Public defender

For the 1931 film featuring Boris Karloff, see The Public Defender.

Public Defenders' offices in Salvador da Bahia, Brazil.

The term public defender is primarily used to refer to a criminal defense lawyer appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States and Brazil. The term is also applied to some ombudsman offices, for example in Jamaica, and is one way of translating a common Spanish-language term for ombudsman, defensor del pueblo. The rest of this article deals with the primary meaning.

By country

In civil law countries, following the model from the French Napoleonic Code of criminal procedure, the courts typically appoint private attorneys at the expense of the state. As a rule defense attorneys in such countries are not directly employed by the government.

Brazil

In Brazil, the constitution provides for a public defender's office at both state and federal levels. In most states, like Rio de Janeiro, Mato Grosso, Mato Grosso do Sul and Rio Grande do Sul, the Public Defender, as the Prosecutor, has a "judge status". They have the same salary and prerrogatives. The public defender's office in these states has a long tradition of assisting the poor and lower middle-class in both civil and criminal matters while other, poorer states, are still struggling to set up a public defenders office. The federal public defender's office (Defensoria Pública da União) has only recently began hiring attorneys and lacks in infrastructure. There are only 481 Federal Public Defenders in the whole country to assist more than 130 million people, which causes the general public to rely on lawyers assigned and paid by the federal judicial branch on a case to case basis.

Regarding conflicts of interest, the public defender may also be precluded from representing a defendant if the office previously represented a witness to the crime charged—not only a co-defendant (other defendant).

Germany

Germany does not provide indigent legal representation in criminal trials, although it does provide legal advice.^[1]

United Kingdom

Main article: Legal aid#England_and_Wales

A system of private lawyers ("solicitors") and counsel paid by the state is operated in the United Kingdom.

United States

Different jurisdictions use different approaches in providing legal counsel for criminal defendants who can't afford private attorneys. Under the federal system and most common among the states is through a publicly funded public defender office. Typically, these offices function as an agency of the federal, state or local government and as such, these attorneys are compensated as salaried government employees. This approach provides a substantial majority of the indigent criminal defense representation in the United States.

In addition to government-based offices, there are also a smaller but significant number of not-for-profit agencies, often referred to as a "Defender Service", or Legal Aid Societies that provide indigent criminal defense services. These entities tend to rely heavily on indirect sources, public funding, and charitable contributions to meet their operating costs.

Yet another, although increasingly less common method to appoint counsel for indigent criminal defendants is by way of a so-called "panel" of private attorneys who enter agreements with the government to handle such cases. Under this system attorneys generally operate as independent contractors and are compensated at a fixed rate for the case or sometimes by the hour.

State systems

Founding and history

The landmark case in the United States that helped pave the way for all defendants to be guaranteed an attorney in criminal proceedings was Gideon v. Wainwright, 372 U.S. 335 (1963). Gideon was a middle-aged Florida man who was charged with breaking into a bar and stealing money and beer. He argued at his arraignment that he could not adequately defend himself, and that a system that puts an uneducated person against a trained attorney is fundamentally unfair. On appeal, the Supreme Court of the United States agreed.

Although there had been some provisions for free attorneys prior to Gideon, it served as the catalyst for a wave of change. Following the landmark 1963 decision, the 1960s witnessed the creation of programs across the country to make this right available to most people charged with crimes who could not afford an attorney to represent them.

The first person to propose the creation of a public defender's office was California's first female attorney, Clara Shortridge Foltz. In a time before there were public defenders, young, inexperienced attorneys were often ordered by courts to defend indigents pro bono, and in that capacity, Foltz saw firsthand the inequitable results of that system.^[2] As a result of Foltz's energetic lobbying, Los Angeles County hired Walton J. Wood to head the first public defender's office in the United States in January 1914.^[3] In 1921, the California Legislature extended the public defender system to all state courts.^[4][5]

Structure

Public defender agencies of all kinds are supported by public funding, but are ethically bound to be independent and do not take direction from the government as to the acceptance or handling of cases, or to the hiring of staff attorneys. One of the most well established statewide public defender systems is in Wisconsin.^[6] The Wisconsin State Public Defender has been used as a model for other states and several countries. Wisconsin has a program that uses both staff attorneys and appointments to attorneys in private practice. State public defender systems can vary widely from state to state, county to county, and from federal defender organizations. Most chief public defenders are appointed. The chief public defenders in Florida, Tennessee, Lincoln, Nebraska, and San Francisco are elected.

