Image by Mike Steele via Flickr Creative Commons

The Much Maligned Public Defender

By Michael Weinberg

(Editor’s note: A different version of this article was published previously in the Fresno Bee.)

Everywhere public defenders go, they are called names. Their clients feel they are “dumped” onto the public defender’s caseload. Defendants and witnesses often mistakenly believe that a public defender is not really an attorney. Many ask them how they can take the side of murderers, gangbangers and criminals.

But most public defenders see themselves as immersed in the timeless struggles of right and wrong, certainty and doubt, wickedness and virtue, suffering and hope—as defenders of the Constitution whose role is to see that justice is done. Their values come from the Bill of Rights. Their work means something—especially to the accused they represent.

They have answers—all public defenders do—that go right to the Bill of Rights. And many of them have personal reasons for choosing this line of work. The fact is, defense work means something. To those they defend, it can mean almost everything.

It sounds sappy, but most indigent defense attorneys see themselves as defenders of the Constitution whose role is to see that justice is delivered, and to make sure their clients are treated fairly in the system. Many professionals (district attorneys as well as public defenders) in the criminal justice system have a measure of judge and jury in their hearts. How could they not? They are humans immersed in the timeless struggles of right and wrong, of wickedness and virtue, of suffering and hope, of certainty and doubt.

Many public defenders are still paying for the loans they needed to finance college and law school education and won’t be out of debt until they qualify for Social Security. Some started out in a private firm working on civil litigation, making big bucks, but they liked trial movies and wanted trial experience At some point, they made a career choice that the Public Defender’s Office would not be a steppingstone to another job, and they’ve been here ever since.

Often in the movies and the news headlines, the clash between right and wrong engages teams of lawyers in furious weeks of courtroom theater. The far greater share of an indigent defender’s courtroom life, however, is quite the contrary: one lawyer carrying too many cases to tightly scripted appearances often measured in minutes.

A typical indigent defender is responsible for defending 50 or more persons accused of felonies—the most serious level of crimes that carry terms in state prison. Through numerous appearances and brief hearings, many cases are resolved without a trial. This is where plea bargains are offered, where injustices can be weeded out, where parolees are called to account for their lapses, where the lawyers size up their clients and vice versa. At least, legally speaking. Emotionally, it’s often a different matter.

Many times, the defendant has failed to appear in court. Often the defendant has been behind bars on other charges and could not appear for the current case. Although this may be a defense to failure to appear, it doesn’t make the job of representing them any easier. Too many of a public defender’s clients have mental problems, and many are already on probation or parole for another offense. Prosecutors can use their discretion to file the case as a felony rather than a misdemeanor. Defendants are often additionally charged with violating probation or parole, raising the ante even higher.

Often suppression or another potentially dispositive motion is filed by the defense attorney. Even if the judge grants the motion—a fairly rare occurrence—and the charges are dismissed, many defendants face other charges and remain in custody. All too often the defendant has given many signs of being troubled. What if his or her behavior is really a cry for help?

Defense attorneys sometimes raise concerns about a client’s capacity to fathom the proceedings, which could return them to jail for a psychiatric review, but where they will receive little or no counseling or treatment. Sometimes it may be better to say nothing so the defendant will be led back to the jail and quickly released—without treatment or supervision. Sadly, without such intervention, many of them will be back.

Generally speaking, there are three types of criminal defendants. One is an otherwise good person who made a mistake. The second are the repeat offenders who didn’t commit anything more serious than low-level drug or property violations. The third group consists of truly evil people who commit heinous violent crimes. Finally, there are the mentally ill, who are scattered in all three of these categories.

Also among the accused in a public defender’s caseload are truly predatory people who are caught red-handed spreading fear and suffering, sometimes repeatedly. Why would anyone try to get them off?

In the warren of offices that are the public defender’s domain, the answer is expressed in different words, all making the same point: The accused already has a judge, a prosecutor and jurors. They put it this way: “If someone who is factually guilty goes free, it’s not because I did my job. It’s because prosecutors didn’t do theirs.”

But it’s hard to establish relationships with hundreds or thousands of indigent clients and not get hardened. It’s no small challenge. Some of those they defend are “awful people.” In the back of many attorneys’ minds is the knowledge that someday one of them might be so enraged that he breaks out of the handcuffs and stabs their public defender in the neck with a toothbrush sharpened on the jailhouse floor, or slashes their attorney’s face with a hidden razor blade.

Two things about the people who are represented by the public defender that make it even harder to represent them: Because they are too poor to afford a private attorney, they are probably too poor to post bail. Most remain incarcerated for weeks or months while awaiting trial. Second, most have been in court before. About 90% of indigent defendants have prior criminal records.

Indeed, anguish permeates every corner of most courthouses, not just the lockup. It’s as if ions in the courthouse air carry a heavy negative charge. Misery crowds onto hard benches and spectator seats—defendants who are lucky enough to make bail, wives, girlfriends, boyfriends, mothers, aunts, children, babies—so many babies. And there are the victims and the bystander witnesses with subpoenas to appear in their pockets. They are as likely as not to be full of their own dread as the defendants. Will their presence and testimony arouse retribution?

This is not the overt, faux emotion of reality television but a leaden gloom that bubbles just beneath the surface. To make eye contact with the people in many courthouses is to be left with the dirty feeling of being a Peeping Tom. These are people stripped of their dignity and peace of mind. With nowhere to hide, their humiliation and helplessness are exposed.

Their whispered conversations cannot be shut out. “Three years is the best we can do.” “You’ll have to come back.” “How much marijuana was it?” “But he’s got a strike.” “I’m sorry.”

To those of use who have never been a willing or unwilling participant in the justice system, we can only imagine what boils down deep inside public defenders—and at how they cope with the reality of “the system” in which they toil.

*****

Michael Weinberg of Piedra, Calif., is an attorney and a retired court employee.

  • Community Alliance

    The Community Alliance is a monthly newspaper that has been published in Fresno, California, since 1996. The purpose of the newspaper is to help build a progressive movement for social and economic justice.

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