“You’re not operating a justice system here."
February 20, 2016 4:58 AM   Subscribe

When the Public Defender Says, 'I Can't Help'
"Eight-five percent of these defendants are unable to afford their own lawyer and will need a public defender to represent them. But in New Orleans, where I am in charge of the public defender’s office, we simply don’t have enough lawyers to handle the caseload. Last month, we began refusing new cases."
posted by Bulgaroktonos (27 comments total) 22 users marked this as a favorite
 
Here in Massachusetts if you are charged with a crime and the court determines that you can't afford a lawyer, one is appointed for you.

You're then charged $150 for that lawyer.

I've seen judges threaten homeless drug addicts because they can't raise $150 to pay for a lawyer that the court knows they can't afford because it found they qualify for free representation.

And we had it easy. Sure, as a Mass public defender I received the lowest PD salary in the entire country, but we had investigators, social workers, and more-or-less enough time to prep our cases properly. In most of the country none of that is true. It's not a criminal justice system. It's a sham.
posted by 1adam12 at 5:09 AM on February 20, 2016 [71 favorites]


From the article:
Poor people must pay $40 to apply for representation, and an additional $45 if they plead guilty or are found guilty.
When we visited New Orleans a few years ago, a family member got a speeding ticket. It would have been inconvenient for us to attend court, so I found a lawyer on Google who made it go away for $40.

I still don't know whether we "pleaded guilty" or whether the lawyer got the paperwork lost.
posted by Joe in Australia at 5:44 AM on February 20, 2016


It's pretty clear to me that a lot of people would like the whole concept of public defenders to go away and that, apparently, the next best thing is to starve them to death.
posted by LastOfHisKind at 5:53 AM on February 20, 2016 [9 favorites]


I just want to point out there are some conservatives who agree with the idea of public defenders. The Bundy bunch, for example.
posted by TedW at 6:00 AM on February 20, 2016 [1 favorite]


Last Week Tonight's report on the public defender system.
posted by adept256 at 6:24 AM on February 20, 2016 [5 favorites]


The article brings up Missouri as an example (A 2013 study in Missouri provided a snapshot of the problem. For serious felonies, defenders spent an average of only nine hours preparing their cases; 47 hours were needed.), where the Democratic governor, Jay Nixon, has been in office since 2008.

Our Tea Party governor, Matt Bevin, has done a few terrible things so far, but one of the unexpectedly nice ones is proposing a budget that allows for 44 additional public defender positions in Kentucky.

For as much as I disagree with most of Bevin's positions, it's refreshing to actually see a right-wing politician advocating for the ideal that the poor deserve criminal defense, too.
posted by Greg Nog at 7:05 AM on February 20, 2016 [21 favorites]


Louisiana's prison system is having money problems too, closing prisons and facing class action lawsuits. What a wonderful time to have inadequate representation.
posted by RobotVoodooPower at 7:13 AM on February 20, 2016 [1 favorite]


(Although the prison issues will probably result in reduced sentences, maybe?)
posted by RobotVoodooPower at 7:14 AM on February 20, 2016


This is definitely a criminal justice system.

That is, a justice system that is criminal in its behavior.
posted by wuwei at 7:25 AM on February 20, 2016 [24 favorites]


I'm a public defender in Kentucky. Putting aside the low morale and high turnover that you get with wages averaging about $12-$15/hour for positions requiring a doctorate degree and over 60 hours a week, our caseloads are absolutely absurd and our clients are basically effed.

I asked around the office the other day, and folks were talking about their "records" of cases handled in court between the morning court hours of 9 a.m. to 12 p.m., when the judges mandatorily break for lunch. While 8-12 cases a morning is average, people sometimes handled as many as 17 or 20 individual cases a morning. Just to break that down for you, that's approximately 6-7 people an hour to speak about their cases with, find the prosecutor and conference the case, interview any witnesses or officers on the case, determine an outcome (a plea, a pass date to file motions, a hearing, etc.) and get the case called and often argued before the judge. 6-7 people an hour. Factor in that each time you do a preliminary hearing -- theoretically a constitutional right for anyone charged with a felony -- it's going to take 30-45 minutes. So in a morning when you are handling 18 cases in 3 hours, 1 preliminary hearing all of a sudden means that you are handling 17 cases in 2 hours and 15 minutes. It is difficult to explain just how incredibly insane that is, but suffice it to say that it is a common occurrence to see public defenders literally sprinting from one courtroom to another.

It means that folks who are often experiencing numerous crises at once have about 5 minutes of their lawyer's ear, before she has to take off running to the next person. And that means mistakes are frequent, and basically inevitable. And mistakes in this line of work are the difference between no or little time spent in jail vs. years of prison time -- i.e. a few thousand dollars vs. hundreds of thousands of dollars, not to mention the enormous human cost.