Defenders vary greatly regarding the types of support staff they employ to support the work of their attorneys. In addition to clerical staff, defender offices may employ investigators, social workers, and forensic experts, such as psychologists. These human resources may help defenders provide more professional service than an appointed lawyer without this type of staff or funds to employ them. Private appointed attorneys are entitled to apply to the court for the services of an expert or investigator and the government is required to pay for those services if they are essential to the defense of the accused person.

Funding and staffing problems

Problems of excessive case loads and low salaries still plague many state public defenders' offices. To avoid these problems the American Bar Association and the National Legal Aid & Defender Association ^[7] have promulgated standards relating to the performance of and appropriate case loads for public defenders. Research has indicated that indigents receive the highest level of representation when assisted by a well funded professional office dedicated to criminal defense. Some of these studies have indicated that the outcomes for properly funded and independent public defender clients are on equal footing as clients of private attorneys in the same jurisdiction.

Issues often arise in state jurisdictions with regard to appropriate levels of public defender funding. If attorneys are under-funded, their case loads can become so excessive that they are unable to provide adequate representation. Further, funding issues can keep salaries too low to attract the best legal talent or to keep experienced lawyers on staff.

These issues have come to the fore with recent studies disclosing that innocent people have been condemned to death in part due to inadequate representation in Cook County, Illinois (Chicago), although none of the overturned "death penalty" cases were actually represented by the Cook County Public Defender.

The elected public defenders in Florida have engaged in extensive litigation regarding underfunding and excessive caseloads. This litigation is based on their ethical and constitutional duties to provide effective counsel to their clients and their independence from the judges who appoint them. A private attorney in Florida commented on another private attorney's caseload, "A busy attorney might take 50 to 100 cases a year. If you take more than that, you might not be able to remember who your clients are and what their cases are about." In the same county, the average caseload of a public defender was 550 felonies or 610 misdemeanors annually.^[8]

There was a lawsuit in New York State as well, in which the New York Civil Liberties Union has filed on behalf of 20 accused individuals claiming that the provision of public defense services has been inadequate. In New York State, many public officials have supported that claim, including the former-Chief Judge, Judith Kaye.

In some jurisdictions, an indigent criminal defendant may be ordered to reimburse the state for the costs of his or her defense, based upon the defendant's ability to do so.

Pay

In jurisdictions where indigent defense is handled on the basis of contracts or ad-hoc appointments, there has been increasing concern about the low pay and minimal resources given to public defenders.^[9]

In jurisdictions where the public defender is a government agency, public defenders are generally on the same or similar pay-scale to prosecutors. This rate of pay is generally (but not always) below that of the private sector. In addition, often the number of attorneys allotted to the public defender may not be sufficient to handle the number of cases they are required to handle. Government agencies may, however, be able to provide collateral services such as social workers.

Issue at stake

The Sixth Amendment of the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the assistance of counsel for his defense.” In the famous Scottsboro Boys case, Powell v. Alabama, 287 U.S. 45 (1932), the United States Supreme Court held that the indigent defendants, unable to afford to hire their own attorneys and accused of what was then a capital crime, had the right to a court-appointed attorney flowing from the Sixth Amendment. The defendants in that case were nine black men accused of rape by two white women in Alabama, and the white judge had failed to appoint counsel. Accordingly, one of the underlying social concerns in Powell was guarding against the danger that innocent people would suffer false accusations motivated by racism, then end up facing the ultimate punishment because their poverty precluded them from obtaining guidance through the potentially unfair trial process. The Court's decision applied only to capital crimes.

A decade later, Betts v. Brady, 316 U.S. 455 (1942) narrowed the Powell holding. The soon-to-be-overturned Betts decision held that an indigent defendant, even in a capital case, had no right to court-appointed counsel unless the defendant was illiterate, of low intelligence generally, or caught up in a particularly complicated trial.

Gideon v. Wainwright, 372 U.S. 335 (1963), established a clear doctrine: the Sixth Amendment right to counsel is a fundamental right, essential for a fair trial, and necessitates that the courts appoint lawyers for all indigent defendants, regardless of that defendant’s education or intelligence.

