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Public defender: it’s impossible for me to do a good job representing my clients

233 points| ikeboy | 10 years ago |washingtonpost.com | reply

117 comments

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[+] axxl|10 years ago|reply
> I’ve been asked by my family members, my friends and my hairdresser why I represent criminals.

That's the most sad part of this article to me. Many people have lost innocent-until-proven-guilty in their minds. Tina has a good response in the article:

> The answer is that I, and other public defenders, don’t represent criminals. We represent poor people who are facing criminal charges — charges on which they are presumed innocent until proven guilty in court. We represent members of our communities who have a right to real and meaningful legal representation, even if they are poor.

[+] geofft|10 years ago|reply
There's a subtler point: even if they are criminals, it's still valid to represent criminals to make sure that justice is served. You want criminals punished for the crimes they did commit, not the ones they didn't. You want sentencing to be fair, not vindictive. You want conspirators and other partners to be identified and to be punished too; you don't want the one unrepresented person to be coerced by everyone else's lawyers into taking all the blame. You want loopholes, as long as they exist, to be as available to the poor as to the rich.

I think I'm actually more worried about the loss of this than the loss of innocence-until-proven-guilty. That's the sort of stuff that gets people thinking, if you don't want to be extrajudicially killed on the streets, don't sell untaxed goods if you have asthma.

[+] sanderjd|10 years ago|reply
Coming from a family of lawyers, I first realized that the belief in everyone's right to representation is not universal when many people I knew reacted vitriolically to lawyers representing inmates at Guantanamo. I really like the answer you quoted from the article, but it still relies on appealing to sympathy for the people being represented. But even those who deserve no sympathy deserve representation!
[+] jessaustin|10 years ago|reply
The answer is that I, and other public defenders, don’t represent criminals. We represent poor people who are facing criminal charges...

If the public actually paid attention to what goes on in the judicial system, they wouldn't ask what kind of person does criminal defense. Instead, they would ask what kind of person becomes a prosecutor.

[+] PopeOfNope|10 years ago|reply
Many people have lost innocent-until-proven-guilty in their minds.

You have to ask yourself why people have lost the innocent-until-proven-guilty concept. We still teach it in school, so it's not lack of exposure. Is it the media? Since 9/11, the number of police procedurals on TV have skyrocketed. Social Media? Journalism? Personally, I'd be very interested to see how well these concepts are distributed among class, race and gender lines.

[+] eevilspock|10 years ago|reply
Public defenders are the only thing working against the Matthew Effect[1] when it comes to justice. But, when wealthy corporations or individuals can spend unlimited sums on prosocution or defense, justice is still usually determined by wealth. If you think the tactics of patent trolls are bad...

[1] https://en.m.wikipedia.org/wiki/Matthew_effect

[+] tete|10 years ago|reply
> Many people have lost innocent-until-proven-guilty in their minds.

It's worse. Sometimes I feel like "innocent-until-proven-guilty" is considered a flaw in the system that should be eradicated to make it easier to catch/punish criminals.

[+] adanto6840|10 years ago|reply
Why isn't it legally mandated that the budgets for the District Attorney's office must be less than or equal to the budget for the Public Defender's?

I'm sure there are valid reasons and what I'm suggesting may be unrealistic, but it sure seems like it'd nearly guarantee that we're upholding the intent of the Constitution if we did that, eh?

[+] chc|10 years ago|reply
That is pretty much guaranteed to produce a poor allocation of funds. Every case requiring public defender resources will also require district attorney resources, but not every case requiring district attorney resources will require anything from a public defender, because a lot of people have their own lawyers.
[+] analog31|10 years ago|reply
It's not just DA's and public defenders, but judges are involved too, for allowing people to be arraigned and tried without adequate representation. The judges should review cases to determine the adequacy of defense before allowing an arraignment, and that review could be conducted in front of a jury if a case goes to trial.
[+] aadraple|10 years ago|reply
The justice system is deeply flawed but technology can help repair it.

Let me explain.

Legal work can be split up into two buckets – process based work and advisory work.

The advisory work revolves around analysis, comparison and collaboration – distinctly human (for now) tasks.

The bulk of legal work however is process based, which is repetitive, routine, administrative and could actually be done through the use of machine learning and AI. Examples of process-based work are document review and legal research. Document review is when parties to a case sort through and analyze the documents in their possession to determine if they are relevant to the case at hand. Legal research is the process of identifying and retrieving the necessary information lawyers need to support legal decision-making.

