Public Defender Revolution

This is Public Defense

2010-10-08T01:10:00.000-07:00

Sometimes Trial Chicken is a warrior, ready to take on the world!
And sometimes the world wins.

***

I met my client Kim (not her real name) for the first time at her arraignment this summer.

I arrived late for the 8:30 docket call, like most days lately, having lost the ability to care about things like lateness as much as I should. I skimmed the docket posted outside the courtroom, looking for my name, because I hadn’t had time to stop by my office to check my calendar or grab the file. Slightly in my defense, the hearing was an out-of-custody arraignment that required nothing more than the entry of a not-guilty plea, which I was fairly confident I could handle without a file.

I saw my name near the bottom of the list, as the lawyer appointed to represent Kim Templeton, charged with Arson in the First Degree. My interest was piqued by the charge, because I didn’t get a lot of arsons, except for the bullshit arsons the state liked to lay on special needs kids who threw matches in trash cans at their group homes.

I tried to be subtle finding clients I hadn’t yet met in the courtroom, only as a last resort calling out names. I counted 4 women sitting in the court’s audience section. Two looked 60, but were probably meth addicts in their 40s; another was pregnant and scarcely 18; the last sat in the front row, and I could only see her pony tail and the back of her white summer shirt. I went back and checked the docket, because it also listed defendants’ birthdates. Kim, my new client, was born in 1977, making her 33--I would try pony-tail gal first.

I slid into the row behind her, touched her shoulder lightly, and asked, “Kim?” When she turned, I considered apologizing and turning to the meth addicts, because her beauty startled me. I have debated whether her beauty is necessary to this story; but—how do I say this nicely? —there isn’t a lot of beauty at docket call, which made her appearance all the more stunning. Her features were perfectly arranged and symmetrical, in a way that made you feel like you were looking at art, but something, maybe the light freckles on her nose and cheeks, made you think she would be nice. No smile touched her eyes, but her face wasn’t hard, rather somewhere between sad and serene. Dozens of purple-red scars crosshatched her forearms.

While we waited for her turn to say “not guilty,” I read through the affidavit of probable cause, wondering what this sad, beautiful woman had burned. Oh, for fuck’s sake, I thought once I read the summary of facts, the state had charged Kim with arson for trying to commit suicide by setting herself on fire. Because nothing will help a suicidal, depressed person like charging her with a felony.

I had planned on scheduling an appointment with Kim in a week or so—I didn’t have the police report yet, and I wasn’t up to anything more complicated than an arraignment after yet another night of fighting at home.

As we walked out of the courthouse into the sunny morning, I said, routinely, “Nice day, huh?”

She shrugged. “I guess.”

I cringed, feeling like an ass for trying to make bullshit small-talk, when I could tell that meaningless chatter wasn’t the way to handle this gal. I stopped walking and said, “I remember what it’s like to look at the blue sky on a beautiful day, and think, I remember I used to enjoy a beautiful day, but I can’t seem to remember why … or what it feels like.” I could remember this feeling because I was experiencing it at that moment. It had been a long time since I’d enjoyed anything.

“I want to remember ...” she said.

“Me, too.” I started walking again. “Let’s go over to my office so I can get some background and tell you what will happen next.”

I tried to keep my tone professional in my office, but Kim’s arms made me want to weep. Jesus, I thought, how much pain must she feel to do that? I felt ridiculous for feeling sorry for myself with my middle-class life and professional job. I was despondent and felt like someone had poured pudding in my brain, but I wasn’t cutting or burning myself.

“So, where are you living?” I asked this because the attempted burning of herself had rendered her house unlivable.

"With my soon-to-be ex-husband. Not the greatest arrangement ..." I was encouraged by the irony I heard in her comment.

"Oh, I'm doing that too," I said, trying to ignore the voice of a therapist who had lectured me about over-sharing and boundary issues. “It’s fucking awesome, isn’t it?"

She looked straight at me for the first time, trying to figure out if I was messing with her.

"In fact,” I said, “I might need to borrow a razor." I hoped that the pain I’d been slogging through was apparent enough to make the joke OK. After assessing me for another moment, she let out a loud laugh, which made me laugh too, partially in relief.

"You carry razors with you, right?" I asked. “Like in case of an emergency?"

"Of course. I’m ready for any suicide emergency.” Ah, irony and beauty coexisting in one person. My heart melted a little and I laughed loudly at this strangely hilarious conversation—so inappropriate, and yet …

Still laughing, I couldn’t stop the joke now. "Maybe you could market … a suicide emergency kit …” I prayed that I wouldn’t snort. Sometimes I snorted when I laughed really hard.

“Only if you’ll help with the legal paperwork,” she said with a delightful giggle. “Can I get a package deal on a business license and a last will and testament?”

I snorted. Loudly. And a snorting, inappropriate lawyer must have been the funniest thing that Kim had ever encountered, because she began rolling with laughter, which caused me to snort again, which caused us to begin laughing so hard we were crying; both of us, I suspected, from something other than sadness for the first time in a long time. I wondered what we might look like to an outside observer: an attorney and her client, cracking the fuck up, not based on the lawyer-client relationship, but on a connection formed from mocking a shared, if unequal, affliction.

***

And so, my public-defender friends, it’s been a little rough lately. A depression that I had been fighting off for a while hit me hard this spring and summer. I experienced it twice before, the first time about six or seven years ago, when a lot of things in my office began to suck, and the second time in 2008. With the Great Sadness 1, I had no idea how to cope with the despairing feelings, so I started getting up and writing every morning at 4:30 a.m., and ended up with a draft of a public-defender novel after a couple of years. Even back then, I knew that I was writing more to save myself than to tell stories.

I probably started this blog to fend off a new depression I sensed coming--there were so many fucked up things in my life and I felt powerless against most of them. I was sick of getting beat up for doing my job or for not grinding cases away fast enough on the plea-assembly line. I was mad at myself for not always being the best lawyer I could be. I was pissed that our system didn't care whether I was a good lawyer or not. A dismaying unionization fight had polarized our office, and the vibrant place I loved had become a dreary crypt where lawyers kept their doors shut and their eyes down.

I also had to take on some judges in fights, which is labor intensive and draining, and even if you win one of these fights, you’ll pay in the long run. On top of that, my marriage was grinding toward its painful end. Finally, and perhaps most distressingly, I had lost a couple of important friendships through a complicated collision of the above and my own self-pitying neglect of the relationships. I’m not trying to say I’m a victim or nothing was my fault—just that everything pretty much sucked.

***

When I felt myself slipping, despite the blog and the solace I found in connecting with other public defenders, I should have posted a “Back in 3 Months” sign. I couldn’t post that sign, however, because every new day was going to be the day I started to write again. But my thoughts were disjointed and sluggish. I could barely write an email conveying basic information.

Maybe it was time to quit this crazy public-defender job? But the few moments of beauty that I had were with clients or their families, and as much as going to work was killing me, even a long weekend at home made me feel worse. Kind readers and friends said, “Forget the blog and writing, take care of yourself.” But writing is how I take care of myself. And it’s no good when I can’t do it.

I told myself not to write about this, to simply make a breezy excuse and get back on that blogging horse. When I wrote about refusing to do a trial I wasn’t ready for six or so months ago, another legal blogger derided my description of my “panic” after the judge denied my motion to continue a serious trial I wasn’t ready for. I thought about responding—something like, How wonderful it must be to never experience doubt or worry! But, his world is different than mine, his audience different, and I mainly felt like he was yanking my pony tail. In the back of my mind, however, his criticism must have festered. Because I didn’t want to write about this. It’s too emotional. Maybe I am being too much of a girl for writing a whole (long) post about feeling sad.

The problem is, I do my best writing when I get as close to the truth as I possibly can. My process is to vomit all of my thoughts on the page, edit out the bullshit, and use what is left to help me find what I really think and want to say. When I tried to skip writing about The Great Sadness 3 by publishing the breezy post about being back from vacation and ready to go, it was just bullshit, which was a disservice to all you nice people who come to read this, but most of all to myself. It doesn’t matter whether I want to write about this (and believe me, there are other reasons not to: potential employers, prosecutors, bosses, friends, family, clients, etc. The internet is forever, man)--it comes down to this: If I want to write, I have to write the truth the best I can, and this is it.

***

I actually like to be upbeat. I think my baseline personality setting is pretty optimistic and happy, although I’m starting to wonder. I try to put a ridiculous positive spin on everything (Jurors deliberating for 8 hours is almost a win!). I have to admit that I was pleased in the past when I saw that bloggers or commenters had praised me for not engaging in the whining they described as prevalent in most PD blogs.

Several times over the years I’ve overheard prosecutors talking amongst themselves complain about some PD “whining” to them. I think they’ve even said it to my face, that they took my plea for mercy for a deserving client and categorized it in a neat box called “whining,” which excused them from analyzing how they were fucking with people.

While I agree that gratuitous whining should be avoided, there are also legitimate complaints that should be aired, wrongs that should be exposed, or experiences that should be shared—and these stories should not be suppressed for fear of being labeled “whining.” Just because the prosecutor dismisses my client’s tragic life story as whining, doesn’t mean I stop telling it. I may try different ways of relaying the facts, or adjust my attitude to one I think the prosecutor will respond, but I can’t stop telling the story because people don’t want to hear it. The problem isn’t that my client’s story is whiny or untrue or unsympathetic, or my client undeserving, the problem is that the people who should be listening don’t have any desire to hear about my client as a human being, and the more tragic the story, the more they don’t want to hear it.

We shouldn’t be afraid to tell the truth about what’s going on in PD offices and how it affects us and our families because some might call it “whining.” I’ve talked to enough PDs out there to be able say: Most PD offices in this country do not encourage and promote ethical, zealous advocacy—and it’s not the fault of the idealistic new lawyers who go into these jobs—it’s the fault of a system that sets up an impossible paradigm, and of the legal and judicial establishments, the bar associations, the law schools, and everyone else who claims to care about justice, but blame the lawyers rather than the system, or bemoan the problem without being willing to take on the political forces that shape the system.

***

Among other sins of pride I have committed, I’ve prided myself on being tough. I’ve brashly conducted back-to-back trials, thinking it a sure sign of nerve—until I realized the second (or third or fourth) client was getting screwed. I’ve volunteered to take tough cases I didn’t have time for. I’ve stood up to judges, and well, almost everyone. I think most of us consider ourselves tough, and we probably need that toughness in order to take on the cops and the establishment. I love the chutzpah, the bravado, the sick jokes that synthesize into the je ne sais quoi of PD offices.

But that toughness screws us, too. Because it becomes a point of pride not to crack under pressure—when maybe we should be cracking. It becomes a point of pride not to ask for a break in your caseload because that would be admitting you couldn’t take it. Or, we mock PDs who can’t handle the hard cases, or break under pressure, or ask for an easier job assignment to save their sanity.

Recently, a successful civil-litigation lawyer from Seattle flew to town for my client’s sentencing, because he was a friend of my client’s family. He had actually helped me immensely with the case, because he had been a public defender some 20 years earlier, and was able to reassure my client’s parents about the advice I was giving. At lunch after the sentencing, I asked the lawyer why he had decided to leave the PD’s office.

“I had two back-to-back robbery trials,” he said. “I was thrilled when I won the first one—I had thought they had my client dead to rights, but the jury hadn’t convicted. The second one, though, was innocent. Innocent except the jury found him guilty. I kept thinking—why didn’t I have the innocent one go first? That night, I remember sobbing in the arms of the woman who is now my wife, because I couldn’t take it any more.”

Shortly after that night, he left the PD’s office, opened his own shop, and started suing the police. He later moved his practice to a respected law firm where he is a partner and successful litigator. Sometimes, I thought after he told me his story, it’s not a personal or moral weakness that causes us to crack, but rather a system that gives us too much to do, inadequate resources, with too much at stake. In many cases, we probably should be cracking, and stubbornly refusing not to do so isn’t so much a show of strength as a sacrifice of our clients and ourselves.

***

When I was facing the Great Sadness 2, I came across an obituary regarding David Foster Wallace’s death by suicide. I had admired him as a writer, his essays are masterpieces, but I have to admit I never made it through what is widely considered to be his masterpiece, Infinite Jest. I had first discovered him when I came across "Shipping Out: On the (nearly lethal) comforts of a luxury cruise," in Harper’s Magazine, which confirmed my vague instinct that I never wanted to go on a cruise ship. When I read about his death, I cut out his obituary photo and stuck it on my bulletin board, where it remains:

I didn't really think about why I put his picture up, at the time I wasn’t thinking about a lot of things. Something touched me, and I pinned his picture on my board, and then looked around for other works of his to read. Ironically, the work I found that provided the most comfort wasn’t a written piece, but rather a commencement speech he gave in 2005 at Kenyon College, "This Is Water: Some Thoughts, Delivered on a Significant Occasion, about Living a Compassionate Life."

He begins his speech with "a standard requirement of U.S. commencement speeches, the deployment of a didactic parable-ish" story:

There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says "Morning, boys. How's the water?" And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes "What the hell is water?"

Wallace tells the graduates that the real value of education isn't knowledge, but beginning to learn how to harness your thoughts to create your experience of life:

The liberal arts cliché about teaching you how to think is actually shorthand for a much deeper, more serious idea: learning how to think really means learning how to exercise some control over how and what you think. It means being conscious and aware enough to choose what you pay attention to and to choose how you construct meaning from experience. Because if you cannot exercise this kind of choice in adult life, you will be totally hosed.

His speech resonated with me, because I had been trapped inside my head, where I felt like a prisoner of my own thoughts, but hadn't been trying to exercise discipline or will to get out.

The capital-T Truth is about life before death. It is about making it to 30, or maybe 50, without wanting to shoot yourself in the head. It is about simple awareness--awareness of what is so real and essential, so hidden in plain sight all around us, that we have to keep reminding ourselves, over and over: This is water, this is water … It is unimaginably hard to do this, to stay conscious and alive, day in and day out.

Maybe you are thinking: perhaps you shouldn’t seek life advice from a depressed writer who killed himself. But then, if you think about it, of course this is where I should seek guidance. Maybe what’s most important isn’t the ultimate result, but the struggle. David Foster Wallace wasn’t a failure, I like to think, because he ultimately couldn’t vanquish this thing. It must have been too strong from the beginning. Wisdom, I am told, is gained through experience and adversity. I don’t want advice about coping with despair from someone who never faced it; I want it from someone smarter and more talented than I am, who was fighting a bigger monster than mine.

***

There were days this summer when the only way I could get to work was by promising myself that I could quit before noon. I apologize for the last post, because, like I said, it was complete bullshit. But I was bullshitting myself more than anyone. I did take three weeks off, but only because I knew I had to get away and had arbitrarily marked the time off on my calendar. I had lots of things I wanted to do, definitely too much, but in reality I lay on my couch and watched the sunny days pass by. When I felt better, usually around midnight, I made jewelry, which helped a little. I didn’t write a word.

A few weeks ago I was thinking, I wasted a summer, and I love summer up here. But now I wonder, is anything ever wasted? Maybe future summers will be better appreciated for this lost one … or maybe that is just more of my Polly-Anna-ish delusional thinking. If it is possible to be both optimistic and depressed, that’s how I am. Gee, I would think, I know something is terribly, terribly wrong with me, but I bet it will be better tomorrow! Finally, on the last day of the third week, I remembered that during the Great Sadness 2, I had finally called my doctor in desperation and asked for antidepressants. I had resisting taking them, but was finally so tired of the constant bleakness that I was willing to do anything. I wish I had decided this the first day of the three-week “vacation” rather than the last day … but so it goes.

It appears that I am finally getting back in gear. I’m not quite there, although I’m not quite sure where “there” is. But the fact that I’m writing speaks volumes.

***

I saw Kim the other day—I hadn’t seen her since our last meeting—I had been buried at work, and, well, depressed. She looked brighter; not happy or anything, but like a slightly brighter sun was shining on her. Her tone was definitely less flat, which made me become a clown in an effort to get her to laugh again. “You will observe once we step into the courtroom that I am going to run around looking frantic and disorganized as I attempt to juggle my clients while the judge is calling the docket. This is all an act to keep the prosecutors off their guards. Please do not be fooled.”

She put her hand on my arm, and smiled with one corner of her mouth, a beautiful, ironic half-smile, “Don’t worry,” she said, “I stopped at the hot dog stand before I came in, and the hot dog guy said that you’re good.”

“You’re kidding! The hot dog guy said I was good??" I held out my arms the best I could with my files and briefcase, and looked up to the heavens. “By God, I’ve finally made it!”

“Of course you have,” she said. “It was a fucking great hot dog.”

***

I was lucky that the last week of September was unseasonably gorgeous. Sunny, 80 degrees, flowers were at their peak, a moment from fading, but not quite, leaves were on the verge of falling, but hadn't yet. That week, for the first time, I started taking my dog, Millie, on walks again rather than only throwing the ball for her to fetch. Last Monday was such a bright, sparkly summer/fall day that I went home at lunch and walked Millie through a historic park near my house, where the formal gardens were lush with flowers, and the dahlias, my favorite, were magnificent. I tried to let go of thoughts of the lost summer, lost marriage, maybe lost career—to let go and be present in that moment with my dog, who had been with me through it all—always happy to play fetch although she’d rather go on a walk, always came to me when I cried—she was so excited to have me back walking. Surrounded by the bright sky, giant pine trees and exuberant flowers, it was easy to be just in that moment—feel the sun, marvel at the colors, absorb Millie’s enthusiasm, and as I walked along, I felt what I faintly recalled as joy, and repeated to myself, This is water, this is water …

***

I don’t know how much longer I’ll be able to remain a public defender. Like I said, some days I’m not sure I’ll make it to lunch. But it seems like every time I make up my mind—I’m out of this place!—a client will say something about the hot-dog guy, or whatever, and I know I’m in for another day. Or, a couple of times a neighbor or acquaintance has made hollow jokes about the soul-crushing emptiness of his job. The best thing about being a public defender is that we never have to search for meaning in our work. Because as impossible as some of this is to bear, a job where you feel that your efforts are ultimately without meaning would be worse. This pure purpose we have—to fight against the forever-overreaching power of government and to do the best we can for our clients—is something we should remind ourselves of every day--that our mission is righteous and the need is great. This, my public-defender friends, is water.

Back from Vacation-Sleuthing

2010-08-02T00:49:00.000-07:00

Although it may appear that I have been on vacation, all of you PDs out there know that my vacation alibi is baloney, because PDs are never really on vacation. I have actually been performing top-secret investigation that could only be accomplished in "deep cover."

(I also watched all of Burn Notice on my vacation. I am now a secret operative.)

I've also been involved in research and development for jewelry for the PD Revolution Etsy store.

All of the usual stuff: trial-chicken earrings, no dump-truck pendants, not-guilty dangles ...

Oh look, a little glass bottle designed to contain a powerful elixer. What to put in it ...

Ultimately, a variety of PD Charms were developed.

Oh little getting-out-of jail men: Why aren't you facing the same way?

The magnets weren't quite right ...

And who would ever thing that knitting copper wire would be a good idea?

Fortunately, after extensive testing, a few designs made the cut. Watch for new listings in the etsy story in the next couple of days.

Who's the Boss of Your Boss?

2010-07-08T01:02:00.001-07:00

You know how it was when you first become a pd--it was all so terrifying and kick-ass and exhausting and overwhelming and exhilarating--and you certainly didn't have time to see the big picture. Big picture? I usually couldn't see ahead to lunch, much less understand the systemic pressures that had landed me where I was.

I had no idea if I was doing a good job or not--I was trying my best, but how could I know if that was enough? Now I know I was doing some things well, and others not so much (to the kid I pled guilty to MJ possession for a pop can that tested negative, I am sorry. I should have known better.) It's hard to see how big the ocean is much less understand what is causing the waves if you are busy trying not to drown.

After a while, I noticed some curious things. One of these curious things came to my attention when I moved to a public defender office in another county on the other side of the state. (Ah, love.) At this point I had about 5 years experience, and had worked in 2 different PD offices, so I had a little perspective. My 5 years had involved a lot of trials and a chaotic schedule--working through weekends, but some days leaving early for drinks.

In my new county, the boss called a meeting of the misdemeanor attorneys (as a new hire, I had to start at the bottom in misdemeanors again), and at the meeting said that he wanted all of us to start marking if we left early or took a long lunch, and by how many minutes. (I now know this is against rules for exempt employees). He said that any minutes one of us was late or left early, would be counted as vacation time.

My fellow misdemeanor attorneys were all relatively new, and hadn't known anything different, and resignedly nodded assent. I thought the idea was crazy and unfair. I said, "So you mean if I work 20 hours on the weekend getting ready for a trial, and then the trial ends at 3:30, and I leave to go get some sleep, this will count as an hour and a half vacation time? Don't you think we need our vacation time?"

"Yes," he said, "I'm doing it myself, and I have to say that it hurts some."

"But, if it hurts you, and it hurts us, why are you making us do it?," I asked. "Is someone making you do it?"

"No," he said, "but the county commissioners are going to be reviewing our budget, and I want to show them that we are working hard."

"But shouldn't you be the judge of whether we are working hard? Or our clients?"

"They think we don't work that many hours, and I need to ask for additional funds for more laywers, so I need to prove to them that you are working appropriate hours."

Oh, if I could just go back in time and tell myself to shut up. That boss was a kind man with good intentions, and even if I disagreed with his methods, at least he was trying. Docking our vacation time never came to be, but the encounter planted a question in my brain. Why was the boss willing to sacrifice our vacation time and perhaps our sanity to look good to commissioners for something we were already doing? It wasn't our clients who were complaining. I remember thinking, Hmmm, because the county commissioners appoint him, part of his job becomes appeasing the county commisioners, when it really should be his job to lead us in battle. He should be fighting against anyone who tried to take away our vacation time, rather that offering it to appease the money gods.

Also, a few years later: There came a time in felonies when we were all dying. There were about 12 felony public defenders and 25 felony prosecutors (in a county where the vast majority of cases go to the defenders). We couln't keep up. Even the judges were telling our boss we needed more lawyers, and that they would support us in asking for funding for more lawyers. But our boss kept insisting we did not need any more lawyers, and that our "numbers were fine." By numbers, he meant caseload standards, which can be a double-edged sword. Numbers are fine, but the lawyers are dying.