The function of a public defender, then, is to provide the due process safeguard that the Supreme Court deemed necessary for a constitutionally sound criminal justice system.

Practice

Some public defenders follow a "holistic approach" to providing public defense services to their clients (see, e.g., The Bronx Defenders). This means that because the public defender office is working with people who are living in poverty, they have an opportunity to make a positive impact on the lives of the clients, families and communities they work in. One example of holistic representation is the use of social work services to identify the reason for the criminal act and try to work on that problem. In many cases, people who are arrested are suffering from a drug problem or may even have an undiagnosed mental illness. A holistic public defender would be able to find an appropriate treatment program for such a client and advocate to the judge and the prosecutor to allow the client to receive treatment rather than go to jail. This helps the family and in turn improves the drug problem in that community one person at a time. Some public defender offices also have community based services to help prevent criminal activity.

Full-time public defenders are specialists who only handle criminal matters (although some public defender officials handle quasi-criminal civil cases, in which defendants are entitled to appointed counsel), and can tap into a nation-wide network for guidance and assistance.

Many, if not most, public defenders enjoy some form of civil service protections, such as a requirement that any employment termination be only for "good cause." Many staff attorneys belong to unions. These protections may allow public defenders more freedom in vigorously handling their caseloads. In Florida, staff attorneys have no civil service protections.

Unfortunately, because of the wide variance of criminal justice systems between states, and even among jurisdictions within each state, no reliable large study has been performed to show how effective having a public defender system is versus a private or appointed system.

Federal systems

Structure

Federal Public Defender offices follow one of two models. The first model, the Federal Public Defender, is a federal agency which operates under the Judicial Branch of the federal government, specifically administered by the Administrative Office of the United States Courts. However, they perform administrative and budgetary duties as only the circuit courts of appeals of the United States are in charge of appointing their respective Federal Defenders, who in turn hire lawyers and support staff and manage the office. This model is followed separately for each individual judicial district in their circuit. The procedures for appointment, re-appointment and other administrative matters vary from circuit to circuit but the Federal Public Defender is appointed for 4 year terms. The second model is that of the community defender. Although similar to a federal public defender, technically it is actually a corporation that receives federal grant money and acts more independently from the federal judiciary. Although both type of defender offices are supported by public funding, they do not take direction from the government as to the operation of the offices.

Practice

The Office of the Federal Public Defender operates under authority of the Criminal Justice Act of 1964 (CJA),18 U.S.C. § 3006A. It provides defense services in federal criminal cases to individuals who are financially unable to obtain adequate representation. A person's eligibility for defender services is determined by the federal court. Defender organization attorneys may not engage in the private practice of law. Those accused who are found to be indigent in jurisdictions without a Federal or Community Defender, and those for whom there is a conflict or those charged at a time the Defender in their jurisdiction is short staffed or has a full caseload, will be appointed private counsel who are paid an hourly rate from an approved list of qualified lawyers who have the requisite experience to handle a federal criminal case.

Pay

By law, lawyers employed by Federal Public Defender offices have salaries set to match those of lawyers in the U.S. Attorney's office. The combination of salary, benefits and support team tends to attract, and more importantly retain, highly qualified attorneys. Especially in more rural areas, where federal criminal work is considered well-paid, many federal defenders have risen up through the state systems before becoming federal defenders. However, since each judicial district has a separate Federal Public Defender who administers and staffs each office in their district and manages the budget, the quality of representation varies from district to district. For example, their approval of the expenditure of funds for expert witnesses and training is up to each individual Federal Defender in their respective district and a few defenders are known to withhold those funds for important matters like those experts or transcripts that are critical for effective trial preparation Therefore, though rare, in some jurisdictions an indigent defendant may be better represented from appointed counsel who can petition the Court for the expenditure of expert witness funds and funds for critical items like official transcripts of hearings for use at trial.

