Why are Public Defenders assumed to be incompetent?

In My Humble Opinion
21

Former PD here, and I worked with some excellent attorneys. For the record, I graduated with honors from a US News top 5 law school.

I echo most of what I have read here, and add two more:

  1. Pay is crap, so it attracts newbies, poor lawyers, and those costing to retirment.
  2. Huge caseloads.
  3. Lack of resources - sure my client needs an expert to review the evidence or get a deep 1psych exam, but good luck getting it approved.
    Now the other two issues:
  4. Our clients - frankly, most of them are screwed before we ever meet them. The investigation is done, the incriminating statements have been made, etc. The job is often just making sure that the prosecutors do their jobs, which they usually do. TV has given the impression that a good lawyer can change the facts- they can’t in 99% of the cases. The truth is that the vast majority (but not all) of my clients were guilty of exactly what they were accused of, or more. In the case of the innocent or mischarged, I usually could show my evidence to the prosecutors and they dropped the case.
  5. Jail-house lawyers. My clients sat in jail or in the bar with everyone who watched Perry Mason or Law and Order and knew how to “get out of” the charge, or heard about this great billboard lawyer who got the charges against their cousin’s dogsitter dismissed. It is hard to engender confidence when your client is constantly hearing what a loser you are because Matlock would have gotten you off. It becomes a self-fulfilling prediction about you skills.
22

:smack::smiley: I just realized how that sounded. I do return phone calls. I’m talking about the clients who call you every day, three times a day. I’m not talking to you every day, three times a day. You would be amazed how many clients are like this. And a lot of clients simply don’t believe that you spend most of your day in Court, and not talking to them specifically on the phone.

23

IIRC contingency payment is strictly prohibited in criminal or family matters; it’s only allowed in civil cases.

24

I would say it’s widely known that PDs get paid less than private practice, so it is generally assumed you will get a worse defense. I would say the same for a county hospital versus a private one for health care.

I was on a jury for a trial involving possession and intent to distribute meth. The accused had a PD and she was absolutely terrible. It looked like it was her first day on the job every day of the trial. I have never been to law school and I’m confident I could have done a better job than she did. Ergo, confirmation bias will lead me to believe that everything I think about PDs is right. Are there great lawyers who serve as PDs and great doctors who work in county hospitals? Yes, there will inevitably be some who do it for the love of the job and are highly competent. But given the importance of what you are seeing these people for in either scenario, who want to gamble like that if they don’t have to?

25

It’s the combination of the low pay (my wife commented that in Texas, most public sector lawyers, including PDs and Assistant DAs are paid between 30 and 40k, which is abysmal for a lawyer) and the massive caseload.

The perception is that anyone doing that instead of jumping ship up to a private firm (where you’ll earn more and work less), is probably unable to jump ship upwards, and is by definition less competent.

This isn’t the case always, but I do understand where the perception comes from.

I also imagine that the constant parade of low-lifes and idiots, along with the negative perceptions will make anyone apathetic and unconcerned in a big hurry.

26

Public defenders are the store brand. The may be better or worse then the name brand, they may even be the exact same product simply labeled differently, but because of advertising a majority of people value the name brands more.

People never see commercials or advertising for public defenders but they do see them for all the others lawyers. Want people to assume public defenders are extremely competent put out some ads.

27

Not always. The bulk of my private civil work is on a retainer basis–which means I’m paid regardless of whether my civil client wins or loses.

28

Another PD here. Judging from what I hear about other places, I work in one of the best offices in the entire country. I work solely in juvenile court–many offices don’t have specialized juvenile divisions at all. Our office has social workers, investigators, and I have never had a request for an expert turned down. We can even set up polygraphs for our clients to take if they insist that they’re innocent. My pay is pretty decent, although raises have been shit the last few years, and they’re whittling away at our pension and health benefits. And while our caseloads are large, we don’t have to spend any time with the business side of law–I don’t have to worry about billing, paying a secretary, or filing motions–we have a huge bank of motions written over the years on our server, and if I need one, all I have to do is find one on the proper subject and change the headers and facts, and then I sign it and my law clerks do the filing. If I need to do legal research, there’s a bevy of clerks who love to do it for me, which leaves me time to return my phone calls and prep my cases.

Is there stress? Sure. Is there burnout? Nothing a short vacation won’t fix. I am doing exactly what I went to law school to do, and there isn’t a paycheck in the world that can beat that.

