A New Perspective on Representing Indigent Criminal Defendants
by Jamison Koehler on January 26, 2016
At the time I quit my job as a public defender in Philadelphia after a three-year stint there, I was pretty burned out. I was also jaded when it came to the people we represented. Many of the people had serious mental health and addiction problems. More importantly, many of them also hated us. This was difficult to take, particularly when combined with the crushing caseload we had at the public defender’s office. Looking back on it now with some perspective, I can’t believe I ever had to represent 20-30 misdemeanor clients in a day, particularly when I was meeting most of them on the day of trial. It was only slightly better for clients charged with felonies: Preparation time and an opportunity to meet the clients the week before their trials were scheduled. And our caseload usually ran about seven or eight clients a day during trial week.
It was thus with some trepidation that I joined the court-appointed panel in D.C. I was expecting much of the same animosity. I was wrong. So far, all of my clients have been polite and respectful. They have come to court on time. They have listened to my recommendations, if not always taking my advice. The only real differences between these client and my retained clients are that: (1) the court-appointed clients are much more blasé about the charges facing them, particularly when it comes to the possibility of jail-time, and (2) the retained clients are much easier to reach. I have had retained clients who have called me every day during the life of the case. For obvious reasons, cell phone plans for court-appointed clients are often allowed to lapse.
It is not that indigent defendants are nicer, more respectful people in D.C. It is that the entire court system is vastly superior. The reason people in Philadelphia are so cranky, so disagreeable, so distrustful is that they know they are being screwed.
With some important exceptions, the judges in Philadelphia often took the bench late and then hurried through the docket. Many of them were disrespectful of our clients and the people who represented them. I remember one judge in particular who could never bring herself to actually address us by name. It was “Mr. PD” this and “Ms. PD” that, always uttered with disdain. The message this sent to our clients about the quality of their legal representation was unmistakable.
Even some of the better judges gave us a hard time about delaying the court’s proceedings. They did not seem to appreciate the pressures we were operating under. We did not get plea offers until the morning of trial in the misdemeanor room, and things got worse if the prosecutor arrived late or was preoccupied with other things. This meant we had just a few moments to convey these offers to scared and confused people, many of whom were uneducated and unsophisticated, all the while we were being approached by other people who wanted to talk about their case. And the judges complained to us if any of this delayed things.
Court personnel were even worse. “Fat Danny” played spider solitaire on his computer no matter what else was going on in the courtroom. When it was discovered that he was scheduling hearings for days in which he would not be in the room, we all assumed that he would finally be fired. He was sitting at this desk when we arrived back in court on Monday. He is probably still there. Bobby from Room 803 would ignore lawyers trying to get his attention so that he could chat about the Eagles with the stenographer. Effi and April from domestic violence would make you pay if you did not make pleasantries with them first. The message was clear: In many cases, it was petty, mean-spirited clerks, not the judges, who ran the courtrooms.
As for probation officers, it was not that they did not return your phone calls. It was that, because their voice mails were always full, you could not leave a message to begin with.
Many of the prosecutors were young people right out of law school who were intent on making a reputation securing misdemeanor convictions. Standing next to one particularly ambitious assistant district at preliminary hearings so that I could look over her shoulder at her file, I was able to catch her many times making misrepresentations to the court.
It is very different in D.C. Mani Golzari is a former colleague who is now a supervisor at the D.C. Public Defender Service (PDS). We came down to D.C. around the same time and we used to love to compare our respective experiences. The difference was remarkable. It is not only that judges here take the bench on time, are patient and respectful of our clients, and know and apply the law; that probation officers seem to genuinely care about our clients; and that court staff are professional, efficient and respectful of everyone in the room. It is also that higher quality legal assistance leads to more satisfied clients. Without the acrimony and suspicion, these clients who are much easier to deal with. More importantly, you get better results on their behalf.
This is a simple question of the level of resources devoted to indigent criminal defense in the two jurisdictions.
The public defender’s office in Philadelphia uses a “horizontal” system of representation. One lawyer represents the defendant at the preliminary hearing, another represents them at arraignment, and two or three different lawyers might be assigned to their cases during trial depending on how many times the case is continued. Each time the client has a court appearance in a felony case, a different lawyer will show up at the jail to interview him or her. Who are you, the client wants to know. And what happened to the last lawyer who represented me?
To use a basketball analogy, it is a zone defense as opposed to man-to-man.
It is not that the Philly defender believes that a horizontal system achieves better results on behalf of the client than a system in which the same lawyer represents the client throughout the life of the case – “vertical representation”. It is that with the woefully inadequate resources that are devoted to indigent defense in Philadelphia, the defender has no alternative. It is too inefficient to have different lawyers going to multiple court rooms to handle all their cases. Instead, one or two public defenders assigned to a particular room handle all of the cases that come through.
As a result, apart from the problems you have with confused clients who are often meeting the lawyer who will be representing them on the same day as trial, you get different inefficiencies. I used to re-assure angry clients that it is good to have multiple lawyers looking at the same case. One might see something that another has missed. But who was I kidding?
It is, after all, incredibly inefficient to lots of different public defenders preparing for cases that are often continued. This meant that the public defender who had the case continued would have to write up his/her notes so that another public defender could begin his/her preparations. And, of course, a system is only as good as the people who administer it. I sometimes felt that I spent as much time tracking down lost files or re-creating them from scratch as I did actually preparing cases for trial.
I have crowed here many times about what a class organization PDS is. It is true: In the seven years I have practiced in the District, I have never encountered a public defender I did not think was first-rate. But it is not only the higher quality of lawyers PDS is able to attract (they never would have hired someone like me straight out of law school). It is also that the District devotes the resources that PDS needs. Using a system of vertical representation, public defenders here have the time and support they need to prepare for their cases. So do court-appointed lawyers. And this leads to happier clients who can expect better results.