Comparison of state and federal systems

A federal defender's case load is usually substantially lower than her or his state counterpart's. While a state public defender may have to juggle over one hundred cases, an Assistant Federal Public Defender routinely has 30-50 cases, a very manageable number, though the severity and complexity of such cases may be greater. The federal system has over 4,000 separate offenses, and uses a very mechanistic, sentencing scheme based on a set of "advisory" sentencing guidelines. That said, state public defenders (as well as state prosecutors) often begin their careers handling misdemeanor cases. Since misdemeanors generally do not involve serious injuries, the parties are often more willing to ask that charges be dismissed, and less likely to appeal a dismissal by a judge. Therefore, although the volume may appear high, the work-per-case is significantly lower for misdemeanors.

Furthermore, in jurisdictions without an organized public defender agency, some courts and legislatures in some states tend to "cap" the amount a panel attorney who does not work for a public defender agency can receive in compensation on a case, there is much more pressure on the "panel" attorneys to resolve a case or issue quickly than there is for a full-time Federal Public Defender, who can afford to invest all the time necessary to fully develop an unusual motion or issue. In the federal system, the title of Assistant can create a belief in some clients that their attorney is new. The title has nothing to do with the attorney's experience or ability. There is only one United States Attorney for each federal judicial district (all the other federal prosecutors are called Assistant United States Attorneys), and there is only one Federal Public Defender for a district. Thus, an attorney with thirty years experience, who supervises twenty other attorneys, could still be an Assistant Federal Public Defender.

There remain some perceived differences between the quality in state versus federal public defenders offices, and the difference between poorly supported state programs versus properly supported state offices has caused much confusion amongst the general public. The horror stories have created a frequent public perception that all defenders are overworked and have to "dump cases". "Dump truck" and "public pretender" are terms sometimes used by defendants when complaining about their public defender. About "dump truck," the California Court of Appeal has explained:

“

For the benefit of the uninitiated, 'dump truck' is a term commonly used by criminal defendants when complaining about the public defender. The origins of the phrase are somewhat obscure. However, it probably means that in the eyes of the defendant the public defender is simply trying to dump him rather than afford him a vigorous defense. It is an odd phenomenon familiar to all trial judges who handle arraignment calendars that some criminal defendants have a deep distrust for the public defender. This erupts from time to time in savage abuse to these long-suffering but dedicated lawyers. It is almost a truism that a criminal defendant would rather have the most inept private counsel than the most skilled and capable public defender.[10]

”

Legal issues

Conflict of interest

Because conflict of interest problems could exist where multiple defendants participated in a single crime, only one person in a group of co-defendants will be assigned an attorney from a public defender office. For many defendants, it is in their best interest to testify against co-defendants in exchange for a reduced sentence. To ensure that each defendant is afforded his constitutional right to an effective defense, jurisdictions may have several public defender entities, or a "conflict panel" of private practice attorneys. This enables the court to assign each defendant an attorney from a completely separate office, thereby guarding against the risk of one client's privileged information accidentally falling into the hands of another client's attorney. Some jurisdictions, like in Los Angeles County, employ a separate entity for legal representation called the Alternate Public Defender's office. Any further conflicts are handled by court-appointed private attorneys. Recently, Florida instituted an Office of Criminal Conflict and Civil Regional Counsel in each of its five appellate districts to afford indigent codefendants this need for due process of law.

A recent study by postdoc fellow Radha Iyengar of Harvard University found that private attorneys appointed under the federal Criminal Justice Act fare worse than their Federal Public Defender counterparts, often leading to sentences averaging eight months longer and costing taxpayers $61 million a year more than salaried public defenders would cost.^[11]

Appeals

Notably, the landmark Gideon case only gives an indigent criminal defendant a right to be represented at trial and upon the first appeal as of right. But the Supreme Court has held that there is no right to representation for discretionary appeals^[12] or postconviction collateral attacks like habeas corpus and coram nobis.^[13] In other words, an indigent convicted criminal who loses his trial and first appeal of right, if one is available (three states do not even allow an appeal of right), is on his own afterwards.

Of course, an appellate public defender, upon reviewing the trial record, will often find overwhelming evidence of the client's guilt and conclude there are no reasonable grounds for an appeal. The dilemma is obvious: On the one hand, they have a duty to diligently represent their client and honor their client's right to a first appeal, but on the other, they have a duty to not file frivolous appeals.

