This article on slate.com was brought to my attention. Excuse me while I take a moment for my blood pressure to return to its normal state. Get comfortable because I am about to challenge every sentence in this poor excuse for thought provoking content that I will not even call an article. And, I apologize for being a little late on this, because many people have already pointed out that this
article compilation of words is “moronic.”
My problem with this
article in general terms is that, assuming arguendo, there is an empirical difference between how a criminal defendant fares in our system depending on whether (s)he has a public defender, court appointed lawyer, or private lawyer, there are a myriad of reasons why that might be so, the least of which is what you contend. Here’s one (they tend to get worse cases). Another is a little thing called our racist classist criminal justice system. This system employs a jury of human beings to determine guilt or innocence. These human beings are instructed to pretend like they are not biased and to “set aside” their biases. These human beings have brains that have been molded by the racism that pervades our society. Consequently, these human beings are largely unaware of and not in control of the implicit bias that operates to subconsciously inform what an innocent person looks like, how an innocent person acts, and whether the person on trial looks like the kind of person who did what he is accused of. There are empirical studies on this (if you’re too lazy to click the link and read the article it is a study that measures implicit bias and found that GASP participants in the study displayed a statistically significant association between guilt and black). The study even found that people who reported “warm” feelings towards Blacks were more likely to associate guilt with them. Try picking a jury knowing that!!! For the record, Frederick Douglas called this in 1883 without conducting one survey: “The reasonable doubt which is usually interposed to save the life and liberty of a white man charged with crime, seldom has any force or effect when a colored man is accused of crime.” This article was published in 2010.
I am not purporting to be an expert on why people of color fare worse in our system. But I can tell you it is not because of their lawyers, a statement I will support below. Which brings me to Matthew Yglesias’ (I ALWAYS NAME NAMES) article.
The, first completely ridiculous uneducated offensive question the article asks:
“What if Zimmerman, like most criminal defendants in the United States, was relying on a public defender…”
It should be noted that if this so called journalist had done even the most precursory internet search about the lawyers who defended George Zimmerman he would have quickly learned the answer to this question: George Zimmerman would have been acquitted. Why? Because at least one of his lawyers was a public defender. Specifically, Don West was a public defender up until the minute he quit the office to represent Zimmerman. Dear Yglesias, I have a tip for you, before you write a story on a topic you clearly know nothing about, at least consult wikipedia you moron! (See section 2 “Defense Attorneys”.)
It could be argued that Don West did not win the trial. Indeed, his knock-knock joke which he later defended fell flat. (I do not know any public defender who would make such an inappropriate and categorically unfunny joke in front of a jury so maybe Yglesias has a point, West is not a true PD). It was O’Mara. So we are back to the rest of Yglesias’ ridiculously offensive argument. Game on:
“What if Zimmerman, like most criminal defendants in the United States, was relying on a public defender with little emotional or financial investment in winning the case and no resources with which to pursue a robust defense even if he’d been inclined to do so.”
Excuse me while I yell at my computer screen. “little emotional or financial investment” “and no resources.” I have edited how I really want to respond to this because I am going to submit this post to Slate.
On a Public Defender’s Emotional Investment in Winning a Case
Public Defenders are many things. But unemotional is not one of them. The reason public defenders (and yes I am comfortable generalizing about all public defenders here) are public defenders is because they are emotional people. Yes, public defenders lose a lot of cases. That is the nature of the criminal justice system. But it is not because they don’t fight like hell and aren’t driven by pure emotional passion to win.
Don’t believe me? Check out this public defender who is so emotional about winning that he posts all the framed not guilty verdicts he has obtained in his office then TATTOOS on his back the names of the clients whose cases he lost below the quote “True Believer Without a Belief that is True, We Cannot Possibly Hope to Persuade.” Emotional enough for you Yglesias????
He is not the first public defender I have seen who frames his not guilty verdicts (although he is the first I’ve heard of who tattoos the names of his clients who lost….I hope he has a big back or starts using a smaller font). In fact, every public defender office I’ve worked in (read: 3 different counties and 1 federal PDs office) has some sort of picture frame of a public defender Polaroid when (s)he wins a case. One office had a bullhorn they sounded when someone won so everyone knew to come out of their office to congratulate the fierce fighter. The head PD comes down if (s)he’s in the same office to congratulate the person. Colleagues take the person out to celebrate. Hearing the words “not guilty” from a jury are often the most memorable, satisfying, purely emotional times of a public defender’s career. Many of my former colleagues and I have cried with our clients in front of the jury when we heard those beautifully constitutionally mandated (in those particular cases) words. Those moments are just fuel in the fire of the beautiful belly that PDs have for each case (s)he gets.