That is when a little bell went off. Why wouldn't a boss ask for more lawyers? Even if he thought he might not get the lawyers, why not ask? I finally asked an older, respected lawyer, who said, simply, "Who do you think his boss is?"

GRAND OPENING! Public Defender Store

2010-06-15T01:38:00.000-07:00

Please visit the pdrevolution etsy store; your purchase will help us fight for justice.

We Are All Public Defender Revolutionaries! Part I

2010-06-03T03:07:00.000-07:00

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!

Martha Stewart + PD Revolutionary =

2010-06-01T03:02:00.000-07:00

Between traveling the week before last, and fighting, fighting, fighting last week, I'm behind on my posts about the San Franscisco Justice Summit and the ABA National Public Defense Symposium in Knoxville. Excessive fighting steers me toward making things, rather than writing things, but I put the time to good PD Revolutionary use by devising some Defender Stationary this weekend (note to self: it would be a lot easier to send thank-you notes if you would just buy cards at the freaking store; note to those deserving thank-you notes: they're coming and quite lovely; note to history: depicted below may be the first ever Sisyphus-lined envelope). Also, the conferences sparked so many ideas that I've had to break the subject down into a series of posts. Thus, coming tomorrow, the first post in a new series: We Are All Revolutionaries!

Google Works!

2010-05-26T00:16:00.000-07:00

(Click to Enlarge)

In case you can't read the fine print:

Search Engine: google.com
Search Words: public defenders treated like shit
Visit Entry Page:
http://pdrevolution.blogspot.com/2010/03/chicken-shit-bingo-and-other-stories.html
Visit Exit Page:
http://pdrevolution.blogspot.com/2009/12/power-of-yep-i-am-going-to-start-my.html

OK, technically the "shit" in "chicken shit bingo" may have played a role, but I still say this counts as a google miracle.

Real posts coming soon. Promise.

San Francisco Justice Summit

2010-05-18T00:29:00.000-07:00

We interrupt this blog for its first totally-biased event endorsement:

2010 Public Defender's Justice Summit

THERE MUST BE JUSTICE

Wednesday, May 19

San Francisco

According to the event organizers, the 2010 Justice Summit will examine ways to expose and prevent systemic failures of our justice system, an especially relevant topic in the wake of two law-enforcement misconduct scandals. The Summit, which is co-hosted by San Francisco Public Defender Jeff Adachi, will feature "experts on wrongful conviction, prosecutorial misconduct, and media, along with bestselling authors, law professors, reporters, and celebrity attorneys [and one regular public defender]." The subject-matter is timely, according to Mr. Adachi, given a pair of scandals that rocked the justice system in San Francisco: A lab tech whose cocaine theft unmasked rampant evidence tampering at the Police Department crime lab and a revelation that prosecutors failed to disclose the criminal convictions and misconduct of more than 80 officers who testified in criminal prosecutions.

“There couldn’t be a better time to have a frank discussion about the every day injustices that make it difficult for ordinary citizens to get a fair shake,” Adachi said. “Our speakers will explore how to prevent systematic failures like the ones we’ve seen in San Francisco and discuss just how commonly these miscarriages of justice occur.”

In addition to recognizing and preventing “ordinary injustice” in the legal system, panels will focus on remaking the image of defense attorneys and statewide criminal record reform. Among the speakers are Amy Bach, attorney and bestselling author of Ordinary Injustice; Gerald Schwartzbach, whose high-profile cases included the murder acquittal of actor Robert Blake; Jami Floyd, former Court TV Anchor, John Terzano, co-founder of The Justice Project and expert on prosecutorial misconduct; and Dr. Stephen Richards, a former federal inmate-turned-law-professor devoted to re-entry issues.

The media image of criminal defense attorneys will be the subject of one panel discussion [and include one regular public defender panel member]. "While the portrayals of defense attorneys throughout time has ranged from positive--To Kill A Mockingbird, Perry Mason--to the extreme negative -- The Devil’s Advocate(as the devil incarnate) Shark (defense attorney turned prosecutor) and even the comedic -- My Cousin Vinny (the stuttering public defender)," according to the event organizers, "the media image of the defense attorneys continues to be a matter of controversy. This panel examines how and why defense attorneys are often depicted in a negative light, and what can be done to change this."

The materials for the event include depictions of defense attorneys in popular media:

And I have to say that the montage looks better with a defender-gal addition:

The free event, which is open to the public, will be held 9 a.m.-2:30 p.m. in the Koret Auditorium in San Francisco Main Library, on Wednesday May 19th. Find event details and speaker bios here. Seating is limited and all attendees must register at sfpublicdefender.org

For All You Bullies Out There

2010-05-13T03:11:00.000-07:00

Now that my iphone keeps all of my random notes in one place, I will miss the pleasure of finding that loose piece of paper in the back of my drawer where I jotted a description of a siutation too funny/crazy/horrific to risk forgetting. Like this one:

Many years ago, in a County and State far, far away from most of you, an accomplished criminal defense lawyer I know got a phone call very early in the morning from an agitated lawyer in another state. The previous evening, the lawyer relayed, one of his partners and an investigator had been arrested for witness tampering and were currently in This Here County Jail.

Just a week earlier, the jailed lawyer had been appointed in his state on a decades-old "cold" case where the death penalty was being pursued. Before the arrest, the defendant had been living in This Here City. When the defendant's name became connected with the murder, Detective Burbridge, a local cop, interrogated the defendant and procured a purportedly incriminating statement. After the interrogation, the defendant was extradited to the state where the alleged murder took place.

Soon after being appointed, the attorneys met with their new client at the jail. As the lawyers left the jail's visiting room, one mentioned that he and an investigator were traveling to This Here City to interview the client's former roommate and former girlfriend. The roommate and former girlfriend were not perceived as fact witnesses--they had not even met the defendant at the time of the alleged murder. Rather, the defense hadn't yet received discovery, and thus the diligent lawyers were getting started on mitigation evidence and background.

The lawyers arranged the interviews in advance, flew to This Here City, and talked to the witnesses in their home. The witnesses had little to offer, but did mention that the defendant had left a message for them. The attorney told the witnesses that under no circumstance were they to talk to the client. The attorney gave the witnesses his business card, and asked them to get in touch if they thought of anything to add.

Meanwhile, back in the other state, when the attorneys had been at the jail, a bailiff had overheard the lawyers tell the client that they were going to interview his former roommate and girlfriend in This Here City. The bailiff called the prosecutor, and the prosecutor (who was familiar with Burbridge from the police reports and his interview of the defendant) called Burbridge and asked him to contact the witnesses.

Burbridge arrived at the witnesses' home after the lawyer and investigator had departed. According to Burbridge, the witnesses said that the lawyer and investigator "ordered" them not to talk to police (not true). Police also said that the investigator identified himself as a "Detective from Other State." (This is interesting, because Burbridge called the lawyer and investigator at their hotel. How did he know which hotel to call? He knew from the business card it was written on, which the lawyer had given the roommate and girlfriend. The card did not say "Detective.") After Burbridge left the witnesses' house, the roommate called the lawyer at his hotel and told him that he thought the police were coming to arrest them.

The lawyer and investigator agreed to meet Burbridge in the lobby of their hotel, thinking they would be able to explain any misunderstanding. Burbridge walked toward the two men; however, instead of offering an outstretched hand, he loudly and brusquely ordered, "You over in that corner, and you over there!"

Standing his ground, the lawyer replied, "Well, that ain't gonna happen."

The cuffs went on.

The accomplished local attorney agreed to represent the two men at their first appearance. The local attorney talked to a higher-up at the prosecutors office, who agreed that there was no need to hold the two. However, once they appeared at the hearing, the easy, agreed release began to slip away. The first-appearance prosecutor apologized and said that he was going to have to ask for high bond, based on a conversation he had with, you guessed it, Detective Burbridge. Additionally, the court's pre-trial service evaluation recommended against release because the men were from another state and thus a "flight risk." I remember watching the drama unfold, and feeling the tension as the judge, who appeared to be overly-cautious in weighing the issue, asked the accomplished attorney, "Can you personally vouch for these two men?" The arrested lawyer, who was sitting at the counsel table, winced and looked down, probably because he hadn't met our local attorney but 10 minutes earlier.

"Absolutely," the accomplished lawyer said.

Afterwards, a group us had drinks at a downtown bar, and the story was told and re-told from every angle, as only happy criminal defense lawyers in their element can do. The out-of-state partner had arrived, and I remember noticing how much he resembled other criminal attorneys I knew--cocky, funny, and knew how to tell a story. The arrested attorney, though, ruled the session, even as his exhaustion validated the tale: He had told his "Cellie" that he drove truck, understandably keeping quiet about being a lawyer, but then spent the night inventing trucking stories to a roommate who couldn't sleep due to the over-consumption of amphetamine.

"The whole thing was ... harrowing," he said. (One reason that we are better story-tellers than prosectors is that we allow ourselves to admit weakness.) "I was so relieved when I saw him," he said, pointing at the accomplished attorney. "I felt such happy relief knowing I had a lawyer there with me. And then I said the dumbest thing I possibly could have said, a line I've heard from inmates a thousand times over. I said to him, 'I am innocent of these charges.'"

"And do you know what that asshole said to me? He said, totally flat, 'Yeah, that's what all my clients say.'"

"I was in such a freaked-out state--my usual perception was compromised," the lawyer told us. "I started to think I had been thrown into some secret hole of hell where lawyers came and messed with me as a punishment for all of my sins. I kept asking myself as we walked up to the counsel table, 'Did he mean that? . . . Was he fucking with me?'"

"But then," the lawyer said, "just as the judge was coming on to the TV screen, I couldn't help myself--I grabbed his sleeve and asked the second-dumbest question I possibly could have asked: 'When can you get me out of here?'"

***

I'm telling this story of a bully cop arresting a defense lawyer, because, after a week of being bullied myself (and it's only Wednesday as I write): You bullies may get away with bullying most of the time; you may even think you're immune; but the more cocky and consistent you are in bullying, the more likely you are to get busted. Video and transcripts help.

Like, for example, Karl Thompson, a police officer indicted for criminal civil rights violations and obstruction involving the death (caused by Thompson) of an unarmed handicapped janitor. This document filed by the government in the case against Thompson, provides a fascinating look at the police cover-up and its exposure by the feds, while also providing insight the rest of us can use when attempting to expose their web of lies.

And who is also implicity incriminated in the cover-up? You guessed it--Detective Burbridge.

PD LIFE

2010-05-02T22:03:00.000-07:00

Or, click here to watch the movie.

How to Be a Public Defender Revolutionary, Professor Version

2010-04-27T21:55:00.000-07:00

It may be difficult to persuade you to join a public defender revolution just on my say-so. Maybe I am an extremist or overestimate the power of solidarity or the ethics rules. Maybe I suck. As overheard by a witness to the debate by the Board of Directors of the Washington Defender Association about whether to publish an article of mine: "Who does she think she is?"

I have advocated that we use of Formal Opinion 06-441 (ABA Committee on Ethics and Professional Responsibility, 2006) and the Eight Guidelines of Public Defense Related to Excessive Workloads (ABA Standing Committee on Legal Aid and Indigent Defendants, 2009) to precipitate the end of excessive caseloads. I realize, however, that my crazy tales of PD-life and intermittent profanity may not provide the level of authority and credibility necessary to allow you to challenge your caseload and the people who employ you.

To bolster the credibility of my thesis that public defenders have the power and authority to refuse excessive caseloads, I offer an article I only recently came across, Restraining Excessive Defender Caseloads: The ABA Ethics Committee Requires Action (Lefstein and Vagenas, The Champion, 2006). For a while now, I have been reading every public-defender study, report, article, or compendium that Googles its way onto my computer screen, and I am at a loss to explain how I missed a piece so relevant to the revolution. I am tempted to believe that I read it and then forgot about it--but this article is not the type of thing that I forget.

I'm glad I unintentionally saved reading this article until now, though, because it validates the message in my "How to Be a PD Revolutionary" posts (basically, that line public defenders should use ABA Formal Ethics Opinion 06-441 and the ABA 8 Guidelines to refuse to accept excessive caseloads), but thankfully supplies needed scholarship and gravitas.

Even though I hadn't seen the article until recently, I am familiar with the author, Norman Lefstein (Professor of Law and Dean Emeritus, Indiana University School of Law - Indianapolis)(who wrote the article with co-author Georgia Vagenas), because in my avid yet haphazard reading of public-defender reform publications, I had noticed his name attached to many pieces that resonated with me--writings or guidelines that helped me understand what I have been living through. He was one of two reporters and major contributor for Justice Denied, for example, which I briefly wrote about here. I also quoted Professor Lefstein in the same post (from this article in the New York Times): “I think the quality of public defense around the country is absolutely deteriorating. … In my opinion, there should be hundreds of such motions or lawsuits.” He was the reporter for the Eight Guidelines of Public Defense Related to Excessive Workloads, and member of the committee which produced and adopted the ABA's Ten Principles of a Public Defense Delivery System. He was also instrumental in lobbying the ABA Committee on Ethics and Professional Responsibility to address caseload issues in a formal opinion, which, ultimately, lead to the ABA Ethics Committee's issuance of Formal Opinion 06-441.

In their analysis of Formal Opinion 06-441, which is both scholarly and revolutionary, Professor Lefstein and Ms. Vagenas assert: "[T]he new opinion is enormously important because it furnishes potent ammunition for defenders seeking relief from excessive caseloads before judges and from those in charge of their offices." This statement backs the opening paragraph of my "How to Be a Public Defender Revolutionary" series (except the 8 Guidelines did not yet exist): "We have the power to stop excessive caseloads. We have this power because two reports—the ABA’s 2006 Formal Opinion 06-441, Relating to Excessive Caseloads and its 2009 follow-up: Eight Guidelines of Public Defense Related to Excessive Workloads—give us the authority and ammunition to end the wide-spread reality of untenable caseloads."

Before reading the Champion article (which was published in December 2006, a few months after Formal Opinion 06-441 was issued), I hadn't realized the controversy the opinion had generated, with some public-defender heads adamantly opposed to its adoption. With such controversy and drama at the upper levels of national committees--some predicting a hostile takeover of offices by "under-performing" lawyers, others expecting righteous reform--those involved expected, I imagine, something in the wake of the opinion's issuance. In reality, though, the opinion caused "barely a ripple." (Note to all committees, symposiums, summits: if you exclude line defenders from your work, we may not notice when you do something, no matter how good it is.)

The lack of response to the issuance of Opinion 06-441 apparently dismayed Professor Lefstein, who wrote, some two and a half months after its adoption, "The ABA ethics opinion should be understood as a call to action by both individual defenders burdened with excessive caseloads, as well as by supervisors and heads of defender programs. The sad truth is that it seems not to be. The opinion was issued in mid-July 2006 (although dated May 13, 2006), and we are writing this conclusion at the start of October. During the past two-and-a-half months, however, the opinion seems to have created barely a ripple among defenders throughout the country."

I wonder what Professor Lefstein would have written if his future-self had somehow relayed that four years later the effects would be much the same.

While the most important message to be taken from Formal Opinion 04-441 and the Champion article is that in every state, pursuant to professional conduct rules, every lawyer is ultimately responsible for his or her own ethical conduct, I found the controversy over the opinion's adoption the most telling regarding the institutional problems that many public defenders face. At the heart of the controversy is the opinion's clear endorsement of a line defender's duty to withdraw or refuse to accept additional cases if the workload is excessive, even if this action contradicts a supervisor's directive, if the supervisor's directive is unreasonable.

The Champion article summarizes a defender's ethical duty to take action regarding an excessive caseload:

"If the supervisor’s decision in the matter [regarding a defender's excessive caseload] is not reasonable, however, the opinion states that 'the public defender must take further action.' '[T]he lawyer should continue to advance up the chain of command within the office until either relief is obtained or the lawyer has reached and requested assistance or relief from the head of the public defender's office.' And, if relief is still not obtained,the opinion indicates that there are still two additional steps that the attorney may pursue: (1) take the issue to the governing board of the agency, if any; and,(2) if still no relief is obtained, the lawyer may file a motion seeking to 'withdraw from a sufficient number of cases to allow the provision of competent and diligent representation to the remaining clients.'"

While I appreciate the clarity with which the opinion spells out this duty, the model rules have long provided that a lawyer should follow the opinion of a supervisor unless the supervisor's opinion isn't reasonable. (Parenthetically, I have never understood the ethics rules' endorsement of subservience to supervisors. Doesn't history show a greater danger from people using the excuse of superiors' orders to justify unethical behavior than it shows the danger of uppity rookies disrupting law and order? Perhaps the reason for the endorsement of subordination lies in the fact that lawyers on these committees tend to be former or current supervisors?)

Apparently, however, this idea--that line defenders should take action to alleviate an excessive caseload, even when contrary to a supervisor's order, if the supervisor's order is unreasonable--caused a few head defenders to protest the proposed opinion in writing and to predict public-defender anarchy if the opinion were to be adopted. Describing this reaction, Professor Lefstein and Ms. Vaganas wrote, "While the ABA Ethics Committee was preparing its opinion, several California public defenders sent letters to the committee and to other ABA officials, arguing that individual defenders must be absolutely bound by the decision of the head defender respecting whether a defender’s caseload was excessive."

One wonders how any defender--how any member of the bar--could advance this opinion. It is undisputed that many public defenders are assigned caseloads that are grotesquely excessive. Did these California defenders really mean that individual defenders should be absolutely bound to carry these impossible caseloads and irresponsibly provide inadequate representation, simply because a superior ordered it? Perhaps the Professor Lefstein and Ms. Vaganas misunderstood the California defenders' criticism?

It is, however, difficult to find ambiguity in a letter from Michael P. Judge, head of the Los Angeles County Public Defender Office, to the ABA's Standing Committee on Legal Aid and Indigent Defendants and to the Ethics Committee. The following is an excerpt from this letter, quoted in the Champion article:

"It [the proposed opinion] could easily make Public Defender offices unmanageable. It, inter alia, could substitute the judgment of a rookie lawyer, lacking experience and perspective for the discretion exercised by my attorney managers and me. Attorney managers in my office are all former trial lawyers who possess at least 15 years experience. Many like I have more than 30 years of such experience. It would set in motion an adversarial relationship between me and my lawyers such that resort to punitive measures such as discipline would likely occur. . . .The proposed rule (sic: ethics opinion) would be the source of much grief and mischief."

Mr. Judge sent a similar letter to the president of the American Bar Association, predicting that the proposed ethics opinion “would be exploited by under performing lawyers, who instead of complying with remedial efforts … would demand caseload relief and claim retaliation if any personnel action is taken by managers or the Chief Defender." According to the Champion article, chief defenders from several other California counties also wrote letters expressing concerns similar to those of the Los Angeles County Public Defender.

The logic of these letters fails to persuade me. Let's assume, for the sake of argument, that Mr. Judge and his managers are infinitely reasonable, and assign and monitor only reasonable caseloads. Mr. Judge's argument would then be that because he and his managers are reasonable, no line defender in the country should have the power to take action against the directive of a superior regarding an excessive caseload, because this power would make public-defender offices unmanageable. Given the documented problem of excessive caseloads throughout the country, doesn't this seem myopic? Doesn't this position ignore the fact that the rule only allows action against a supervisor's advice if the supervisor's position is unreasonable?

The content of these letters signal a deeper problem, a problem I've lived with, but is difficult to describe. Because I have worked in several different defender offices (by choice, not termination, so far), I've noticed that some bosses see themselves as leaders who support and inspire the troops. Others, however, seem to model themselves as assistant principals, charged with the duty of monitoring "under performing" lawyers.

My guess is that a boss who worries about the exploitation of ethical rules by under-performing lawyers, already has, inter alia, an adversarial relationship with his lawyers--a relationship that has nothing to do with an ethics rule. When you act like the assistant principal, you not only dimishish your own ability to inpire and lead, you diminish the lawyers, their faith in themselves, and ultimately harm the clients.

Note to head defenders: We are not the enemy. We need your help to correct excessive caseloads, but you could use our help as well. Imagine saying to county commissioners, "I know you want me to assign my lawyers 400 felonies a year. If I do that, however, my lawyers will have the ethical duty to decline additional cases, no matter what I tell them to do."

Professor Lefstein and Ms. Vaganas recognize the interplay in the power the opinion gives both line defenders and PD heads:

"We believe, however, that defenders and their offices are not as powerless as they may think they are. And the ABA’s new ethics opinion tells them that they have a clear duty to take action both to protect fully the legal rights of their clients and themselves from furnishing incompetent representation. But it takes courage to stand up to authority – both the authority of judges and sometimes the heads of defender programs. It also takes courage from the heads of defender programs and their boards of directors."

I believe that most state public defenders have excessive caseloads, some more excessive than others, but excessive nonetheless. Many of us achieve remarkable results despite this burden, but these results come with the emotional toll of being stretched too thin, the weight of guilt regarding the corner-cutting necessary to achieve results, and self-doubt that follows the constant criticism from all fronts despite our sometimes heroic efforts. We may not command high salaries or the respect of the community, but courage? Courage we have in abundance, if we remember to use it not only for our clients, but also for ourselves.

How to Be a Public Defender Revolutionary, Part IV

2010-04-16T00:17:00.000-07:00

THE REVOLUTION STARTS NOW

Fourteen Public Defenders in Minnesota have filed a labor grievance over their heavy caseloads. This may be the first example of street-level public defenders taking organized action against their bosses to curtail excessive caseloads, as reported here. (For more about how ABA ethics opinion 06-441 gives PDs the tools to control excessive caseloads, see How to Be a Public Defender Revolutionary, Part I, II and III). The Minnesota 14's stance is patriotic, in the best sense of the word, and should inspire all of us to stand up to any government agency that attempts to violate our clients' right to receive effective assistance of counsel and our right to provide it. Public Defenders in Minnesota, we salute you!

(Thank you, Martha, for posting a link to this story on the comments--and on The Power of Yep! :) )

Things I Get Yelled at For, No. 1

2010-04-13T23:29:00.000-07:00

I had debated whether to post about Things I Get Yelled at For, because even though Getting Yelled At is a constant, occasionally funny, and typical occurrence in the PD profession, when one talks about it, one faces the possibility of sounding whiny or defensive or in need of getting yelled at. I'm trying to save my complaining for my real-life colleagues, who have to put up with me, rather than directing it at you, my invited blog-reading guests.

