When is it your ethical duty to refuse to do your job? Here is one example.
The Orleans Public Defenders office finally decided to force the issue of under-funding for the defense of indigent criminals in the city, announcing last week that, as Chief Defender Derwyn Bunton warned nearly two months ago without any official response, it will begin refusing to handle serious felony cases in which defendants face lengthy or life sentences. Such cases include murder, attempted murder, forcible rape and armed robbery.
The office either needs more funding or reduced caseloads. The city must provide a lawyer for those charged who cannot afford counsel (The 6th Amendment and the Supreme Court insist) , but like almost every city in the nation, the funding for the New Orleans public defenders service is pitiful. With an inadequate staff of lawyers who must handle more cases than it is possible to defend competently, this creates both a Constitutional crisis and an ethical one.
Defense lawyers, like all lawyers, must do a competent job. The professional ethics rules require attorneys to control their workloads: Comment 2 to ABA Rule 1.3, which corresponds to the Louisiana rule, states that a lawyer’s workload “must be controlled so that each matter may be handled competently.” Most public defenders offices know that their clients’ right to representation is being compromised by under-funding, but choose to soldier on, doing the best they can. Several years ago, one office even argued that their clients had “consented” to less than competent representation, because the alternative was no representation at all. (The court did not agree.)
The American Bar Association addressed this problem in a formal opinion, and wrote,
When a lawyer receives appointments as a member of a public defender’s office or law firm, the appropriate action to be taken by the lawyer to reduce an excessive workload might include, with approval of the lawyer’s supervisor:
- transferring non-representational responsibilities within the office, including managerial responsibilities, to others;
- refusing new cases;and
- transferring current case(s) to another lawyer whose workload will allow for the transfer of the case(s)
When everyone in the office is over-loaded, however, the first and last options are the equivalent of, as the saying goes, “rearranging the deck chairs on the Titanic,” with the iceberg representing an unyielding budget and the doomed passengers being clients.
So what happens in New Orleans now? “Either those defendants will have to hire a lawyer, or the court will find them a lawyer, or they will wait for a lawyer until one of those things happen,” the spokesman for the office said. “On a purely practical level, each judge could make their own call.” A judge can order a private attorney to take on the case, for example, though that attorney must also be competent. In practical terms, there really is no alternative to raising the Orleans Public Defenders’ budget.
Other offices in every state should consider taking the same radical action. I have worked for a public defenders office—two, in fact. Harder working and more dedicated lawyers would be hard to find. They are overwhelmingly young, however, and they don’t have the resources as even a profitable small law firm in many cases, forced to use outmoded technology and to settle for inadequate support staff. Most are paying off large student loans, meaning that as soon as they gain enough experience and credentials to leave for more money, they do.
This aspect of the criminal justice system has been broken since I was in law school—indeed, a decision to cut funding for the public defenders I was set to work for started me on the bizarre career path that got me in the legal ethics business. It has only worsened since.
Sometimes the most responsible and courageous decision is to admit that you can’t do a job as well as it must be done, and to force the system to change so you can. This is what the New Orleans Public Defenders office has done.
Bravo.
Ethics Alarms 
How can anyone be against counsel for those accused of crimes?
I don’t think they are. They are just against *paying* for it.
Wait…
There’s not enough lawyers to handle the workload?
I thought we had something like 10 graduating classes worth of lawyers crying that they couldn’t find work…
Public defense doesn’t pay well enough to get the lawyers out of debt?
Maybe a law education is too expensive…
I think there are lawyers who would do it, but the budget doesn’t allow for them to be hired. At least, that was my reading of the problem.
So it’s an issue with how much lawyers value themselves…
Well, they aren’t going to work for free. That’s no way to pay off student loans. And defending the major felonies take a lot of time, and to do correctly, some experience too. You shouldn’t be tossing those at someone fresh out of law school, or someone with no experience with those types of cases. And to get an experienced lawyer takes some money, so it all circles around.
Someone said they should work for free?
Student loans eh? Perhaps the cost of producing lawyers is higher than it ought to be?
The cost of all higher ed is MUCH higher than it should be.
Yep.
A matter how much qualified lawyers cost. High level criminal defense litigation isn’t for kids, tyros, or beginners, and if that’s all the public defenders will pay for, then it doesn’t meet 6th Amendment minimums. There’s a reason why ineffective assistance of counsel is the basis of so many appeals.
No doubt, but who says new guys would be assigned to the heavy hitting defenses. Would they not be assistants or assigned to easy stuff in order to free up the experience for big cases?
They’ll wait. Too bad they couldn’t afford a lawyer for a bail hearing, so will do it in jail.
Jack – please tell me I’m too cynical.
You’re too cynical. If the court doesn’t get them a lawyer quick, they’ll go free. A lawyer is required before a state can imprison anyone for a significant time.
