Public defender

In the United States, a public defender is a lawyer whose duty is to provide legal counsel and representation to indigent criminal defendants who are unable to pay for legal assistance. Public defenders are employed by the government (at the federal, state or county level), or they work for non-profit entities funded by the government (see below), as opposed to criminal defense attorneys in private practice. Appointed counsel are required to be available for anyone accused in criminal court, who is exposed to any likelihood of imprisonment, by the 6th Amendment and the Supreme Court decision Gideon v. Wainwright. Most jurisdictions choose to comply with their Gideon duty by establishing public defender offices, but a substantial minority complies with Gideon by having panels of appointed private counsel.

Legal background and history

The landmark case that helped pave the way for all Americans to be guaranteed an attorney at trial was the case of Gideon v. Wainwright, 372 U.S. 335 (1963) Mr. Gideon was a middle-aged Florida man who was charged with breaking into a bar and stealing money and beer. He argued at his trial that he could not adequately defend himself, and that a system that pits an uneducated man against a trained attorney is fundamentally unfair. The Supreme Court agreed.

Although there had been some provisions for free attorneys prior to Gideon, it was the catalyst for a wave of change. Following the landmark 1963 decision, the 1960s witnessed the creation of programs across the country to make this right available to virtually all criminal defendants who could not afford an attorney to represent them.

The first person to propose the creation of a public defender's office was California's first female attorney — Clara Shortridge Foltz. In a time before there were public defenders, young inexperienced attorneys were often ordered by courts to defend indigents pro bono, and in that capacity, Foltz saw firsthand the inequitable results of that crude system. See Stanford Law. As a result of Foltz's energetic lobbying, Los Angeles County established the first public defender's office in the United States in 1914 [1]. In 1921, the California Legislature extended the public defender system to all state courts. [2]

Jurisdictional differences

Not all jurisdictions have public defender offices, per se. In some areas, indigent defendants are represented by legal aid attorneys whose offices have contracts with the court. In other areas, representation is provided by attorneys in private practice who are appointed and paid by the court. Defense services can also be provided by lawyers employed by private corporations that receive government grant money for this purpose. Federal Public Defender offices follow one of two models. They are either federal agencies operating under the Judicial Branch of the US government, or corporations that receive federal grant money. Public defender agencies of all kinds are supported by public funding, but do not take direction from the government as to the acceptance or handling of cases.

Because conflict of interest problems could exist where multiple defendants participated in a single crime, such as a bank robbery or a drive-by shooting, only one person in a group of co-defendants will be assigned an attorney from a public defender office. For many defendants, it is in their best interest to testify against co-defendants in exchange for a reduced sentence. To ensure that each defendant is afforded his constitutional right to a zealous and loyal defense, jurisdictions may have several public defender entities, or a "conflict panel" of private practice attorneys. This enables the court to assign each defendant an attorney from a completely separate office, thereby guarding against the risk of one client's privileged information accidentally falling into the hands of another client's attorney. Some jurisdictions, like in Los Angeles County, employ a separate entity for legal representation called the Alternate Public Defender's office. Any further conflicts are handled by court-appointed private attorneys.

In civil law countries, following the model from the Napoleonic Code of Criminal Procedure, the courts typically appoint private attorneys at the expense of the state. Defense attorneys in such countries are not directly employed by the government.

State public defender offices can vary widely from county to county, and from federal defender organizations. In state offices, issues often arise in jurisdictions with public defenders over appropriate levels of funding. If attorneys are under funded, their case loads can climb to levels where they are unable to provide adequate representation. Further, funding issues can keep salaries too low to attract the best legal talent or to keep experienced lawyers on staff. These issues have come to the fore with recent studies disclosing that innocent people have been condemned to death in part due to inadequate representation in Cook County, Illinois (Chicago), although none of the overturned "death penalty" cases where actually represented by the Cook County Public Defender. To avoid these problems the American Bar Association has promulgated standards as to appropriate case loads for public defenders. Problems of excessive case loads and low salaries still plague many state public defenders' offices. Research has indicated that indigents receive the highest level of representation when assisted by a well funded professional office dedicated to criminal defense. In some jurisdictions, an indigent criminal defendant may be ordered to reimburse the state for the costs of his or her defense, based upon the defendant's ability to do so.

