We Are All Public Defender Revolutionaries! Part I

When I met San Francisco Public Defender Jeff Adachi the week before last, he was hosting an innovative justice summit, engaging the media on the crime-lab scandal, running his defender office, and, oh yeah, had just finished a misdemeanor jury trial he personally conducted.

The previous evening, I met with some of the lawyers from the San Francisco office (at the invitation of Gunnar Rosenquist, a PDR Facebook member—thanks, Gunnar!), who were enthusiastic in their description of Jeff's trial. (Oh must you again tell me how he took off his suit jacket, and then put on a t-shirt over his shirt and tie to help demonstrate a point in his closing argument? OK, but only one more time.)

When I asked Jeff about the trial, however, he didn’t tell me about his theatrics, or the adoring crowd in the audience; he told me how he felt when he thought he had screwed up. Apparently, the judge ruled that Jeff had opened the door to some previously excluded evidence during his opening statement, and that this damaging evidence would now be admitted against his client.

“My client wanted to stop the trial and plead guilty right then. But I asked my client to have faith in me—even though at that particular moment I had no idea how I was going to win it.”

Jeff stayed awake through the night, worrying about the case, and trying to come up with a solution. Somewhere in that sleep-deprived darkness—a time familiar to every PD in trial (if I go to sleep now, I can still get 4 hours of sleep … if I go to sleep now, I can still get 3 ½ hours of sleep ... )—inspiration came, and he found the way to win. I don’t recall the specifics of the solution, but Jeff convinced 11 jurors to acquit his client, and the case will not be re-tried (for any non-defense lawyers out there: this means he won).

Like any good trial lawyer, Jeff Adachi wasn’t telling me about not sleeping to tell me about not sleeping—he had a point to make: That we, as public defenders and criminal defense lawyers, are problem solvers.

We often find ourselves in an impossible situation, in trial, for example, facing a mountain of evidence, outnumbered, with a grumpy judge who favors the state, a terrified client, and no hope—except … our defense brain won’t stop churning, it can’t stop trying to find an angle—anything—and then, like a blessing, a solution comes. Sometimes the solution is elegantly simple, but it can also involve staggering complexity; it also might not work; but the defense brain won’t stop thinking and trying until it corrals a possible solution. With that solution, you might win or lose, you never know ... but it’s the persevering search for a solution (and the ability to believe in that solution no matter how ridiculous it might seem after trial) that matter.

"We are the ultimate problem solvers," Jeff said. "And public defense is a problem that we can solve--if we all attack it together."

***

When I first argued that the public-defender establishment should include line PDs in their reform efforts 1) I had no idea anyone was going to listen to me; and 2) I wasn’t really saying that they needed to involve me personally. However, thanks to this blog and the public-defender interest it has garnered, I found myself attending two conferences the week before last, one in Knoxville (the ABA National Public Defense Symposium), at the urging of Professor Norman Lefstein, and the other in California (the San Francisco Public Defender's Justice Summit) at the invitation of Jeff Adachi. (Which explains how I found myself, below, being introduced as an attorney and blogger at the San Francisco Library alongside panelists with resumes far longer better than mine.)

Because the conferences were back-to-back, I flew overnight from San Francisco to Knoxville, which invited comparison between the two events. The San Francisco Summit was innovative and energetic—it opened with the performance of a monologue (scripted by Jeff Adachi) regarding “The Life and Times of Clara Foltz, Founder of the Public Defender Movement;” featured panels of speakers who were encouraged to brainstorm ideas to spark reform; and was attended my public defenders, court personnel and San Francisco citizens. At the close of the conference Jeff debuted a Public Defender Public Service Announcement, Innocent Until Proven Guilty, which is basically a public-defender P.R. commercial and an idea I have advocated here.

The Knoxville conference was more formal and scholarly, with professors and legal experts presenting their suggestions regarding excessive caseloads. I came to the following conclusions after listening to the speakers: every public defender and every public defender client deserves the same resources, training, and caseload control that the Washington D.C. public defenders flourish under; that litigation is not the best method to achieve this change (takes too long and mixed results); that individual lawyers should take a stand against excessive caseloads but need help to do this; and radical action is required to make these changes.

Prior to the conference, my introduction to Professor Norm Lefstein stemmed from an email rant of mine about the Knoxville conference. Dennis Murphy, an email friend from New York, had forwarded my comments to Norm, with my first formal e-introduction: Norm meet Carol; Carol meet Norm. Because I had read and admired Norm’s work, I felt lucky to meet him, and even luckier that he was willing to correspond with me and share ideas. After years of reading and talking and writing about these issues, and mostly running into brick walls, I can’t tell you how nice it was to hear someone respected by the public defender establishment say, What do you think about that? Or even, You’re right!

