On Zealous Representation and Public Defenders

by Jamison Koehler on January 5, 2012


I will remember this.  This is what the prosecutor promises you.

In another context, she could be intending this as a threat.  As in:  I will get you back for this.  In this case, she is trying to entice you into making a concession, and she is putting you on notice that she has a long memory.   She knows –and knows you know — that this can cut both ways.

Counsel for the co-defendant has come down with pneumonia, and has asked that your joint trial scheduled for next week be postponed.  The prosecutor doesn’t want to sever the case; that is, she doesn’t want to have to try your client next week and then put on the exact same case later.  She is now drafting the motion to continue the case, and she wants to know if you will oppose it.

Although you decided long ago that a joint trial is in your client’s best interests, you think quickly of ways you might be able to use a concession to your client’s advantage. Unable to come up with any ideas, you tell her instead that you will need to check with your client and get back to her.

No matter how this particular issue is decided, the question the prosecutor has put to you raises an interesting ethical dilemma for defense lawyers who face the same prosecutor again and again:  To what extent, if any, do you hold back on your duty of zealous representation on behalf of one client with a matter currently before the court for the benefit of future clients?

The answer should be simple:  You never do.  Your duty is your duty, feelings of others notwithstanding.  You take one case at a time and you worry about future cases when they arise.

But how about if you are a public defender representing multiple clients before the same court on the same day?  In this case, antagonizing the prosecutor or the judge for the benefit of one client might directly impact the interests of every other client you have that day.  Because let’s face it:  some judges and prosecutors can hold a grudge.   And they can take out their anger at a lawyer on the lawyer’s client.  I was astounded one time in Philadelphia when a particular judge – “Grumpy Santa,” we used to call him – refused bail for a defendant solely on the basis that he didn’t like the lawyer who represented the person.

There’s also a flip side.  No matter how carefully you cultivate your contacts with judges and prosecutors in order to advance a client’s interests, a lawyer only has so much capital he can expend on behalf of clients.  For example, standing outside the courtroom in full supplication mode, you look the prosecutor in the eyes and ask her if she couldn’t – just this one time – cut your client a break.

This is easy to do when you are a privately retained lawyer facing multiple prosecutors on behalf of a limited number of clients.   But a public defender – again representing multiple clients on the same day against the very same prosecutor – doesn’t have this luxury.  You can only ask for some many favors on behalf of a client.  After a while, the till is empty.

Somebody who reads this blog regularly asked me recently what it is I have against public defenders.  The answer is that I only have the highest degree of respect for public defenders.   The three years I spent at the public defender’s office in Philadelphia – my introduction to the practice of law — continue to inform everything I have ever done since.  When I found out yesterday morning that a person I know only from random musings on Twitter was a public defender, my respect for that person skyrocketed.  Only someone who has experienced it directly can understand the dedication it requires to work as a public defender, how it feels to deal with the workload and continual disrespect from clients and, yes, courts.

At the same time, during my still limited experience as a retained lawyer, I am continually struck by the differences between private practice and working as a public defender.  The sad fact is, you can work 24 hours a day seven days a week as a public defender and still not be able to devote the same amount of time to a case as a private lawyer can.  You can turn down cases and manage your workload as retained counsel.  Public defenders don’t have that luxury.

3 Comments on “On Zealous Representation and Public Defenders

  1. I couldn’t agree more. I will bookmark. All that stuff.

    Seriously, though, I’ve never been a public defender. But when clients ask, “Are you an attorney, or a public pretender?” my reaction is “a what?! what’s that?” Then I ask them: if you had to have difficult surgery, would you want the person who did your surgery at most a few times a year, or the one who does it perhaps a few times a month?

    I’m sure there are some bad public defenders, just as there are bad private attorneys. I don’t personally know any bad public defenders (I do know some bad private attorneys). I tell people who say things like “public pretender” that those who are bad probably can’t last long in an office. They have oversight, a.k.a. bosses, who can remember from one case to the next. That’s not really the case for private attorneys.

    “You know what happens to public defenders who screw up and do a lousy job?,” I ask. “They become private attorneys.”

    I just realized I’m writing a blog post here, so I’ll stop. 😉

  2. Rick:

    Since I am a reader of your blog, I have no problem with your doing a blog entry here. So I am sorry you stopped. And I agree on the oversight issue. Public defenders who don’t do their jobs are put out onto the street. By contrast, there is usually minimal oversight of court-appointed attorneys and no oversight (other than the marketplace) of private attorneys.

    There was one fast-talking private attorney in Philadelphia who took on tons of cases at high prices. Yet we used to joke at the PD’s office that none of us had ever once seen him try a case. He pled all misdemeanor clients out. As for felonies, he would take all the client’s money to do the preliminary hearing and then bail out of the case. Other lawyers were then left to clean up the mess he made. Fortunately, he is no longer practicing. The last I heard he was serving time at a state correctional institution in Pennsylvania for having sex with an underage minor (in the court building during off hours, no less).

  3. Very interesting. That was my suspicion in my case. I had overwhelming evidence of innocence and there my PD admitted that this was a “malicous prosecution.” I had a terrible experience with both private and public lawyers and I think the fact that my case was a case where the first plea offer, with a public defender, was “informal diversion” had a lot to do with it. I think even the private attorney sought not to make waves when they made the calculations that the case was too small.
    At certain points the supervisor of Misdemeanor PD’s became involved and offered affidavits and help as she saw the nature of the prosecution.
    Then, when I pushed for her help she woud sputter and she said, ” This isn’t a rape or a murder case.” and she wouldn’t return calls.
    Then, at trial the PD who took it to trial(After a private attorney bailed right after cashing the check) was half good and half…. I don’t know… too aware of what the judge and prosecutor might think of her. It was kind of chilling. There were 7 charges, at one point, and they all were aquitted or dismissed. One charge this PD would not fight. She had a world of impeachment material and just wouldn’t fight for this one charge. When the judge threw it out, ” Dismissed in the interests of justice” afer a jury voited 11-1 for guilt(due to the lack of impeachment. The charge was a sham and any advocacy would have decimated it.) this PD looked crestfallen. It was as if she agreed to throw a charge to placate someone other than truth or justice, or even me. At one point, after the case was over I asked her for affidavits. When I went to court to pick them up her top boss told me to get lost and even called on baillifs to escort me out of the building. I called this ex PD and told her about how I was removed, and said, “How could they do this. How can you have thrown that charge.” And, she said, ” I work for the city. I work for the city.” Oddly, she works for the county so I believe she was giving me a hint as to the political pressures she was facing.
    I think she wanted to do good but I think the reailty of the system(bad judges, vengeful prosecutors with unlimited resources) causes any true altruism to be quashed by fear.
    The idea that a judge denies bail to someone because he doesn’t like the lawyer is chilling. In my case, the judge denied any bail on a non violent misdemeanor charge because she hated me. Hated me for not pleaing and forcing a trial if the people wouldn’t dismiss the flagrantly false charges. This judge’s name is Judge Maria Stratton and she is a criminal. In my case, there is overwhelming evidence of collusion between a good 5 judges and the prosecutors and police.
    Please, keep writing about the political realities that go on under the surface of this system. Most don’t know of it. Thanks for shedding light.

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