The job of defending the public

August 15, 2013

AS BOTH a socialist and having served as a public defender for the last 13 years, I watched the new HBO documentary Gideon's Army with a good deal of interest.

Overall, the film puts an important spotlight on the hard work many public defenders do every day--all the more so with the abundance of cop shows glorifying police and prosecutors. And while I do highly recommend everyone watch the film, I couldn't help thinking that there was another side of the story that the film missed.

Gideon's Army focuses on a few of dedicated, earnest public defenders who work extremely hard, despite trying circumstances and who really seem to care about their job and their clients (one tattooing on his back the names of every client whose case he lost).

But what about the many public defenders who don't care at all? Even a brief survey of ineffective assistance of counsel claims reveals public defenders who literally fell asleep at the counsel table during trials. But even this is the tip of the iceberg.

Many public defenders have caseloads so high that they cannot adequately represent all clients. This creates a natural inclination to work hard on cases in which one is sympathetic to one's client, or where one feels the person is actually innocent, while neglecting (in varying degrees) most other cases.

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When New York City began mandating in 2003 that all public defenders in Family Court (which handles primarily juvenile delinquency and child protective cases) accept all new cases which are filed, regardless of caseload, I expressed to the head of the public defender panel that this is likely to create a spiraling, unmanageable caseload. She replied, "Legal Aid attorneys manage over 250 cases each--you'll just need to find a way to do it." This same head testified at a trial just months before that anything over 70 cases risks neglect of clients.

On the other hand, the crushing caseloads and extremely low pay, relative to the private sector, creates an inclination to "tune out." As one public defender commented to me several years ago, "I have the best job in the world. I can go to work, hang out with my friends, do crossword puzzles in the back of the courtroom, get my cases done by lunchtime and then go hang out at the mall for the rest of the day [rather than going back to his office to do work]." This same person graduated at the very bottom of his law school class.

In New York, supposedly a liberal bastion, public defenders are paid $75 per hour and have not received a raise in 10 years. By comparison, the consumer price index has seen an increase during that time of nearly 25 percent. Federal public defenders in New York have made $125 an hour for the last three years.

And while even they deserve a raise, the last state raise was, in part, based on what the federal defenders made back in 2003. Since then, federal defenders have seen six rate increases, with pay going from $75 an hour to $125 an hour. Because New York has steadfastly refused to raise rates for the public defenders, the state and counties have thus profited by hundreds of millions in underfunding the public defense system.

ADDITIONALLY, IN Gideon's Army, the public defenders have relatively clean desks and relatively well-organized offices. What about the many public defenders who don't even have desks (just "virtual offices") because they're paid so little? What about the many who don't have actual offices--or their offices are so shoddy because they can't afford anything better? There are more than a few public defenders I know who must take old files home and store them in their basements or closets because they can't afford to rent additional space to store their files.

We see in the film pictures of public defender offices with well-stocked law libraries and shelves filled with new legal texts. What about the many who can't afford updated law books? What about the many who can't afford subscriptions to computerized legal research, such as Westlaw or Lexis?

And this isn't even to mention how, in New York, public defenders must submit "vouchers" in order to be paid on a case to the same judge before whom they just litigated the case. The same judge has no power whatsoever to determine the pay of the district attorney or prosecutor, yet has the power to reduce--sometimes sharply reduce--the pay that a public defender receives.

This creates a system in which public defenders must "know their place" and not file too many motions or be too aggressive on cases, lest it create too much work for the person holding the purse strings of their pay. "Why 'rock the boat' and risk not being able to pay the mortgage this month" is a question many public defenders face--though this inherent conflict of interest almost never sees the light of public scrutiny.

A just system of public defense would provide adequate pay for public defenders. A private attorney with 15-20 year's of experience in New York City makes $375-400 or more per hour. If we cared about the system of public defense, we can and should have public defenders paid at least half the rates of those in the private sector.

But raising the salaries of public defenders is only one side of the coin. Public defenders must be accountable to their clients and to the public at large. Clients must be provided information on how they can file complaints against their attorney, and there must be greater oversight of public defenders to make sure they do their job--and do it well.

Just as is the case for working-class children who deserve adequate education, we need to answer the question of "the public defense system the 99 percent deserves."
David Bliven, Bronx, N.Y.

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