On July 15th, Slate columnist Matt Yglesias wrote a piece titled, “What If George Zimmerman Had A Public Defender?”
His premise is that those unfortunate enough to be saddled with a public defender when charged with a crime have little shot at a good outcome:
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.
Now Yglesias is a business and economics columnist. I have been a lawyer for just over twenty years, seventeen years of which were as a public defender in Southern California. I know very little beyond the basics of how economics functions. This is not an column about business and economics.
The lens through which Yglesias peered was one of numbers. He saw that 97% of federal cases and 94% of state cases end in plea bargains. From that one set of statistics he drew this conclusion:
…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.
That statement showed a stunning lack of understanding of how the criminal justice works outside the view of television cameras and high profile cases. In Los Angeles County, the District Attorney files about 63,000 felony and 145,000 misdemeanor cases per year.The office touts that they have a conviction rate somewhere over 90%. Meaning that of the 208,000 cases filed per year all but a fraction end in a plea bargain or a guilty verdict for some sort of charge after a trial. Hence, they count a weak felony robbery case negotiated down to a misdemeanor petty theft plea as a conviction, while a defense attorney will count that as a victory. In other words, it is very difficult to see from conviction or plea bargain rates what actually occurred in any given filed case.
The other reality that Yglesias overlooks is overcharging and sentencing enhancements. First time sales of a rock of cocaine, or a “twenty” of methamphetamine carries a standard 180 day jail sentence and three years of formal probation in L.A. County. The state statute allows up to five years in prison, though, and if the defendant has a prior conviction, a three year sentencing enhancement is added. Street level drug arrests happen day in and day out in Los Angeles. They make up a significant chunk of a public defender’s practice. They are usually controlled buys conducted by undercover officers. They walk up to the suspect, they hand the dealer a twenty dollar bill, they receive about .1 to .2 of a gram of rock cocaine and walk away as the arresting officers swoop in to make the bust. The undercover officer drives by after the arrest and tells the arrest team if they caught the right guy. There are exactly two possible defenses: it isn’t cocaine (and then they are guilty of selling “bunk”) or “it wasn’t me/the officer is lying.” Assuming that in 90% of the cases neither of those defenses are viable and the yield is thousands of convictions per year . . . regardless of the public defender’s emotional investment.
Once a young public defender gets past the initial rung of drug cases, the justice world gets brutal. I remember my first “baby murder” case. There is nothing like spending your lunch hour studying autopsy photos of a deceased infant whose mentally ill mother you are representing.
Murder. Rape. Molestation. Child abuse. Domestic violence. This is a world that demands a thick skin, a clinical eye and intense dedication. A public defender is representing the members of society who are most reviled because the majority of the public assumes that if someone is charged with a crime they are probably guilty. A public defender fights the battle for their clients because no one else will.
Being a trial lawyer means you are probably hyper-competitive. (Passive lawyers do tend to plead more often in my experience.) Being a public defender, though, means you have to get used to losing — a lot. Not only is the work a massive challenge to the ego but it is emotionally and physically draining.
Unlike the assumptions Yglesias draws, public defenders are in trial all the time - especially the ones who are doing misdemeanors and mid-level felonies. To do it well is an all-consuming effort which takes away most of one’s free time. When one reaches the higher rungs of public defender trial work - the sex crimes, the murders - one is in trial less often but it is incredibly taxing.
When I was in a murder trial I hardly talked to my family or friends. It is eleven at night and I just thought about a detail I may have missed about the crime scene which lies in gang territory? I’m off without a second thought. There is a limit, though, to how often one can go to the well. When I was a young lawyer, a mentor told me that a lawyer only has so many trials in them. Initially I didn’t know what he meant but I didn’t forget it. Almost twenty years later I came to realize that there is a reason defense lawyers have very high divorce and alcoholism rates — they pay a steep price for their dedication. I knew that my consumption with winning my trials was coming at a cost. I didn’t want to be that guy who drops dead in the middle of trial. And then…
So it’s 2010. I was in an attempted murder trial. The lead detective was on the witness stand and during re-direct he made a statement which I knew was so wrong that the trial’s outcome could hinge on how well I handled his error. I double-checked his prior reports and transcript of an interview of my suspect. Yep. I got him. He had made a massive assumption that would undermine the entire prosecution case. Time for re-cross. I knew I was going to lay him out right in front of the jury and my client would be acquitted. This is the kind of moment for which defense lawyers hunger.
Laid the trap. Check. Committed him to what he had just said. Check. Confirmed he interviewed my client. Check. I am hyped up inside. Blood pressure rising. Pulse quickening. Moving in for the kill. Oh oh. Chest pain. Exhale. Another chest pain. Exhale. Okay. I got this. Trap sprung. I could see the detective and the prosecutor both realizing I had just delivered the knock out blow. Meanwhile, I was wondering if I was going to live.
At that moment I wasn’t thinking, “I am going to walk my guy,” I was thinking, “I need to get out.” Six months later I was a former public defender. Little emotional investment? That is dead wrong.
A Note:
Matt Yglesias did respond with a later tweet, writing, “Sincere apology to PDs who read that post as an attack. The fact is this country needs to dedicate more resources to what you do.”
That was really big of Yglesias and the last part is entirely true. I was very fortunate to be a public defender in California. Los Angeles County, like other parts of California, has pay parity between prosecutors and public defenders. The county has the second or so highest paid public defenders in the country after Santa Clara County in the Silicon Valley. The high pay means that a PD can make a good career out of the work. Too many other locales throughout the country pay their public defenders poorly - mid-five figures. They often have student loan debt and can’t afford to stick around to build up a foundation of experience. Pay parity with prosecutors would be a simple step to assure that these dedicated public servants provide the best service possible to those amongst us who are charged with a crime and can’t afford to hire their own attorney. Maybe this is about economics after all.
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