29

Yeah, but you’re Canadian. You guys follow the English attorney fee rules, right? If not, are you a plaintiffs’ attorney?

30

True, but if they keep losing, then they get fewer new clients. PD have a captive market, so to speak …

31

We allow for “English fee rules,” but do not necessarily slavishly follow them. It is certainly possible to depart from the printed rulebook and ask a judge to assess costs on a number of different bases.

There’s nothing preventing me from doing a matter on a contingency basis; and in fact, a couple of my personal injury colleagues pretty much only do matters on contingency. There are rules as to when a contingency arrangement can be used, of course: as I recall, one cannot handle a criminal or family matter on a contingency basis. But for pretty much everything else, a contingency arrangement is certainly possible, though not always advisable.

I do criminal and family; but I also do a lot of employment law, and have represented both plaintiffs (ex-employees who typically have an action in wrongful dismissal, or some kind of human rights complaint) and defendants (companies who are defending against such actions). Contingency arrangements don’t tend to work well in this field, so I demand a retainer up front.

32

Since she’s still around, maybe she’ll catch this … katie1341, are you still a PD? And if so, have you seen any change in people’s attitudes toward your profession over the 10+ years since the OP?

33

That’s why I specified plaintiffs’ attorneys in the post you originally responded to. :stuck_out_tongue:

34

I don’t think that pds are necessarily incompetent, but I don’t think there’s much impetus for a competent attorney to become one.

It’s hard, from the outside, to separated incompetence from understaffing and bad management. Whatever the cause, my experience has been that they don’t do a good job. This is in Houston, btw, which is a prosecutor’s wet dream.

35

There’s quite a lot of impetus now, because there are too many law schools and too many graduates (at least from the standpoint of people who are already lawyers), and hence lots of unemployed lawyers.

36

This seems like a much better system than what my jurisdiction uses. Here, public defenders are private attorneys that have a contract deal with a specific court. They are paid $2,000 a month to take all the cases the court assigns to them. (There are exceptions, like hourly fees on murder cases, but these are rare and case-by-case.) Some attorneys have contracts with several courts at the same time.

This leads to a situation where public defenders are have an incentive to disregard their PD clients. An hour spent with an indigent client will not make them a penny, and is an hour that they can not be billing a paying client. This leads to what I would consider, overall, to be a very poor system for helping indigent defendants. I’ve worked here for 14 years as a probation officer, and there are some public defenders I think are criminally negligent. Most do an adequate job, and a few go above and beyond.

Here is an example of what goes on on a daily basis. When I was going to court a lot I saw this happen several times a week. Some courts set aside an entire block of time to hear all of their probation violations. They might block out an entire afternoon and schedule 30 people to come to court at 1; everyone then has to sit until their case is called. It might go at 1, it might go at 4. (Naturally, this schedule is used for indigent clients only, people with hired attorneys are scheduled on a different day and have the luxury of their own 15 minute time slot.) I would have to sit in the courtroom until all the cases were done. There were several attorneys who would come to court every week, come up to me and ask me to point out their client in the court room. I would point them out, and they would go introduce themselves as the person’s attorney, and five minutes later they would be at a trial. They always advised their client to take whatever recommendation I was offering. These defendants would complain to me constantly that they called their attorney but never were put through or received a return call. And this happened hundreds of times. I was always appalled by this situation and feel sorry for anyone when they tell me they have been appointed one of these attorneys as a public defender.

Also appalling is that the good attorneys see this going on and say nothing. I have mentioned this situation several times on this board and have been attacked by attorneys telling me I have no idea what is going on and no basis to criticize an attorney since I didn’t go to blah blah blah. As if in law school they cover refusing to return your indigent clients’ phone calls and not meeting them until five minutes before trial.

Now cue the enraged attorneys descending on me yet again with rage that I have besmirched a few of their own.

37

This assumes that the market for legal services is a well-functioning market. It isn’t, because of the huge information asymmetries. Clients don’t know enough to know whether their lawyer got the case dismissed because he’s a good lawyer or because the DA messed up, or know enough to know whether the plea bargain they entered was a good deal or whether a better lawyer could have gotten the case dismissed. Instead, clients use various heuristics that are only loosely-related to good lawyering.

I imagine the same is true of doctors. They get a good reputation for having good bedside manner, or because they do what a patient wants, or they appear to listen carefully – not because they’re skilled at curing disease. As patients, we have no idea how to evaluate the actual metrics that matter.