My heart breaks for those people in jail in Louisiana who are told that they don't get a public defender -- because often one's attorney is literally the only person who even kindof gives a damn -- but as someone thoroughly disgusted with how little mainstream America seems to care about this legit CRISIS, I am interested to see how and if the Orleans PD's latest stunt impacts the national conversation.
posted by likeatoaster at 7:28 AM on February 20, 2016 [112 favorites]


So I know the real reason is that nobody cares about poor people, but what's the stated reason why these convictions aren't all just thrown out on the basis of inadequate representation? I mean those people who are being turned away by public defenders are having a trial that is explicitly unconstitutional. Surely the judge should throw the whole thing out the minute the defendant shows up with their sorry-no-lawyer receipt, right? Can some hot shot lawyer take one of these cases pro-bono and try to create the precedent that no lawyer means no constitutional way to convict?

Are there any states that use a voucher system? That's how it works here. If you can't afford a lawyer, the government gives you a voucher to go out and hire one with the voucher. It's still a problem because many lawyers don't want to work for voucher-rates of pay, but at least there's a larger pool of options, which I would imagine would help.
posted by If only I had a penguin... at 8:33 AM on February 20, 2016 [11 favorites]


I mean those people who are being turned away by public defenders are having a trial that is explicitly unconstitutional.

As I understand it, that's the rub - these various backdoor, unspoken and ofuscated tactics (and some of them, I readily admit, are really just oversights rather than deliberate malice on someone's part) just haven't been appealed to the SC.

If I'm wrong, I trust the MeFite IANYL's to chime in, and if so, then what the actual fuck, right?
posted by eclectist at 8:40 AM on February 20, 2016 [4 favorites]


American justice. Apparently only for the well-off.
posted by BlueHorse at 8:44 AM on February 20, 2016


I've said this before, but I think it should be mandated that the budgets for prosecutors offices and the budgets for public defenders offices (or whatever programs provide public defence) should be pinned to each other. Not necessarily matched dollar for dollar, because some people are going to pay for their own lawyers, but if you want to have 10% more funding for prosecutors, you should be legally mandated to also provide 10% more funding for defenders.

Balancing the funding for prosecutors and defenders seems like it should free up some money in the prison budget, too.
posted by jacquilynne at 9:08 AM on February 20, 2016 [28 favorites]


I mean mostly this move by the Orleans PD is inviting a lawsuit or lawsuits, and it'll take awhile to make it through the levels of appeals. I imagine they want the state to get sued bc they believe that is the only way to secure funding from the state government.

But there are some workarounds. You only get a right to counsel if you are facing a felony or a misdemeanor that could result in jail time. That means no violations are eligible for counsel - think minor trespass and traffic offenses. It also means that if someone is denied a lawyer on, say, a no insurance or a dui, if they plead to a conviction the does not result in possible jail time - for example, fines or classes - then the deprivation of counsel may be harmless error on appeal. (Not that I think it's right or even legal, but it is my understanding that that can be a barrier to collateral attacks on convictions for some misdemeanor deals.)
posted by likeatoaster at 9:09 AM on February 20, 2016 [2 favorites]


Balancing the funding for prosecutors and defenders seems like it should free up some money in the prison budget, too.

Well, you'd think, but consider how many jurisdictions are using for-profit private prisons these days...
posted by tobascodagama at 9:11 AM on February 20, 2016 [2 favorites]


you can't have a "justice system" in a society with the kind of large, rigid, and systemic inequality as the US.
posted by ennui.bz at 9:25 AM on February 20, 2016 [9 favorites]


what's the stated reason why these convictions aren't all just thrown out on the basis of inadequate representation?

Most of these cases don't ever make it to trial. Under most circumstances, you can't appeal a plea deal.

And, of course, to effectively appeal a conviction on any grounds, you generally need...a lawyer.

To make matters worse, in many states, you can't raise IAC claims in your direct appeal. You have to appeal your conviction all the way through the court system, and only then can you bring a "collateral" claim of IAC through a habeas proceeding. There is no constitutional right to counsel in habeas proceedings.
posted by praemunire at 10:02 AM on February 20, 2016 [3 favorites]


but what's the stated reason why these convictions aren't all just thrown out on the basis of inadequate representation? I mean those people who are being turned away by public defenders are having a trial that is explicitly unconstitutional.

