Is a client better off with a salaried public defender or court-appointed private counsel? My answer (one that
clients hate to hear) it depends. I expect that most states will shift to public defender dominated systems fairly soon.
My county had no public defenders when I began practicing here. All criminal defendants who could not afford an attorney
(about 90%) got an assigned attorney in private practice. Most of the "street lawyers" in town were on the list.
The quality of those on the list reflected the same range of skill as the local private bar.
We were generally hostile to the idea of changing the status quo. The amount of the fee was totally within the
discretion of the trial judge. I did occasionally get screwed when a judge felt a $50 fee was sufficient for the trial
of misdemeanor trespass, even it took 6 hours to handle. Those cases were the exception though. I think our local
judges understood that if they were too stingy with fees, lawyers would stop taking court-appointed cases. Pro se defendants
take a lot more time to get through the system. Most attorneys on the court-appointed list thought we had a fairly good
thing going. We figured that any changes would not benefit us.
Politically though that system's days were numbered. The fiscal camp was outraged at the amount of money being
spent and the increases every year. Essentially individual judges decided how much would be paid and just handed the
bill to the government. Each new prosecution brought an incremental increase because the state would have to pay a private
lawyer for that particular case. It was politically unpopular for millions to be handed over to lawyers.
There was also the quality camp. That group was concerned about whether defendants were getting competent counsel.
While most counties had a method of screening lawyers for the court-appointed list, the most heavily weighted factor was length
of experience. There was anecdotal evidence of egregious incompetence, but it was not really possible to systematically
evaluate just how well or badly court-appointed counsel were doing. However the anecdotes were persuasive.
The fiscal camp likes public defender's offices because the cost is fairly predictable from year to year. The pay
is comparable to what prosecutors and other government attorneys earn. There is less political fallout because less
money is going into the hands of "greedy attorneys." A mostly private appointed counsel system is not sustainable politically
because legislators will always see it as a giveaway to lawyers (not a popular group) and criminals (only group more vilified
than lawyers). It took about 10 years of intense lobbying by federal judges to get fees in federal cases raised.
Hourly pay to attorneys in private practice will always be a politically poisonous issue. Since the state is paying
the public defenders the same as the thousands of other lawyers who work full-time for the government, there is less a sense
lawyers at the trough.
The quality camp likes public defenders because there is a mechanism for getting rid of poor performing lawyers.
The chief public defender can supervise the work of assistants and remove anyone he believes is incompetent. Whether
this will actually happen in practice remains to be seen. All government enterprises are notoriously slow to drop dead
wood. We have a public defenders office here now that has 1 public defender, about 12 other attorneys and support staff.
They are motivated and talented and several members of the private bar moved to the PD's office after it opened. I considered
it. Our PD's office now handles about 70% of the criminal cases. We still have court-appointed lawyers who take
cases when the PD's office has a conflict. I am still on that list.
Whether public defenders are better can be argued forever, but the shift driven by the fiscal camp and quality
camp is inevitable.
My excitement about Blakely's impact on the Federal Sentencing Guidelines was tamped down by my sense that the federal
judges in my district seemed to like the guidelines most of the time. Departures were rare except for "substantial assistance"
situations and it often felt as though upward departures were more common.
In a sentencing this week, a client received a non-guideline "reasonable" sentence that would have been reversible when
the guidelines were not advisory. There were solid named grounds for departure under the Guidelines for aberrant behavior and lesser harms. Without considering any departures though the guideline range for my client was 24-30 months. The judge sentenced
him to one year and a day.
My first clue that this was an unusual case was when one of the Deputy Marshals in the courtroom at an early hearing
thought that my client should never have been charged. The sentence was firm but fair, a year in prison is a lot for
someone who has never had a real brush with the law before. Even though I think guideline sentences will be the norm
here, it is good to have a safety valve.
Life inside the judicial bubble much different for those on the receiving end of justice. Two cases cases prove
this. In the first, Ohio Supreme Court Justice Alice Resnick was pulled over and has since plead guilty to driving while impaired. In the arrest video available on the web, she repeatedly asks the officer to let her go. She mentioned that
ruled with law enforcement on drunk-driving cases. She also said that she had always believed that Supreme Court Justices
should have highway patrol officers assigned as drivers. News reports say she had to be pulled over a second time after
she drove off when the patrolman asked her to take a sobriety test. The patrolman kicked it up a notch by calling his
supervisor. Far be it from me to suggest that if a young man had pulled away from a traffic stop, he would have gotten
rougher treatment. However he would have gotten rougher treatment. Maybe much rougher if he was black or hispanic.
I don't think that the officer should have tackled or cuffed the 65-year old woman. But her experience was not
what a typical DWI offender has.
The sentence she got was pretty typical for a North Carolina first-time DWI offender. But unless you write off
her actions on the day of her arrest as drunken ramblings, I disagree that she is fit to return to the bench and resume business
as usual, as this editorial suggests. After all she did repeatedly ask the officer to overlook the offense and suggested that she should get some
consideration for the favorable rulings she made in the past.
Then there was Thomas Saylor, a Pennsylvania Supreme Court Justice who tried to sneak a small knife on a plane after it was rejected at the screening
station. He tried to hide it in a carry-on bag and got caught. The feds are not pressing charges but a local prosecutor
is weighing his options.
In the judicial bubble people smooth the way for you, they are deferential, you get accomodated. I wonder how life
inside the bubble contributed to these two jurists thinking they could get away with something.
I recently had my first post-Booker federal sentencings. Both were immigration offenses related cases, re-entry by a deported felon and alien possession
of short-barreled shotgun. Neither of the cases had any real Blakely-Booker issues because all of the elements of the
offenses and aggravators were alleged in the indictment. One case had some dismissed drug offenses that might have raised
a Blakely issue, but the probation officer concluded that even under the guidelines there was not sufficient evidence supporting the
dismissed counts for a relevant conduct enhancement.
The judge announced that for all sentencings he would determine the guideline application and then whether the now-advisory
guideline sentence was reasonable. The government adopted its usual position that the guidelines are great except when
the government "feels" the punishment is not severe enough.
Defendants in alien-reentry cases often have a deer-in-the-headlights kind of fear. They speak little or no English.
They don't really understand our legal system, because their own is very different. They also don't understand why it
makes sense for them to have to serve three years in prison just for stepping across an imaginary line. At one point
the judge asked me what I thought was an appropriate sentence. My first thought: my client knows what sentence he believes
would be "fair" time served (5 months) and deportation. I knew that sentence recommendation was unrealistic. But
I did not know how I could recommend anything other than that. After all I am the client's mouthpiece, I don't see how
I could recommend or urge anything more than what he believed was fair. I eventually told the judge that my client thought
time-served was fair (insert skeptical judicial glare here). "Is that what you are urging the court to do?" the judge
asked.
I don't think that was a fair question. What else could I possibly urge? Anyway both sentences were exactly
what the guidelines called for.