If LegalTech was to do the lions share of a public defender's process based legal work, they would be able to focus their advisory work. This would allow a public defender to not only to defend more individuals but most importantly, to provide proper legal help to everyone they are defending.

The inequalities and problems in the justice system could be seriously helped/fixed with better adoption and implementation of technology. The problem is that tech must be embraced not just by individual lawyers and defenders who it would help the most, but also by the decision makers themselves, government agencies/law firms, who have the final say on whether to bring tech into their organizations.

The good news is that there are strides being made towards bringing in tech to augment lawyers capabilities with technology, the bad news is that no speed is fast enough as there are a ton of people who require proper legal representation right now that are missing out.

[+] rayiner|10 years ago|reply
Legal technology is pretty much totally inapplicable to the work public defenders do. There's pretty much no documents to speak of in those cases, and the technology won't interview your client for you and piece together a detailed timeline of his version of the events. And since their clients are getting charged with the same sorts of crimes over and over, they already have the relevant cases handy in their previous filings.
[+] pdkl95|10 years ago|reply
Ignoring the problems with public defenders for a moment, technology could help a lot in other areas, such as:

1. Providing access to (supposedly publicly accessible) court records.

2. Automated document preparation for common situations.

3. An expert system to guide people to which documents (re: #2) they need, or if they should seek the assistance of an actual lawyer.

The goal is to allow people to interact with the legal system on their own in simple/common situations, without having to pay for a lawyer or wait for someone to help them pro bono. This would give more options to the poor or otherwise disadvantaged, who often have to simply ignore injustices or make unreasonable concessions because they lack the funds to even talk to a lawyer. This would even help in cases where a lawyer would have to be involved: it might be easier to find pro bono help if you have some of the background work already done.

#1 and #2 should fairly trivial for someone with some legal experience; there are many easy ways to implements database of documents, and numerous template systems already exist.

[+] nickalewis|10 years ago|reply
>> The problem is that tech must be embraced not just by individual lawyers and defenders who it would help the most, but also by the decision makers themselves, government agencies/law firms, who have the final say on whether to bring tech into their organizations.

Totally agree that systemic improvements will require adoption by decision makers and higher ups. A way to get there could be those individuals and lawyers closer to the problem demonstrating measurable improvements, and tech could be a great way to communicate that.

You mentioned strides being made to help augment lawyers capabilities. Can you elaborate on that? I'd love to read more about it.

[+] kevinchen|10 years ago|reply
I don't think technology will help things. Until we change our collective opinions about funding public defenders, better legal software will just cause public defenders' budget/headcounts to be reduced so that they are still taking on the same amount of work.

It's like buying a bigger backpack/purse -- until you change your ideas about what is essential to carry all the time, you'll just fill it up with more stuff.

[+] nickalewis|10 years ago|reply
Kind of Off-Topic, but I emailed Tina immediately upon reading this last week. It really moved me. I'd like to chat with any lawyers working as Public Defenders, pro bono or otherwise, to get a better idea of the day to day challenges they have with managing case load and communicating with clients. Things technoloy could help with. Does anyone know a good place/community/group to join?

I ask because myself, friends, and close family have all had experience with a Public defenders office at some point, the article is spot on about many clients being poor, assumed guilty, and lacking resources. I'm currently helping families navigate the criminal justice system with a company I started , but it's been on my head (and heart) to begin looking at providing resources to PD offices as well, as it's so important that these cases, particular low-level and drug offenses, are handled efficiently. I would love to get a better idea of the day-to-day challenges faced by an active public defender.

Also if anyone is interested in a amazing documentary about the courage and dedication PD's have check out Gideon's Army: http://m.imdb.com/title/tt2179053/. I think it's on Netflix.

[+] PhasmaFelis|10 years ago|reply
> Kind of Off-Topic, but I emailed Tina immediately upon reading this last week. It really moved me. I'd like to chat with any lawyers working as Public Defenders, pro bono or otherwise, to get a better idea of the day to day challenges they have with managing case load and communicating with clients. Things technoloy could help with. Does anyone know a good place/community/group to join?

I mentioned this to a public defender I know, and he'd be interested in dropping you a line if you can give me a contact address. (HN still doesn't seem to have direct messaging...)

[+] jordanpg|10 years ago|reply
That public defenders have scarce resources to do their job is about as surprising as the fact that people living in poverty don't invest in the stock market.

> My clients, like the millions of other people in the United States who are currently represented by public defenders, deserve better.