Federal public defenders

The Federal Public Defender offices are well funded, professional offices dedicated to defense work. By law, lawyers employed by Federal Public Defender offices have salaries set to match those of lawyers in the U.S Attorney's office. The combination of decent salary, benefits and support team tends to attract, and more importantly, retain, highly qualified attorneys. A surprisingly large percentage of Assistant Federal Public Defenders either attended Ivy League schools, clerked for a federal judge, or both. Especially in more rural areas, where a federal criminal job is one of the top paying local legal jobs, many of the federal defense attorneys had long and successful records as prosecutors and defenders at the state level prior to moving-up to the federal system. A federal defender's case load is usually substantially lower than his state counterpart's. While a state public defender may have to juggle hundreds of cases, an Assistant Federal Public Defender routinely has 30-50 cases, a very manageable amount. The federal system has over 4,000 separate offenses, and uses a very mechanistic, technical sentencing scheme. Lawyers in Federal Defender offices are specialists who only handle federal matters, and they can tap into a nation-wide network for guidance and assistance. Furthermore, because the courts tend to "cap" the amount a panel attorney can receive in compensation on a case, there is much more pressure on the "panel" attorneys to resolve a case or issue quickly than there is for an Assistant Federal Public Defender, who can afford to invest all the time necessary to fully develop an unusual motion or issue. In this federal system, the title of Assistant can create a belief in some clients that their attorney is new. The title has nothing to do with the attorney's experience or ability. There is only one United States Attorney for a district (all the other federal prosecutors are called Assistant United States Attorneys), and there is only one Federal Public Defender for a district. Thus, an attorney with thirty years experience, who supervises twenty other attorneys, could still be an Assistant Federal Public Defender.

Differences between state and federal public defenders

The differences between the quality at the state versus the federal levels, and the difference between poorly supported state programs versus properly supported state offices has caused much confusion in the general public. The horror stories have created a frequent public perception that all* defenders are over-worked and have to "dump cases". "Dump truck" and "public pretender" are terms sometimes used by defendants when complaining about their public defender. (The origins of the phrase "dump truck" are somewhat obscure, however it probably means that in the eyes of the defendant, the public defender is simply trying to "dump" him by encouraging a guilty plea rather than afford him a vigorous defense.) Ironically, particularly in the federal system, it is the public defender, free of the pressures of hourly billing, who can actually afford to spend time developing unusual issues, motions, and trial strategies. Nevertheless, client-attorney relations are frequently strained by that perception and the horror stories. Although public defenders are available because of the United States Constitution's 6th Amendment right to counsel guarantee, they are perceived as being a form of welfare, and like anything else that comes for free, are looked upon with some distrust. It is a sad truth that many criminal defendants would prefer to have any private counsel rather than a public defender, regardless of comparative competence.

Defendants represented by federal public defenders typically enjoy the benefit of vertical representation, meaning their attorney will represent them in all levels - from the arraignment to the case on appeal. State-level public defenders, due to budgetary and time contraints, generally cannot provide such services to their clients, and a different deputy public defender typically will represent the defendant at different stages of the case.

In most jurisdictions, the person most likely to suffer the injustice of an inadequate defense is the middle-class defendant. That unfortunate has too much money to qualify for a free public defender, yet not enough to pay for the services of a qualified and experienced private practitioner. However, at the federal level, defense costs can be so exorbitant that members of the middle class oftentimes qualify for the assistance of a federal public defender.

If a concern involves a local matter, local court staff can provide direction to the appropriate public defender organization. For federal matters, look under US government listings in the telephone directory, or contact the clerk's office of the nearest US Courthouse for information. Federal Public Defender offices are customarily located in larger metropolitan areas of the district, but serve clients throughout their assigned area.