I changed my mind and decided to write about Getting Yelled At because I received an email that reminded me how dismaying this treatment can be to newer PDs. My hope is that by showing you guys that I get yelled at (believe me, all the time) you can take comfort in the fact that you're not the only one.

A PD reader wrote,

I was one of the few in my law school peer group to want to work as a public defender but I don't think I was prepared to face the onslaught of disdain one receives from judges, prosecutors and sometimes the client. I love this job, I consider it a privilege, but I don't think anyone could do it without a strong network of dedicated colleagues.

So, Dear PD Reader, this is for you:

FROM THE ARCHIVES, unknown year, subtitled: "And You ALWAYS Grant My Dismissal Motions"

(Background: I had a client facing drug charges, who was taken into federal custody and prosecuted in federal court. One day, the federal hold was released, and he was back in state custody. I expected the state prosecutor to dismiss my case, because I learned that the client had received a lengthy prison sentence in federal court. I believed that the federal prosecution involved the same set of facts as my case, but wasn't completely sure--sometimes cases will overlap, but not involve the exact same facts.

I was surprised when the prosecutor offered the fabulous plea bargain that my client plead guilty as charged to the state charges. I asked the prosecutor if the federal case and my case were the same, and he assured me that they were completely different.

The trial date approached and I obtained a copy of the court file from federal court, and discovered that the federal facts for which my client was prosecuted were the exact same facts that my case involved. Because the crime he plead guilty to as part of a plea bargain in federal court had different elements than mine (maintaining a drug house vs. possession with intent to deliver), though, a dismissal under WA's statutory double jeopardy bar was arguable, but not guaranteed. In my research, I learned that a motion to dismiss on these grounds could be brought at any time, even for the first time on appeal, and noted that the trial was set the week after Christmas and involved a dozen state and federal officers, and called the case ready for trial.

What follows is a redacted, rough transcript of the state's motion to continue, heard on the day of trial. The judge hearing the motion was assigned only to hear the state's continuance motion, and had done nothing on the case prior to this hearing, and was not assigned to hear the trial. (please note that I sound pretty stupid here--and maybe I always do--but I really wasn't expecting to get yelled at on this day and was caught off guard.)

MS. PROSECUTOR: This is State’s motion for continuance of the trial date, I filed a certificate in support of my continuance request. ... The case rests exclusively on the testimony of the law enforcement officers who were present and conducted the search and interviewed the defendant. Both Deputy AAA and Detective BBB are material witnesses for the State and out of the office until January ... In terms of any prejudice in terms of speedy trial, the Defendant is here on a Marshall’s hold, um, he was sentenced to seventy-eight months in federal prison so arguably he’s on a ninety day clock. ... He’ll remain in custody but he’s serving the federal sentence in any event.

This is the first trial date, as the court knows, it’s unusual for a case to really go on the first trial date. The drugs are in the lab, you know, having been tested. It’s not as though I don’t have my physical evidence; I don’t have my testimonial evidence and I found out about that, well, I guess on the 23rd when I submitted my certificate.

COURT: Ms. Defender.

MS. DEFENDER: My client has already plead guilty and been sentenced to about seven and a half years for the exact same conduct that he has been charged for by the State. Those issues aside, when the state made an offer of pleading guilty with concurrent time, that seemed ludicrous to us since he’s already plead guilty and gotten a substantial amount of time for the same conduct and on the same date ...

COURT: Is there gonna be a motion here?

MS. DEFENDER: There will be, but it can be brought at any time even for the first time on appeal, when it’s regarding jurisdiction and double jeopardy, although it’s more statutory double jeopardy than constitutional.

COURT: Wouldn’t it make a little sense to have it at this point instead of putting the tax payers to the expense of another trial?

ME: Your Honor, the Defendant has the right to a trial and the Prosecutor is the one who is electing to pursue this trial, when my client has already plead guilty and been sentenced in federal court. The Prosecutor is the one who is choosing to prosecute him again even though he’s already been sentenced. My client has the right to a trial.

COURT: Why would you want to put him through a trial if you could simply note a motion?

ME: Excuse me, Your Honor? My client has a right to a trial ...

COURT: Ms. Defender, [a gavel may or may not have been banged at this point] Ms. Defender, I don’t appreciate your attitude or your demeanor today. I am asking you respectful questions and I’m, that’s not what I’m getting back from you.

ME: I apologize, Your Honor, I do apologize for my tone. That’s not what I meant. I was a little surprised when the court asked me whether I felt bad about putting my client through a trial which . . . Frankly, I was a little shocked by that question.

COURT: Is there, you’re saying that there’s a valid issue of jurisdiction. Why not bring a motion so that he doesn’t have to go through a trial and perhaps this could be dismissed before he has to go through that?

The judge eventually denied the state's continuance request, and later that day, the case was dismissed.

My Bad Blogging Manners

2010-04-09T17:55:00.000-07:00

T his blog wasn't launched by with a detailed, organized publication plan. In fact, it had a false start a year earlier (some of you may have found the Wordpress version), where I put up one post, got frustrated trying to make a custom header, and let it go. I thought about starting again every once in a while--I loved the name, "public defender revolution" and all it implied, and I was pissed that the Washington Defender Association had censored an article I had written about reforms--my blog won't censor itself, I thought. Sure, ideas would percolate in my overperked brain--but it's not like I wrote out a blogging plan and had a bank of posts ready to go. The only reasons public defender revolution actually launched this year are a) another year's frustration about public-defender stuff built up inside me; and b) I didn't have anything to do on New Year's Eve (resolution: start blog this year!); and c) my friend Little Crazy came by to help me do nothing and assisted with the set up.

Even though I didn't have a formal blogging plan, I operate under the assumption that I am relatively normal (I know, hold your comments) and blog readers, particularly public-defender blog readers, would probably respond to the same things that I respond to. I also knew that there was a vast untapped market for public defender stories and PD stuff. I also had a reason behind the blogs--to try to empower public defenders to unite and assume control of PD reform.

I knew almost nothing about blogging--I read a few blogs every once in a while--if I find a topic that interests me and a writer I like, I will have a little love affair with that blog. If a blog-crush keeps giving me something on a regular basis, I get hooked. Thus, I planned to post as much as I could as often as I could during the first month.

But daily posting ate up all of my free time, and left little time to explore the blogging world or rules of etiquette. Little Crazy told me about Site Meter, which I guess everyone else knows about, but it almost felt dirty having it--seeing where readers were from and what they clicked on. But apparently I can get OK with dirty, because I found the spinning world thing, which I really like ...

I noticed that the number of readers was going up, and I kept writing or making PD cards/bumper stickers, etc. I found the 'referrals" section of Site Meter and could tell which links readers were following to the blog. Even though I have never been to South Carolina, I have developed a fondness for it, because the little dots on the S.C. map were the first to light up with regularity. I would look at those dots, and think, Who are those guys? In fact, S.C. kept me going for awhile, because it would be 11:00 p.m. and I'd think, I'm not going to finish this tonight--I'll have to post it in the morning, but then I'd think, By the time it's morning here, the day is almost done in S. Carolina--and they're my only readers. There's even a head PD in S.C. who I chat with every once in a while (Hey Mike!)

My college friend Scott at Grits for Breakfast posted the first link--without him, I would still be blogging to myself, thinking, Why is My City the only dot on the map? A few weeks after Scott's link, some blogger I didn't even know said something nice about PDR on his blog. And then a few more. I was stunned and grateful and just kept going. I thought, As soon as I get a minute, I am going to write these bloggers a really nice thank-you note. Do you know what happens with yet-to-be-written really nice thank-you notes? They never get written.

So all of you guys and gals, thank you for reading and helping push this blog and revolution along. I will be glad to send any of you a bumper sticker, PD Valentines card, or PD business card if you send me your mailing address. Here's the list of blogs that deserve a really nice thank-you note:

grits for breakfast--Scott is a one-man, criminal justice reform movement. He is based in TX, but every state can benefit from fact-based, unbiased analysis, and every state would benefit from a blog like his. He is a hero, and he does it without a paycheck.
south carolina criminal defense blog--I think this is where the S. Carolina guys came from.
koehler law--I can hear him talking to a jury, because I know he must sound like his blog--intelligent, reasonable, and kind.
SCOID blog--Great legal blog from Idaho, but my favorite is the sidebar quote: "No man but a blockhead ever wrote, except for money."--Samuel Johnson
v is for victory--while I don't agree with the politics of this blog, I do very much like the writer, and it reminded me that I can find shared values with someone who is ardent about issues I do not support. Favorite thing she said about the blog, "Be aware that it contains some salty language, and is not for the timid."
trial theory--has made "trial chicken" part of the trial theory lexicon.
a public defender--when I grow up, I want to be like him.
public defender stuff--the first PD news blog I ever read; I was afraid it had disappeared but is back and strong.
underdog blog--one of the first bloggers to link to this blog and get things rolling
blonde justice--I have loved her long time. I read that she would post a link once you had put up posts regularly for 30 days. So I waited 30 days. And then I thought, I want to know if she finds PDR without me, and what she thinks. And then she liked it; she really, really liked it!
law of criminal defense--John Wesley Hall's blog. I gave him my card at the NACDL conference.
simple justice--deserves thanks not only for support, but also for his provocative (but kind) criticism, which is more engaging than effusive adoration.
woman of the law--her last post is the reason I did not attempt real anonymity. I knew I could never maintain anonymity--who would blab? me! I made my name easy to discover so that I wouldn't fool myself about my identity being secret. The fact that I am identifiable makes me a) not have to worry about being discovered; b) makes me visualize the Bar Association evaluating every post; and c) also means I won't have to quit when someone outs me. Ha! I already outed myself!
gamso for the defense--English Professor turned criminal defense lawyer. Beautiful.
tales of a public defender investigator--an informative and insightful connection to the tribe.
not guilty no way--my newest blog crush.

One more thing. I've had a rough couple of weeks. I won't go into details, because that would involve whining, but suffice it to say, the last couple of weeks have been not just ordinary PD rough, but woman-on-the-verge rough (from my upcoming trial schedule, more than anything).

My friends at work have worried about the blog, worried that I am too outspoken, worried that I'll be punished or picked to death or fired. They probably also recognize my woman-on-the-verge look, and I know they are trying to protect me when they say, "I'm worried about you doing this blog."

At lunch-time yesterday, I shut and locked my office door, lay down across my client chairs, and tried to imagine how I could manage to juggle my next 5 trials and, oh, my 75 other clients. (I know: Revolutionary, heal thyself!) This isn't normal for me, but happens maybe every two or three years. Anyway, I was lying across my chairs, trying to talk myself off the verge, when I heard my iphone beep a message alert.

Best email message ever. Back from the verge.

I know my friends are sincere and thinking only of me when they say that they're worried about me doing this blog. All I can tell them is, "I worry about me if I don't do the blog."

(If you're wondering what I think of Mr. Adachi (total PD-Boss Super Hero), look here and here.)

The Care and Feeding of the Public Defender Soul

2010-04-02T00:54:00.000-07:00

For all you PD Bosses and Supervisors out there, a handy guide to tending the public-defender soul.

1. Ditch the "Supervisor" Label
First, may we herewith and henceforth forever ban the word "supervisor" in every public-defender office in the land. "Supervisor" is an awful word, implying that one must be watched, monitored, and disciplined. The label itself encourages complaints, demeans the supervisee as one in need of supervision, and often, I think, instills in the "supervisor" a psychological (or, sometimes pathological) need to supervise.*

Instead of modeling your leadership from the hierarchical supervisor system, fashion yourselves as "coaches." Professionals at the top of their games get advice and take direction from coaches who teach, encourage, and inspire--you guys can do that, can't you?

Bosses: Evaluate your "supervisors." Is she helping the lawyers or goofing around? Does she meet with lawyers before work to help with trial preparation and spend lunch hours brainstorming cases? Does she seek out cutting-edge issues from other jurisdictions? Or is she kissing your ass in order to keep her cushy job?

2. Encourage Us
Never forget the ridiculous crap we put up with every day: don't forget how hard a trial is; don't forget how obnoxious some prosecutors are; don't forget how crappy some judges treat us. Don't forget that we are often the only ones standing up for our clients' rights, and we are getting yelled at by everyone.

Remember how all of this shit-swallowing grinds us down, and then consider: how do I keep this person fighting? You keep this person fighting by saying, "Great Job!" even if it's just for filing a brief. Or by asking, "How on earth do you put up with that bitch?" Or even, "Will it help if I go to court and kick her?" Anything, really, that says, "Keep fighting, I know you're working hard under grueling conditions. I appreciate your efforts and so do your clients."

3. Be Engaged in Stretching the Practice of Criminal Law
Keep up-to-date on cutting-edge issues. Invite outside lawyers to speak or ask your own lawyers to present on an issue. Encourage attorneys to become become experts in one area of the law--this allows the attorneys to feel respected, and at the same time educates the presenting lawyer the other lawyers. Ask if lawyers have the resources they need. Don't be afraid to let your lawyers teach you something.

4. Explain Stupid Rules
Many of us are not good with rules. To generalize wildly, we tend to be big-picture thinkers who don't like authority. But don't give up. Rather than yelling at a lawyer for breaking a rule, try explaining why the rule exists, and why it is important to follow. Your ego may want to say, "You have to follow the rule, because I am your supervisor, and you have to do what I say!" But that macho-ego shit doesn't really work with us.

Instead of, "Dammit, you're late again--this behavior has to stop immediately!" try, "Hey, I've noticed your timing is a little off in the mornings lately, is there anything going on with you?" When the lawyer explains that he has been working all hours writing a couple of briefs that are due, you might say, "I know the long hours you've been working--your clients are lucky to have you. The thing is, the younger lawyers look up to you, and if they see you rolling in late, then they think it's OK, too. Since the briefs are finished now, could you make an effort to be here earlier? Take a long lunch if you need the mental-health time--you've certainly earned it. And shoot me a copy of your briefs so I can share them with everyone."

5. Create a Culture that Nurtures ~~Excellence~~ Kickassery
Know what success means--not a failure to get complaints, not an expeditious processing of cases, not the fastest guilty pleas--success in the public defender arena means garnering the best results for each client. Spend the time it takes to learn about our successes and talk them up. Notice the lawyers who are filing briefs, trying cases, or otherwise finagling fabulous plea bargains and talk them up.

Say "good job" to every single lawyer on a regular basis. If you can't find a reason to say "good job" to a lawyer, then you need to do your job by documenting the failures and letting the person go.

If you never say "good job," don't dog us with petty bullshit.

6. Give Us Due Process
An outstanding boss I know once said, "I wouldn't trust a lawyer who didn't get complaints from the prosecutors or the court."

You should assume nothing from the fact that you receive a complaint. You should have a standard procedure for handling complaints and follow it, making sure that no attorney feels singled out. If a complaint is legitimate, ask the lawyer how he would handle the situation differently next time. People learn from mistakes in a safe environment; people learn to resent you in a judgmental one.

7. Show Us You Are Fighting For Us
If the government tries to cut our funding, go in and fight for us, and let us see you doing it. Hold a press conference, make posters, start a media campaign. Don't give in without a fight. Don't accept additional responsibilities from the court or county without additional funding.

If the court or prosecutors are abusing one of your lawyers, go and raise hell. If you show us that you are willing to get in a fight for us, you will earn our undying respect. Sell us out to our detractors, and you may never regain it.

8. Don't Buy Into Judges and Prosecutors Smear Campaigns
Do you know who the judges and prosecutors bad-mouth? Not the lawyers who process their cases by pleading their clients guilty as fast as they can. Not the lawyers who do anything to avoid displeasing the court. Not the lawyers who make life easy for the prosecutors. Judges and prosecutors bad-mouth the lawyers who get in their way. Don't buy into the crap they shovel out about us for doing our jobs. In fact, it is your job to fight against their propaganda.

Either have a close relationship with your attorneys, and know what's going on with their cases, or leave the lawyers alone to do their best. But don't think you know what's happening by listening to gossip.

9. Encourage Our Creativity and Dedication, Rather Than Stifling It
The most important thing you can do as a PD boss is to nurture the public-defender soul--the emotional commitment to do the best job possible for each client. We are starved for appreciation and easy to coach if you keep the following factors in mind: treat us with respect (you know, like real lawyers); encourage us when we work hard or have a tough battle; comfort us when we are down; be patient with us regarding rules and explain their reasons gently; ask us what we need to help us be better lawyers and try to provide it; show us you are fighting for us; and back us up.

*(not talking about my current supervisor who is a super-nice guy, and exhibits no psychological or pathological need to supervise.)

Revolution is Patriotic!

2010-03-31T01:25:00.000-07:00

"Lawyers who accept our professional responsibility to protect the rule of law, the right to counsel, and access to our courts – even when this requires defending unpopular positions or clients – deserve the praise and gratitude of all Americans. They also deserve respect. Those who reaffirm our nation’s most essential and enduring values do not deserve to have their own values questioned. Let me be clear about this: Lawyers who provide counsel for the unpopular are, and should be treated as what they are: Patriots."

--Attorney General Eric Holder, March 19, 2010

What Kind of PD Boss Are You?

2010-03-26T01:37:00.000-07:00

Quizzes by Quibblo.com

But Why Are Jurors Coming In?

2010-03-19T02:30:00.000-07:00

One of the downsides of Trial Chicken, is that occasionally one ends up sitting with the client at the counsel table as the jury files in, thinking, Holy Shit, this wasn't supposed to go!

Since a not-guilty verdict should eliminate the attendant malpractice problems, I'll continue this confession, to comfort those of you who have found yourselves in this spot, or serve as a cautionary tale, or at least remind everyone to always stick a couple of yellow pads and a trial notebook in your briefcases.

No, I didn't walk into court and meet my client for the first time on the day of trial--it was a DV case--assault in the third degree, as close as you can get to a misdemeanor and still be charged with a felony--and I had interviewed the witnesses, who all agreed that no assault had occurred, but I burned up all of my trial preparation time writing a trial brief which I thought should and would result in dismissal of the case.(You'd think I'd know better by now.) Since I worked on my beautiful trial brief until 2:00 a.m., I slept as late as I could in the morning, and went straight to court, where I had arranged to meet my client.

Problem Number One: My female client was wearing a frayed sweatshirt and jeans, with rubber Croc-style shoes that had broken straps that trailed behind her like tails. I had discussed "nice clothes" for court with her, but I've learned over the years that "nice clothes" means different things to different people, and I usually make my clients show me what they plan on wearing to trial. But it didn't matter--there was no way the state was going forward with this lame case, and even if it did--the judge would dismiss it based on my motion (yes, I realized how stupid this sounds now).

Problem Number Two: The prosecutor showed up with a cop in tow. Which seemed strange, because why would she need a cop for a case that she was going to dismiss?

Problem Number Three: The judge would not listen to anything I had to say. I moved to preclude the state from calling my gal's husband as a witness for the sole purpose of impeaching him with otherwise inadmissable hearsay. I have refined my method on this motion over time, and had a certificate from the "victim"-husband, stating what he would testify to at trial, and my client and I were prepared to stipulate to all other elements of the offense in order to prevent the state from squirreling out of the rule by claiming that it doesn't know how its own witness would testify or that its primary purpose for calling him was to show venue or something.

I was a little surprised when the judge, looking weary and annoyed for having bothered to read my brief, said, What is the purpose of this motion? Isn't this just a garden-variety DV case where the victim recants and then the state uses the 911 tape?

Well, Judge, my brief cites the cases ...

I haven't had any other lawyers bring this motion in my court.

Oh, the things I wanted to say. Finally, I managed, I don't know quite how to respond to that, Judge--I've supplied the court with legal authority, both state and federal, for my motion, and I am asking the court to analyze the facts according to the law rather than what happens in this courtroom every day. If the court has contrary authority, I'm sure it can provide it to the state, and then the state can argue against my motion. (I imagine you can see where this was going ... )

Problem Number Four: I didn't have any notepads. I normally have a couple of yellow pads in my giant brief-case-y-purse-thing, but I had driven over to a CLE in Seattle on Friday, and my briefcase only had the CLE notebook and my case file in it. Luckily, though, the pages of my brief had two sides:

While the bailiff went to round up the jury panel, I ran down the hall to the Conflict Public Defender Office, which still has its office tucked in the corner of the courthouse. (Ten years ago, our office was in this same space, so I still know the nice ladies there--and where they keep their candy.) The nice ladies let me rummage through their client closet until I found a cream-colored satiny blouse, which I made my client change into in their file room. (As I am writing this, I am a little horrified at how my client must have felt through this scrambling, but at the time there wasn't any time for freaking out, we just had to get shit done.) I persuaded her to let me braid her hair, and we were ready to go back in the courtroom. I even realized that I could use the CLE notebook for a quick trial notebook. I checked the cover to make sure that it didn't refer to the CLE I had been to, but it looked fine:

OK, maybe "Continuing Legal Education" wasn't ideal, but it was better than the trial cyclone my uncontained papers would create.

As in every trial, many, many funny things happened, but my favorite was a question my client asked me on the second day: "How come the judge sleeps only when you're talking?"

We finished closing arguments at 5:00 p.m. on Tuesday, and I had another trial to start on Wednesday at 9:30 a.m. I stayed up almost all night, again, writing a trial brief, this time to exclude the 911 tape, which was the only evidence the state had in a brother-on-brother fight involving a guitar.

The second case was assigned to a different judge. The new judge said, "Thank you Ms. Defender, for providing the court with this trial brief and the transcript of the 911 tape (which took me forever to type). I know you just finished another trial, and probably had to stay up late, and I appreciate your efforts as I'm sure your client does." Now, this same judge sometimes thanks the in-custody clients for coming to court, but at that point I was so grateful to be treated with respect that I almost cried.

The new judge excluded the 911 tape and dismissed the case (this is how trial chicken is supposed to work), just in time for the first judge's bailiff to come and find me and tell me that the jury had a verdict, which was, as I mentioned, not guilty. Best trial morning ever.

After the verdict, I was rearranging my materials in my briefcase, and pulled the trial notebook out, noticing for the first time the message on its spine that had been facing the jury the entire trial:

I'm really glad I saw that only after the verdict, or I might have shot myself. A not-guilty verdict can cure a lot of fuck-ups, which is why you learn a lot more from the trials you lose and subsequently beat yourself up over. But this particular fuck-up did give me a good idea for my next trial:

I love this rock; I love this rock ...