I don’t think you are too cynical. I think the problem is that we aren’t cynical enough. I always think about this case: http://www.newyorker.com/magazine/2014/10/06/before-the-law
where the boy was jailed for three years before his trial because he could not afford bail, accused of stealing a backpack, only to ultimately have it dismissed for lack of evidence. He ultimately committed suicide shortly after his release. The system is so tilted in favor of getting a guilty plea, in one way or another, that it is ridiculous. And most of us are indifferent to it.
He ultimately committed suicide shortly after his release.
Post hoc ergo propter hoc. Such articles cherry pick one of millions of cases and spin its negative features to make the point you just made. There are no generalities that can be made from such a worst case scenario. What’s your solution? Don’t charge for minor thefts? Let everyone out without bail?
The best solution is “Don’t break the law.”
Except he didn’t break the law. That was the whole point of the article. He was charged for a minor crime he didn’t commit, and his bail set unreasonably high. He was then left to rot in jail, about 6 times longer than he would have had he just pled guilty and served his sentence. And you are ok with that?
Solutions? Quicker trials. More competent counsel. No bail for misdemeanors. Bail correlated with ability to pay and or severity of the crime. Many people would plead guilty f it meant spending six months in jail, versus waiting a year for your trial to even come up. Leaving someone in jail is a standard tactic that the system uses to pressure a defendant into pleading guilty, even if they are innocent, so it isn’t an isolated incident. It is a systematic problem. And not an accidental one, I think.
One case proves nothing. As you know. As I said. The vast, VAST majority of people who plead guilty are guilty.
In my opinion, pre-trial detention should only be used sparingly, certainly not for mere low-level theft.
Why should theft of a backpack warrant pre-trial imprisonment? If it turns out the suspect is not wanted for a more serious crime, just give the suspect a court summons.
I think that you have a far greater faith in the perfection of the justice system than I do. I have seen and heard of far too many cases where prosecutors charge defendants with far more serious than the original charges if they don’t plead, in effect punishing them for exercising their constitutional rights to a trial.
At this point, the pendulum has swung far in the prosecutors direction, in the name of efficiency, and that has caused many innocent people to confess to crimes they have not committed, and plead guilty when they are innocent. Another famous example are the Central Park 5, teenagers accused of raping and beating a jogger in Central Park. They had coerced confessions used against them, when it turns out that another man altogether had committed the crime.
We honestly have no way of knowing the statistics of how many innocent people plead guilty under pressure v. how many innocents can spare the time and money for a trial. I think the number is probably higher than you would feel comfortable with. Or maybe not.
Over-charging is unethical—that’s what Marilyn Mosley is doing in the Freddie Gray case. Prosecutors who do it ought to be sanctioned, and the practice would stop.
All I know is, I had about 40 clients when I took court appointed criminal defense cases, and none of them were innocent. Not one. A typical first offender plea bargain is “plead guilty to the dumb pot charge and we’ll drop the shop-lifting. Suspended sentence pending completing an anti-drug program, then the charges will be dropped. Plea bargains work to the defendants’ advantage more often than not.
Will you weigh in on the netflix viral sensation: Making a Murderer?
That would mean I’d have to watch the damn thing. I started, and bailed half-way through the first episode.
Documentaries are useful in bringing little known facts and theories to light, or presenting different perspectives. But they are all advocacy pieces. You’d think “Triumph of the Will” would have made this clear, and that Michael Moore’s partisan hackery on Bush, gun rights and the rest, as well as Al Gore’s global warming propaganda would have made it clearer. Some documentaries make a slam dunk case, like “League of Denial,” others signal their biases transparently, like most of Ken Burns’ work.
I’ve read about the case. This one isn’t like, say, the West Memphis Three, where no rational justification for a prosecution could be made, and the documentaries just drove home the injustice. It may well be that he was wrongly convicted, in the sense that he wasn’t legitimately proven guilty beyond a reasonable doubt. The fact of his actual guilt or innocence, however, is open to interpretation. The documentary is obviously one interpretation; anyone who thinks it is more conclusive is naive.
Absolutely. It’s completely obvious who’s side the documentary makers are on.
The poignant bits I find however, are just how much the media can ruin a jury’s objectivity before a trial even begins or said jury is selected.
The other bit I find useful to consider isthe defense attorney’s “off the clock” commentary on our system. I have some concerns about what he says and at times agreement.
One quote that bugged me that he made (albeit outside the documentary) was that it’s not fair for an entire swathe of Americans to not get fair representation because the system has good lawyers priced well out of their ability to pay. And he said that as one of Wisconsin’s top lawyers, who undoubtedly charges the exact kind of fees he just bemoaned. Hypocrisy?
Such a sophisticated corraling system, and the one part of it that raises serious concerns about how many defendants are, in effect at least, being railroaded over lunch or a round of gold, simply because they don’t know better, and their legal champions don’t care because they, too, have been demoralised.
