Public Defender Offices In Crisis, And Defendants Are Paying The Price - The Battle For Reform

Details

Published on Wednesday, 03 June 2009

Written by Deborah Hastings, AP

In Missouri last month, lawmakers approved a bill that would limit the crushing caseloads of public defenders who had lost an earlier court battle to refuse new cases. The state could contract with private attorneys to handle the overflow, the legislation says, but only if additional funding is available.

But where would that money come from in these harsh economic times? President Barack Obama's economic stimulus plan offers no money for hiring public defenders.

In April, the bipartisan, nonprofit Constitution Project released a phone-book-sized report titled "Justice Denied," a national review of court-appointed lawyers. The five-year analysis, the most comprehensive look at indigent defense in decades, said many states fail terribly in their constitutional duty to provide lawyers for the poor.

"Sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon decision," said report signed by former Vice President Walter F. Mondale and former FBI Director William S. Sessions. "The call for reform has never been more urgent," the study said.

In May, a major reform battle was lost by court-appointed lawyers in Florida's Miami-Dade County. An appellate court harshly rebuked and reversed a lower court ruling that allowed the public defenders office to refuse certain felony cases because it faced funding cuts and crushing workloads. Under the initial ruling, attorneys would have been brought in from a smaller state office and from private firms, which would have increased costs.

But the Third District Court of Appeal said in a unanimous opinion that solutions should be sought in the legislature. Petitioning the courts for relief is "nothing more than a political question masquerading as a lawsuit," wrote Judge Frank Shepherd.

Reform advocates said the decision was history repeating itself.

"In the 1960s, the state of Florida believed Clarence Earl Gideon could get a fair trial without the guiding hand of counsel," said David Carroll, research director for the National Legal Aid and Defender Association. "Today, the assumption is that a poor defendant in Florida can get equal justice. They were wrong then and are wrong today."

Smaller states facing public defender lawsuits include Georgia, where defendants have gone without lawyers for as long as six months and indigent lawyers have begged legislators for $1 million to deal with backlogged capital cases.

But even in the best of times, public defenders say a quick plea bargain is sometimes as good as it gets. Court-appointed lawyers often have only seconds to whisper with clients they've just met -- before standing while a judge sets bail.

Their days are spent like emergency room doctors performing triage. The worst cases get the most attention, the lesser cases wait the longest. Pleas are shuffled like prescriptions -- take this, it's a good deal. Plead guilty, settle for time served. No, going to trial won't prove you innocent, it will get you convicted.

The pay is awful and so are the hours.

Hurrell-Harring's court-appointed attorney is a case in point.

For a yearly salary of $54,000, Patrick Barber juggles between 100 and 120 cases in his Washington County, N.Y., office -- on top of his private practice. Between himself and four part-time defenders, he says they represent 1,661 cases.

"If I had more money, could I do more? Of course," he says. "But the public doesn't care. They want the DA's office to be funded, but they don't care about the public defender."

He agrees with his former client. He doesn't have much time to visit clients. It's not possible to see every defendant, he said. Many have no car, and can't get to his office. Others are in jail, and he simply can't get to all of them, he says.

Barber claims he did the best he could for Hurrell-Harring.

"She couldn't have been charged with a misdemeanor because it wasn't offered. It wasn't going to be offered. The district attorney takes a very hard stance when it comes to prison contraband," he said.

Hurrell-Harring, 33, doesn't much care about Baker's caseload, and she has two pending legal actions over her incarceration.

In one, she's part of a class-action lawsuit filed by the New York Civil Liberties Union against the state, accusing it of "persistent failure" in providing legal services to the poor. The suit also claims a dysfunctional and unmonitored system has caused wrongful convictions, harsher-than-normal sentences, improper guilty pleas and excessive bails.

In the second, she's asked the appellate division of state Supreme Court to reduce her conviction to a misdemeanor because of inept legal representation, and because a recent appellate ruling said a small amount of pot did not qualify as "dangerous contraband" in prison settings and should be charged as a misdemeanor.

"I can understand why you don't want people bringing in sawed-off shotguns or large amounts of drugs that could be sold inside," said private attorney Roberta Kaplan, who is working pro bono to get Hurrell-Harring's conviction reduced. "But this is a traffic ticket."

If the high court agrees, Hurrell-Harring could get her nursing license back. She is living with her mother, who suffered a recent stroke, and her two girls, ages 5 and 18. She's getting by on Social Security.

• < Prev
• Next >