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Public Defenders Fight Against Tough Odds

Tagged under: Research USA Court System Politics Criminal Justice
By Omid Ghaffari-Tabrizi on December 16, 2015 - Based on this John Oliver segment.

Omid Ghaffari-Tabrizi found this image of a comic book about public defenders.

Public defenders show up in court far more often than just about anyone else out there. When people are read their Miranda rights and they are told about their right to an attorney, that attorney being referred to is a public defender or one that has been required to appear on the defendant's behalf by the court.

This right is not something traditional, but rather only became established in 1963. In Gideon v. Wainwright, the US Supreme Court ruled that a person "who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." Unfortunately for the poor in America, where, if you remember, 1 out of 3 have been arrested at least once in their life, the system is simply overburdened. According to a Brennan Center for Justice report, "anywhere from 60 to 90 percent of criminal defendants need publicly-funded attorneys, depending on the jurisdiction."

This is a disastrous stat, because the system simply can't handle this many cases. In Springfield Missouri, KSPR reported that 20 public defenders were handling up to 250 cases each. In New Orleans, each public defender has up to 350 cases per year. ABC 30 reported that in Fresno County, public defenders were handling up to 1,000 felonies per year (nearly 3 per day!), but state guidelines say they shouldn't handle more than 150 felonies per year.

With these numbers, it is not shocking when public defenders point out that it is simply impossible to prepare an effective defense. The National Association of Criminal Defenses Lawyers (April 2009) found that some part-time public defenders in New Orleans are so overworked, they are limited "to seven minutes per case." Seven minutes. These are life or death cases. People's futures will forever be impacted by the outcome of these cases.

Now this is if there is even a public defender's office. Some counties simply contract cases out to the lowest bidder (like what people saw from the main character in "Better Call Saul"). This results in a practice known as "meet 'em and plead 'em." According to the Department of Justice (PDF Warning), 90-95% of cases end in a guilty plea. The vast majority of people never get a chance to have their case heard in court.

Society has been conditioned to assume that those represented by public defenders are guilty. But that simply is not true. As we discussed before, nearly 1 out of 4 who go to trial are acquitted. There is no way, statistically speaking, that 90-95% of people who were arrested are actually guilty. In fact, it is well known that many people simply plead out because the overcharged punishment that they are facing is simply too long to risk.

Erma Faye Stewart is one example, with her case covered in The Plea on Frontline by PBS. She was arrested in a drug sweep. She was facing 10 years and couldn't afford bail. She says that her court-appointed attorney convinced her to take a plea deal despite the fact she was innocent. She admitted to a crime she did not commit just to make sure she could go home. But she did it too soon.

After Erma had already taken her plea deal, the prosecution's case collapsed and everyone who didn't take a plea deal had their charges dismissed. Erma, however, could not take her plea back. She ended up on probation for 5 years and she couldn't get public assistance, leading to her becoming homeless. If her attorney had more than 7 minutes to work on her case, she may not have been in this situation.

A Bureau of Justice Statistics report on County-based and Local Public Defender Offices found that "40% of all county-based offices had no investigators on staff." Without investigators, a lawyer that already has hundreds of more cases than he should, is also left to pick up the bag of finding evidence to help their client.

With all these challenges, who would take on this kind of job? While every profession has bad apples, there are great people who work as public defenders.

People like Travis Williams. He frames every win to put them on his wall. For those cases he loses, he has the name of his client tattooed on his back. He has 5 names right now.

People like Dale Miller. He has fought with a judge on behalf of homeless clients to such a degree, the exchange ended up making national news – not once, but twice.

People like Andrew Weinstock. He literally had a physical with a judge who wouldn't allow him to represent his clients. After the fight, Judge John C. Murphy called 7 cases without an attorney present and he is still on the bench with a term that expires on January 8, 2019.

These three have one thing in common – they are fighting for the poor. In Missouri, Georgia, Virginia, and Maine, you can qualify for food stamps but still not be poor enough to qualify for a public defender. In every state but Utah, Nebraska, Alabama, Pennsylvania, New York, Rhode Island, and Hawaii, you can actually be billed for a public defender.

It leads to results like that of Larry Thompson. As told by the Orlando Sentinel, in 2010, he was arrested in Florida for driving with a revoked license, which was a felony due to his history of driving violations. In Florida, it costs $50 to fill out an application fee for a public defender. He couldn't afford that or his bail, so he sat in jail for 59 days before he finally gave up, plead no contest, and was released on time served. He had no idea what was about to hit him.

In Florida, if you use the public defender and are found guilty (no contest is considered a guilty in this case), you are responsible to pay attorney's fees and costs, regardless of your ability to pay. For Larry, this meant $100 pursuant to Florida Statute 938.29 for the Public Defender Fee and another $100 pursuant to Florida Statute 938.27 for Prosecution Costs. $250 in fines for nothing.

There were also fees related to the conviction itself, fees for not paying in full, and more, leading to a final tab of $675 for Larry. Eventually, Larry was actually arrested for contempt of court for not paying those fees. That arrest then led to another $210 charge, bringing the total bill so far to $885.

When Larry was arrested, he was in hospice care, receiving treatment for a terminal pulmonary illness. He was so sick, in fact, that when he went to jail, he had to be sent to the hospital, where two guards were put on duty to watch him while he was chained to his bed.

Larry was understandably shocked, in disbelief that someone in his condition was arrested for not paying fines and nothing else. He was in a situation where he was put in jail, forced to sit there unless he accepted the new charges, something he had to accept because he needed oxygen and couldn't get it in prison. Eventually, Larry's $885 fee was paid by donors who heard about his story, but imagine how much the collection efforts cost the Florida taxpayer. It was literally thousands of dollars.

Don't think this is fair? Let your local representatives know. Don't forget to also put the pressure on your state representative, state senator, and the Governor. On top of that, let your federal representatives also hear your thoughts. Finally, let us know what you think by leaving a comment, below.

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