Yglesias, ask yourself why someone would ever become a public defender? Your clients think the same things that you wrote in your article and can be hostile to you. Judges hate your clients and take it out on you. They are hostile to your client enjoying his constitutional rights. Every day you fight as hard as possible and have to know the law the best you can as well as be more creative with your legal arguments than any DA will ever have to be to ensure that your client enjoys the rights to which he is entitled. You have moments where you literally print the law and give it to the judge that says you are right and the judge just ignores it, citing “the totality of the circumstances” (as if that means anything) to eff over your client. Further, this judge, a man (usually), who was a former DA (99% of the time) is physically sitting on a bench from which he literally looks down on you and your client, calls him names (true story) then yells at you in front of your client and everyone else. This doesn’t happen every day for some, but it happens a lot. DAs can be nice but sometimes they do shady things, they lie to you, you see them waste your tax dollars, and they want to put in prison someone you have met, talked with, and often (not always) like, someone whose family you have met, talked with, someone whose kids you have met, talked with. You watch 18 year old babies who remind you of your cousin or little brother or little sister face then spend life in prison because they were in the wrong place at the wrong time. Your client’s family may be grateful or they may hate you and question your integrity and dedication to your case. They may berate you and tell you that you do not know what you are doing and bring you articles on cases that have no applicability and will not help your client’s case and ask you why you aren’t using that law to help your client in the middle of your trial while you are trying to find time to prepare. (True story). You get letters from your client with dead bugs from the jail he is in so you know how bad it is for him (again true story) (and sickly you find it endearing). You make approximately $100k less per year than you could if you sold out. Not to mention that if your client goes down, it is in his best interest for your bar card to be in jeopardy because you were ineffective (something that our adversaries rarely need to worry about). So why do you do it?
Because of that passion. Because of the purely emotional high from winning that you constantly chase. Because of your purely emotional investment in your belief in that thing called the constitution. Because your experience and belief that the government might get it wrong (we are talking about the same organization that runs the DMV) and you want to be the person that makes sure they don’t. Because you are addicted to the emotional highs and lows of trial. Because it makes you feel good to see the good in someone else and not judge him by his worst moment. Because you are a fighter with everything that you are. I mean, I honestly cannot think of ONE reason someone would want to be a public defender that is not based on pure emotion that comes from a heart of gold.
On a Public Defender’s Financial Investment in Winning a Case
Again, your point here shows true ignorance. Which would be ok if we were just discussing this over dinner. But you are claiming to be a journalist. Do some research before you make a claim. First, it should be noted that neither private defense attorneys nor public defenders can have a financial investment in winning the case, at least in Florida, in the sense that it is illegal to charge a contingent fee in a criminal case. (Florida’s Rule 4-1.5(f)(3)(B)). I.e. it is illegal for a private attorney to say “I’ll charge you $100k if I win.”
It should also be noted that a lawyer in california (see BP 6158.1(a)) or florida (Rule 4-7.2(b)(B)), cannot advertise his results from a case if doing so is misleading in that it creates an unjustifiable expectation that the client will get the same result. I.E. you can’t advertise “I have never lost a murder trial” if it could make people think that if they hire you you won’t lose their’s either. In California, if you made that statement there is a rebuttable presumption that it is misleading unless you include the facts of the cases.
Second, I do not know of a single PDs office that does not keep statistics whether formally or informally on who is doing what at trial. Jeff Adachi, San Francisco’s elected Public Defender, is famous for this and publishes the reports each year. It may be that it is not written in your contract “you must win x number of cases or you do not get a raise” but if you are bad trial lawyer and you do not take cases to trial or you take cases to trial and you do a terrible job you are not going to be promoted to the supervisory positions in a PDs office. And with promotions come raises. It is often worth noting that many if not all PDs offices require that you have completed a certain number of trials before you are promoted to felony trial staff. And you get paid more when you are felony trial staff. So, to say that you have no financial investment in going to trial and going to trial and winning is just factually inaccurate.
