
There's one question.  It's not an idle question, not rhetorical.  It is one I never used to think I'd have to ask.  But it turns out I was wrong.
Sorry.  I lost my composure there for a moment.
You see what this is.  Prosecutors, whose idea of a good defense is one that folds quickly, think they know how to save taxpayers money on defense.  Sure, do what they say and you might save a few bucks up front.  But you'll guarantee a few things:
  • Appellate reversals.
  • Costly post-trial litigation.
  • Routine violations of constitutional rights.
  • Conviction of more innocent people (and as a necessary corollary, more guilty people left free to roam the streets.
And you'll achieve those results by abandoning the very notion of the system we've chosen: The adversary system.
Because, and I don't know how to put it more simply than this, when the prosecution establishes and controls the defense, there is no adversary system.
Public defenders, and appointed counsel too, know all too well that their clients often wish they could have a "real lawyer."  They see that the defense lawyer is paid by the same people who pay the prosecutor and wonder how they can get a fair shake.
The answer (and sometimes we can't make them see it) is that defense counsel, whoever pays them, are independent of the prosecutor's office.  But when the prosecutors design the system, or when the try to control how it works . . . .
No, they have no say.  No voice.  No right to be heard.  No worthwhile suggestion to make.  
Why would we think otherwise?

Thanks to my friend (and committed public defender) Lisa F who partly vented her anger at M & L over this by sending me a link to what they wrote.


  1. Excellent post, Jeff. The media's infatuation with the positions of officials produces outrageous and absurd public misperception, and the News-Leader should be ashamed of itself for publishing such garbage.

  2. I always have a hard time deciding whether these things make me more angry than sad or more sad than angry.

  3. If they're really concerned about economic efficiency, I would think some combination of options 1, 2, and 3 would work just fine, with one little tweak: They need to start laying off prosecutors. That would directly reduce the number of cases going through the system, and there'd be additional back-end savings from being able to close down a few prison wings. In addition, the laid-off prosecutors would add to the pool of lawyers with crimlaw experience who would be available to take defense appointments. It all kind of fits together...

  4. FYI. This is a running battle in the State of Missouri. The Prosecutors all had a party (aka meeting) and decided on ways to bang on MSPD. The St. Louis Post-Dispatch has many articles on this continuing saga, as well as the Web Site of the St. Louis County Prosecuting Attorney, Bob McCulloch (who, by the way, makes more money than the Missouri Governor and most of the Missouri Supreme Court Judges)for updates. The article you cited also appeared in Missouri Lawyer's Weekly last week and here is the MSPD response published this week. http://molawyersmedia.com/blog/category/our-publications/missouri-lawyers-weekly/. Keep up the good work. This story has not played out yet.

  5. Investigator,
    Is there a link to the MSPD response so that we can read it without subscribing to Missouri Lawyers Weekly?