2010-03-17T02:00:00.000-07:00

Back-to-back trials this week: one jury out and I start picking a new one tomorrow. At least I'm all warmed up!

Will Not Brake

2010-03-11T02:37:00.000-08:00

Sometimes it's worth coming to work just to read the police reports. Yesterday I ended up crawling around under my desk, due to a missing evidence DVD. Instead of the DVD (which I found later in my car's CD player), I found an old police report that had somehow escaped my tidy drawer.

The paragraph circled in red reads:

"I then proceded to the assault in progress running code (emergency overhead warning lights activated). While traveling west on Ford-Wellpinit Road at a high rate of speed of approximately 80 mph or more I encountered a large Porky Pine in my lane of travel."

(Just in case you think I mis-typed some of the above:)

"At approximately one hundred feet or less I attempted to scare the animal off the road way by using the siren/horn. This attempt failed causing the animal to stop and look directly at me, as it appeared to stand up."

"I struck the animal with my patrol car and it seemed to be stuck under my vehicle for a short distance then it became free from my vehicle. I advised dispatch of the collision and continued to monitor my gauges, which did not indicate any signs of serious damage."

No, Mr. True Purr, I'm fairly certain Mr. Pine got away.

SIGNS YOU'RE DOING SOMETHING RIGHT

While I was crawling around under my desk, a friend came into my office, to make sure I hadn't completely lost it. I showed her the Porky Pine story, which reminded her that she had recently found some old papers stuck in the back of a drawer.

This first picture is a sign her 9-year-old daughter (now in graduate school) drew while waiting for her mom's first jury verdict. The sign reminded me when when my own (then six-year-old) daughter came into the house crying after a walk with a friend and the friend's dad. She told me that they had seen a man offering to work because he didn't have any money. (I wanted to ask, Exactly why do you think I go to work?) She said that the friend's dad told her that the man was offering to work because he was poor, and didn't have enough money to buy food and clothes for his family. (Or he needed to fuel his meth habit, I refrained from adding.)

Figuring that this was a moment a good parent would capitalize on, I said, "It's true--some people are poor and don't have enough money to have a home or feed their families." Then, feeling a bit righteous, "You know, a big part of my job is to help poor people."

"Yeah," she said, crossing her arms, "When they kill other people!"

My friend's daughter, a more mature age eight, had a precocious understanding of the beauty of the words "not guilty" and "jail break":

Next is an after-school project made by the same gal's son, then 8, with the theme, "Things I Like." On first glance, the work seems, while adorable, fairly typical--"My pet bird is a parakeet," and "In my free time I like to play with my friends and play soccer," and "The thing I like about school is math because I like to do it." But the pink corner is worth checking out:

"The Thing I like about myself, I'm not a Republican."

WHAT'S MY JOB IN COURT?

2010-03-11T01:00:00.000-08:00

I also found under my desk a large glossy booklet I had ~~stolen~~ accepted as a free gift from the lobby of the prosecutor's office. It is also possible that I accepted three or four of these, but purely in the name of continuing legal education.

This booklet, designed for children who are forced to testify in court, is a creepy combination of propaganda and games. At least it's fairly honest about the prosecutorial function. (click to enlarge)

I think I should invite the book's illustrator to our Friday Pre-Trial docket, because the following picture appears halcyon by comparison. Friday Pre-Trials ("the crazy docket") are held in a courtroom with a capacity of 50 people despite the fact that 200 people need to be in the room. The fire marshall has shut it down before, and there is a lot of mooing as cranky lawyers try to push their way through the crowd.

The best part of the booklet, though--definitely in the attractive nuisance category--is the game board and game pieces. I hoped that if I played, I could finally find the answer to "What's My Job in Court?"

So I cut the pieces out:

We have 12 Superior Court (our felony court) Judges in This Here County and there are 12 game pieces. Coincidence? I think not.

Velcro will help keep all of the judges in their places!

I think they look happy, don't you?

Finally, we can all agree upon rules for the game, publish these rules in an impressive treatise, and then play the game, even though some of the players refuse to read the rules. Almost as fun as real life, but without the mooing!

Chicken Shit Bingo, and Other Stories

2010-03-04T00:56:00.000-08:00

I know: I abandoned all you lovely public-defender types last week. In my defense, I'd like to say: I didn't mean to; I couldn't help it; and, it was Austin, man.

I started my Austin trip wide-eyed and brimming with good intentions. I arrived a day early to catch some of the Texas Indigent Defense Summit on Wednesday, the 23rd. My agenda for the week envisioned inspiring and informative seminars during the day followed by quiet evenings in my hotel room. I planned on having a couple of pleasant dinners with old friends from The Daily Texan (I went to undergrad and law school at UT), but mostly I planned on spending my evenings holed up in my hotel room, reading and writing. Reading and writing are what I like to do.

Regarding my friends from college, only two are left in Austin: Lee Nichols, who writes about local politics for the Austin Chronicle and Scott Henson of Grits for Breakfast. Scott isn't featured much in this story, except that I did have a fantastic dinner at his house--not only are Scott and his wife my heroes in terms of the criminal justice reform legislation they have spearheaded in Texas, but also because Scott makes a fine vegetarian lasagna.

Lee, though, is a prime example of how Texans can fool you. On first glance (and second, third, and maybe fourth), Lee may seem an ignorant redneck--he has all the earmarks: a drawl so slow it says, "I moved to Austin from a very small town"; a penchant for cowboy boots and Western shirts;

(This is a picture of Lee and his purely platonic friend Bret on the morning after Lee's birthday in 1993, the year I graduated from law school. Notice the cat.)

and a pithy way of expressing himself ("The first thing I noticed about my wife when I met her was her tits"). Lee is also one of the happiest people I know--he knows what he likes--Austin music, beer, and writing; he pursues the things he loves with zeal (please check out his blog i-love-beer.blogspot.com; he is an ardent supporter of public transportation; he obviously adores his wife (and her, um, tits) and she him; and he managed to produce children with burnt orange hair:

Lee covers local politics for the Chronicle, but was its music critic for 12 years until marriage and children made staying out until 2:00 a.m. every night a bad idea for kids' schedules and his own survival in the adorable marriage.

Also joining me was another lawyer from Spokane, Tim, who I didn't know that well before this trip, but who had been to Austin five years ago and sufficiently impressed me with his love for Austin music (and beer) that I thought maybe he should meet Lee.

But back on Wednesday, my first day in Austin, I went to the capitol and took a few pictures of things that interested me, and attended the tail-end of the Indigent Defense Summit (more on that later).

What was worth taking a picture of at the capitol? Ann Richards, of course, smiling in the Gallery of Otherwise White Males (which reminded me, in a small way, of my first felony lawyer meeting, many years ago, when I noticed that not only was I the only woman at the meeting, I was also the only one who was pregnant and wearing a plaid jumper with a velvet bow on my belly--naturally, I began singing, "One of These Things is not Like the Others!")

My modest plans to attend, relax, and read, were intact until I got a text to meet Lee at a bar called the Gingerman, known for having about 100,000 microbrews on tap.

I also got a text from Tim, who I invited to join us, because as much as I love Lee, I don't have that much to say about beer, especially since I don't drink it any more. I don't know if it was the 7 types of beers they drank or the colliding of soul mates, but Lee and Tim launched what I anticipate will be a life-long Bromance. Aren't they cute together?

(This picture is from later, at Chicken Shit Bingo, but I wanted you to see them)

I also have to say about Tim, that my plans for more studious endeavors might have been safe if he had managed to be a little more annoying. Tim, though, turned out to be not only an Austin-nut, but also the perfect travel companion: he was unflaggingly chipper (even after Lee abandoned us the first night somewhere in the middle of Austin at 1:00 a.m. (running out of the bar, "Oh shit, I've gotta catch my bus!" (remember how he loves public transportation? I am starting to hate it)) whereby Tim and I ended up walking three miles back to our hotels, giggling all the way back about the absurdity of our abandonment; Tim was also always hungry for good food; would go anywhere to hear live music; and never once made a pass at me (for which I'm sure his wife is grateful, but let me tell you that all married guys are not so well-behaved).

That walk back was probably where the tide turned. I got a few hours sleep, but made it to the seminar bright and early, but with a fuzzy headedness (even though I don't drink anymore) that reminded me vividly of college. And I thought to myself: If I just go back to my room at lunch, I can get in a solid two hours of writing, and be all caught up. It was a great plan. I was resolved to follow it.

My resolve lasted until Tim said, "How about some BBQ for lunch? You know any place good?" Do I know any place good?? Of course I know a place good, and that place is Sam's--on the wrong side of the highway, owned and operated by the same African-American family since the 1980's, and by another family before that. I'd be damned if I'd let Tim, Kari and Renee (also from Spokane) go to Sam's without me!

And so we went to Sam's.

We were unfortunately too early for the ribs, which did momentarily threaten Tim's chipper demeanor, but he soon discovered Brisket, and all was good.

The bags of water keep flies away.

After the BBQ, I gave up. Something about the brisket, coleslaw, a liter of iced tea and banana pudding stuffed on top of all that lead me to say: Screw blogging. After an afternoon CLE session spent mainly in food coma--OK, I am lying, After a nap, the next stop was the Continental Club, where the Mother Truckers were playing.

The Continental Club is old-school cool, and everything I love about the Austin Music scene. If you don't know what you are looking at, you will misjudge it--it is tiny, dark and dank, the bathrooms are gross, and it is one of my favorite places on earth. Ages range from 21 (ish) to 100, dress is laid-back, and if you didn't know better you might just think it was a crappy hick bar.

But if you do know better, you'll know that the Continental Club caters to a crowd as sophisticated in its music appreciation as it is informal in its presentation of the music. That's what I love: the casual presentation of outstanding music and the ultra cool vibe, but also the way you can stand right next to the stage, you can dance or move around, and basically transition that food coma into a music trance.

About the Mother Truckers, Tim and I are still in a fight about who loves the lead singer, Teal Collins, more; I say I win, because I do love her more, and Tim doesn't have a blog. Lee persuaded her to pose for a picture, saying, "My wife would love that dress! It would really show off her (me sending by telepathy: please don't say 'tits,' please don't say 'tits') figure. Can I take your picture?"

So sweet in her little sun dress, but, man, that girl can rock:

In fact, my lame iphone photos aren't getting her full deliciousness across, so here is a YouTube video of the Mother Truckers Love Me Like a Man (oh, yes) filmed at the Continental Club, pretty much from the same place we were standing, right by the bathroom doors:

And here they are again, because I can't help myself, singing Save My Soul (this clip is from Seattle, but the deliciousness factor was too high to pass this one over)

As a freshman at UT, I stumbled into the Daily Texan offices, much the same way I stumbled, years later, into a public defender office. I had initially planned on majoring in Studio Art, so I chose the Arts and Entertainment department of the Texan. My first assignment? To write an article about Happy Hours near campus. No one seemed to care that I was 19 years old. Bret, the guy passed out on the bed with Lee in the first picture, who took to calling me "Winky" that day because my last name was a challenge, pushed me out the door, and told me to start with the Hole in the Wall, which is right across the street from the Daily Texan offices.

I remember walking by its door at least 10 times before screwing up the courage to go in. And it was probably another 30 minutes before I convinced myself to talk to the bartender. A few years later, the Hole in the Wall was my regular hang out.

Of course, there was a stage for live music, and the venue has now doubled in size.

Look at how cool their juke box is. It used to be free, but really, who cares? The selection is outstanding.

There was a kid taking our pictures while we flipped through the pages on the juke box, his attention probably attracted by me jumping up and down and clapping my hands whenever I found a song that had been there 20 years ago. The photographer was from The Texan, writing a story about the Hole in the Wall, and was sweet enough to act like he cared that I had once worked there.

But then a picture of Doug Sahm caught Lee's eye, and Omigod, Tim didn't know Doug Sahm, and I just danced by myself while Lee and Tim were all Doug Sahm, bla bla bla greatest ever, bla bla bla ... Did I mention that Doug Sahm is the official Patron Saint of the Hole in the Wall?

Here's a funny game to play with Lee. Give him about 4 large beers, and ask him who Doug Sahm is. And then wait until he stops talking, about 2 days later.

The final full day, Sunday, promised Chicken Shit Bingo, held at Ginny's Little Longhorn every Sunday afternoon around 4:00.

As Lee explained it, "You just can't beat a bunch of drunk people yelling at a chicken. That's just good entertainment in these parts." For me, the good entertainment was in the pre-show: again, live music at 3:00 p.m. on a Sunday! dancing, picture taking, and even a tailgating party in the parking lot. Here's Two Hoots and a Holler playing at Chicken Shit Bingo last Sunday:

And here is the anticlimactic video of chicken-shit Bingo, featuring a cameo of Ginny, the bar's owner, and her low-key management style:

All of this just goes to show--if you know how to have fun, you can make anything fun, even watching a chicken that apparently does not need to poop.

Do you like the way I casually mentioned that I stopped drinking alcohol at the beginning of this travelogue? This post isn't about me not drinking, except maybe it is. I drank too much, even back in college, and it only got worse as the years as a public defender wore on me. I know a lot of you out there are like I was, because I work with all of you. I know how it is, and I know what it's like. I used to think I couldn't stop, or I could never want to stop enough, or life would suck once I stopped.

I'm not going to lie: the first year kind of sucked. But it is the best thing I ever did. Look at me in this picture with Lee--I can even tell by that picture that I was having a great time. Because even without a lovely beer to smooth things out, if you know how to have fun, you can make anything fun, and you can even remember it the next day.

BONUS JOHNNY CASH ACTION FIGURE CONTEST:

As penance for abandoning all ya'll, I hereby offer the following contest to win this beautiful Johnny Cash action figure, purchased at Waterloo records, the best record store in the world (casing slightly crushed from travel, doll unscathed): Johnny will go to the best submission of an Overheard at the Public Defenders' Office story (for examples of these stories, see here, here, and here, or here for the original overheard in New York site). Deadline: Friday, March 12th at midnight. 250 words or less. I'll announce the winner on Monday, and post as many submissions as I can. I reserve the right to edit for style, content, or my personal whim.

Back Tomorrow!

2010-03-02T12:13:00.000-08:00

I just got back from Austin late yesterday, and there will be a new "Austin-ish" post tomorrow, and then on to serious stuff for the rest of the week. If you have commented, emailed, or asked to join the Facebook Group, I'm working on getting back to you ... Let's just say that I now remember why it was so damn hard to get to my classes when I went to UT. Until tomorrow, then, I leave you with this moment of Zen: Still Life with Banana Pudding and Hot Sauce, Sam's BBQ, Austin's East Side--

The Revolution Needs Lawyers

2010-02-19T02:29:00.000-08:00

Six years ago, when a judge ordered me to conduct a trial for which I was not prepared, I was shocked. The judge's order came at a time I now recognize as a transition--a more dignified court (in general) that treated lawyers and trials with respect was giving way to a bench fixated on the processing of cases over legal scholarship or justice. Up to that point, I had always known if I said the magic words, "I am not prepared and cannot provide effective assistance of counsel," I would be given more time to get ready. It's not that I used the magic words frequently--I don't think I had ever used them on the day of trial. Before that day, I knew that a judge would respect the fact that I had conducted over 100 jury trials, and that when I said I wasn't ready, I wasn't ready. And if I wasn't ready, it would be unconscionable to order me to trial.

A few months before the judge ordered me to trial unprepared, a friend had persuaded me to join the Washington Association of Criminal Defense Lawyers (WACDL), which has traditionally been an organization for private attorneys, with public defenders welcome. Like many PDs, I’m not much of a joiner, and I’m cheap. But my friend made a convincing case: that the WACDL list-serve alone was worth the price of admission, that WACDL would provide strike-force lawyers to assist members in sticky situations, that there was a prosecutorial misconduct committee, etc. I grudgingly paid my dues, but without high hopes of a return on my investment.

As soon as I joined, my county email was flooded with WACDL emails from all over the state—smart lawyers talking about current issues, posting briefs, and answering questions. I was impressed if overwhelmed by the email barrage, but also found a welcoming defender community, even wider than the one in my large public-defender office.

My joining WACDL coincided with the Great Unpleasantness I, a time in my office when the felony lawyers were outnumbered by the prosecutors 2 to 1, we had too many cases, and the trial treadmill was killing us. As I mentioned earlier, a few months after I joined WACDL, I found myself in a situation where a judge ordered me to proceed to trial even though I had made a clear record that I was not prepared. The case was a vehicular homicide, and my client a 18-year-old who had never been in trouble before, and who (not that it matters) was innocent. The case was admittedly quite old, but the accident reconstruction was complex, I had filed a motion to dismiss, and, oh yeah, I was in trial all the time. When I interviewed the medical examiner 10 days before trial, thinking the interview was pro forma, I found out that, in addition to the other 10 reasons my client was innocent, the hospital's negligence had killed the 90-year-old deceased, rather than the accident. I tried to build a medical malpractice case in three days, but it didn't happen.

When the judge denied my motion to continue, I was dumbfounded--the judge had just been appointed to the bench and had never practiced criminal law, but I didn't know what to do when he said, "I understand why you are not prepared, Ms. Defender, and I find it is not your fault, but the citizens of Washington have the right to have this matter resolved, and you have to start the trial on Monday." (I can't figure out how to make footnotes in blogger, but a footnote should go here because this judge has, over the years, unfailingly proved to treat lawyers and clients with dignity and respect. He is the one of the few judges who doesn't treat us like wayward, ignorant children.)

After trying to reason with the prosecutor in the hallway (Me: "You don't want this case back on appeal--go talk to the judge with me." Him: "The court of appeals will just find that this is another of your tactics!") I walked back to my office, stunned. I posted a panicked email to the WACDL list, and received support and advice from across the state. Look, I found the email:

After considering the advice--most of which was to proceed with trial while making a careful record--I decided that I was going to refuse to conduct the trial. This post isn't about that decision process (because many of the factors were case-specific), but my philosophy can be summed up by the "You Can't Make Me" icon: You can't give me too many cases, too many clients, too many prosecutors, and then tell me I have to conduct a farce of a trial when you know I am not ready. A system that will force me to betray my client by failing to represent him adequately at trial, is a system I won't play along with. You can't make me fail my client.

More desperate emails ensued, because refusing to do what the judge ordered could be contempt of court, and there was some concern that I would be put in jail. Whatever, I pretended not to care, I could use the rest. As I surveyed this dire situation, I finally realized, I need my own lawyer!

A WACDL member (David Blair-Loy, now of the ACLU in San Diego) agreed to act as my lawyer when I refused to conduct the trial. We spent the weekend preparing documents: we had my list of open cases and several prosecutors'; my recent trial schedule; affidavits from lawyers who had seen me working every weekend; an affidavit from a lawyer who reviewed the vehicular homicide file and stated in his opinion the case was not ready for trial. I prepared an affidavit stating my position in detail. Additionally, my lawyer prepared a brief opposing any potential contempt finding.

What happened? The judge backed down on the day of trial and gave me 6 weeks to get ready. The newspaper wrote an editorial based on the documents I filed. Our office got more lawyers. I won the trial. Another WACDL member nominated me for an award. I ended up serving on the WACDL Board of Governors, and observed some outstanding features of that organization that will help our revolution. One of WACDL's outstanding services was to provide lawyers for members in potential legal trouble for asserting the rights of clients.

Before this incident, I had never had a lawyer, but I found my lawyer's presence was a tremendous comfort--in addition to the legal help--my sanity greatly benefited from knowing that I had a smart person by my side whose job was to protect me and to kick me when I needed to shut up. I remember thinking, Wow, I am a client now!

I'm sorry for the long back-story here, but I wanted to share my basis for asserting that a lawyer can help you in a situation where you are obviously in the right and can back your position with facts. I don't think it's too much of a stretch to say that Public Defenders, either individually or jointly, refusing to accept excessive caseloads are in an analogous situation.

We have to refuse excessive caseloads, and to do this, we have to be bold, but smart. First, we already have powerful legal authority to support refusing excessive caseloads--ABA Formal Opinion 06-441 not only permits us to refuse to accept too many cases, it requires us to refuse them when the excessive nature prevents effective assistance of counsel. (Believe me, in my trial-refusal situation, I would have loved to have authority that said I was ethically required to refuse to conduct the trial; I did not.)

Next, we need to make a clear, documented record that the caseload is excessive. I'm going to do a sample analysis in the next post in this series, but this record will involve not only the raw number of cases (unless it's some completely crazy number), but the types of cases, support staff, number of investigators, travel time to jail and court, comparative number of prosecutors, plea-bargaining practices, and other factors.

When refusing additional cases, we should also get an expert opinion from an ethics professor and/or a statement from an organization like NACDL to support the refusal to accept cases. I hope to recruit a number of criminal law and ethics professors who are willing to assist us (Hello, professor--if you are reading this and willing to help, shoot me an email frayedknotpd@gmail.com--it would be most appreciated).

Then, when we say, "You can't make me!"--whether we are making this point to a compromised boss, or a court, or a department of assigned counsel, we need to have lawyers with us to help enforce not only our client's right to have effective assistance of counsel, but also our right to render it, and to show that we mean business.

Yep, we can!

Gallery of Acquittals

2010-02-18T02:03:00.000-08:00

I am finishing up the next post in the How to Be a Public Defender Revolutionary series, but my eyes are crossing (very, very late), so I'm not going to post it tonight, because I have no idea what it says any more. In the meantime, I've added a Gallery of Acquittals to the left sidebar. Send in your Not-Guiltys, and I'll make something pretty for the gallery.

Be Mine Magic Man

2010-02-15T02:38:00.000-08:00

The greeting card companies have failed to produce a line of cards suitable for public defenders, who have a unique combination of dark humor and sappy sentimentality (or maybe that's just me). These valentine's cards are for all of you public defenders out there--not specifically PD-themed, but more something that your PD-Love would appreciate.

I wanted to make something with the "Live What You Love" slogan, in a sort of '70s way, but with a PD theme. The best symbol for PD work I could come up with was a silhouette of a lawyer talking to a jury.