On Public Defender’s Resources
You overstated this. Again, not researched. Let me ask you this. What is the average budget for investigation and experts for a murder trial at a given PD office in this Country? Do you know? If you do not then don’t write in a published article on a highly reputed website a statement implying that you do know. I can tell you this, the figure is not zero United States Dollars which is what you implied by the phrase “no resources.”
I will assume, arguendo, that you do not literally mean what you wrote (even though you are paid to write and presumably know the importance of word choice) when you said “no resources” and read this instead to say “limited resources.”
The public defender resource issue is more complicated and nuanced than you make it out to be. If Zimmerman had a public defender would they have been able to hire a firm to make that ridiculously offensive and largely irrelevant reenactment cartoon? I’m not sure. I know I have seen DAs with reenactments, and they are funded by the same folks that fund the PDs. I just don’t have the personal experience of seeing one used by a PD–which doesn’t mean it hasn’t been done or that it wouldn’t be done. It would depend on how necessary it was to the defense which is different from the analysis when you have unlimited resources, sure. So my response to your contention that a public defender in the Zimmerman trial would have “no resources with which to pursue a robust defense” is that you are obviously wrong, again, in the sense that PDs offices have resources to pursue a robust defense.
The question is how extensive would those resources be, what is their limit, and is there something wrong about the idea that a PD client will not enjoy a defense with unlimited resources but someone with a deep pocket will? Is it OK that a PD client receives all the resources necessary for his defense to comport with the constitution, but not all the resources above and beyond what is necessary? These are much more interesting questions than the blanket completely unfounded assertion that the defendant will have “no resources” with which to pursue a robust defense. If that were the case, then the PDs office would cease to exist because everyone would lose their bar cards and all of the convictions would be invalid because they were procured unconstitutionally.
In terms of the resources in the Zimmerman trial, if it were a PD case they would have had the same blown up photographs, the same ability to transcribe the phone calls, the resources to hire a use of force expert to testify, to hire a voice analysis expert, and have investigators meet with potential witnesses. Specifically, what resources do you believe George Zimmerman used that a PD would not have been able to use as well? I suspect you have no idea, which is why you should really think harder before you make ridiculous statements in a reputable publication.
“Wouldn’t that defender have told Zimmerman that the smart way to avoid a second-degree murder sentence was to plead guilty to manslaughter and work out terms of incarceration that would be less onerous than what he’d end up with if he fought and lost. And of course the last thing any sensible person wants to do is go to trial with his entire life on the line in a situation where his own attorney has just plainly said he’s not enthusiastic about running the case.”
- I do not think any defense attorney — public defender or otherwise — who saw the state of the evidence in the Zimmerman case would have told him it was in his best interest to take a deal;
- I do not know what this means: “work out terms of incarceration that would be less onerous than what he’d end up with if he fought and lost.” Do you mean a lower sentence? Answer: I highly and sincerely doubt the prosecution offered or would offer anything remotely attractive in this case due to the politicized nature of it. Do you mean a special prison that’s not really like prison? I do not know or think that this exists. Do you mean they could work out a weekend jail situation? Doubtful where someone has died. What do you mean by “less onerous”? This is just not a term used to describe criminal consequences. Either you go to prison or you don’t. Either you go to county jail or you don’t. The choice in a homicide is not between picking up trash on the side of the freeway or pushing a rock up a hill. “Onerous” is not the word to describe sentencing options.
- I do not know any PD who would tell his client that he is “not enthusiastic about running the case.” Rather, PDs and private attorneys alike have an obligation to tell their clients their professional opinion about the state of the evidence, the defense, the likelihood of an acquittal at least in general terms, and whether it is in his best interest to settle considering his potential exposure, the offer given, the advantages of going or not going to trial, and the strength of the case. Doing so DOES NOT mean that you are enthusiastic about “running the case” (btw this is a term I’ve never heard of in the criminal defense world, try: “trying the case”). Your job as a defense lawyer is to give your client as much information that you have and let him decide how to proceed. You fight like hell no matter what his decision is. Sometimes you disagree with his decision. I’ve disagreed with MANY clients who CHOSE to take a deal when they were innocent or had very defensible cases. I’ve also seen clients make TERRIBLE decisions to go to trial with no defense and a relatively decent offer. At the end of the day it is their choice. You are not Larry David, what they chose does not curb your enthusiasm for the fight.
“And in this instance, maybe that would have meant justice would be done.”