So How's it Going? An Indigent Defense Report Card

Every year, I spend a week of my time teaching at the National Criminal Defense College in Macon Georgia. It's a wonderful program that brings together dedicated defense lawyers and helps them to become even better. This year, (as usual) I'll be down there for the second half of the July session. One of the things that always amazes me about being there are the stories I hear from PD's around the country about just how awful the systems they work in are. I was thinking about that when I saw the following:

In Louisiana, defendants may sit in jail for years before trial. (This can happen in NY too!) One defendant waited eight years.

In 2002, a defendant in Louisiana was convicted of second-degree murder in a trial that lasted six hours, even though his public defender had been representing the victim at the time of his death as well as an eyewitness against her client, which were clear conflicts of interest. The lawyer had met with her client all of 11 minutes prior to trial.

In Clark County, Nev., public defenders assigned to juvenile cases are expected to handle more than seven times the number of cases recommended by national standards.

Two states, Pennsylvania and Utah, provide no state funding for public defender systems - despite the 1963 Supreme Court ruling requiring such funding - and fewer than half of the states provide only partial funding.

Wisconsin funds a public defender program, but the eligibility threshold is so low that an estimated 11,000 defendants who meet the federal poverty guidelines failed to qualify for a public defender.

The Mississippi Legislature created a statewide public defender program but never funded it, and last year the legislation creating the system was revoked.

In Virginia, public defenders who handle felony cases are allowed a maximum of $395 per case, even if the case goes to trial.


123 said...

I think you need to differentiate between appointed counsel and “public defenders.” To most people, a “public defender” is someone who works for an agency that is charged with representing indigent defendants. They are usually paid a salary, and in many cases they are actually state employees, but in some cases they work for a non-profit organization. There are also, as you know, “appointed” counsel which are usually any lawyer who asks to be put on a list for assignment to cases by the clerk. They are paid either by hour or by case (or in extreme cases by hour with a per-case cap.)

Obviously, (at least to me) people who work for an agency, with supervision, training, and administrative support will, on the whole, do better, than someone with no supervision or support.

Tom McKenna said...

You're flat wrong about Virginia.

Currently, in a death case counsel can get any sum deemed reasonable by the trial court, no limit. In felonies carrying 20+ years, or in probation violation cases, max of $1,235. All other felonies, max of $445.

If you can't get the facts right on something that simple, what other factual misrepresentations are you making, perhaps about indigent defense in these other states you've cited? Sometimes you let your ideology get ahead of the facts.

Anonymous said...

Considering that the original poster was referring to what people told him, I am not sure that accuracy is that important. But you, too, Tom, fail to cite to specific statutes, so it is difficult to believe you, either.

Anyway, the numbers are low, but as someone who doesn’t really care if people not of my social class are inadequately represented, I don’t really mind. (Lets face it: $1,200 is the cost of a deposition.) I doubt that you or your family has ever been harassed by the police, and a friendly wink and a nod (and maybe showing your DA badge) gets you out of all possible trouble and strip-searches.

Tom McKenna said...

It's so very typical of you of the left to start smearing people you don't even know with ad hominems. You defame my character because I merely pointed out that the original poster got his facts wrong. Would that you had the character to accuse me of such things to my face, Mr. Anonymous.

As to my accuracy, go look up Title 19.2, section 163 of the Code of Virginia. I did, why couldn't the "original Poster" before trying to make hay out of the supposed poverty of court-appointed lawyers?

123txpublicdefender123 said...

The fees that you cite, Tom, for representing a defendant who faces felony charges are grossly inadequate. $1245 for a felony where the defendant could get 20 years or more in prison--even if the case goes to jury trial? That is absolutely unconscionable, in my opinion. If you try a case for three days, that's at least 20 hours of in-court time. That's about $60 an hour, and that does not include any of the time spent with the client, DA, etc. before it was set for trial, or any of the trial preparation time.

As for some of the other issues--waiting 8 years for a trial? How does the federal speedy trial provision permit such a thing--unless there was some delay on the defense's part as well?

Caseloads . . . well, those are always going to be bad.

Anonymous said...

Tom McKenna, you think you are doing the Lord's work. But you are not confounding the wicked, unless you are confounding yourself!

And I say this as a proud member of the right. Maybe if you had been harassed by the police without cause you would care.

You are blinded by anger and hatred. You are the worst kind of "Christian."

Tom McKenna said...

Thanks for the long-distance diagnosis, doc. Again, you have no idea about my personal character, so I have to assume that your resort to name-calling is a substitute for lack of substance to support your adolescent-like anti-authoritarianism.

For the record, I agree that the eight year pretrial delay is unconscionable and unconstitutional to boot. But I have little sympathy for the supposedly underpaid defense bar, none of whom I see leading a less than middle class existence.

And we all know that the $1235 you get for that robbery charge is what you get even if you plead it out, as will happen in most cases. Sure you have to try some of those but ON THE AVERAGE at least in Virginia, the system pays well enough to make it worthwhile for some excellent lawyers to take court-appointed work. I know; I get beaten by them from time to time.

Anonymous said...

I don’t know what religion Tom is, but I don’t think it matters. He does strike me as self- richeous and out-of-touch, but heck, so am I.

However, Tom misses the point. The issue isn’t whether the defense bar is “underpaid” or living a “middle class” life, but rather whether the market for indigent defense is healthy enough to provide adequate defense for people of the lower classes accused of crimes by people of the middle and upper classes. Indeed, I have no doubt that court appointments can provide someone with the $150,000/year or so that it takes to live, but if the only way to do that is to cut corners, then there is a sixth amendment problem.