Somehow, the image wasn't quite right. The truth is, I kind of hate trials. Or I hate them until they're over. Then, if I won, I loved every minute of it; but if I lost, I still hate it. So, this is better:

Ever had one of those weeks? You know, the kind where the jail won't let you see you client in the contact room due to non-existent "safety" concerns; the court sets its own motion to continue a trial date, denies its own motion to continue, cancels its vacation due to the denial of its own motion, and then implies that all of this is somehow your fault? This would be a nice card to get during one of those weeks:

This one is for the ladies:

This card is to thank the DUI lawyers for handling these complex yet tediously similar cases, because I never did totally understand that damned machine.

This card is for the gal who does my filing for me as a favor, or when she fears I might be killed by a stack of paper. I thought I had been fired last week when I walked past my office and it looked like all of my stuff had been removed. In reality, she had done my filing. :)

I Can't Get I To Do It

2010-02-11T00:54:00.000-08:00

The lawyer across the hall from me, "Old School," let's call him, has been a public defender forever. How do I know this? Because he still has this ashtray in his office that he had in, like, 1900, when he first started as a PD in This Here County. The ashtray both frightens and entices me:

Like, what is up with that round, knobby thing? And if, as I suspect, it is used to open the ash chamber, what might one find therein? Yikes!

Old School had a client lo these many years ago, who was charged with several bank robberies. The client was respectful although not that bright, but wanted his lawyer to see him as serious and educated. This desire caused the client to employ some odd speech patterns, because even though he was serious, his education was, um ... unfinished. For example, when Old School asked the guy to describe the physical scuffle in the case, the guy said, "I was on the ground, and the man came and put his hands on me, and so I powered him off of I."

Old School was having a hard time with the guy, because the guy kept turning down a deal for 2 years, and wanted to risk about 20 years on a loser trial. Old School would explain and explain all the risks and consequences, but the guy would just shake his head, "No."

"Why," Old School implored the guy, "Why won't you take this deal?"

The guy would just look down at his cuffed wrists, shake his head, and say, "I just can't get I to do it." Over and over again, "I can't get I to do it," all the way to prison.

Thus emerged what we say in our office when there is something we should do, need to do, even must do, but can't. "I should go to the jail now,” you say. “I don't have anything else going on, and I have three new clients I need to see." And then you shake your head and say, "I just can't get I to do it."

I've been meaning to post the next installment in "How to be a Public Defender Revolutionary," because I believe we have the tools to stop a lot of this excessive caseload nonsense, but I've been buried in bureaucratic bullshit this week, and I can't get I to do it.

For one example of said bureaucratic bullshit, after 17 years of not giving a hoot about whether I live or die, the jail (or Detention Services, as it recently renamed itself) has suddenly (and purely coincidental to the fact that the sheriff wants a new jail that the budget threatens), become so concerned about my safety that I can't possibly have a contact visit with my murder client to review a video of his "interview" because the jail's facilities are suddenly not safe.

"But I have a court order," I say.

"We will not honor the order," the jail person says.

"You know, a court order is not like a reservation or a suggestion," I say.

"We can't compromise your safety," jail person says.

After I decline the jail person's offer to arrange a meeting in one of the courtrooms, with just a couple of guards "way across the room," I make a counter-offer, "I guess I wouldn't mind jail guards being present during my meeting with my client if I you allow me to use my pencil to perforate their eyes and ear drums first."

As much as I like a righteous fight, this one is stupid: the jail wants me to set a hearing to force a contact visit in order to obtain press coverage about the inadequacy of their facility. I say, "How about instead of me being a pawn in you guys's pissing contest, you let me see my client on the down-low, and then you jail guys and the judges can sort this out, and stop wasting my time. " Grrrrrrr.

Anyway, tomorrow is public-defender valentine day, and I'm not going to miss that PD paraphernalia opportunity! So, revolution next week, PD Valentines ~~tomorrow~~ Sunday. And no valentine for you, Detention Services.

Yep, I can get I to do it!

Public Defender Bumper Stickers

2010-02-09T01:56:00.000-08:00

Because every revolution needs its Bumper Stickers:

Done Yelling

2010-02-08T12:07:00.000-08:00

A quote from a burned-out PD has been bugging me since I read it in an article I referred to in an earlier post--the article is "An Essay on the New Public Defender For the 21st Century" by Harvard Law professor Chargles Ogletree. (Westlaw, can't link)

"Public defenders from across the country," Professor Ogletree wrote, "offer painful testimony of the physical and emotional toll of doing their jobs. They tell of losing their motivation to be a crusader because they have become jaded, disillusioned, or cynical about the work of public defenders. One public defender described her feelings as follows:

'When you become a legal aid lawyer, you think that you are going to be the champion of poor people who are dying to meet you, who are thrilled with your representation, who are innocent victims of society, who are indigent. And then, slowly, these ideals get chipped away.... Slowly you begin to realize that maybe this prosecutor is not railroading every client, and that maybe, in some cases, your client is guilty.'"

I read that and thought, Really? That sounds like an aberration of a PD, rather than representative. I mean, it's not that I don't know that some of my clients are guilty, it's just that I don't care if they are or not. Everyone out there feels this way, right?

Then, in one of the first comments I received on this blog (sorry I didn't respond to your comment, Jamison, but I've been thinking about it, and BTW, the second half of your comment made me completely pissed at this type of judge, because it was so horrible and also so typical, and is still rattling around in my head for an appropriate post), a former PD from Philadelphia wrote,

"I remember sitting in my office with my former office mate just a couple of months before he left for private practice. He was a good, committed, effective lawyer and also a die-hard, do-good liberal. He had just gotten off the phone with a client. I could hear just one side of the conversation but it was clear that the client was mad at him for something. He put down the phone and looked at me. 'I have gotten to the point where I absolutely hate our clients,' he said. 'It is time for me to leave.' He was gone three months later."

***

In my first years as a public defender, in a PD office on the coast, I represented a manipulative-type guy on a couple of forgeries. For some reason, I remember that one of the lawyers in my office had dated him in high school. I didn't hate him or anything, but I found him annoying--equal parts demanding and needy. Fortunately, I was able to resolve his case with a quick plea bargain, but he had a number of prior felony "points," and we disputed the validity of a few of them. He also had a federal case, and I had been in touch with his federal public defender, who wanted to know the outcome of his sentencing.

At the plea hearing, the judge unexpectedly placed the burden to disprove the validity of the prior convictions on me, then denied my motion to continue the sentencing hearing, but finally, after much whining, gave me until after the noon break to get the needed documents. I spent the lunch hour shoving my Cheetos money in the microfilm machines. When we were back in front of the judge, I had the right documents and made my objections, but the judge ignored my arguments and proof, giving the guy a sentence that was too high, but probably not worth appealing. The guy was a total ass to me about it, calling me names--shitty-ass public pretender!, if memory serves, and it does--as the guards took him out of the courtroom.

Later that day, his federal defender called. "How'd it go for Mr. Forger?"

Laughing, I said, "Oh, Mr. Forger had a pretty bad day today--the judge screwed him and gave him 22 months instead of 15."

"You don't seem to care about what happened," she said.

"I did care ..." I was taken aback by her calling me out. "I spent my lunch money on him ... and I was laughing because sometimes we laugh just because things are so awful ... and the guy was an asshole, anyway."

"He still deserves effective assistance of counsel," she said primly.

"Well, I'm sure he will get that from you," I said, and slammed down the phone. I was pissed. I didn't deserve what she said--what a judgmental bitch.

***

A couple years after the forger incident, I had a client on a first assault charge, with a pretty good self-defense claim, except for the fact that my client was caught in the act of stealing a woman's purse out of a parked car, and the man he stabbed was one of the citizens who caught him stealing. Who happened to be 92 years old. And got stabbed in the heart. No case is perfect, right?

The kid insisted he was defending himself when he stabbed the old man; he was so adamant about the self-defense that I didn't doubt that the kid was afraid when it happened. I couldn't get him to understand, though, that the jurors might see the situation differently than he did. No matter how many times I urged and explained, I couldn't get him to see his situation through the jurors' eyes.

As I prepared for the trial on that case, I realized my job was more about getting the jurors to see the situation through my client's eyes than vice versa. This simple realization had a cascading effect in my mind, and caused many thoughts about my job and my clients to coalesce, and, more importantly, gave me an idea for my closing argument.

In my closing, I told the jurors how, when I was new public defender, I would fight with my clients all the time. They would complain that I wasn't visiting enough, or that I wasn't working for them, and I would think, What the hell is the matter with you? I'm working 12 hours a day, buying you trial clothes with my Cheeto money, and not selling you out. Why can't you treat me with the respect I deserve!

I told the jurors that one day I realized, Maybe I need to think about what was happening from my clients' perspective. How would I feel if I was locked up in a cell by the government, and then the government gave me a lawyer who I was supposed to trust, even though I didn't know anything about this person? How would I feel if I went a couple of weeks without hearing from my lawyer? I knew how I would feel. I would feel afraid.

After that, I told the jurors, my answer to a client who was ostensibly disrespecting me changed to something like: "I don't blame you for feeling stressed; I'm sure I would too if I were in jail and didn't know who I could trust. I get it. But let's talk about your case and see if we can make some progress."

This client story transitioned into self-defense, because the law told the jurors to judge whether my client was defending himself from my client's perspective, not from the viewpoint of the stabbed people (did I forget to mention that two citizens were stabbed?), or from their own judgment. Because if they looked at the situation from the citizens' viewpoint or from their own, they would think, That little punk, he's a thief and doesn't deserve to be in this courtroom--in fact, he should be stabbed right now!--but if they looked at it from his perspective--a dark parking lot, and he was wearing headphones, and then suddenly two people attacked him, knocking his glasses off, and even after he dropped the purse, they still came at him as he lay blinded and deaf on the ground (I know, it's a little much)--they would be able to feel his fear. And like my experience, if you only look at something from your own point of view, you'll be the one who is blind.

***

I heard a lawyer yelling at his client in one of the attorney booths in the jail the other day, and it made me cringe. I cringed not because the yelling was so awful, but because I thought, I think maybe I used to do that, too. Sometimes the treatment we receive by the clients, the court and the prosecutors is pretty outrageous, and it can be nice to yell at someone to vent, and then leave them in jail while we go home, vented, to our families. All full of vim and vigor, the occasional yelling used to be part of my tough-gal lawyer act. I'm going to make you understand why I am right and what you should do! was the underlying attitude.

It's kind of a long story, but a couple of months ago I needed to talk to an entertainment lawyer. Through a friend of a friend, a big-shot Hollywood lawyer agreed to talk to me for free and give me a few pointers. He talked to me over his lunch hour, and (can you believe this) some lawyers charge money for advice, so it was very kind of him to talk to me. I have to say, I was pretty whiny and pathetic, feeling very out of my element. The lawyer guy was quick, funny, all brash and annoying bravado, and he kind of yelled at me. It wasn't mean yelling, more good advice combined with "don't be an idiot" and caring exasperation--like we sometimes yell at our clients. OK, I specifically remember him yelling, "Are you really this fucking naive?"

After the phone call, I wasn't devastated or anything, but I remember thinking, Now that really wasn't necessary--and it made me feel kind of bad. I mean, I'm relatively smart and open-minded about advice, so why yell? The yelling made me feel slightly stupid and, for lack of a better word, yucky. I wish I had said to him, "I used to yell at clients like that before I gained more finesse."

***

I'm not sure what combination of experiences led the lawyers at the beginning of this post to hate their clients--probably the disrespect from so many corners and then the one person they're trying to help busting them, too. But I was really surprised by that attitude. Because the clients are what keeps me here. I'm not trying to say I'm all that--I'm not sure what kind of badge it is that I like addicts and criminals so much--but I've gone through some on my own changes over the years.

Maybe the only reason I can empathize with my clients is that I know what it's like to fail; I know what it's like to disappoint; I know what it's like to face temptation, and say, "HELL YES!" I know what it's like to screw up my life to a point that it seems unsalvageable; but I also know what it's like to surprise myself; that when you get to that lowest point--you're either going to give up or fight. I know that the people who think they are immune from bad luck and failure are the biggest and blindest of fools of all. Our clients know more than we think, and they will recognize someone who will talk straight and who knows when to empathize and when to call bullshit.

The Attractive Nuisance Defense

2010-02-05T20:39:00.000-08:00

All Out Of Serious

2010-02-04T01:45:00.000-08:00

Here they are: Cards for the Public-Defender Occasion. Print your own, and then save your weary breath from answering all of those worn-out questions!

How they try to dash our plea-bargain dreams with their pesky "policies," such as: "The Prosecuting Attorney's Office has a Policy to Oppose Anything You Want." Fear not, for we can make our own policies in opposition to their policies, which, by policy, opposes nothing.

I love most of my public-defender friends, even the ones I want to frigging kill. You know the guy--the one who just won't stop talking, even when 50 other lawyers are waiting in court, and a simple "Yep!" would suffice? I suggest discretely handing him one of these cards while he is still at the lectern.

This is what public-defender dreams are made of:

The police are like the mean girls in high school: they only want to talk to you now in order to mock you later.

One of the hardest things to learn is to stop spilling your guts to the prosecutor about what is wrong with his case. I used to say this little speech to every new prosecutor, and then I'd give the new guy one chance by telling him what was wrong with his case, and then he would proceed to screw me with the information I had just given him. I've had one guy pass this test in 16 years, so now I don't bother. But go ahead and try--you probably won't be able to help yourself for the first 10 years, anyway.

I should receive some kind of Peace and Justice award for making this next card. It will save lives. And stop me from killing people who I would ordinarily like just fine.

Below are the templates to print your own cards. You can use standard double-sided Avery cards, plain paper, or whatever. Just click to enlarge and then print. If you email me, I will send you the document in Word format, but you might not get it until the weekend, because I am having a freaking crazy week.

Actual Naughty List

2010-02-02T01:12:00.000-08:00

When I mentioned the Naughty List in my last post, I thought, No one is going to believe this ridiculous shit! In fact, the more I thought about it, the more unlikely it seemed that an actual "Naughty List" had ever existed, as the idea of it too accurately portrays both some judges' twisted priorities and their patronizing treatment of lawyers. Sometimes you don't see how crazy something really is, until you try to imagine how someone from say, S. Carolina (Hey, you guys, and thanks for reading!) will see it.

I managed to find a copy of the Naughty List in archives, to satisfy myself mainly, and I've posted it here, but redacted the names of defendants and naughty lawyers alike. This list sums a lot of ills--deigning lawyers "naughty" if a case is old, without regard to the merits, treating lawyers like children, and seemingly loosing sight of the fact that this is supposed to be a "justice" system.

My case that shows at the top of the above list was a true success story, with a patient prosecutor and a sweet, young client slowly getting her shit together--completing treatment and getting her diploma. I wonder what she thought of the system as the prosecutor sheepishly introduced the case each time, saying, "I know this is on the Naughty List, but ... "

One time this client asked me, "What did you do to get in so much trouble?"

"I threw spit balls at the judge."

And she was like, "Really?"

The Naughty List quietly disappeared a couple of months ago. I don't know if someone complained, or one of the other judges saw it and said, "Hey, this really looks bad--We're not supposed to say out loud that case statistics are all we care about!"

As a practical matter, however, I miss the Naughty List. Because in the category of unintended consequences, I got some screamin' deals out of it. Why? Because the prosecutors hated being on the Naughty List way more than the public defenders did. I remember shaking my head as a prosecutor (and full-grown man) said to me, without a hint of irony, "You know I cannot agree to the schedule you want, Ms. Defender, because I will not be on the Naughty List again!"

I don't get a guy like that--a guy who looks down on everyone else, and then judges his own state of naughtiness based, not on his own conception of right and wrong, but on a word someone typed at the top of a stupid list. But, like I said, as a practical matter, as soon as a case got close to making the Naughty List, the prosecutor would cave, and I would finally get my deal. If I could just find a way to bring Naughty back . . .

The Naughty List and Other Stories

2010-02-01T01:24:00.000-08:00

In an opinion issued last week, State v. A.N.J. (slip opinion no. 81236-5), the Washington Supreme Court allowed a juvenile to withdraw his guilty plea to a sex offense based on ineffective assistance of counsel because his court-appointed attorney's representation "fell below the objective standard guaranteed by the constitution and that A.N.J. was prejudiced." Id. at 31.

A.N.J. is noteworthy for public defenders and has national implications for a couple of reasons:

1) the Court acknowledged the Washington Defender Association (WDA) Standards for Public Defense Services (similar to many other state and national standards) as relevant in "evaluating things like effective assistance of counsel." Id. at 19.

2) the Court also acknowledged that antithetical incentives (in this case, monetary) can corrupt a public-defender system to the point that it is constitutionally inadequate.

When I read the opinion, I was elated that the Court was willing to condemn ineffective practices that make all public defenders look bad (and worse, devastate clients' lives). I also found myself wincing sometimes, however, because as the Court detailed the litany of things the lawyer had failed to do, I thought once or twice, Hmmm, I might have spent only five minutes reviewing a plea form (on occasion); or, Good Lord, the un-returned phone calls that are a constant background guilt-trip (unfortunately, all the time); or, What about (some other things I shouldn't put in writing)--does that mean I'm like IAC guy?

While the Court is appropriately harsh with the lawyer in A.N.J. (except for a final footnote (no. 18) where the court seems to say, We didn't mean to be mean!), the Court has confidence in most of us:

"While the vast majority of public defenders do sterling and impressive work, in some times and places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance." Id. at p. 4.

I think "vast majority" is probably too kind. Some of us do great work under difficult conditions, but the only way we can do great work sometimes is by cutting corners other times. While part of great work is being smart and knowing your shit, the bigger part of great work comes from spending a lot of time on a case rather than convincing a client to accept a crappy deal.

Great work comes from talking to clients, listening to them, and educating them about the system and their options; but it also comes from poking around and looking into stuff. It's the poking around--whether investigating the facts and various defenses, or researching and brainstorming legal theories--that can make the difference. But poking into stuff takes a lot of time--and that time has to come from somewhere, which is usually from everything else I'm supposed to be doing.

Also, one way I can sometimes achieve good results is by capitalizing on the volume of my cases and my experience with the system: that is, I play Trial Chicken. And while Trial Chicken isn't pretty--the Best Practices People would surely frown on it--I get more dismissals out of trial chicken than I do any other way.

My Point? While I am heartened by a court taking IAC seriously, I worry about the practice of law becoming a checklist of things to do, rather than the complicated art that it is. Because a lawyer could be cutting corners by necessity, because this is the only way he can achieve fabulous results. Or, the lawyer who is cutting corners may be doing nothing at all. Or, it is also conceivable that a lawyer timely meets with each client, returns every phone call, files legal memoranda that are prompt but pedestrian, and still does a crappy job on his cases.

I'm not saying we shouldn't condemn IAC; I am just saying that we need to make sure we know what it is. And I believe the best way to prevent IAC is to make sure the right incentives are in place, and that the system stops punishing lawyers who are advocates rather than plea salesmen.

Along those lines, one of the most significant aspects in A.N.J. is its acknowledgment that the "incentives" in a public-defender system matter:

"Such public contracts for public defenders discourage appropriate investigation, testing of evidence, research, and trial preparation, and literally reward the public defender financially for every guilty plea the defender delivers ... It is clear, if not calculated, that the prosecution benefits from a system that discourages vigorous defense and creates an economic incentive for indigent defense lawyers to plea bargain." Id. p. 5

Incentives matter for all lawyers, not just contract public defenders, and economics aren't the only incentive that can distract a lawyer from zealous advocacy. As I mentioned, one of the problems with doing a "sterling job" is that it takes so much more time. It takes me a good 15 hours to research and write a legal brief. I keep telling myself that I can do it faster, and it never happens. A guilty-as-charged-plea will take me maybe 2 hours. Even if I know I won't win the suppression motion, I know I'll get a misdemeanor if I file the brief, because the prosecutor doesn't want to write his response brief. So I spend 17 hours instead of 2, because I want a better deal. But what if I want to go home early? Or no one cares, even the client, whether I file the motion? What if I have too many cases open, and I'm getting in trouble for this?

Another example: what if my client and I think it's ridiculous to plead to a prison sentence on a residue case, and so we file a motion to suppress and lose, conduct a jury trial which ends up hung; conduct the 2nd trial and it hangs too; and then we finally get our misdemeanor--which is a good result for my client, but about 100 hours for one case. And I could have easily talked my client into pleading guilty, even if it meant going to prison, because, oh well, he'd been there before.

Time is the ultimate incentive, but I've never figured out how to tell my drug-possession clients that they should plead so that I have more time for my murder clients. Trying a residue case over and over isn't just sheer stubbornness on my part, however--my future clients will benefit when the prosecutor remembers that she couldn't get 12 jurors to agree to convict on a simple possession case with a confession. And she'll also know that I won't give in.

If we are fighting like we should, we have no choice but to cut corners, unless our caseloads were cut by half and our support staff multiplied by four. I think this is less so at the Federal PDs, simply because they have fewer cases, and have the time and resources to do a great job on every case. They have about 50 felonies per year, and work their asses off (just ask Little Crazy). How is it that I have 150 cases a year and less support, but am still supposed to do great work with the same number of hours in a day?

The Supreme Court should note that one of the biggest disincentives to zealous advocacy is the epidemic of judges who have an agenda that values the rapid processing of cases above all else. These judges don't abuse the pliant lawyers who come into court and plead their clients quickly; they abuse the lawyers who get in the way of their case-processing statistics. Until recently, each week our presiding judge emailed everyone a list of cases that were "past time standards" entitled, I am not making this up, "The Naughty List." Getting yelled at isn't fun, not even for me, and these judges' prioritization of case-processing statistics above things like, well, justice, is inconsistent with zealous advocacy. Is the Supreme Court going to condemn this?

The other major disincentive to zealous advocacy is chief public defenders who are selected by judges and/or the funding sources (i.e., county commissioners), and thus answer to the wrong people. Some PD bosses are great (please take me, San Francisco), but many are compromised by the lack of independence in their appointment. According to Justice Denied (Report of the National Right to Counsel Committee, 2009),

"We tell stories in Chapter 2 of county officials, responsible for providing funds for indigent defense, subjecting chief public defenders to political pressures because their lawyers challenged the prosecution and did exactly what they were required to do in representing their clients. We also point out that a lack of independence from the judiciary sometimes impacts the selection, appointment, and payment of counsel. Lawyers deemed to be too aggressive may be excluded from appointments, or favoritism may be shown to certain lawyers, who are appointed to a disproportionate share of the cases."