Norm Lefstein is certainly old-school, but in a way that combines scholarship with an open mind, and pairs decorum with recommendations for radical action. I don’t think Norm is a habitual radical (nor am I, really); both Norm and I are radicals regarding indigent defense reform because the continuing failure to fund and provide adequate assistance of counsel requires radical change.

Even though their styles differ, Jeff Adachi and Norm Lefstein deserve credit for innovation and insight in public defender reform. I think they deserve credit for involving me—not because I personally am great—but because I am trying to represent and encourage line defenders, who (undeservedly) shoulder many of the problems and much of the blame regarding the mess that is indigent defense, while at the same time being excluded from the development of a solution.

While I credit the San Francisco Summit with greater energy, there was certainly drama in Professor Lefstein’s understated comments, but a drama so subtle that any other audience would miss it. "There is a need for greater aggressive action--the tools are all there," he said in his remarks. "And now you all know what a radical I really am.”

I believe that if we are going to change, we all have to become public defender revolutionaries—every PD, every law professor, every law student, every law dean, every citizen who cares for justice—every one of us has to engage our problem-solving brain and take action. The fact that we underfund our systems, overload idealistic but human lawyers, but allow reform to be someone else’s cause in not acceptable. Our current system is unfair to clients, to public defenders themselves, and to a nation that thinks it has a justice system that is fair.

I’m not arguing that line defenders need to be involved so that I might travel to conferences or meet people I admire. I’m advancing this position because without us—without all of us—targeting our problem-solving brains at reform, our public defender systems will continue to stagnate and decline.

The problem we face is staggering. Whether one considers the small counties in Texas where the appointment rate is 8 % (or lower) or places like Washington where people are appointed lawyers but serious flaws are masked, these problems have persisted for over 30 years, we’ve known that these problems existed for over 30 years, numerous studies have documented that the problems did and do exist, and yet our systems of public defense are getting worse, rather than better.

I think that the main groups that we have considered to be in charge of reform have institutional conflicts of interest with true reform and suffer from an abundance of bureaucracy. I think many of us have pointed the blame at someone else. I think many of us have looked the other way, because it’s not our problem. We have to let go of all that. The problem belongs to every one of us. I think every single one of us needs to a) stop being defensive b) be openminded about change; c) take action.

When I think about the different perspectives of management, line defenders and legal scholars, I realize they are all necessary. Sometimes, at my own office, I get frustrated because I think the newer lawyers aren’t listening to what some of the older lawyers have to say. I have found myself thinking, Why can’t you understand that I’ve learned something by living and working in this job for the past 17 years?

On the other hand, I once found myself tempted to discourage a young lawyer who wanted to try to change something that would be hard to change. I had tried to change it myself, and failed. Luckily, I stopped myself from discouraging her, and gave some advice about how I would handle the situation if I were crazy enough to pursue what she wanted to do. And she did it. Success came because she wanted to right the wrong, but also because I had tried and failed, and learned some things along the way. Mostly, though, success was due to her naïve insistence on pursuing the right thing.

When I write about problems of the system, I hope that you don’t think I am blaming you, my fellow defenders. In fact, it is the blaming of public defenders for the problems of public defense that mightily pisses me off and motivates some late-night writing. I am pissed about the clients and how they wait too long to talk to me or get a visit, that their cases take too long, and that some should get better results. In some places, horrendous results are the norm.

For the purposes of this blog, though, I am pissed about what this job does to us. In his remarks, Norm discussed excessive caseloads, and then said, "What those caseloads do to lawyers is heartbreaking." Some of our most idealistic lawyers enter this profession, and many have their confidence and idealism ruined. Near the end of the speech, regarding his call for more aggressive action, Norm explained, "I've become impatient."

I’m impatient, too. How many lives are we going to continue to allow to be screwed up—both clients and defenders—before the problem is fixed? How many of our most idealistic, young lawyers are we going to sacrifice? How many clients' freedom will be a casualty? How can we continue to rationalize that we fail to protect the poor against the power of the government; we fail to provide justice; and we look the other way?

Obviously, radical change will not come from repeating efforts and methods that have previously failed. Radical change will not come from involving only the same people or groups previously involved in reform efforts. Radical change will only come if all of us in the criminal-defense community—public defenders, directors, professors, every single goddammned one of us—gets personally involved in reform, engages the problem-solving brain, and takes action.

Coming Soon: More specific ideas for the revolution; a bit of a travelogue with the SF PDs; and dare I attempt it? A Johnny Cash Giving the Finger to the Man lined envelope!