In 2000, the U.S. Supreme Court upheld as constitutional the so-called Wende procedure implemented by California to resolve this situation.^[14] The appellate public defender files a brief summarizing the procedural and factual history of the case, indicates that he has explained his evaluation of the case to his client and told the client of his right to file a pro se supplemental brief, asks that the court independently examine the record for arguable issues, and expresses his availability to argue any issues on which the court desires briefing. However, the appellate brief never expressly indicates that the appeal is frivolous, though the implicit message is obvious. The California Court of Appeal then undertakes its own review of the record. If it finds a possible issue, it directs the parties to brief and argue it. If it finds none, it issues an opinion (usually unpublished) affirming the conviction.

Miscellaneous

If a concern involves a local matter, local court staff can provide direction to the appropriate public defender organization. Note that in some states, the office is not titled as "Public Defender"; for example, Kentucky's public defender office is called the Department of Public Advocacy. Federal Public Defender offices are customarily located in larger metropolitan areas of the district, but serve clients throughout their assigned area.

If a concern involves a civil case (e.g., personal injury or a landlord-tenant dispute), as opposed to a criminal case, one needs to contact a legal aid office, as public defenders are typically prohibited from taking civil cases, although public defenders may be appointed in civil cases that are quasi-criminal in nature (e.g., removal of children from parents and civil commitments for alleged sexually violent predators)^[15] or in highly unusual situations where the civil proceedings may be highly connected to criminal proceedings.^[16]

In Hungary, either the police, the public prosecutor or the court (depending on what individual cases require) appoints a criminal defender at the state's cost to defend those that can not afford a chosen lawyer. The defence counsel's participation is required by the Criminal Procedure Act. Usually a private lawyer is appointed, one for each defendant, and conflict of interest between contradicting suspects is observed, e.g. not the same lawyer is to represent two contradicting suspects. If convicted, the defender's fee is to be borne by the defendant afterwards, but is rarely sought after.

Notes

1. ^ "Legal aid - Germany". European Commission. 22 March 2005. http://ec.europa.eu/civiljustice/legal_aid/legal_aid_ger_en.htm. 
2. ^ http://www.law.stanford.edu/library/wlhbp/clarapostcard.html
3. ^ "Public Defender, History of the Office". Los Angeles: Los Angeles County Information & Services. 1914-01-09. http://pd.co.la.ca.us/History.html. Retrieved 19 May 2011. 
4. ^ http://www.law.stanford.edu/library/womenslegalhistory/clarapostcard.html
5. ^ Jerry D. Lewis, Reed Hadley (1955). "Public Defender [Crime Stories]". Crime Stories (Los Angeles: H-R Productions). 
6. ^ http://www.wisspd.org
7. ^ http://www.nlada.org
8. ^ Basu, Kaustuv (March 26, 2011). "Attorney agrees to bow out 2nd time". Florida Today (Melbourne, Florida): pp. 1A. http://www.floridatoday.com/article/20110326/NEWS01/103260319/Attorney-Todd-Deratany-agrees-bow-out-2nd-time. 
9. ^ "Report: Hamilton County pay for public defenders near bottom in Ohio". Associated Press Thursday, PM cycle, State and Regional. 2000-02-03. Archived from the original on 2006-12-31. http://web.archive.org/web/20061231101537/http://venus.soci.niu.edu/~archives/ABOLISH/rick-halperin/jan00/0218.html. Retrieved 2007-05-29. 
10. ^ See People v. Huffman, 71 Cal. App. 3d 63, 72, fn. 2, 139 Cal. Rptr. 264, 272 (1977).
11. ^ Liptak, Adam (2007-07-14). "Public Defenders Get Better Marks On Salary". The New York Times. http://www.nytimes.com/2007/07/14/us/14defenders.html?. Retrieved 2010-03-27. 
12. ^ Ross v. Moffitt, 417 U.S. 600 (1974).
13. ^ Murray v. Giarratano, 492 U.S. 1 (1989).
14. ^ Smith v. Robbins, 529 U.S. 259 (2000).
15. ^ See, e.g., Lassiter v. Dep't of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d. 640 (1981).
16. ^ See, e.g., Yarbrough v. Superior Court, 39 Cal. 3d 197, 702 P.2d 583, 216 Cal. Rptr. 425 (1985).

See also

• Legal aid in the United States
• Duty solicitor
• Duty counsel
• Legal Aid