While you're at it, Washington Supreme Court, could you also condemn that lack of independence in most of the defender offices in this state? Because when fighting for clients gets a public defender yelled at by judges and then in trouble with the boss, the only incentive to keep fighting is the residual stubbornness left in her bruised self.

ROAD TRIP: Austin

2010-01-30T19:05:00.000-08:00

Even though PDR is based in the dark, godforsaken Inland Northwest (sorry--January and February are a little rough up here; summer is lovely), I'm from Texas, and attended both undergrad and law school at the University of Texas at Austin. As much as I loved Austin, I haven't been back since I set out for Seattle in a U-Haul 17 years ago. So when K. Moran (hereinafter, "Little Crazy") discovered that NACDL was holding a conference in Austin this year, we said we'd try to go.

At the same time that Little Crazy was planning the Austin trip, we started this blog, and the combination of a few reader emails and my thinking about Austin led to a profound bout of nostalgia. I don't give a damn about football, the color orange or any of that crap, but I would sell my soul for a night at Antone's or pool at the Hole in the Wall (is it still there and is the jukebox still free?) and a plate of migas in the morning.

The best part of my college experience was working at The Daily Texan, UT's student newspaper. In the small-world category, I worked there with Scott Henson, of Grits for Breakfast, who was a scary-smart iconoclast, even then, but also funny and kind--and I now know he is a super-human writer, not only as a one-man criminal-justice revolution, but also due to the quality work he posts. Little Crazy and I are like: How does he write so well and so fast? Maybe I will make him a certificate.

I hope it's not too self-indulgent (or is a blog by definition an act of self-indulgence?), but a few comments by readers reminded me of an essay I wrote for The Texan back in law school after returning from a summer internship at a large corporation. I remember that when I was writing my weekly column for The Texan, I was certain that I was expressing my uniqueness and individuality, and then readers would come and tell me, "I like your columns because you are just like me."

Now, a little less impressed with my own uniqueness, the similaries between my fellow PDs and myself are a comfort. Alana, a reader and law student wrote:

"For a while during 2L year I wondered if I should pursue a career at a big law firm like most of my classmates planned to do. I did try a big firm during my 2L summer and the experience only strengthened my passion for the PD. ... When I decided I definitely wanted to be a PD I felt a huge wave of relief and calmness and I finally FINALLY felt proud about my decision to become a lawyer."

Thanks to online archives, I was able to find that column I wrote for The Texan after my summer internship. I've reprinted it here, at the bottom of this post with a jump, because after I read Alana's email, I thought, I know what you mean--you are just like me!

To Alana: Keep trusting your instincts and stay away from jobs that make you give up parts of yourself. This public-defender thing isn't easy, and will chew you up some, but it will deepen your compassion and make you into a tough, frayed knot.

To 24-year-old me who wrote the column: I think you will find what you are looking for--and don't sell the suits.

Daffodils, Career Interests Wither

09/24/1992

BYLINE Carol XXXXXXXXX

About 2 years ago, after my first mind-numbing law school class, I wandered to the cafeteria and wrote a list of things that I could be other than a lawyer.

"Grower of organic asparagus. Baker. Palm reader. Pool hustler. Waitperson," I desperately scribbled. As I tried to decide whether "vegetarian cowgirl" was too unrealistic to add to my list, I overheard two music students at the next table loudly discussing their future plans.

"I don't know about you," one of them said, "but my life would be complete, I would simply reach a state of absolute fulfillment, if I could sing that one particular aria perfectly, just once."

Quickly, I added "opera singer." Reviewing my list, though, I remembered that I can't bake, read palms, play pool, ride a horse or sing, and that all my plants die. Waiting tables wouldn't work either, because I am clumsy and forget things. On the way to my next class, I threw my career list into the trash. Two years later, still confused by law school but lacking any other viable alternative, I found myself with a summer internship in the legal department of a major corporation in Denver.

On the first day of my job, I tried to concentrate on my work, I really did. I sat at my big, clean desk with a fresh mug of bad coffee and tried to read a paragraph of a case about the environmental ramifications of the nitrates in cow manure. When I woke up, it was time to go home.

By the end of the week, my schedule was set. In the morning, when I first arrived, I would brew a pot of fresh bad coffee and then sit at my desk for a few minutes. Then I would go back to the kitchenette and eat half my sandwich and all the pretzels. Back in my office, I would notice that my coffee had grown cold, necessitating a return to the kitchenette to brew more bad coffee while I ate another quarter of my sandwich and my fruit. If I planned carefully, I could burn up most of the morning with the coffee-sandwich maneuver.

After my breakfast snack, I would go "shopping" in the supply office. There I would choose a pen for the day and sneak post-it note pads and any other office gadgets I found amusing into my jacket pockets. I became especially fond of those little rubber things that you put on your fingers to turn pages—finger cots, I think they're called—because my office mate thought they were somehow obscene. If I was feeling especially mischievous, I would put a finger cot on each of my fingers and wave my hands suggestively in her face.

One day, during a staff meeting about fiscal projections for the next quarter, I read an article in a nature magazine, hidden, of course, inside my notepad, about a guy in the South American rain forest who lived in a tree house at the top of this one particular tree. He had spent 15 years studying this one particular bird that nested only in this one particular tree, fascinated by both. "It's funny," he said, "because this tree is just right for the bird and the bird is just right for the tree. And both of them are just right for me."

After lunch I would usually become so bored with my own procrastination tactics that I was forced to actually work. Diligently, I would draft an endless series of interrogatories: "Please estimate the amount, in pounds, of manure that your cattle produce per year. When you artificially inseminate your cattle, do you purchase sperm or use your own? Please state the names and addresses of all those in you employ who a) engage in the disposal of cattle waste, and b) artificially inseminate cattle," etc. Sometimes, I wondered if a finger cot would fit over my head.

On my last weekend in Denver, I watched a PBS gardening show, hoping to glean enough plant lore in 30 minutes to start my own farm. The show featured an elegant older woman who had a particular fondness for violets. She grew an impressive array of flowers, but admitted that her true passion was for violets. She said she could easily give up the daisies, the roses, the daffodils--but never her violets. "You see," she said, elegantly, "I just wouldn't want to live in a world without my violets."

A week later, back in Austin, I sold all my suits in a yard sale and told the "major corporation" that I was going to the rain forest to live in a tree. My parents made frantic daily calls, perplexed by such a crazy daughter who would turn down a good salary and medical insurance. They were neither comforted nor convinced by my vague mutterings about birds, violets and arias. But it's simply too tempting, I told them, to live in a world without interrogatories, finger cots and bad coffee.

XXXXXXX is a third-year law student.

Overheard at the Public Defenders' Office: You Know You're Doing a Good Job When . . .

2010-01-28T13:21:00.000-08:00

PUBLIC DEFENDER TO PROSECUTOR WHILE WAITING FOR A VERDICT: "Hey, I know you sometimes don't like me, but I want you to know that you did a nice job on the trial."

PROSECUTING ATTORNEY: "Sometimes don't like you? I NEVER like you."

Blog Remnants

2010-01-28T02:05:00.000-08:00

REGARDING THE MOOSE:

I got a lot of feedback regarding "The Moose"--specifically, that my moose story was not historically accurate. In my defense, I'll say that 1) I've heard so many different versions of the moose story over the years that I doubt a historically accurate version of the parable exists; and 2) I am a defense attorney, remember? I ~~twist~~ massage the historical facts of stories for a living.

Nevertheless, I consulted the Keeper of the Moose Memories. I know that he is the Keeper of the Moose because he is the PD who was quoted on the Moose Mug, and because his office features the following Guard Moose:

The Keeper of the Moose told me that my moose story was OK--that I had captured the essence of the Moose. The Keeper also mentioned that one of the reasons the original moose story took hold was because the super-obnoxious prosecutor kept telling people, in all seriousness, "there are only about 5,000 moose in This Here County, and thus killing one moose is like killing 10,000 people."

Anyway, I'm glad that a guy whose office features a decorative depiction of a moose sitting on a toilet in an outhouse doesn't think I defiled the myth.

I have to admit that if the Keeper of the Moose had demanded it, I would have retracted my moose story, because besides moose paraphernalia, the Keeper of the Moose has a Big Can of Whoop Ass on his shelf.

(And why, oh why the bottle of rubbing alcohol?)

REGARDING OVERHEARD NO. 2 (TATTOO STORY):

An anonymous reader relayed a tattoo story:

I had a client get a new tattoo on the back of his neck a week or so after I was appointed to him on: Misd. Battery, Kidnapping, Grand Theft, and Rape. The tattoo: 'REDRUM.' Later it looked like he scratched the second 'R' so that it looked like a 'B.' We agreed that if the case went to trial he would wear something to cover it.

REGARDING REAL LAWYER BUSINESS CARDS:

Izaak wrote:

The copyright ran out on Monopoly's get-out-of-jail-free cards two years ago. I've had them printed on the back of my business cards. Almost everybody I know thinks it's totally awesome or totally juvenile, but I think that reflects people's opinions of me generally.

Coincidentally, I had been planning on making a Get-Out-Of-Jail-Free Holiday Ornament for next year's Holiday Party, based on this: (via craftzine)

But I like Isaak's idea of a Get-Out-Of-Jail-Free business card even better. Now that I think of it, Get-Out-Of-Jail-Free may indeed be the ultimate public-defender business card.

I also discovered some Ecological Business Cards . . .

. . . and found that I have long been ahead of this Eco trend:

It is seriously embarrassing how often I do this.

At least it's Green.

(Here's how these scrap cards happen: Client asks for my card in court, I dig in my bag and find chocolate, a bottle of hot sauce, and 12 kinds of sticky notes, but no cards. I rip a piece off whatever paper is handy, and write "Carol" on it. I'm the only Carol at my office, and people often think my last name is a kind of beer, so I leave my last name off. But then I think about all of the trials I've had where the cops claim that names on little scraps of paper = drug dealer, and I don't want the cops finding it and thinking I'm a dealer, but I also don't want my client to forget who wrote the card and call me for a fix. Hence, the arrow from "Carol" to lawyer, just so every one is clear on that. And then because reaching me by telephone is a total crap-shoot, "ask for my paralegal if you can't reach me and you're freaking out."

REGARDING GUILT:

A reader sent a link to an article by Gene Weingarten, a Washington Post writer who recently sat on a jury. Mr. Weingarten wrote a clear and damning account of police officers lying in their testimony on the drug delivery case, stating that he would have voted to acquit (he ended up being an alternate), even though the case had been proved BRD to him, because he found the police misconduct so abhorrent. Here--he says it better than I do:

"I believe they had the right guy, too. But the willingness to cheat, I think, is a poisonous corruption of a system designed to protect the innocent at the risk of occasionally letting the guilty walk free. It's a good system, fundamental to freedom. I think a police officer willing to cheat is more dangerous than a two-bit drug peddler."

As much as I want to find this man and hug him, what struck me was his wide-eyed processing of the incident--the cops testilying and wasting ridiculous amounts of money for nothing was clearly not what Mr. Weingarten expected.

Almost every one of us--public defender or private defense--however, would expect this. Cops lying to convict someone they have decided is guilty happens every day, we just don't always catch them. A bazillion dollars wasted on Cowboy Drug Units to bust small-time addicts happens every day every where in this country, as well. Why do we know this and reporters don't?

In thinking about this disconnect, I noticed that over the years, I have changed how I tell some of my stories. My criminal-defense lawyer friends get the whole, straight story. But I stopped telling "normal" people about parts of the system, because they clearly didn't believe what I was saying--if I would try to describe how some cops and prosecutors are, the normal person's eyes would glaze over and I would be dismissed as a radical. Meanwhile, I'm living in this crazy world and I know what's happening, but "normal" people prefer to believe the TV version of our court system, rather than the reality that is wasting billions of dollars, and worse, our clients lives. (Not to mention the toll on the spunky defender-gals!)

It was all of that--the disconnect between the perception and the reality of our court system, combined with the public-defender issues--that spurred me to write this blog. I hope you can imagine how I felt when a lawyer who had just transferred to a defender job wrote to me:

"I thought I was prepared for what this work would feel like -- but I was not at all prepared for the Alice-down-the-rabbithole experience of my interactions with judges and other attorneys. Your blog is a great, sanity-inducing voice in the wilderness! So thanks for that."

I hope you can imagine how it felt to read that, because it was pretty awesome--not just because someone finally said that I am sane--but because we can only cure this disconnect by talking about it, blogging it, reporting, tweeting, texting, whatever--and if we don't do it, who will?

Public Defender Award Certificates

2010-01-27T01:49:00.000-08:00

The first in a series of public defender-designed and produced award certificates. Click on the image to enlarge and print. If you have an award suggestion, please comment or email us!

Of Moose and Men

2010-01-26T03:34:00.000-08:00

For years, the only award presented by our office was the "Moose" award, in the early days a mere title, but later upgraded to a beer stein with a pewter, masculine moose head on the lid. Very North Idaho, if you know what I mean.

Anyway, Lo, these many years ago, a public defender in This Here County had a trial involving a Moose Charge. We like to think that no case is unwinnable, but the Moose case was looking like a tough one: audio, video, confession, etc. And the cocky, young public defender faced losing his first trial. The defender sat with his client, dejected, as witness after witness came in to tell the jury about some aspect of his client's guilt.

Even as he stood up to present his closing argument, the young defender had no idea what he could possibly say, when inspiration struck: He argued that the state had failed to prove whether the moose was a male or female, and because each moose gender had a different hunting season (although both male and female were banned on the date in question), the state had failed to prove that the moose was a moose that was out of season. The logic held together just long enough for the jury to find the client "not guilty." And thus began the Moose: If a public defender wins a case through a clever and unexpected manipulation of the law or facts, it is referred to in This Here County as a "Moose."

Or as A. R., Assistant Public Defender, put it:

"A moose is something that is perfectly legal, but that you would be ashamed to tell your mother about."

Thus, every year at our office holiday party, the person who best represents this ideal receives The Moose Award, and gets to keep the mug in his or her office for the year.

A couple of years ago, I received an award from This Here State's Association of Criminal Defense Attorneys (mostly private attorneys), for refusing to conduct a trial for which I was unprepared (more on this later). I mention the award only because, never having concerned myself with awards too much, I was surprised by how nice it felt to be recognized by a group of my fellow defense attorneys. And I got a nice plaque! In response to the trial-refusal thing, I had gotten a lot of shit from the press, prosecutors, and judges, and was feeling a little beaten down, thus making it especially nice to have my people say, "Hey, you did the right thing."

That was during a time that we older felony attorneys call 'The Great Unpleasantness"--we were outnumbered about 2.5 to 1 by the prosecutors and we could not keep up, which lead to a lot of stress, drinking, facial tics, and depression.

The next Christmas, I wondered why we at the public defenders' office didn't give each other awards. I can handle not being recognized by the general public or the judges and prosecutors--some days I would settle for a more benign contempt--but why don't we recognize ourselves? Isn't an award really just a group agreeing that one of its members has done a good job representing qualities that the group values? Also, in my opinion, our office was getting a little lost (myself included) and what better way to reinforce our priorities, than to print certificates on quality paper?

We came up with some light-hearted awards--"Best Dressed," "Most Hated by the Prosecutors," "Most Improved," and "Best Use of a Seinfeld Defense:"

"Because, Ladies and Gentlemen of the Jury, Shrinkage Happens!"

But then, after the lighter awards, we decided to present a couple of awards that The Party Committee hoped emphasized our values. The two major awards we presented were:

THE TROUBLE-MAKER OF THE YEAR AWARD

"In recognition of the fine art of extracting justice from the unwilling through fearless advocacy. Uncowed by caution and self-interest, the trouble-maker of the year speaks truth to power to fight for clients' rights, when more timid souls would refrain.

Trouble-maker, we salute you!"

We made the last award a life-time achievement award, named after a public defender who had passed away a few years earlier.

"In recognition of excellence in the noble calling of public defense. For years of toil and personal sacrifice protecting people from the government; for recognizing the humanity of every individual; and for refusing to be intimidated by power and accepted social conventions."

It's funny--all we did was sit in someone's office one day, brainstorm a few ideas, and then print out hasitly formatted certificates on cardstock. While I was printing and gluing, one guy ran to the dollar store and bought picture frames, while another gal cut out fight-the-power fists that had been printed on gold paper.

When it came time for our Awards Ceremony, I was afraid that everyone would think the whole thing was stupid and corny--maybe there was a reason we didn't give out awards beside the Moose?

Our co-workers, family and friends laughed and clapped along with the presentations, though, and when it came time to give out the Lifetime Achievement Award, we read the certificate, and announced the name of a lawyer who has worked in our office for 25 years, a humble, compassionate man who believes in his work and the good of all souls. When he heard his name, he at first looked stunned, and then as he walked up the stairs to receive the award, still holding his young son he had forgotten to put down, his tears fell, as ours did too.

Coming Tomorrow: Public Defender Award Templates!

Got Guilt?

2010-01-25T03:10:00.000-08:00

A couple of years ago, I attended a criminal-defense CLE—I don’t remember where or what it was about, or even who the speaker was, but one woman’s comment during a discussion period still resonates:

“I used to be a public defender,” she said,” and all I did was run around with too much to do, feeling guilty all the time.”

Wait, what did she say? Feeling guilty all the time?

But … you mean … It’s not just me?

I remember the waves of relief that washed over me. Until the woman’s comment, I hadn’t registered the constant guilt I felt—about the things I couldn’t get done in a day, the phone calls I hadn’t returned, the client I couldn’t help, the judges’ badmouthing of me behind my back, the constant criticism from prosecutors, the inability to be in two places at one time--and how much that unexamined guilt was abasing me.

I also hadn’t recognized, until I heard the lady’s comment, that the giant guilt turd I carried around was not my fault.

It is so ridiculous when you think about it—would you expect a doctor to schedule his own appointments, keep track of the branch offices, and then juggle visits, research and write memoranda, perform research in the field, and then in the middle of this, drop everything and go into surgery for a week or two?

I don’t have time to do everything I should do, and years of being conditioned to put out fires make it difficult to perform secretarial tasks when I have 45 minutes to spare between court appearances. Exacerbating the simple too-much-to-do situation, is a propensity for the other players in the system—judges, prosecutors, court administrators, even our own bosses—to blame the system's ills on the public defenders. Even when criticism is unfair, if it is constant, you will unconsciously start to accept it. And the next thing you know, you've lost your confidence and self-esteem. (Years ago, a prosecutor complained to me that she didn't like my "annoying bravado," which I thought was pretty funny, until guilt and stress made me fear I had lost said bravado.)

I’m sorry if this is a bit of a downer of a subject—believe me, I’d rather be funny—but this experience is at the heart of this blog and the proposed revolution. One of the powers of the internet is the ability to help us put our experiences into context. If it weren’t for the stories of other defenders across the country, I would probably think that it was just me--that I deserved to have guilt and criticism heaped upon me. Maybe I wouldn’t totally accept the negative view of myself, but it would dishearten me enough that I wouldn’t put myself out in the world to reform something that might just be a personal problem.

I used to read PD blogs pretty regularly, but then got sidetracked with a few projects (wrote a novel, made shrinky-dink and other art) and only recently went back to find the PD blogs I had once read. Most of the blogs were gone, but a few of the entries I found made me determined to get this PDR thing going.

From the last post on Defending Those People (August 2009)

"Despite the tragedy, the hopelessness, I think I savor the role of representing the underdog. Maybe I have a masochistic streak running through me? And not that I'm perfect, but I am good at what I do. I help people try to make better decisions. I make fewer mistakes than most, or at least feel that I do. I feel that I make a difference. Even if the difference is simply to help people understand what is going on and helping them choose from the limited decisions now available for them, that is good."

"And often nobody provides respect. Typically, the clients are most respectful. Not all of them, some of them are so unused to attention that they don't trust me, but many of them appreciate it, see that I am trying to help and are thankful. But overburdened prosecutors bite my head off. Judges often get so focused on moving cases they don't care about what must have motivated them to seek the bench in the first place."

Except for the word “overburdened,” which I would change to "asshole," I think, That’s exactly how I feel! It scares me, some of it, how exactly it is like my thoughts.

Maybe you think: I can survive it. I’m tough.

From the second-to-last post in Public Defender Dude:

"I am very burned out with being a deputy public defender. I used to enjoy the job, but now I don't. Suffice to say that I am an employee, and an employee who has been taught to fear for his job. Very sad that it has come to this.

"There was a time when I didn't care. But now I have kids to support. A mortgage to pay. I have to conform to what the bosses want. I have come to realize that I must do exactly what they say, or I will be fired. It isn't about protecting my clients. It is about satisfying my bosses."

And I know--have lived--exactly what this guy is saying, too. OK, I don't do what the bosses say. But I pay a price for it every day.

I did a little research about the psychological toll that PDs face (practice tip: do not google "public defender" and "guilty" unless you want more results that you can handle). I came across a law-review article that not only backs up these psychological effects that I mention, but also reinforces why the public-defender revolution is the only solution. In "Essay on the New Public Defender for the 21st Century," 58-WTR Law & Contemp. Probs. 81, Harvard Professor Charles Ogletree (who, after having read some of his work, I greatly admire), writes,

"The lack of institutional support for public defenders—coupled with criticism, often unfair, aimed at them from both sides—takes an enormous psychological toll on those in the profession. In order to understand the challenges faced by public defenders, one must examine the problems of insufficient institutional support, stringent criticism from the public and clients alike, and the psychological stresses resulting from these realities.” (Sorry, it's from Westlaw, so no link)

And I thought, Oh my goodness, He really has it down--a respected professor with this much insight and understanding of PD problems will make reform happen!

Professor Ogletree continues:

"Of late, judges, legal scholars, and policymakers alike have noted the gravity of the problems facing public defenders. As a result, a number of people with substantial and direct knowledge of the inner workings of the criminal justice system have begun the task of proposing meaningful reforms of our present system." Id.

Great, I thought, we don't need a revolution, the change will be happening forthwith! Except, I left one thing out of the citation: the article was written 15 years ago, in 1995.

I wrote this post about the guilt I know we all feel to some degree, because I know that this whole PD revolution thing won't be easy. The guilt, stress, and demoralizing treatment drives defenders out of the system or leaves them riddled with doubt. Because when you’re the person that everyone denigrates, it makes you want to hide, rather than stand up for yourself. This crippling treatment, however, is exactly why we have to do it. The choice we have is to band together and fight for reform using some powerful tools that are already in place, or put up with this bullshit for another 15, 20, 30 years.