It's not necessarily unconstitutional. Shitty public defenders are not enough to seek relief. You need to demonstrate that both your lawyer was shit and that a good lawyer would have made a difference.
posted by Talez at 10:03 AM on February 20, 2016


Speaking of which, people critical of Bill Clinton's criminal-justice record and Hillary Clinton's failure to adequately dissociate herself from it never say enough about AEDPA, the "anti-terrorism" bill he signed which, by gutting the ability of federal courts to review unconstitutional state-court convictions, has probably done more to keep people unjustly in jail than any other law in recent memory.
posted by praemunire at 10:05 AM on February 20, 2016 [13 favorites]


> It's not necessarily unconstitutional. Shitty public defenders are not enough to seek relief.

The article isn't talking about shitty public defenders - it's talking about cases where there is *no* public defender at all!

So why aren't they automatically thrown out as unconstitutional? It's not like it's going to be ambiguous in court - either there's a lawyer there, or there isn't.
posted by lupus_yonderboy at 10:16 AM on February 20, 2016 [3 favorites]


> So why aren't they automatically thrown out as unconstitutional?

Oh, and I know the answer to this - even though it is almost certainly unconstitutional, a preponderance of the judges and district attorneys in the system like it the way it is, and thus won't change anything unless forced by a lawsuit that will almost never come and if it does, will only change things for one person at a time.

It's exactly the same sort of reasoning where you can be executed even if innocent, if you have exhausted your procedural options. It might be obviously unconstitutional, but none of these supposed jurists will change their behavior until defenders tackle near-insurmountable barriers to get redress.
posted by lupus_yonderboy at 10:30 AM on February 20, 2016 [1 favorite]


While watching the PBS documentary on the Black Panther Party there was an interesting quote from J. Edgar Hoover to the effect that Justice was, in his opinion, incidental to Law and Order.
posted by srboisvert at 11:29 AM on February 20, 2016


While watching the PBS documentary on the Black Panther Party there was an interesting quote from J. Edgar Hoover to the effect that Justice was, in his opinion, incidental to Law and Order.

The irony actually hurts my head.
posted by Talez at 11:49 AM on February 20, 2016


> So why aren't they automatically thrown out as unconstitutional?

Thrown out by whom? The prosecutors and judges who shuffled those defendants to that point in the first place? Or by the public defender (who doesn't exist)?
posted by showbiz_liz at 10:39 PM on February 20, 2016 [2 favorites]


There is no constitutional right to counsel in habeas proceedings.

You know the "sovereign citizen" whackos that go on about Admiralty Law and think that there are magic words which will get them out of trouble? They're ... not actually wrong; there are magic words and the system is designed to stop people using them.

In this case the defendants (who very likely should have declined to say anything when questioned) should have invoked their right to counsel at an earlier stage of the trial, but they didn't know enough to do it, and now they can only invoke it through a legal maneuver that requires skills they probably don't possess or expertise they can't afford to hire. No wonder some people think it's all a charade: bits of it totally are.
posted by Joe in Australia at 11:51 PM on February 20, 2016 [5 favorites]


While 8-12 cases a morning is average, people sometimes handled as many as 17 or 20 individual cases a morning. Just to break that down for you, that's approximately 6-7 people an hour to speak about their cases with, find the prosecutor and conference the case, interview any witnesses or officers on the case, determine an outcome (a plea, a pass date to file motions, a hearing, etc.) and get the case called and often argued before the judge. 6-7 people an hour. Factor in that each time you do a preliminary hearing -- theoretically a constitutional right for anyone charged with a felony -- it's going to take 30-45 minutes. So in a morning when you are handling 18 cases in 3 hours, 1 preliminary hearing all of a sudden means that you are handling 17 cases in 2 hours and 15 minutes. It is difficult to explain just how incredibly insane that is, but suffice it to say that it is a common occurrence to see public defenders literally sprinting from one courtroom to another.

It means that folks who are often experiencing numerous crises at once have about 5 minutes of their lawyer's ear, before she has to take off running to the next person. And that means mistakes are frequent, and basically inevitable. And mistakes in this line of work are the difference between no or little time spent in jail vs. years of prison time -- i.e. a few thousand dollars vs. hundreds of thousands of dollars, not to mention the enormous human cost.


I've never read an accounting so evocative of my time as a medical intern at a county hospital in rural America. I don't know how much more depressing it is when you account for the fact that patients typically have multiple chronic medical issues on top of whatever crisis they are currently in hospital for, not a single legal issue, and the fact that they are paying exorbitantly for this level of service. All I know is that the government of this country has completely written off large swaths of the populace and is actively encouraging the status quo with burn out and despair in a constant lowering of minimum expectations.
posted by hobo gitano de queretaro at 9:59 AM on February 21, 2016 [3 favorites]


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