This is the 50th Year of Gideon, which possibly means little to the majority of people in America- or so they believe. Fifty years ago, the Supreme Court decided that American citizens have a right to a lawyer in court. They felt this was a fundamental piece of a Fair Trial. In the middle part of the 20th Century, they also recognized other fundamental rights, like not being forced to testify against yourself, having a jury, and cross-examining witnesses. These can’t be “rights” only when the government feels like giving them to you- and these are rights only a lawyer can be expected to properly protect. The film Gideon’s Army is an insightful look into this struggle.
America is founded on rights of individuals, and a fair process is required to take away liberty or property. It’s shameful we took a few centuries to recognize these are “human” rights, applicable to all citizens, not just White male property owners. But here we are. And in regards to a fair trial system, one that breaks away from the British King’s inquisitorial system, why is it that one set of lawyers (the non-inquisitors) is underfunded and vilified?
There are many reasons to thank a public defender today. Here are three.
1. Upholding America’s Whole Point
When we say things like “They hate us for our freedom,” or “We need to protect American values,” I always want to ask if the speaker can define that, and define it with specifics. American freedom and values include freedom to practice an unpopular religion, criticize our government, having doors that can’t be kicked in, and conducting fair trials. Take away the public defender, and over 75% of our criminal process will consist of a judge and prosecutor going through the motions. It’s King George all over again.
“In the Criminal Justice System the people are represented by two separate, yet equally important groups. The police who investigate crime and the District Attorneys who prosecute the offenders. These are their stories.”
Sound familiar? Well it is wrong. The People are represented by the District Attorneys and the Public Defenders. The police are not separate from the prosecutors, who actually have to shoulder the burden of police misconduct.
The defense attorneys are defending people. Many of them have over 100 people, and their families’ hopes, depending upon them at this very moment. Indeed there are cases where prosecutors have a heightened sense of vindication for a victim to a terrible crime, cases where they need to be especially certain the defendant is the actual perpetrator, but for the most part there is no such victim. The prosecutors are representing an allegation, and the bulk of the time in America, the allegation is that the defendant consensually possessed the means to be intoxicated, or consensually sold those intoxicants to a consensual buyer.
As a society we generally heap respect upon those we see as protecting people. We acknowledge risks they may take in providing protection. “Freedom ain’t free,” some say. Among that price is the mental and spiritual toll taken on by public defenders who sometimes get painted with the same brush as the people they defend. The irony is they’re being “accused” of defending murderers, rapists, and child molesters. Nobody points out that this is perhaps 2% of the caseload. And the 1% who are eventually found free to go, were never a murderer, rapist, nor child molester in the first place. But if not for that lawyer, they might have been.
2. They Believe in Helping Others
Unlike prosecutors who can lose a drug case and walk away with little more than a bruised ego, public defenders can lose such a case and carry the weight of the punishment. Imagine watching a client receive ten years in a cage because he chose to sell a drug rather than wallow in unemployment. Every single case has a human face. There are meetings, phone calls, letters; for juvenile public defenders, there are two clients: the child and their parents (who have limited rights in a case)- just in case you needed more balls to juggle in the air.
I generally wonder why public school teachers take so much flack. Call me cynical, but I think some powerful forces want to destroy public education so that society can expand the class of undereducated low-wage job seekers and expand prisons. Like teachers, Defenders are always wondering if their paycheck will exist next year and if there are funds to pay for the necessary materials. Like teachers, Defenders have to hold a stronger belief in their mission than all the flack combined.
Those who believe in a fair system based on individual rights should be insulted whenever anyone expects a Defender to just ‘go along.’ A Defender’s docket is a collection of individuals requiring their rights to be asserted and protected. Any court officer who utters “The judge doesn’t like it when you file motions,” is helping to destroy the Fair Trial concept. They say this to demoralize the defender, to try and make justice “speedy” and “efficient” for convictions. Obviously the speediest way to get a case off the calendar is to dismiss the charges. We should question the American Values of anyone who seeks to, or actually does, undercut the Defender- a requirement for fair and just process.
Once we start believing in a country where police can conduct warrantless searches, we have lost more than the right to a Fair Trial. The reason why, for example, drug evidence needs to be thrown out (if illegally seized) is because this is the only way to guide police behavior. If we cede unlimited power to the police, then how can we say “They hate us for our freedom?” Similarly, we can’t be thrown in jail based on a “hunch” or a sketchy statement. But who will be the one to specifically say to the judge how and why that is? What is the Rule of Evidence? What is the case precedent? What is a Daubert hearing?
This is especially glaring where soldiers who served in Iraq/Afghanistan are struggling with classic post-war issues: mental strain, physical disabilities, and unemployment. Every combat deployment since the beginning of time will create such struggles, and people with “Wounded Heart” or PTSD. These are often suppressed with drugs. And when one of those soldiers goes into court trying to explain how things spun out of control, a Defender should be there to protect them. Vets don’t have “legal services” in their benefits package, but perhaps they should.
Like a scientist who wants to make a doctor’s job easier on the front lines of helping people, we need to find ways to support Defenders. Slashing their budgets generally leads to more expenses, including hiring private attorneys at a cut rate (although more expensive than Defenders) and likely bulking up prison populations if we expect to fund courtrooms on the cheap while putting more cops in the street.
Nobody plans on going to court. Nobody asks to be a defendant. Life gets out of control sometimes, and sadly for some, life starts out like that. Schools struggle to find the answer to kids acting up, kids who may have been born into foster care, family violence, or neighborhoods of despair. Some schools choose to call the police, send the kid to court, and let the lawyers sort it out. With budget challenges, its probably just “efficient” to push discipline issues off onto another state agency. Ironically, many Defenders are moving towards a “Community Oriented Defense” practice, where they recognize that someone’s behavior can’t be isolated from other factors in their lives. Some have social workers on staff, or strong relationships with substance abuse counseling centers. Much of this is limited by their budgets- so Defenders can end up as social workers and guidance counselors all the same. The person they help tomorrow could be your dad, your cousin, your own kid.
Thank You for your Service
Upon going to certain places, you expect there to be someone at their post. We often take it for granted. We expect to have our disputes handled fairly as well, and that can’t happen without public defenders at the courthouse. I never fully understood the Defenders until seeing my fiancé up late every night preparing motions and trial strategies, calling kids and their parents on a Sunday, and putting off her own relaxation. Some of her cases fizzle out with dropped charges or deferment to a program, but she never knows which they will be. If she has your case, she treats it like the prosecutor is going all-in, she has to, regardless of how strong the case. And tonight, around the country, roughly 15,000 Defenders like her are protecting the rights of millions.
All I can do is write a Thank You letter, and hope that I might be anywhere near as useful.
- Presumed guilty: Unequal cuts threaten equal justice (tv.msnbc.com)
- The Criminal Justice World Is Brutal For Young Public Defenders (businessinsider.com)