So, come join me and the Public Defender Revolution: I am not guilty, not that tired yet, and I know how to fight!

Client Art Part 2

2010-01-22T15:03:00.001-08:00

One client has become a talented crocheter. Check out the roses!

This jewel box is made of Popsicle sticks. The bed lifts up to reveal storage space.

This picture frame was made with potato chip bags. Given that a bag of chips is $2.00 on commissary, this is one expensive picture frame.

Still Life: Public Defenders

2010-01-22T02:14:00.000-08:00

Years ago, a former client of our office took up Origami during his prolonged pre-trial detention awaiting his murder trial. He used his brown-paper lunch bags as the material for his art (until the jail guards stopped giving him lunch bags anymore, just to fuck with him. So then we sent him loads of yellow legal pads through legal mail. Ha!)

In this piece, the client-artist used a unique combination of toilet paper and M & Ms (for color) to create his work.

I've seen PDs who blithely take on clients charged with rape, murder, molestation and mayhem refuse to represent a client accused of animal cruelty. We've got our standards! And we like dogs better than we like most people.

Sometimes our clients like us, too.

In this piece, the client-artist used unraveled jail socks to craft a macrame necklace. Practice tip: Watch out for the stretchy version of this art-form--it is probably made of unraveled jail underwear.

Cup O Dragons: paper lunch bag and ice-cream cup.

The attorney-artist used vinyl and her Cricut Expressions machine to create this piece.

This scares me:

It scares the dragons, too. Back in the cup, everyone!

I won't say we wondered where Orgami Guy was, since we all knew where he'd be spending a very long time, but I did wonder if he still did Origami, or if he had moved on to other crafts. Then, one day, the gal across the hall from me got a present that one of her clients had sent her from prison.

When she looked at the bottom of the piece, she saw that it was signed by, none other than, our own Orgami Guy!

Some days we need words of encouragement.

Keep calm? RUFK?

And just when you're about ready to jump out the courthouse window, you get a present from an ~~alleged~~ OK, convicted manslaughterer featuring you as an awesome superhero, and even though no one else sees you that way, and the client was probably just bored--the world is good, and you can fight for another day!

Overheard at the Public Defender's Office, No. 3

2010-01-21T07:59:00.000-08:00

SUPERVISING ATTORNEY: I was just over at court, and I had something happen--something that hasn't happened in my 28 years of practice ...

PUBLIC DEFENDER: You won a case?

How to be a Public Defender Revolutionary, Part III

2010-01-21T01:29:00.000-08:00

Part III: Interpreting Caseload Standards

In earlier installments (Part I and Part II), I discussed the recent ABA Ethics Opinion that gives public defenders the power and duty to refuse excessive caseloads, and why "caseload standards" numbers are arbitrary but useful as an absolute maximum and a starting point for more in-depth caseload analysis.

Why care about ABA opinions and policy standards that are repetitive and tedious, when they have thus far failed to reform public defense? Because I am suggesting to you--my brother and sister public defenders--that one day many of you will reach a breaking point. That you will realize that you have too much to do, and no matter how you learn to play the system and fight for the clients, that you can't do it all, and then you'll realize that some of your clients may be suffering and you are as well. You may end up standing in your bedroom one weekend, trying to run through the list of upcoming trials (burglary next week, then assault 2, then back to burglary and then that bullshit stolen vehicle one and then the vehicular homicide and you know there's another one and you can't remember it) twitching. Oh wait, that was me.

When you reach this point, your options have been traditionally pretty limited: 1) leave the job; 2) have a mental breakdown; 3) stay in the job a broken, lesser version of yourself.

I have seen many of my friends and colleagues choose #1, #2 or #3. The PDs who choose # 1 usually end up the happiest, from the ones I've known, but leaving a profession shouldn't be the only way to survive it. I'm not saying every public defender faces this crisis or these choices, but unless you're in the federal system or one of the boutique defender agencies, you are going to get close. I'm close to #1 at least once a week, I may have crossed over #2 for a bit of time, and I fight against becoming #3 every day.

None of these options are good for us, but they're bad for our clients, too. I am going to suggest that there's a 4th option: When you reach the breaking point--and you'll know it when you see it--you refuse to accept additional cases. When you reach this point, you could go to your supervisor, boss or judge, go off half-cocked and say, "F you, I'm not taking any more," and see how it sorts out. But the better way to accomplish this is to know your shit. That is, handle the workload crisis like the lawyer you are--know your caseload numbers, know how cases are being counted, and know the variables for calculating whether your caseload is reasonable.

First, find all of the standards that apply to you. Like the plethora of studies that document the sorry state of public defense but achieve no change, there are loads of "caseload standards," related commentary, endorsement and analysis--and no mechanism for enforcement. Rather than wait for the standards and studies writers to fix this for us, why don't we defenders take the tools they've given us, and get this PD revolution started!

To find the standards that apply to you, start locally, and move outward. For example, in analyzing my office's caseload, I found standards by the ABA, NACDL, WSBA, WDA, a Resolution adopted by My County and a Union Contract that referred to the County Resolution, WDA and ABA standards. Many counties and states have not adopted official standards, and if you can't find local ones, use the national standards. If the national standards lack specificity, refer to the WDA standards as their commentary is thorough and nationally recognized.

How do you interpret the numbers?

Look at how many cases you have been assigned in a year. If you work in a PD agency, this number is findable. If the number is undeniably above the flat number of the relevant caseload standards (either your state or local standards, and if none of these have been adopted, then use the national standards), then you can skip to the next installment of this series.

But let's say the numbers are close. Like your standard says 150 felonies per year, and you're within that range, but you're still dying. Obviously, you can't do 150 murder cases a year, so there has to be some interpretation built into this rule. Usually if you're dying, it's not because you are lazy or incompetent (because these types don't care if they're dying) you just have to analyze your caseload more critically.

Ask:

How are the cases counted?

Are they fudging the numbers when attorneys are transferred to different duties?

Is the caseload weighted? That is, is a murder case being counted as 1 case or a certain number of case credits? What about three strikes or other cases that carry life in prisonment? Sex cases? The second-degree theft that has 10 boxes of discovery?

Does your office have enough secretaries?

Investigators?

Is commute time involved in traveling to court or jail?

Are the prosecutors plea standards stringent?

Do you have to cover a duty assignment in addition to your caseload?

All of the above factors are addressed and discussed in various standards and studies of the standards. It is entirely possible that you are assigned 80 felony cases per year, and have an unreasonable workload. Of course, you can tell that yourself by the twitch you've developed, but it helps to have the numbers to reinforce that twitch.

In the next installment, I'll cite to specific examples of the factors outlined above and demonstrate how you can prove that your workload is unreasonable.

2010 Calendar: PD Pin-Up Edition

2010-01-20T02:26:00.000-08:00

I just want the record to be clear: I thought of the Public Defender Calendar first. But my follow-through sucks sometimes.

The seed for a PD Calendar (and a PD public relations campaign) came to me, strangely, from the Archer Daniels Midland company. About 10 years ago, I heard a story called The Fix Is In on This American Life, an outrageous tale of price fixing and criminal corporate behavior. I didn’t think much about it again until I saw ads on public television featuring wholesome American images with a feel-good slogan, and then the “ADM” logo superimposed over all of it. I thought, Holy Shit, those are the guys that lied and cheated, etc.—Don’t NPR and public television talk to each other? But that ad series made me think about the power of public relations advertising: that the image can be more important than the facts.

After years of living with the misconceptions and bad press that public defenders have, I realized that if Public Defense were a corporation, the first thing it would do is launch a PR campaign. Which led to many, many ideas, but one of those ideas was The Men and Women of the County Defenders' Office Calendar.

Last year, a friend and I signed our attorneys up for the PDs calendar, and the plan was to have the calendars ready by this year for Holiday presents (imagine the prosecutors, judges and cops as they opened their gifts!)--but then a budget crises tore our office apart, dividing us against each other for the first time I can remember, and no one was making a calendar.

But Mr. Adachi—be still our public-defender hearts—produced a public defender calendar this year! We can’t decide if we are mad at him for preempting our idea (as if!), or if it makes us smarter that we sort of had the same idea that he had.

Mr. Adachi, the head of the San Francisco Public Defenders' Office, has been in a long battle with the city's commissioners (at least he is fighting, eh?), and this year produced his budget report in the form of a PD Calendar that not only contained the budget numbers, but showcased his lawyers as valiant fighters for the poor. Nice!

Even nicer than the calendars, is the image of Mr. Adachi as the leader of his public-defender troops. We would like to be considered for adoption, please.

Mr. Adachi has inspired us to finally format our own Public Defender Calendar for This Here County 2010. Order your copy now, before they're all gone:

Coming tomorrow: How to Be a Public Defender Revolutionary, Part III (Crunch the Numbers!) (We here at PDR apologize for the delay in this important post--sometimes we have a lot of silliness we have to get out before we can get down to real work.)

Public Defender Heroes: Update

2010-01-19T12:42:00.000-08:00

A PD Hero (see, For MLK Day, Public Defender Heroes), submitted by an anonymous reader:

On any given Friday afternoon in the public defenders' office, Jorgé (not his real name) will hold "court" for newbies and veterans alike. In Jorgé's office, one can seek advice on how to deal with that unreasonable prosecutor, difficult client, or troubling ruling from the judge ... he is a true war-time consiliari, with advice that is consistently right-on. I have always wanted to make a sign that says "Advice: $Free" for his door. Jorgé is a ninja pd--he achieves great results, but with a modesty that declines the ego recognition many of us need--the same modesty that will make him super mad that he is included in this post. (But we don't care--we are rebels!) I would have quit thirteen years ago (before I graduated from law school) without his guidance and example. Jorgé is a true believer and an inspiration to all of us. If what we do in life really echos in eternity, Jorgé's compassion and mad skills will live on.

Jorgé, you are our hero.

Blogkeeping Notes No. 3

2010-01-19T01:25:00.000-08:00

As much as I feel (a probably undeserved) solidarity with graffiti artists, and as much as I like graffiti, PDR's graffiti-header didn't feel right to me. Maybe because I felt like a poseur, having never actually sprayed paint from a can on a brick wall. But I think my hesitation came from the fact that although I adore graffiti's fuck-you charm, it doesn't necessarily elicit public-defender-ness. I needed something--not necessarily a straight representation of the public defender--but something more evocative of our work.

Hmmm ... court house? six-pack of beer? a jail cell? Nothing felt right. And then I looked down at my brain-storming list. What do we all use? Ratty, yellow pads. In tight budget times, our managers have been known to search our offices and round up all of the pads with remaining pages, which causes people to hoard them, which means there are none left when I open the door to the supply cabinet on my way out the door to trial.

Even with computers, I still use yellow pads all the time (when I can find one). And I'm really not sure why they're yellow--I heard that yellow causes less eye strain--or if I believe this, but if given a choice between yellow and white, I'll choose yellow. It's like white was for high school and college, and yellow is for court. I doodle and scribble all over them, which is the only thing that keeps me from running screaming from the courtroom some days.

So, goodbye, Graffiti Theme, hello, Ratty Yellow Pad. In an homage to the short-lived graffiti header, some eye candy from a New York company that is putting its own spin on graffiti:

A set of china I would buy for most of my public defender friends--you know, the ones who consider their decorative water bottle an ample nod to tableware. New York Delft by lovegroverepucci combines the "classic tradition of Dutch Delft craftsmanship" and the street art and imagery of New York City in a porcelain dinnerware collection.

I haven't had much use for fine porecelain, until now. Public defender friends, here is your wedding gift from me from now on:

Each place setting is made of fine porcelain and has five pieces; a dinner plate, side plate, soup bowl, cup and saucer. I am sorry if it is redundant to post these additional images, but I do love the police-car plate, garbage-truck soup bowl, and hot-dog-stand cup so much--

My favorite piece of all, though, is the street-light napkin:

You can also watch lovegrove's promotional YouTube video:

The innovation shown in the combination of modern street art and centuries-old china parallels the work that we do as lawyers: we find inspiration in the artistry of our colleagues and heores, and then transform their work into something relevant to our client. If we're lucky, we stumble on new methods to make our clients' stories resonate with an audience that understands as little about them as my grandmother does about graffiti, or as little as a street kid connects with centuries-old Dutch craftsmanship. As public defenders, we derive our skills from our heroes and role models--and not only is our well of inspiration deeper than our opponents, but our creative power is enhanced because we understand that there is beauty in the street.

For MLK Day: Public Defender Heroes

2010-01-17T12:31:00.000-08:00

"Every man must decide whether he will walk in the light of creative altruism,

or the darkness of destructive selfishness.

This is the judgment.

Life’s most persistent and urgent question is,

What are you doing for others?”

--Martin Luther King, Jr.

About a year ago, a lawyer posted a question on a criminal-law list-serve that I belong to, seeking names of "public defender heroes." While I don't remember who posted the question, or many of the names submitted (except that I learned that Joe Biden had been a pd for a brief time), I do remember being struck by the lack of generally accepted or even proposed PD heroes. How is it that many public defenders are the bravest, smartest, and most altruistic people I know, and yet their legacy of inspiration for those of us in the trenches goes unheralded.

In honor of MLK day, PDR honors Public Defender Heroes--public defenders who have inspired us with their bravery, skill, stubbornness, resilience and heart. PDR's heroes are limited by geography and personal experience, and we invite you (please!) to submit names of your PD heroes. If you send a picture (or we can find one on the net) we'll post that, too.

Another note: here in remote Eastern Washington, the criminal defense world has long been a boys' club (many of our favorite boys are in this club, don't get us wrong), but we have an embarrassing lack of women defenders to submit as heroes--so, please, send us your women defender heroes!

PUBLIC DEFENDER HERO: Dick Cease

Young lawyers at the Spokane County Public Defenders' Office mock old-timers when they mention Richard L. "Dick" Cease, founding director of the office. "We know," they say, "when Dick was here, the sun was shining and the birds were singing--there were whiskey rivers and cigarette trees." Dick has a gentle demeanor and the heart of a lion; he was also able to inspire new lawyers to become great lawyers, with many of his proteges dedicating their careers to public defense. He was one of the first directors of a public defender office to file suit against the county to obtain additional lawyers for his office--a bold move, considering he served at the pleasure of the county commissioners.

Dick Cease, you are our Hero!

PUBLIC DEFENDER HERO: Terry MacCarthy

Terence "Terry" MacCarthy, director of the Chicago Federal Defenders for 42 years, is famous for his mastery and teaching of cross-examination. (Look good, damnit!) He generously tries to show us all how easy it is to be as good as he is.

Out of thousands of worthy anecdotes, we highlight one Terry MacCarthy story--one that demonstrates his insight into the crucial aspect of independence in PD offices, his ability to out-lawyer even the federal judges he practiced in front of, and his cojones for doing this on his first day of a new job:

In 1966, together with former Chief Judge William J. Campbell, Terry helped create the first federal defender office in the country. But he would not agree to head the office without first obtaining the Board of Trustees’ promise to follow the ABA Standards. Once they made this promise, Terry promptly asked all of the judges on the Board to resign. “The ABA Standards say that judges can’t serve on the Board,” he told them. “It is important that the office be independent.” Despite their shock, the judges resigned.

Terry MacCarthy, you are our hero!

PUBLIC DEFENDER HERO: Jeff Robinson

As a brand-new lawyer, I stumbled into a portion of a trial Jeff Robinson was conducting--if I remember correctly, Jeff questioned the state's expert witness, a doctor (who also taught at UW), until the doctor admitted under the carefully crafted and elegant examination that he was wrong about the cause of death. I remember thinking, Wow, that was great. I want to do that, too! I'm still waiting for the chance, which I am sure will come, since Jeff made it look effortless.

Not only is Jeff Robinson gracious, kind, humble and the recipient of every award available to a lawyer, he also bought PDR's donated criminal-defense-themed Holiday Tree at this year's WACDL party. Thanks, Jeff, you made us feel much cooler than we actually are, and,

Jeff Robinson, you are our hero!

PUBLIC DEFENDER HERO: Roger Peven

Acknowledged by all who've had a chance to watch him as "the best trial lawyer they've ever seen," Roger J. Peven possesses the rare combination of a brilliant mind, irreverent wit, and lovable demeanor. "Would you like to just go ahead and climb into the jury box with the jurors?" I once heard a judge ask him. Director of the Federal Defenders of Eastern Washington, Roger has the subtle intelligence necessary to lead a talented group of authority-questioning public defenders, and he also has the heart to represent clients in drug court, who see him as a friend as well as their lawyer. All of this, and he continues to thrive, despite having a wife who is a complete pain in the ass.

Roger Peven, you are our hero!

Please submit your Public Defender Heroes to afrayedknotpd@gmail.com, or in a comment. PDR will leave the Heroes Post open through Wednesday, and will update the blog with new Heroes. Also, PDR will make a poster out of the submitted heroes, and mail those who submitted a Hero (and we deem worthy) a FREE BONUS PRIZE of a copy of the poster. QUANTITIES MAY BE LIMITED! ACT NOW!

Hoping for Fairness and Justice

2010-01-14T21:36:00.000-08:00

W hile the disaster in Haiti makes me feel powerless and small like everyone else, it is a powerlessness I recognize--powerlessness not from inability to halt the destructive force of nature, but because I sometimes fear that I cannot, or rather, that we cannot, stop the devastation of the poor by the powerful.

Having some familiarity with the treatment of the poor in a wealthy country, I wondered (with admittedly low expectations) what I would find in the Haitian Criminal Justice system. At United States Institute for Peace, a nonpartisan institute funded by Congress, a report by Vivienne O'Connor of USIP Dispatch from Port-au-Prince, Haiti (June 2009) provides an overview of the country's legal system and its sadly predictable problems:

"Persons awaiting trial in Haiti can languish in pretrial detention for years, forced to remain in prisons where conditions could be described as inhumane. There are numerous reports of mistreatment and torture committed by the police which go unaddressed.

"Certain criminal offenses also violate the rights of ordinary Haitians to freedom of speech. For example, it is a criminal offense for religious ministers to criticize the government in written materials or to exchange information with foreign powers on issues of religion.

"The right to freedom of association is also weak under Haitian law. Twenty people or more who gather to discuss religion, politics and other matters without the government’s permission could be prosecuted."

Or, from the International Crisis Group:

"The judiciary is encumbered by incompetence and corruption, partly due to inadequate pay, infrastructure and logistical support. The legal code is antiquated, barely modified since Napoleon bequeathed it to the one-time French colony, judges are not independent, case management is poor, and indigent defendants rarely have counsel.

"The state is able to guarantee neither the security of its citizens nor the rights of defendants. When arrests are made, the system is virtually incapable of conducting trials. Prisons become more crowded, and street crime escalates daily, while court procedures move at a snail’s pace. The results are prolonged pre-trial detention – some 96 per cent of the inmates of the National Penitentiary have not been tried – lack of due process and near total absence of public confidence in the criminal justice system."

I read the above and think, What the hell am I complaining about? We have courthouses, lawyers and trials, at least. But sometimes our system is more the veneer of a good system than an actual good system. Of course, having a lawyer is better than never seeing one at all. But a lawyer that serves as a stewardess (these are the charges you will be pleading guilty to today, Sir) instead of an advocate, isn't adequate justice, either.

Because even when we have the apparatus of a modern criminal judicial system, it is damned hard to fight the power of the police when they're out to get you or your client--like this tragedy where a Texas couple received life in prison based on false testimony that 255 grams of meth could get 45,000 people high. (Via Grits for Breakfast)

Because I love all optimists, and used to be more of one myself, I will end with the outlook of Ms. O'Connor (of USIP, above), as she sees the future of Haiti's Criminal justice reform:

"I see this same creative spirit [of the Haitian people] being applied to the criminal law reform process in which national actors -- with some help from international organizations, like USIP -- strive to achieve goals like fairness, equality and justice for all Haitians."

And once you're done with that, could you bring some of that Fairness and Justice For All over here to us?

Overheard at the Public Defenders' Office No. 2

2010-01-14T16:23:00.000-08:00

HEAVILY-INKED, SKINHEAD CLIENT: The prosecutor's tryin' to break me, but you've got to tell him that I'm not a criminal.

PUBLIC DEFENDER: But you have the word
C-R-I-M-I-N-A-L tattooed on your forehead ...

CLIENT: That one was a big mistake.

PD Office Paraphernalia Wish List

2010-01-13T23:55:00.000-08:00

I have to say that my iphone is the best paraphernalia (legal or otherwise) I've ever owned. I can schedule appointments with my clients in court and have the appointment transferred to my work calendar complete with a reminder (I've had phones that were supposed to do this before, but somehow it never worked out). I can also research a quick PC issue at the stinky docket via the internet, or text someone (like in the middle of trial) and have them email me a case. Every phone number in the county directory is magically on my phone. I can also make graffiti.

During a tedious calendar call, I can morph myself onto the statue of liberty to annoy nearby prosecutors.

My precious needs a comfy chair.

This is the only Bluetooth handset that my phone finds acceptable.

To keep the iphone's living space clean, a zamboni-desk vacuum.

But there is one place that I won't take my phone, and unfortunately this is where I have my best trial ideas.

My Own Private Idaho

2010-01-12T18:20:00.001-08:00

The state of Idaho filed its answer to Former Idaho Transportation Director Pam Lowe's lawsuit for wrongful termination, according to this news story. Ms. Lowe claimed, among other wrongs, that a Transportation Official commented during her hiring process, "No little girl would be able to run this department," and also asked, "What are we going to do when she decides to start a family?"

In its response to the suit, filed this weekend, Idaho denied that the statements were made, but "any such statements if made ... would have been made more than 2 1/2 years before the Board's decision-making process to terminate Plaintiff." It is funny that my indigent clients usually understand what the state of Idaho can't: It's best to pick one defense--either you didn't kill the guy, or you killed him in self-defense. But not--you didn't kill the guy, but even if you did it was self-defense.

Although it is impossible to judge a lawsuit from newspaper reports, I offer a personal story for some remote Inland Northwest perspective.

I moved to Washington's East side about 10 years ago, after practicing in the Seattle area for 5 years. Even on the West side, I was used to acting like "one of the boys" in criminal law circles, but I wasn't prepared for the culture shock I got when I found a job at a public defender's office in the Idaho panhandle.

