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Private v. Public Defenders
One lesson I've learned this summer as an intern for a public defender is that, if you qualify (which means, if you're poor to penniless), you're likely going to get better representation from a public defender than you'll get from a private defense attorney.
But wait! Before I get pilloried by private defense attorneys, let me qualify that. Different jurisdictions may be different; I only know about the one I'm working in where time and again this summer I've seen private defense attorneys forget things or pass up opportunities that the public defenders would never miss. The public defenders work in the same courts every day, they develop relationships with the prosecutors and learn how to "pitch" cases in order to secure the most favorable plea offers, and they know the everyday criminal procedure inside and out so they can give their clients the benefit of every possible loophole or trick available. Also, because they're in the same courts before the same judges every day, they learn what kind of arguments work best with different judges, how to read the judges' moods to know how far they can push, how to read the subtle signs judges send when they want to hear more on an issue or when they want you to shut up. (Sometimes this can make all the difference; if you talk too long, you may just anger the judge and he'll decide to rule against you just because you annoyed him by talking too much about something he'd already made up his mind about.)
In contrast, private practitioners often just don't seem to know what's going on. They don't understand court procedure, when to speak, when to stand, where to go to file papers, what papers need to be filed or signed or by whom or at what time. Of course, this varies a great deal; a lot of private defenders are simply excellent. Also, some private defenders are much better with certain types of cases in which they specialize, such as capital cases, or rape or other serious offenses.
However, there's one more drawback to private defense attorneys: the profit problem. Since private defenders sometimes bill by the hour, it's to their advantage to drag cases out, while the client just wants the case to end. For example, a private defender might encourage her client to go to trial, even if there's little chance this will help the client. Public defenders have the same incentive as their clients—both want to get the case over and done with as soon as possible. The client wants this because no one likes the uncertainty of unsettled criminal charges against them. The defender wants this because he/she is busy and needs to make time for the next case.
I'm told that many private defenders charge a flat fee according to the type of crime a client is charged with; in such a case, the private defender has the same incentive to end the case quickly as the client does. That's a good thing.
On the other side of the coin, private defenders can potentially make a lot more money than their public counterparts. However, at least in the jurisdiction I've been working in, you don't always get what you pay for; in this jurisdiction, the cheaper defense is the best defense. That's the kind of economy I can love.
Posted August 3, 2004 10:14 AM | 1L summer
I agree about public defenders being more competent than their private counterparts. In New York we have public defender offices (usually Legal Aid) but also a court-appointed system to supplement these offices. The court-appointed defenders get paid by the hour by the state, but don't have ready access to all of the resources of a p.d. office (investigators, colleagues, etc.) In my experience, they usually aren't very committed to their clients.
However, I do defense-based advocacy, and the complaint I hear most about public defenders is that the p.d. pushes clients to take a plea when the client felt they weren't guilty. (Usually defendants only want the speediest resolution when they are actually guilty). One woman I worked with said that her Legal Aid atty. stormed out of the room when she wasn't willing to take the deal the d.a. offered and screamed at her "Fine! I guess we're going to trial then."
This was a battered woman who had defended herself against her abuser, and in my opinion, had a valid justification defense. I have heard this complaint about Legal Aid over and over again. Many people in my neighborhood (the Bronx) actually think Legal Aid and the D.A. work together to incarcerate people. I think a solution could be educating these clients, and letting them know that they usually get more time and harsher treatment if they exercise their right to trial. That is the reality, but if it isn't explained, it looks like the p.d. is just pushing the defendant to take the deal because s/he is too busy, doesn't believe in the client, or is working with "The Man."
Posted by: Ash at August 3, 2004 10:47 AM
As a prosecutor in NH, I have noticed that the public defenders provide vastly better representation than their private counterparts (except for private defense attorneys with a public defender background). It has not, however, been my observation that private defense attorneys tend to drag cases out unnecessarily; most of the ones I deal with seem to have the best interests of their client at heart.
Posted by: etk at August 3, 2004 05:38 PM
nicely written , its just not right,but aah it is forgiven.
Posted by: Hemaworstje at August 3, 2004 10:33 PM
in mass, the public defenders are extremely underfunded (much more than usual), and so actually most criminal cases are done by cheap private criminal defenders in small firms. so the dynamic is totally different.
Posted by: monica at August 5, 2004 07:20 AM
