Wednesday, August 05, 2009

The fallacy of a public defender's office for Capitol Crimes

First off, for the record, I am not a lawyer, I am not an "expert" by any stretch of the imagination on this subject, but what I am about to say should be painfully obvious to even the most uninformed among us. But yet the "Newspaper of Record" in this town still fails to grasp this for some reason. Most likely because Jeff Cohen's wife just happens to be a member of a group that wants to outlaw the death penalty in this state. But of course that tidbit is never really discussed even though it is widely known among the Chronicle's critics.

The subject is the proposed formation of a public defender's office to defend capitol murder defendants. Currently, cases are assigned, ostensibly randomly (that is questionable), to members of a pool of lawyers that have volunteered to defend these defendants. There have been criticisms that some of these lawyers have milked the system for as many billable hours as possible while mishandling the cases and missing important appeal deadlines, and generally committing malpractice on a massive scale. There have also been criticisms that there appears to be a "good ol' boy" network at work, that shunts far too many cases for any one lawyer to reasonably handle to too few lawyers who just happen to be friends and/or campaign contributors to the judges on these cases. These criticisms aren't new, they've been around for some time.

The current proposal to cure this is to institute a public defender's office paid for by the taxpayer that would handle all indigent death penalty cases/appeals. This sounds good in theory, but there are a number of problems with this plan. First off, since this will be a government funded entity, the lawyers
and the legal staff that will be working for it will be chronically underfunded and will be working for what will likely be the legal equivalent of slave wages. This is not conducive to recruiting the best and the brightest to this office. Furthermore, the state will certainly not be able to hire enough people to handle the workload that they will be confronted with, as a result deadlines will STILL be missed, and the technical ability of the lawyers working the cases will be spotty at best. Third, since the job will most likely have long hours at low pay, I expect that there will be significant turn-over among the employees. So you will have people constantly cycling through that will be picking up cases in the middle and will have to spend most of their time just getting up to speed on the case before they say 'to hell with this' and move on to greener pastures doing criminal defense work for actual pay, having recieved a post-graduate education in criminal appeals paid for by the taxpayer.

Let's be frank, if you were about to be put to death, would you really want a guy who graduated from night school at the bottom of his class who is working for the state because nobody else would hire him defending you?

I didn't think so.

Perhaps a hybrid approach would be better. keep the volunteer plan we have now, but instead of allowing judges to shunt cases to their favored lawyers, put the state in charge of randomly assigning cases with an eye towards evenly distributing them to all volunteers. The problem I foresee with that scheme is that without the opportunity to gain favor with judges and/or attorneys, fewer attorneys will volunteer.

Ultimately, all of the plans have problems, but before you trade one set of problems for another, you should really sit down and think long and hard about the implications.

Inspired by a post by Unca Darrell

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