South Carolina Criminal Defense Blog

In the comments to another post, B. Tannebaum asks why I generalized about, to paraphrase, public defenders being more likely to plead their clients. This deserves an explanation and its own post. From the comments:

It appears that you are saying an attorney's advice is based on the attorney's own propensity for trials or pleas. I understand that.

I am disturbed though, by this statement you make: "Public defender clients, and those of some private attorneys, plead guilty more often because, when assessing the client's case, the public defender is more likely to inform the client that this case cannot be won, and that a plea is in their best interest."

Why do you generalize about public defenders. I was one, and a great number of private attorneys once were as well. To say that the public defender is more likely to inform the client that the case cannot be won is overgeneralizing public defenders.

Sure, public defenders have more cases and can't spend the time that some, and I mean SOME private attorneys spend on cases, but there are dedicated public defenders that take great care to advise clients whether to plea or try the case.

Can you clarify your statement?

I was a public defender also. In the past, I have been overly careful about what I said about public defenders and how I said it, and lately I've come to believe that that is a mistake. It is true that to say public defenders are more likely to plead their clients is an over-generalization, because it is true that there are dedicated public defenders that take great care to advise clients whether to plea or to try their case. I felt that I gave competent advice and was never reluctant to try a case when I was a public defender; I'm sure that Brian T. and many of us did as well.

But, at least here in my corner of South Carolina, it is also true that, in general, public defenders are more likely to plead their clients. At the risk of offending the public defenders who do not fall into this category, I think that it needs to be talked about. Not in a mean-spirited way, but with a full understanding and acknowledgment of the raw nerves that every public defender has as a result of being emotionally beaten and abused by their clients and the system in general.

My intent in speaking my mind is not to jump on the bandwagon and belittle public defenders. It is to hopefully motivate public defenders that are reading to do something different and try to make changes in the system, rather than feeling like victims of the system. As I said in a post last month, "[t]he public defenders and others charged with the defense of indigents in our state need to accept responsibility for ensuring that we are complying with the Sixth Amendment and providing effective representation."

1) On a macro level: the public defenders offices are not receiving adequate funding to do what needs to be done to provide effective representation. The caseloads are too high, they do not always use investigators and/or experts when needed, and the clients often get short thrift as a result. When the lack of resources rises to a level where clients are receiving ineffective representation across the board, defenders have an obligation to refuse cases. Our legislature is not going to provide funding for defense attorneys, public defense or private appointments, unless they are made to realize the necessity of funding indigent defense. It is not otherwise their priority.

Public defenders, I optimistically believe, do not dig in their heels and refuse cases or take other drastic action, because they do not want to suffer the political backlash. For example, they do not want to lose their jobs. But, I say, if your job is to uphold the promise of Gideon and the Sixth Amendment, and if you must trample on the Sixth Amendment in order to keep your job, what is that job worth anyway?

2) On a micro level (specific instances): locally, I see public defenders speaking to their clients for the first time at roll call, standing in front of the prosecutor, and telling them that they are an idiot if they don't take the plea offer the prosecutor is offering them. On more than one occasion, I have seen this play out, with a client who is insisting, in front of the prosecutor, that they are innocent.

I have family members of potential clients call me, begging me to take their son, wife, or husband's case, because a public defender has not been to see them at the jail where they have been locked up for 2 or 3 months.

I have new clients who come to me after being locked up on a bench warrant for failure to appear for roll call after not being able to get in touch with their public defender who will not return their calls.

I have watched public defenders (and private attorneys) struggle through a guilty plea, with the assistance of prosecutor and judge, their client maintaining that they are not guilty the entire time. (In all fairness, I have seen judges refuse to accept these pleas as well)

Common complaints from cases we pick up from public defenders locally are that their public defender would not talk to them, listen to them, return their calls, visit them at the jail, called them stupid, tried to force them to plead guilty. Most public defender clients cannot choose their lawyer. If they could go out and retain a private defense attorney, they would not be a public defender client in the first place and they do not have a choice.

Our criminal justice system is a machine, gears turning and crushing human beings, spitting them out, one guilty plea after another, with criminal records and prison sentences. The role of a defense attorney is to throw a wrench into the gears whenever possible, not to apply grease liberally and assist in the process.

Our public defenders office waives every preliminary hearing.

There are public defenders who meet with their clients, who look at the evidence in their cases, and who do the best that they can despite the resources that they have. If you are one of these public defenders, I am not speaking to you or about you, other than I am asking you to fight for more resources and to motivate the lawyer working next to you to care about his or her client. If you are a public defender from another area of the state or country, where your office is systemically geared to motivate you and help you to defend your clients to the utmost of your abilities, I am not speaking to you or about you.

There are different types of people who are attracted to public defenders offices: 1) lawyers who are young and want trial experience; 2) lawyers who are passionate about criminal defense and who want to be in a position to help people in need; and 3) lawyers who cannot find a job anywhere else (and various combinations of 1-3). A public defenders office should be actively recruiting 1 and 2, and avoiding 3. A public defenders office should be encouraging the rank and file to try cases when the client asks for a trial, and training them as to how to try cases. If the office is not doing this, then 1 and 2 are not getting what they bargained for, and will quickly become burned out and jaded.

Public defenders are on the front lines, in the trenches. I fully appreciate that. Public defenders need our support - that may be support in arguing for the funding that they need, or support with litigation if they ask us for help. If any public defender calls my office or sends me an email, and needs help with anything, I will give it to them without hesitation.

Despite all of the above, I appreciate all of our public defenders. Any public defender who reads this and who is fighting for their clients in the best tradition of public defenders everywhere may misunderstand my intentions and feel offended. But - again, that is not who I am speaking to, which is, to bring us back to Brian T.'s point, the problem with generalizations.