On Gideon and the arrogance of public defenders

Jamison KoehlerOpinions/Cases

At the Defender Association of Philadelphia, the office policy in multi-defendant cases was to represent the defendant with the most serious charges, the worst fact pattern, and the worst legal posture. The other defendants would then be farmed out to court-appointed lawyers.

Although nobody ever explained the rationale behind this policy to me, I assumed it was based on a certain arrogance — the arrogance I imagine you would want your lawyer to have. We are better lawyers and have more resources than anyone else. The people in the most dire situation deserve our help. Court-appointed lawyers can deal with the easier cases.

Because this policy occasionally made things difficult for us in dealing with clients, I have to admit that I sometimes had mixed feelings about this policy, particularly when I was just starting out. Clients are always upset when a co-defendant gets a better result. They don’t seem to understand the notion that things get worse for you the more convictions you already have. And sometimes – for a change of pace – it is a relief to deal with an easier case and to get better results for your client.

The Public Defender Service in D.C. seems to follow the same policy. Whenever I represent a client in a multi-defendant case, for example, I always know that whatever facts I am dealing with and however bad my client’s rap sheet is, the public defender standing next to me has even more of a challenge. There is a certain arrogance to public defenders in D.C. It is an arrogance I very much respect.

As I was kidding a public defender the other day, there is one potential drawback to this policy:  If I were a judge about to preside over a multi-defendant bench trial, I would know even before the trial began which defendant had the worst facts and worst legal posture. And I would know this based on which defendant was standing next to the public defender.

It was 50 years ago yesterday that the U.S. Supreme Court held in Gideon v. Wainwright that state courts must provide indigent defendants with legal representation in a criminal case. Happy birthday to Gideon, one day late.