The poor are massively underserved, disenfranchised, disrespected, demoralized and more in this country -- no doubt about it.

Unfortunately, the unfair justice system is step 1000 in a chain of events with powerful institutional momentum.

We cannot even begin to address this without addressing economic disparity first.

[+] scottkduncan|10 years ago|reply
I agree this issue is part of the larger trend you're talking about, but we absolutely can start to address the imbalance of resource allocation in the criminal justice system without solving the underlying economic disparities, which are a generational challenge. With growing awareness of inequalities throughout this system, articles like this highlight some simple changes we could make to make the system a bit less unfair. In this case, it's simply a few more lawyers and investigators.
[+] PhasmaFelis|10 years ago|reply
It is possible to work on several problems at once. If we're not allowed to even begin improving public defenders until we have completely solved poverty, the poor are going to be waiting for justice for a long, long time.
[+] janesvilleseo|10 years ago|reply
Slightly OT: I wonder what will happen when marijuna becomes legal across the nation and body cameras are more widely used? Will there be a reduction in overall prison population, will people get better representation due to video evidence, will there be less bad apple cops? All of these may become true to varying degrees. It will be interesting to see how we as a society handle these issues in the future.
[+] newjersey|10 years ago|reply
I remember an incident where a police car hit the car in front of it in slow speed. Other police officers arrived on the scene and basically told the officer to stay quiet and tried to pin the incident on the woman driving the car ahead. All of this was recorded by the police dashboard camera.

Now, you'd think I am trying to say that dashboard cameras are great and the problem is solved when police officers have to carry body cameras. Well, no. It is not even half the battle. Even if we get a system where we trust a police officer's words the same as that of an accused, the defendant still needs to have legal support that will work hard to get the footage and more importantly a police force that is willing to work with defendants in giving them the evidence the defense needs to undermine the prosecution's case.

The main problem is the blue code of silence where police officers fear speaking out against other police officers for fear of retaliation. I am afraid this is a systemic problem with no easy solution. Who watches the watchers?

Edit: Here is some more details on the case.

From NBC Miami http://www.nbcmiami.com/news/local/Cops-Set-Up-Woman-After-C...

> The disturbing video shows Alexandra Torrensvilas, 23, handcuffed in the back of the squad car as the officers get their stories straight on what they are going to say happened.

> Officer Joel Francisco, 36, an 11-year veteran, crashed into the back of Torrensvilas' vehicle at a light on February 17 at midnight. The cop radioed to other officers who converged on the scene and hatched a way to bail Francisco out.

> Officer Dewey Pressley, 42, arrives and questions Torrensvilas, who tells him that she has been drinking. The 21-year veteran officer seizes the opportunity and arrests her for DUI. But the plot thickens from there.

> The cops begin to brainstorm believable excuses for the accident.

From http://www.palmbeachpost.com/news/news/crime-law/two-fired-h...

> Pressley, a Hollywood police officer for 22 years, and Francisco were fired in January. So were three other Police Department employees who were at the crash scene: Sgt. Andrew Diaz, Community Service Officer Karim Thomas and crime scene technician Andrea Tomassi, none of whom have been charged in the case.

From http://articles.sun-sentinel.com/2012-04-09/news/fl-disney-c...

> Neither Pressley nor Francisco mentioned in their written incident reports that Francisco was on his cellphone at the time of the crash. Both mentioned the cat.

> Pressley was acquitted of official misconduct, a felony, but convicted of falsifying records. He was sentenced to 90 days in jail and is free pending appeal.

> Francisco's deal matches the jury decision and the sentence in the Pressley case. Had he been convicted of all charges at trial, Francisco would have faced nearly 30 years in prison.

It seems like Lawyer larence Meltzer represented the accused in this case of State v. Alexandra Torrens-Vilas according to http://www.avvo.com/attorneys/33316-fl-lawrence-meltzer-1293... . Do you imagine the state would volunteer this dash cam tape if it had fallen on a overworked public defendant?

[+] samstave|10 years ago|reply
Aside from just body cameras, we need to establish a public oversight system of police conduct review. One that is not a part of the traditional legal system and one that has authority to actually punish police and lawyers and judges for misconduct.

The legal system in this regard is utterly failing.

[+] a3n|10 years ago|reply
What will happen is prisons will be full of people convicted of other crimes.

In some sense, prison capacity limits prison population (notwithstanding unconstitutional overcrowding, which has its own limit). If the prisons were emptied of marijuana convictions, then that would free up space for other convictions.