Indeed, it seems that the only way an attorney can make money would be by pleading cases out. This does not seem to adequately align the interests of the attorney with that of his client. But, as I said, it is difficult to construct a system wherein the interests of someone of a dirty class is aligned with the interests of someone of the middle class.

Anyway, $1200 would pay for a deposition (not including most prep time), so it is hard to imagine how the work and time required for one deposition is the same as it is for a conviction that will, innocent or guilty, ruin a man's life.

123txpublicdefender123 said...

Exactly. The problem with appointed counsel fees is not that the poor defense lawyers won't be able to afford their mortgage. It is that it creates a perverse financial incentive for the attorney to simply dispose of every case with as little time and effort as possible. If a client is truly innocent or if he has an excellent opportunity to prevail at trial, the attorney should not be conflicted about going to trial because he will essentially have to handle the trial for free. There are already enough perverse incentives in the appointed counsel system such as judges repeatedly appointing attorneys who have a reputation for quickly disposing of cases and not costing the court any money for investigations and trials. In some misdemeanor courts in my area, if the private appointed counsel doesn't plead the jailed defendant out the first day he meets him, the judge takes the case away from him, and gives it to the PD--and the private attorney doesn't get paid at all. How's that for a perverse incentive?

Anonymous said...

I never was too much into Marxism (even though I am a tax lawyer), until I started thinking about the Sixth Amendment. We need to probably determine what the purpose of the right “to counsel” is. Although many people love to bitch about Gideon, it is the law, and you gotta respect it for what it is. In my textualist view the 6th gives everyone accused of a crime, some sort of an even shake at a fair trial.

Consider my parsing;

1) In all criminal prosecutions <– this appears to extent the right to everyone, regardless of their class (e.g. even “those people”) or race (e.g. even “those people”).

2) the accused shall enjoy the right to a speedy and public trial <– Public trials provides for some sort of political oversight over the process, so if people really don’t like the substantive law, they can change it, or elect a president or governor who will pardon the schmuck.

3) by an impartial jury of the State and district wherein the crime shall have been committed <--
This is a bit of a hard one for me, because I know that juries used to be, at least in England, “self-informing” and it might actually be impossible to find a local jury that is truly impartial. Nevertheless, the earlier word “all” and “impartial” seem to indicate that everyone gets the same kind of jury.

4) which district shall have been previously ascertained by law, <– This means “no forum shopping.” But we all know that forum shopping is why we get paid to be lawyers.

5) and to be informed of the nature and cause of the accusation; <– This seems to refer to 5th amendment due process, and, provide, at a minimum for some initial discovery. But we all know that poor people can’t afford the massive discovery that real clients can.

6) to be confronted with the witnesses against him; <– Well, the Supremes fleshed this out in Crawford, but Tom and his bunch have convinced a number of judges that they didn’t really mean it. So, I guess this clause is still meaningless.

7) to have compulsory process for obtaining witnesses in his favor, <– This seems downright communist to me! Since when do criminals (reading Tom’s blog, he doesn’t seem to differentiate between “accused” and “convicted” except as a rhetorical device) get to use taxpayer money to drag people into court. Sometimes against their will. Oh wait. The framers wanted it that way. The framers must have been socialists or communists.

8) and to have the Assistance of Counsel for his defence. <– Are they saying that “all” people in criminal prosecutions get such assistance. Damn.

It would seem that the word “all” attempts to remedy the inherent inequalities between people, especially when they are in court. But, many will point out that there are real class disparities between the judge and most defendants. The sixth, at the very least, tries to remedy these things by providing that trials need to actually not be based on class differences. However, when there are fee caps on representation, the state essentially is enforcing their view of what the proper role of the proletariat should be: to only get $1,500 of representation before being sentenced to jail. So, folks, we might stave off the revolution a little longer if we have people representing criminal defendants who can "assist" them without regrard to some arbitrary limit.

Of course, the military doesn't seem to have any of these problems in its court martials. This is because the armed forces are made up of communists who think that even proletariat enlisted men get counsel (usually two) with resources and supervision on par (or superior to) the prosecution.

Japheth said...

I know it is slightly off topic, but I thought this would be a good place to identify a small but incredibly unfair provision regarding Public Defender pay. Written specifically into the Federal Student Financial Aid statute is that Perkins Loans for law students are FORGIVEN for DAs and police but not for Public Defenders. For me this accounts for somewhere around 10% of my law school debt.

I guess the legislators want a new PD to get used to the disparate treatment right away.

Anonymous said...

Please provide SPECIFIC staute. It is not good enough to make vague references if you are a male lawyer.

Anonymous said...

Tom McKenna

FYI although 19.2-167 says those amounts are authorized, the general assembley has only budgeted$112 for misdemeanors, $395 for felonies, and $1045 for felonies that carry punishment OVER 20 years, which means class 2 and above except for those unclassified felonies that allow for a life sentence.

I suppose from your posts that you are a commonwealth's attorney. That is great for you but if you do not know what you are talking about then leave the issue alone. I suppose you don't want to see Virginia rise from its #50 ranking among the states for indigent defense attorney fees. Virginia's stingy compensation has been the subject of several negative studies, and ultimately requires those very court appointed lawyers to subsidize the judicial system with free, unpaid labor.

Oh, and btw most private defense counsel get off the court appointed lists as soon as they can, because doing too much court appointed work will cause you to lose money nspending all day in court for a $112 misdemeanor or $395 felony, where you will often find your court appointed compensation insufficent to meet your operating costs.

You have the easiest criminal law job in the state. I have worked on both sides and prosecuting is far easier.