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January 30, 2006

The Talk of the Crimlaw Blawgosphere

For the past week everybody in the crimlaw blawgosphere (or at least the part of it that I know) has been talking about two great examinations of criminal justice in America. The first is a three-part series called The $40 Lawyer about Charley Demosthenous, an unlikely public defender in Florida. (In that jurisdiction you have to pay a $40 application fee to get a public defender, hence the title of the series.) The second is a five-part series called Tainted Trials, Stolen Justice about the failures of the criminal justice system in Silicon Valley.

The three parts of the unlikely PD series (one, two, and three) have already received plenty of commentary elsewhere, including especially the posts and comment threads (and links to further posts and discussion) from Blonde Justice (and here) and Arbitrary and Capricious (and here). While the series is terrific reading for anyone wanting to be a PD, it is, as many have noted (and I mentioned the other day), sad to see the article perpetuate the stereotype that PD is a job of last resort for slacker law students. Nothing could be further from the truth in most jurisdictions. Take it from someone who's now looking for a PD job—these are incredibly competitive positions and there are many many people who would love to have one but can't get one b/c of that stiff competition. That said, the series also shows what a tough job it can be—often thankless, low-paid, and with an incessant and grueling workload. Even if the series is suggesting that PDs are the losers of the legal world, it can't help but give them props for their dedication and determination against big odds.

Although I haven't been able to read everything people have already said about this series, I haven't seen one reaction that struck me from the first installment, namely that Charely's colleague, Chris Chapman, sounds like a tool:

“They don't like me, do they?” [Charley] asks Chris Chapman, a 31-year-old PD in his courtroom who regards the prosecutors as friends.

“No, man, no,” Chapman says, trying to spare Charley's feelings, though he knows the state is griping.

Chapman is bald and chatty and an improbable presence, grandson of former Tampa Bay Buccaneers owner Hugh Culverhouse. He wanted to be a fighter pilot or, failing that, a prosecutor. He hates the long hours at the PD's office but wants the job on his resume. His rich-kid hobbies - horseback riding, fencing, piloting prop planes - seem alien to his cash-strapped colleagues.

Chapman thinks Charley's courtroom approach is shortsighted and self-sabotaging. Chapman tries hard not to irritate what he calls “my state attorney people.” He thinks being nice gets him better deals.

Plus, he figures he'll be in private practice soon and may be working with some of them. “I'm looking ahead,” Chapman says. “If you ask any state attorney over there about their favorite public defender, I bet they'd say me.”

Great strategy, Mr. Chapman! Way to put your own interests ahead of those of your clients! I, for one, cheered when I read in the second installment of the series that Chapman resigned from the PD's office. He claimed his bald head, white skin, and upper-class background made him an outsider in the PD's office, but just from the little the article tells us about him, I'd have to say the real reason he never “fit in” was his attitude. Perhaps that does come from his upper-class background, but I worked my first summer with a PD who had come from and still had lots of money and she was a totally kick-ass PD who delighted in pissing of the prosecutors if doing so would help her clients.

As far as the five-part Santa Clara County series, I haven't been able to read the whole thing yet, but the third installment focuses on the defense, basically concluding that inept defense counsel produces injustice time and again.

Public and private attorneys alike have offered second-rate representation. Deputy Public Defender Victoria Burton-Burke, for example, explained in court papers in one case that she hadn't attempted to learn whether any witnesses who would be testifying against her client had juvenile criminal records -- information that comes only through seeking court approval -- because she was too busy.

But the newspaper review found a telling distinction, in that private attorneys' failings are often driven by money. The most unscrupulous behavior involved a class of private lawyers who take cases for a relatively low fee, and then boost their profits by avoiding a time-consuming trial.

Defendants with language barriers and little education found themselves at the mercy of these lawyers, who pushed them to plead guilty even when it may not have been in their best interest. In 10 cases uncovered by the review, defendants buckled; in four of those cases, including Herrera's, there was significant evidence the defendants were not guilty.

Laurie Levenson, a former federal prosecutor who now is a professor of criminal law and ethics at Los Angeles' Loyola Law School, calls the phenomenon of innocent people pleading guilty to crimes ``one of my biggest concerns. Unfortunately, it happens all the time,'' she added, because guilty pleas ``take a lot less work.''

In other words: When PDs fail it's because they're overworked, but when private defense attorneys fail, it's because they're greedy. That sounds about right, and it's a situation that I doubt will change any time soon because the end result is that we get more “bad people” off the streets, and that's the whole point of the criminal justice system, right?

The rest of the installment on the defense function is definitely worth reading. Defense attorneys may benefit from the reminder to be vigilant about making objections and preserving issues for appeal, while the article's indictment of the judiciary for failing to discipline ineffective counsel argues for the need for reform in that area.

UPDATE: A couple more links about this story:

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Current and aspiring public defenders, and assigned counsel doing indigent defense, might be interested in my post last week NY's Chief Judge wants a statewide public defender system, which notes that raised gained/coerced by assigned counsel seem to be pushing a number of states to consider increasing their public defender and conflict defense offices. NYS Chief Judge Kaye will be giving details of her proposal today (Feb. 6) in her State of the Courts Statement.

Posted by: David Giacalone at February 6, 2006 04:47 PM

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