So maybe the way to reduce the prison population is to close some prisons. Not everyone convicted needs to be in prison, and not everyone caught needs to be prosecuted.

[+] Zigurd|10 years ago|reply
If you want a shock, get on a jury. If you are lucky, one other jury member might require more proof than a cop's say-so.
[+] ricree|10 years ago|reply
The last (and so far only) time I was called for jury duty, the judge's instructions were very explicit that the word of a police officer was to be given no special weight compared to other witnesses.

Jurors were questioned about this during the voir dire, and several people were dismissed because of an admitted bias in favor of police testimony.

Obviously, this is a sample size of one and no generalizations can be drawn, but it does stand as a counterexample.

[+] jonathanjaeger|10 years ago|reply
I was on a criminal jury trial in Manhattan in May. The guy was being charged with multiple assault and resisting arrest charges against cops. The incident happened a couple years ago. It was basically the cops' word vs. the defendant. You could tell both sides were not telling the whole truth. It's a much longer story, but in the end we found him not guilty for all those charges. Luckily I had a rational, sane jury that no matter what you think it was clear there wasn't proof beyond a reasonable doubt.

Sometimes I wonder what would have happened if you don't have that kind of jury..

[+] rectang|10 years ago|reply
But if we didn't convict the innocent, public prosecutors couldn't exhort the public into voting them back into office on the basis of an absurdly high conviction rate!
[+] fsloth|10 years ago|reply
Why is a conviction rate a key performance indicator? I thought the western justice system existed mainly to inhibit crime, and if conviction rates are high, the system is not doing a very good job at inhibiting it.
[+] PhasmaFelis|10 years ago|reply
A close friend of mine is a public defender, and gave me some disturbing stats.

According to the American Bar Association, it is unethical for a defense lawyer to take more than 400 cases a year; 350 if dealing with juvenile cases; three if they're capital (death-penalty) cases. Every PD my friend knows regularly goes double those limits, because they have no choice and the states aren't interested in upholding the ABA's limits.

[+] deckar01|10 years ago|reply
> When people ask how to push back against police misconduct, how to decrease the costs of mass incarceration and how to ensure fairer treatment of our nation’s most disenfranchised citizens, part of the answer lies in fully funding public defender’s offices and enabling us to represent our clients in a meaningful manner.

If the justice system is a funnel, these public defenders are at the very bottom. Adequate funding may relieve pressure, but the long term solution is a better filter at the very top. One solution: https://news.ycombinator.com/item?id=9802861

[+] chrismcb|10 years ago|reply
"At that point, he realized that the client had never been served to appear for the court date on which he allegedly jumped bail." Why is it the public defender had to notice that? Why didn't someone else notice, why was he even arrested in the first place? There are more problems with the system...
[+] a3n|10 years ago|reply
> Our office represents 85 percent of the people charged with crimes in Orleans Parish but has an annual budget about a third the size of the district attorney’s.

Clearly the state has weighted things for maximum convictions.

Shouldn't public defenders have exactly the same budget as prosecutors?

EDIT: I meant budget per case.

[+] studentrob|10 years ago|reply
It is infuriating to hear that those who have stood up for the poor feel they are not able to do their best.

I hope some improvements can be made as a result of this excellent article!

[+] jakobdabo|10 years ago|reply
He is doing a good job representing his client. His client is the one who pays him, the State, lobbied by the for-profit prisons.
[+] kndyry|10 years ago|reply
Ms. Peng's client is most certainly not the State. As a public defense attorney, her clients truly are the accused unable to retain private legal services - the indigent. As Ms. Peng argues, the service provided by public defenders is a constitutional right, not to mention one of the fundamental elements in a system designed to provide for adequate and universal representation. That the State issues her salary is a direct result of the constitutionality of the services public defense offices provide, and is the mandated prerogative of the State in due compliance with the Constitution. Ms. Peng has granted us an insider view of what is becoming an increasingly slippery slope. We cannot eschew the rightful defense of any group, no matter how "marginalized," and presume in the same breath that those criteria will never broaden or change. Nor can we expect legal disenfranchisement, and an inevitable increase in unjust incarceration, to resolve anything.
[+] skybrian|10 years ago|reply
She, actually,
[+] dannyr|10 years ago|reply
The author's name is Tina Peng.

She.

[+] dasil003|10 years ago|reply
LOL, not everyone is a mercenary.