The Public Defender Debate

In my friends update recently, I asked you if you had any questions for me. One reader asked me about my lawyer experience. Specifically, her questions were:

Could you comment/write about the quality of your representation? Did you have a federal public defender? Private attorney? How much did it cost you (if I may ask). Are you satisfied? What recommendations do you have for a rising 2L in terms of connecting with clients, making your life better, etc?

I will attempt to answer this question best I can, as I sit across from T.S. at a Panera trying to not distract her as she studies for her Chemistry course. We have already wasted two hours as we looked at possible replacement scooters for me to purchase, she bought some great artwork online from a friend, we worked on her 2014-15 college schedule, and just generally enjoyed one another's company. We are going to have to be better at this "studying together" thing if we are to do it when Fall semester starts up. Okay, it's weird for a "semi" parent to study with her teenage "semi" daughter, but as you all know, I'm weird. Amazingly, T.S. is an amazing young woman who doesn't mind being around the adults in her family (as long as she is not hanging with friends). Whoa, off topic, sorry.

I remember that in one of my first posts, I mentioned that I had a public defender. I'm going to start with that decision. When I received a notice that charges may be filed against me, I started the process to obtain a public defender immediately. I did not wait for the charges to actually make it to court, I wanted to be prepared. I did not spend much time considering a non-public attorney, as I had very little funds (grad student and former gambler after all). If you are considering hiring an attorney for your defense, unless s/he is your best friend's sibling or something like that, you are looking at a large retainer - no less than $10,000 to retain the services, sometimes more in the ballpark of $25,000. I am so grateful that public defenders exist, because no one should go to court without one. There's a lot of game play that occurs in the courtroom and you need someone savvy enough to understand what's happening and object when necessary.

My only thought about hiring a for-profit attorney was that if I could hire a real savvy one, perhaps they could have kept me out of prison. We all know the O.J. Simpson story. Unfortunately, I am not aware of any best friend's siblings who are savvy attorneys who would have taken on my case for practically no funds. Nor, could anyone no matter how much you pay the attorney, make any guarantees that you will not have the book thrown at you or that you will be found innocent. It's just not something any attorney has within their power.

The other thing I know is that good people become public defenders. It is not a fall back career for lawyers, many great, smart people go to law school to become public defenders. They believe 120% in the belief that everyone deserves to have legal counsel and many believe that they will do something good for their clients. They can be just as idealistic as anyone. Not only that, they choose a career that pays them less than half what they would make if they chose private practice. During my law school days, I was always so impressed with my peers that wanted to work as public defenders.

The bad thing is, though, that you do not get to select your public defender. Depending on the defender, they can be any type of personality and some are just plain burnt out by the system. I don't regret my decision to go with a public defender, though. I could not afford more, and she was a skilled attorney. My assigned attorney had more than 30 years of criminal law experience and over 20 as a public defender. She always returned my calls, answered my emails, and listened to me. I cannot say that she was particularly savvy, however, nor did she take the time to truly understand my addiction/reasons for my criminal behavior. She was very matter of fact, and encouraged me to take a plea from the get-go. I was not planning on going to trial, so it was alright. Something many don't know is that even when you accept a plea, in the federal system they cannot promise you what your sentence will be. The judge decides that. The plea may include what the recommendations will be, but ultimately your sentence is decided by the judge.

My attorney was pretty certain that I would get supervision only, or spend at most 1-3 months in prison. She had no idea that due to my medical issues, I would have to be at a secured federal medical center. Nor, did the judge for that matter. My attorney's jaw dropped to the floor when I was given my 1 year and 1 day sentence. While my sentence could have been much longer, she had not prepared me for a sentence with a real amount of prison time. I told her from the beginning that I could be kicked out of school if I were to go to prison, she kept telling me to not worry about it. Even my pre-sentence report stated that a prison sentence may exceed the necessary punishment for me, due to my nearly 5 years of recovery and growth at the time. I'm not sure any attorney could have predicted how the judge would have decided my sentence. So, I guess I'm glad I didn't allow my family to go into great debt trying to hire an attorney for me. My public defender was fine. At times, she was good. I won't say she was great, but she may have been earlier in her career. I think she's been dealing with the feds too long and knows the limits - so she won't be savvy and push, she gets the job done. Period.

It's important to know how to find a public defender. If you receive any indication that you are going to be charged with a crime, you can contact the public defender's office in the federal district your case is/will be filed in. For example, if you lived in Texas and were going to be charged in Fort Worth, you would call the public defender office in the Northern District of Texas. They will likely ask if you know of any indictment or have received any documents indicating that you will be indicted imminently. They will then send you a questionnaire to qualify you for a public defender. You cannot have significant assets or funds. If you can pay for an attorney, than a public defender is not going to be assigned to you. Once you are assigned a public defender, they will likely get in touch with the prosecutor's office and find out the status on everything.

NEVER TALK TO THE PROSECUTOR'S OFFICE OR FBI WITHOUT YOUR ATTORNEY!!

Anything you say can be warped into an admission. If a prosecutor, state's attorney, private investigator, or the fbi contact you and want to "just talk" or send you a letter, or have any communication at all with you, you should not say anything. Immediately tell them that you will speak to them once you have an attorney. You have the right to that attorney and they cannot communicate with you without your attorney present. But, YOU must request the attorney or say you have one. They will not stop communicating with you unless you say you want an attorney present.

Well, that's a lot of information to digest and I'm not even sure I answered the questions adequately. I do want to answer the final question, though... what do I suggest for a student seeking to become a public defender. Here are some suggestions that come to my mind:

• Every client is not just like the last client. 
• Every person is unique and while some may lie, not all will. 
• While some clients may be guilty, once in a while someone may be innocent. 
• While the system is stacked up against the client, it is your duty to represent them to the best of your ability. 
• Stay aware of the changing law and recent appeals, use them to help your clients.
• Allow your client to tell you their story, if they want to share it. Most people have a reason behind their actions, it may not matter in the law, but it matters to them.
• Don't make any promises.
• Work within the system to make it more just. Be willing to challenge the status quo.
• If you have a client that is going to prison, be available to them just as a check-in before they go. Check in with them once while they are inside. You may not be able to do anything more for them, but it matters to know you were seen as a person and that your public defender still knows your name.
• Prepare for all scenarios to happen in court. Don't let your client see your jaw drop to the floor. Object if something is not right.
• If your client insists they are innocent, try to figure out if someone else is guilty.
• Don't just tell your client to plea if they are innocent, it may result in more prison time to go to trial, but this is their right to freedom they give away if they plea out.
• Be personable.

Well, I'm sure there's more I can say, but know that it's a very important right in the U.S. to have a public defender available to those who need them. It's a noble occupation to select and one that will certainly keep you on your toes. Balance your life between work and home - getting burnt out is never going to help anyone!

For most of us, there is no debate between having a public defender and hiring a private attorney. Money speaks volumes. Lots of money may help get guilty people off and having little money means we are much more likely to go to prison. It's a broken system. However, public defenders are just one piece of the puzzle and are very important to ensure some justice can exist.