38

I am still a PD! I haven’t really seen any change in people’s attitudes, but I have seen a change in mine. The fact that I know that I’m doing a good job and have the respect of the judges and prosecutors is enough. I will always do the best for my clients, but a lot of them have no defense whatsoever and I do what I can with what I have. One of my judges teases me regularly about not filing a “motion to change the facts”.

What has changed, I think, is the general public’s attitude toward the PD’s office. In the early 2000s, there was a series of articles in the Atlanta newspaper about the need for a statewide PD system, instead of the “patchwork” system that was in place then. There was a public outcry about how awful it was that indigent people were subject to such injustice. One PD in south Georgia admitted that he never filed motions to suppress based on illegal searches because he was afraid he’d make the judge mad.

So, a statewide PDs office was established and started January 1, 2005. I was able to stay in the same county with the same judges. We had a tremendous amount of funding for experts, travel, training, staff, books, computers, etc. Not as much as the prosecutors, but more than we’d ever had before. The system was referred to a model for the rest of the country.

Then, in March of 2005, Brian Nichols, who was on trial for rape in Fulton county, shot and killed a Superior Court judge who was literally sitting on the bench, his court reporter, a deputy, and a Federal marshall. Attorneys outside of the PSs office were appointed to represent him due to a conflict of interest in the Capital PD’s Office. Not only did his defense suck up the money, it completely turned the public against indigent defense. All of a sudden, no one wanted to spend money for indigent defense and the whole issue became a political football.

Nichols offered, more than once, to plead guilty to life without parole. The prosecutor insisted on going to trial and seeking the death penalty. After a very long trial, which drained the indigent defense coffers and virtually destroyed any goodwill that the public had for indigent defense, Nichols got … life without parole. Which he would have pled to, had the DA agreed to it.

So, our budgets have been cut, training and CLEs are no longer paid for, and we have a limited amount of money for expert witnesses. I can’t blame it all on Nichols, though- when the statewide system was established, the civil filing fee was increased and the increase was supposed to go for indigent defense funding. We also charge a $50 (which is statutory) application fee (which we have no way of enforcing, but we do collect it most of the time) for anyone who applies for representation by the PDs office. This is also supposed to go to help fund us. The idea was for us to be self- funding.

However, that money is NOT going to indigent defense. The legislature says that there’s nothing that mandates them to use the money for indigent defense and they can and will do whatever they want to with it. We are still fighting the good fight and performing minor miracles on a regular basis.

Probably a lot more than you wanted to know about indigent defense in Georgia.

39

:eek: Was there any security in place? Here, for example, entering a courthouse is similar to airport security (or at least, what airport security used to be): “put all your metal objects in the tray,” metal detectors, wands, and so on. It’s been in place for quite a while. Mind, we did have a courtroom shooting back in the 1980s that may have prompted that.

No, it’s interesting. We have no public defenders here (although there is a Legal Aid system in place for the truly needy), so it is interesting to hear about the issues that affect the PD’s office and those who work there.

40

He was in jail at the time the incident happened, and if I remember correctly, had a few days before been caught coming to court with a knife. I believe he was alone with one deputy in a hallway and that started the unfortunate chain of events.

Here in Maryland the Office of the Public Defender has some of the best attorneys in the state, as well as some of the worst. As stated above, some have overstayed their welcome, and if they were private sector employees would likely be fired. The biggest problems are the number of clients and the horizontal representation the office provides.

You’ll frequently have public defenders with 10, 15 or 20 clients a court session (One in the morning and a second session in the afternoon), and they often meet their clients right in the courtroom before court begins. It’s like a cattle call, “Is there a Mark Jones here? A Simon Sims? I’m your lawyer, please line up over there.”

The other problem is the horizontal representation. Their clients will often have a different public defender at every stage of the process (PD1 the bail review, PD2 at the scheduling conference, PD3 at the first trial date, PD4 at the second trial date, client prays for a jury trial and gets PD5), leading to much confusion on the clients part and a great deal of contradictory information being provided by the various PD’s.

As a private lawyer, you know who I am and we’ll meet several times before trial. I’ll go over important evidence and witnesses with you, if necessary get you into treatment or some other program, etc. And if it’s going to be a trial, I will have met with the witnesses before the day of the trial. I feel I’m worth every penny, but if you only had $50 (the cost for a Public Defender) I’d take an APD every time.