I think that is another effect of the “War on Drugs”, in that it has flooded and overwhelmed the court system such that if every defendant opted for a trial, the system would basically cease to function. Hell, If even 20% of those charged opted for trial, the system would break down. So everyone, prosecutors, judges, defense attorneys, have an incentive to plea bargain most of those cases away. Everyone has an incentive, except for the poor defendants, of course, but they quickly incentivize them, by overcharging the defendants to scare them into plea bargaining, and the use of pre-trial detention, even for minor crimes, so the person will plead to anything to get out of jail.
This post illustrates a seemingly systemic imbalance that has disturbed me for at least a few decades. If there is systemic imbalance, the most obvious way to combat it is to equally fund district attorneys and the offices of public defenders. (Apparently, it does not seem odd to voters that the defenders of accused criminals are called “public” defenders.) It should take no more to fund a public defender with five assistants than it does to fund a district attorney with five assistants. Because some defendants will opt for private representation, the public defender caseload will never be greater than that of the district attorney, and funding should not be an issue. We could improve the situation by funding public defenders to a greater degree than the offices of district attorneys. District attorneys already have police testimony behind them. They likely have the support of the FBI, all other law enforcement agencies, the public in general, and all other investigating agencies. There are very few not working for the district attorney’s side of the argument. District attorneys also have a political advantage – it is much easier to keep your job (and get public sympathy and funding) when you say you convicted two murders than when you say you got two accused murderers set free. Given equal funding, I suspect the guilty vs. acquitted outcomes would not be much different – most of those accused are guilty. At the very least, we could claim we gave the accused a fair trial. At most, we could help maintain our freedom and quell arguments that some groups are unfairly targeted for conviction.
Yes.
What would be the argument against funding district attorney’s offices and public defender’s offices equally?
The argument is “we need to spend money convicting the bad guys, not defending them.”
How many people no longer value fair trials?
The average American doesn’t care about fair trials, unethical prosecutors, or prison conditions, unless it involves them or their families. It is as low priority as it can be.
That is so sad.
In the long run, how can the right to due process remain protected if so many Americans equate accusations with guilt?
It can’t. Watch this.
Their victims didn’t get due process, you sound soft on crime. Don’t the people have the right to see these murders and rapists punished rather than coddled? You’re taking the side of ‘bangers and thugs (this should call to mind scary black men who must be guilty because just look at the black crime rate right, clearly they’re predisposed to criminality,) who are you going to believe, them or the cops? Are you calling those find upstanding people who risk their lives every day for you dishonest? If we’re going to be spending money on criminals it should be to build more prisons, private prisons of course, we’re not commies. Don’t forget, an eye for an eye and how Jesus helped George Washington write the constitution.
And so I weep.
Side note, Jack I didn’t forget about answering in the other thread. It’ll be delayed, I apologize. There are reasons, one of which has to do with me being up in the middle of the night right now, but not excuses so again I’m sorry. As soon as I have both a free hour and a clear mind I’ll type out my replies.
So why should people suspected of crimes submit to punishment if our criminal justice system adopts these attitudes?
Between pre-trial confinement and Jack being okay with shooting at even the most petty criminals who run, do they have a choice?
That’s libel. I have never advocated or excused shooting at fleeing subjects. Find me the quote—it’s not there— or send an apology. That’s a lie. and I don’t accept lies about me on this blog. I just set the clock….
Looking for the quote.
You’re wasting your time.
I even covered that one in my “It’s a Wonderful Life” Guide. A quote is in today’s post about Walter Scott being executed—executed is “not OK”—maybe that’s the source of your confusion. Understandable.
Actually I don’t need to, I apologize. You do not advocate that and found you saying so, so anything I remember or remember from earlier matters not. I’m wrong you’re right.
Here is you condemning the practice https://ethicsalarms.com/2015/04/10/proof-of-evolving-ethics-enlightenment-bert-the-cop-would-have-shot-walter-scott-in-the-back-too/#more-26497
Accepted. Thanks. No hard feelings. I’ve said other, equally wrong things.
That should have read remember or misrememeber. I was typing fast since I was on the clock. It was something involving a dead turnstyle jumper, I think.
Jack, can you justify pre-trial confinement in cases of mere petty theft? Why would it not be sufficient to simply give the suspect a ticket with a court date?
For petty crimes, suspects should not even be held overnight- just fingerprinted (to ensure there are no outstanding bench warrants), and then a ticket with a date to appear in court. Only if the suspect fails to appear should pre-trial confinement be justified.
I think I agree that absent aggravating circumstances, there need be no bail in misdemeanors, including theft. There will be a lot of no-shows, though.
A no-show would constitute an aggravating circumstance.
I recall, back when I made my grievous error in judgment, sitting in a large room, waiting my turn to speak to my public defender. There was a small, caged area at the front of the very noisy room, which contained about 4-5 defenders, trying to speak above the din to their clients for about a minute each, while at least 80 or so jumpsuit-wearing inmates noisily waited to be called. All told, during 3 encounters with my attorney before sentencing, I may have spent a grand total of 15-20 minutes discussing my case with him. I wish I’d had money back then.