My new boss was the best part of the deal--he was the crusty epitome of a rural lawyer--long mustache, gravelly voice, and I saw him get in two fist fights with prosecutors at the courthouse. When I interviewed, he told me a story about saving his wife's Poodle's life by giving it mouth-to-mouth resuscitation.

My new office was a strange room (please don't say janitor's closet; I've got my dignity) in the middle of the building behind a secretary's desk. Small, windowless, and it barely fit a desk, but its strangest feature was a orange formica counter complete with a sink. When clients came to see me, I would ask them flatly, "Would you like some water?"

My new paycheck was less than 1/2 of my previous salary. (Ah, love.)

My new boss scheduled office meetings at 5:00 in a bar called the Iron Horse. He invited speakers sometimes, usually criminal defense lawyers, but really anyone who would come talk to us, even the occasional judge.

One of the judges who came to visit, let's call him Judge Mighty, liked to demean people on the record ("Do you use that same mouth to kiss your children at night, Sir?" He was also the one who sent my client to jail on one of my first days at work, with the client's dog locked in his car outside the courthouse. It took me all day to rescue the dog, but no mouth-to-mouth resuscitation was involved.) He was smart, though, and knew the law, and I ~~figured he would send me to jail one day~~ knew it would be interesting and challenging to practice in front of him.

In deference to Judge Mighty, who I had heard was a teetotaler, I asked the bartender to serve my whiskey in a coffee mug. After having us all move to the non-smoking section, the judge told us about himself, including his years at the public defenders office where he seemed to have done everything much better than we were doing, and he mentioned that he had been married for 25 years, and that his wife spent her time "raising brilliant children."

While I was wondering if any of the the brilliant girl children were allowed to have professions, or if they were only to be brilliant children raisers, I heard another lawyer ask:

"Judge Mighty, What do you think makes a good lawyer?"

"A good criminal defense lawyer is quick on his feet and tenacious," Judge Mighty said with quick confidence. "I will say, though, I do not think women are aggressive enough to be good criminal defense lawyers."

I almost bit through my coffee-whiskey mug, but was too taken aback to say anything. I've been accused of a lot of things, but a failure to be aggressive isn't one of them.

Judge Mighty's comment was no big deal, not for me personally, except for the cumulative effect things like this have on all of us, not to mention the brilliant children. I offer the story because I worry when people read news accounts like the one above, they'll think: That's crazy, no one would ever say that!

But I'm here to tell you, it can happen, and it can happen in Idaho, the Human Rights State.

How to be a Public Defender Revolutionary, Part II

2010-01-11T22:36:00.000-08:00

Yesterday, Part I: Read the following publications:

ABA Formal Opinion 06-441

and

ABA Eight Guidelines

(because they provide that public defenders have the right and ethical duty to decline to accept excessive caseloads)

Today, Part II: Caseload Standards

I n the early days, I thought I could handle almost any caseload. After working through those first trials (you know the ones, where you drive to your office at 4:00 a.m., thinking, please let me be involved in a minor car crash where I am hospitalized for long enough to avoid the trial but maybe please not permanently disfigured) I thought I was hot shit. Sure I was in emergency-mode 90 percent of the time, and in bar-mode the other 10, but I thrived on emergencies, I thought.

For my fellow public defenders and me, it was a sign of toughness to have too much heaped on us, to shoot from the hip, and to kick the state's ass some, too. The longer I've "practiced" at this job, though, the more I know that most of us have too many cases, regardless of whether we exceed any official caseload standards, and having too many cases doesn't make us tough, it beats us down.

The first thing I have to say about caseload standards is: 1) They are manufactured crap, pulled out of thin air; and 2) it is really important that we have them.

According to Justice Denied, the National right to Counsel Committee's comprehensive report, the numbers come from a 1973 report by the National Advisory Commission (NAC) on Criminal Justice Standards and Goals, funded by the federal government. The commission recommended the following maximum annual caseload for a public defender office, i.e., on average, the lawyers in the office should not exceed, per year, more than 150 felonies; 400 misdemeanors; 200 juvenile court cases; 200 mental health cases; or 25 appeals.

I first started looking into the basis of caseload standards about six years ago, when the felony lawyers in my office were dying, but our director could not pursue additional lawyers “because our numbers were OK.” At the time we had about 180 felonies per lawyer per year, but due to an inspiring founding director, we also had a strong motion and trial practice. We weren’t giving in to bad plea bargains, but we were beginning to crack, mainly because the prosecutors outnumbered us about 2.5 to 1.

I remember arguing at the time, “but 180 or even 150 can’t be absolute—I can’t handle 150 murder cases per year, and I can’t do 150 trials per year.” I couldn’t get anywhere with these arguments, and those of us in felonies kept dying, back-to-back trials, sometimes 2 a week—I think I once did 5 (or was it 8?) back-to-back trials.

When I read comments like the following in Justice Denied and the ABA publications, I want to weep because maybe I wasn’t so crazy after all to think 180 felonies a year was too many; but I also want to punch someone, because while all these committees have been playing around with their made-up numbers, I was fucking living it.

“Because the NAC standards are 35 years old and were never empirically based, they should be viewed with considerable caution. In fact, the commentary that accompanied the NAC caseload numbers contained numerous caveats about their use, which have rarely been cited. For example, the commission acknowledged the 'dangers of proposing any national guidelines.'

Further, while the commentary conceded that its numbers could be used to measure a single attorney’s caseload, its report also contained a warning: 'It should be emphasized that the standard [referring to its numbers] sets a caseload for a public defender’s office and not necessarily for each individual attorney in that office.'

Moreover, since the NAC’s report was published, the practice of criminal and juvenile law has become far more complicated and time-consuming."

--Justice Denied

If the caseload numbers were arbitrary when proposed and now arbitrary and out-of-date, and should be viewed with caution, why am I even talking about caseload standards? Because they are better than nothing, and because the ABA opinion and guidelines emphasize that they are maximums.

“Consistent with prior ABA policy, these Guidelines do not endorse specific numerical caseload standards, except to reiterate a statement contained in the commentary to existing principles approved by the ABA: 'National caseload standards should in no event be exceeded.' This statement refers to numerical annual caseload limits published in a 1973 national report.

As noted by the ABA Standing Committee on Ethics and Professional Responsibility, while these standards “may be considered, they are not the sole factor in determining whether a workload is excessive. Such a determination depends not only the number of cases, but also on such factors as case complexity, the availability of support services, the lawyer’s experience and ability, and the lawyer’s nonrepresentational duties.'"

--ABA 8 Guidelines of Public Defense Related To Excessive Workloads, p. 11-12

And again in a footnote, the ABA 8 Guidelines comments about caseload standards:

“In its report on the Courts, the Commission [National Advisory Commission on Criminal Justice Standards and Goals] recommended the following maximum annual caseloads for a public defender office, i.e., on average, the lawyers in the office should not exceed, per year, more than 150 felonies; 400 misdemeanors; 200 juvenile court cases; 200 mental health cases; or 25 appeals.” JUSTICE DENIED, supra note 1, at 66.

As noted in JUSTICE DENIED, these caseload numbers are 35 years old, the numbers were never “empirically based,” and were intended “for a public defender’s office, not necessarily for each individual attorney in that office.” In fact, the Commission warned of the “dangers of proposing any national guidelines.” Id.

The American Council of Chief Defenders, a unit of the National Legal Aid and Defender Association comprised of the heads of defender programs in the United States, also has urged that the caseload numbers contained in the 1973 Commission report not be exceeded. See American Council of Chief Defenders Statement on Caseloads and Workloads, August 24, 2007.
--ABA 8 Guidelines

There are a lot of caseload stardards out there, but all of them, as far as I know, are close to those proposed in the 1973 report. We can use these numbers, though, no matter how flawed, as a starting point for absolute maximum caseloads, and then we can use all of the other studies, reports and standards to work the numbers down.

And then we can tell them--you know those excessive caseloads you want me to handle despite my ethical duty to my client:

You can't make me.

~~Tomorrow~~ ahem, In Upcoming Posts, Part III: Resources for Interpreting Caseload Standards

How to Be a Public Defender Revolutionary, Part I

2010-01-11T01:07:00.000-08:00

Step I: Read these two ABA Publications:

ABA Formal Opinion 06-441 (Ethical Obligations of Lawyers who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere with Competent and Diligent Representation)

and

ABA Eight Guidelines of Public Defense Related to Excessive Workloads

"If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients."

--ABA Formal Opinion 06-441 (2006) Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere With Competent and Diligent Representation

We have the power to stop excessive caseloads. We have this power because two reports—the ABA’s 2006 Formal Opinion 06-441, Relating to Excessive Caseloads and its 2009 follow-up: Eight Guidelines of Public Defense Related to Excessive Workloads—give us the authority and ammunition to end the wide-spread reality of untenable caseloads. These publications provide that public defenders have the right and the duty to decline new clients when caseloads are unreasonable. As with our clients, though, our rights won’t do us much good if we don’t use them.

When I first read Formal Opinion 06-441, my impression was that the ABA was putting both the blame and the responsibility for public defender reform on the street-level public defenders. I mean, really: We went into this career as naïve law graduates hoping to work for human benefit rather than money; we were thrown into court without resources or training with our clients’ freedom at stake; and then those of us who didn’t drown, and even thrived in the battle, got beaten down by judges who abused us for doing our jobs and bosses who saw it as more important to appease those in power than support his lawyers. Oh wait. That was me.

When I stopped feeling sorry for myself, I realized: forget about being pissed, maybe the ABA gave us this this tool because nothing else is working to control caseloads. And regardless of the ABA's motivation in preparing this opinion--it is a thing of beauty (but OMG could you give it a better name, please?) as it provides the duty and methodology to refuse excessive cases, and even to go over the head of supervisors and directors, if necessary.

Defenders in crisis have begun using the opinion as a basis to refuse cases in several states. A December 22, 2009 NPR report noted that attorneys may be cleared to stop accepting cases:

“This month, the Missouri Supreme Court acknowledged those concerns and urged public defenders to work with prosecutors and judges to rein in the number of cases going to trial. But if that fails, the court said public defenders have the right to refuse more defendants, though no one really knows what would happen next. Public defenders in Florida, Kentucky and Tennessee have asked for similar relief."

Assuming the "prosecutors and judges" (!) aren't able to solve the problem, the Missouri Defenders will begin, if they haven't already, declining cases, which is what should be happening in many states and counties. According to David Carroll, Director of Research, National Legal Aid and Defender Association: “There really is sort of a burgeoning movement for public defenders to stand up and just say no.”

Tomorrow: How to Be a Public Defender Revolutionary, Part II

Blogkeeping Notes No. 2

2010-01-11T01:06:00.000-08:00

This weekend, I made a new graffiti banner for PDR, to replace the one I had made on my iphone. For anyone with an interest in graphic design, I learned from this tutorial, which amounted to five hours of my life spent with a 12-year-old computer whiz via YouTube video. When I first found the video, I read a comment that said, "you fucking dick not so fast." I thought, "My, how rude to curse a young man nice enough make a free educational film."

After at least 5 hours spent pausing and replaying and backing up and playing 2 seconds of the 10 minute spot, all I have to say is, "Slow down, asswipe!"

Real Lawyers Have Business Cards

2010-01-08T01:28:00.000-08:00

We here at PDR are true-blue public defenders, but sometimes we have private-attorney lust in our hearts. Not for money, or respect, or to be able to cut in front of the public defenders in court--no, sometimes our thoughts stray because we want to make our own kick-ass business cards.

This one would look nice with a PDR logo? Pretty, but still tough.

This one just needs a defender gal with a briefcase:

Clients might appreciate this card that comes with lock-picking tools:

Here is what happens if you don't pay:

What we promise to do to the state's case:

The service we provide:

After the case is resolved, we can send our clients away with all of their legal papers in a nifty PDR bag:

Overheard at the Public Defenders' Office

2010-01-07T22:45:00.000-08:00

IRRITATED CLIENT: All you do is keep talking about my criminal history, throwing it in my face ...

PUBLIC DEFENDER: But this is your third strike ...

Do As We Say, Not as We Do

2010-01-06T21:53:00.000-08:00

The volume and repetition of published material regarding public-defender reform makes my head tired and spinny. It seems that every well-intentioned person or group interested in PD reform has produced a report, study, guideline, standard, compendium or e-library. So many studies and committees and opinions … and yet the evolution of public defense seems stalled, if not regressing.

In a New York Times article about public defenders in various states moving to refuse cases due to excessive caseloads, Norman Lefstein, a professor at the Indiana University School of Law — Indianapolis, and an expert on criminal justice, said, “I think the quality of public defense around the country is absolutely deteriorating. … In my opinion, there should be hundreds of such motions or lawsuits.”

When I first took the time to download the ~~gigantic,~~ thorough Justice Denied, the National Right to Counsel Committee's recent report on the state of public defense, I knew the publication had refreshing insight when it introduced its executive summary by stating, “In approaching these subjects, the Committee was mindful that there have been numerous studies that have cataloged the problems with indigent defense, but these reports have not had significant impact in bringing about improvements.”

Now here is a lengthy study I will read: one that flatly acknowledges the failure of other studies to achieve reform, yet soldiers ahead with 238 pages and 900 footnotes—and the result is impressive in its depth, insight and recommendations. Hopefully someone other than a tired, spinny defender blogger will read it.

Why all the studies and no reform? Why all the talk and no show? Putting aside reasons of crime propaganda, a public ignorant about its government, and the vacuous nature of most media coverage--one reason for the failure of reform action is that public defenders—the army of available fighters--have been excluded from the process of reform, while also being blamed for the failures of the system. The reform effort is rife with paternalistic features, with professors and directors and lawmakers and private attorneys as the parents and the street level defenders as the children. Where does this get us? A lot of talk without action, recommendations for reform without political will, and standards without enforcement.

It is easy to find examples of offices with excessive caseloads. And while there are numerous “caseload standards” floating around out there, it is safe to say 150 felony cases, to give one example, per defender per year is a maximum.

Why, then, are so many defender offices above this criteria?

Here is an example of an ethics opinion that is duly endorsed, published and otherwise given all the auspices of legitimacy, yet in reality signifies little:

Ethics Opinion 03-01, issued April 2003, from the American Council of Chief Defenders

A chief executive of an agency providing public defense services is ethically prohibited from accepting a number of cases which exceeds the capacity of the agency’s attorneys to provide competent, quality representation in every case. The elements of such representation encompass those prescribed in national performance standards including the NLADA Performance Guidelines or Criminal Defense Representation and the ABA defense Function Standards.

If we have widely-accepted caseload standards setting maximum caseload limits, and a bona fide Ethics Opinion saying that a PD director is ethically prohibited from accepting excessive caseloads, why do so many agencies suffer with caseloads that are grossly in excess of numerical and ethical standards?

I have lots of theories about the pressures that compromise directors, but for today I am not going to focus on what is broken, but rather on what we can do. And while I have no heart for telling on people, I have less heart for public defenders and our clients continuing to get screwed. Thus, it seems that the logical step to take from an obvious ethical violation is an ethics complaint.

Here is my promise to put words into action: If any of you public defenders out there can show that your office exceeds an ethically tenable caseload, I will write a complaint to the appropriate bar association. Not because I particularly like getting anyone in trouble, but because we should all stand behind the ethical standards we endorse.

"Let That Which Is Unsaid Be Said"

2010-01-05T22:04:00.000-08:00

The Bureau of Communications provides these fill-in-the-blank forms with a quick email function. I recently used the Formal Apology (with slightly different words in the blanks) for a prosecutor (who actually had a sense of humor), who liked the form so much that he agreed to quash my client's warrant even though I had been blowing him off about another case for weeks. The site has other forms pertinent to PD workplace needs, including: "Unsolicited Feedback," "Airing of Grievance," and "Declaration of Romantic Intent." Best of all, you can choose an e-stamp for your form--I picked "top secret."

Torn Between Two PDs

2010-01-05T17:48:00.000-08:00

When PDR first read about Jeff Adachi, San Francisco's Chief Public Defender, and his handling of proposed budget cuts to his office, PDR began began writing his name in big puffy letters on her trial notebooks, dotting the "i" with a heart, and making plans to move to SF for some serious pd work. We devote our defense to you! our beaten up and toughened little heart cried.

Why did Adachi have us giggling and twirling our hair? Because this is what he told the San Francisco Board of Supervisors when he was told to cut his budget by 1.9 million.

In a nutshell, Adachi told them: If you cut my budget by 1.9 million and 23 lawyers, I will refuse to accept

additional cases into my office, and then you will have to pay private lawyers millions more than you would paid my office, which is really frigging stupid. When the city refused to give in, Adachi mounted a public relations campaign, complete with posters.

According to the SF Weekly, Adachi "was unrepentant about failing to buy into City Hall's 25 percent off sale, claiming that, unlike every other department head in the city, he simply cannot cut his budget -- at risk of violating the United States Constitution."
When PDR's county public defender budget began to shrink--lawyers who left were not replaced, new duties were given to already stressed lawyers, the seriousness-level of all felony caseloads increased due to plead-em-fast early resolution dockets handled by other attorneys--PDR thought: Why can't we be like San Francisco? Or, more precisely, why can't our boss be like him.

And people replied, of course, that Adachi lives in San Francisco for god's sake, not the remote inland northwest. After a couple of years of watching PDR's resources dwindle, PDR decided that maybe San Francisco and a boss like Adachi were an unattainable dream.

Until:

RIGHT ON, ISLAND COUNTY!

According to the December 25, 2009 Whidbey News Times, head Island County Public Defender Thomas Pacher refused to accept a budget cut requested by the county commissioners, despite the fact that his office had a few months earlier received a 50% budget increase. In the face of "heat" given to him by county commissioners for failing to share in the budget crunch, Pacher explained that there was no way he could cut his budget and still comply with the caseload standards the county had recently adopted. Pacher's letter to the county echoed Adachi's play: Pacher "argued that cutting his budget wouldn’t save the county money anyway because the county would end up hiring more outside attorneys to handle what his firm couldn’t."

Now our PDR heart is divided against itself. Adachi--bold, photogenic, on posters and TV, but he is also elected by a liberal public and not chosen by the very officials he was fighting against. Pacher--the head of a 7-lawyer office on a frigging Island in Puget Sound, stands up to the commissioners who have the power to remove him as head PD, right after he received a 50 % budget increase, and in a place that could care less about indigent rights.

Our defender heart is torn.

Of Lawsuits and Reform

2010-01-04T18:52:00.000-08:00

The lack of adequate indigent defense funding in Michigan has led to a class-action lawsuit (Duncan v. Granholm and the State of Michigan), public hearings, testimony before the U.S. Congress, and a recent bill to establish an equitably funded, state-wide public defense system. Michigan H.B. 5676 was introduced Dec. 10, 2009, and, according to the The Michigan Citizen:

It would be known at the Public Defense Act and establish an independent Public Defense Commission which would promulgate a budget, and a State Office of Public Defense and Appellate Defense Bureau with regional subdivisions. It would also prohibit excessive caseloads for defense attorneys (which currently average 750 across Michigan), require that those attorneys be trained and experienced, and provide salary equity with prosecutors, among other measures.

We here at PDR are the craziest kind of optimists: We truly believe that things can change for the better, and we get all exited when we read about a proposed defender system that is independent, adequately funded, prohibits excessive caseloads, and requires parity of pay with prosecutors. A cause of concern, though, is a press release from the ACLU regarding the issue:

For more than 30 years, state and local experts have reported on the deficiencies of Michigan’s public defense system, yet the state has done nothing to improve the situation. Recently, an American Bar Association report ... repeatedly cited Michigan for failing to meet the ABA Ten Principles, which are considered the fundamental criteria a system must meet to provide effective public defense.

Wait: "State and local experts have been aware that the system has been deficient for 30 years"--and they haven't been able to change it? They haven't even tried? "The ABA repeatedly cited Michigan for failing to meet the ABA Ten Principles?" ... but still no change?

The inability to change a broken public defender system doesn't come from a lack of knowledge that the system is screwed up, or because we are unaware of the tragedies that happen because of it, or because the "experts" can't figure out what is wrong--the inability to change comes from the lack of will to change.

The will to change may indeed come from the expense and embarrassment of the lawsuit filed by the the Michigan Coalition for Justice (whose members include the ACLU, NACDL, and the Brennan Center for Justice) which put the Michigan legislation in motion. PDR worries, though, that the results of the ACLU's lawsuit in Grant County, Washington might be a better prediction of the ability of a lawsuit to effect lasting and pervasive change.

The Grant County settlement led to a restructuring of the county's defender system, and the appointment of a court-appointed monitor. The Grant County lawsuit was an awesome achievement, but its hard-earned and imperfect results demonstrate the difficulty of public-defender reform, especially in a single, rural county. Problems similar to those existing in Grant County pre-lawsuit exist in surrounding rural counties, and have not been solved. In PDR's Washington county, we are still waiting for an office with leadership independent from county commissioners and judges, weighted case-load standards, adequate support and investigator staff, independent oversight, and an effective conflict-of-interest policy.

Where can the will to change come from? It should come from the people who care most about the issue--the people most affected by it. Who suffers the most tangibly from underfunded public defense? The indigent and us, the underfunded public defenders. Our clients are not the ones to forge this will. The will to change has to come from us--the public defenders who bear the brunt of the work and blame in an upside-down system. We have to forge the will to change the systems we work in, and then gain the knowledge, resources, and momentum to do it.

PD Bill of Rights

2010-01-03T19:11:00.000-08:00

A top ten list from a thirteen-year veteran (recruit?) to the public defender bill of rights.

10. An Office with walls (windows and not a cubicle a plus but not strictly necessary)
9. A computer with internet (preferably high speed) and programs 2006 and newer.
8. A current set of jury instructions, statutes, and the occasional cool accoutrement (like a wipey board or projector for presentations).
7. A library or quiet place to crank out that ten page brief that was due yesterday.
6. Case load limits.
5. Continuance is not a dirty word.
4. A holistic approach where everyone in the office is working for the clients and is dedicated to the betterment of our world through zealous advocacy for our clients.
3. A place you can laugh or cry, depending on mood…and an atmosphere that will tolerate both.
2. Someone running the organization that can balance the need for bureaucracy (aka $) with the need to foster and support independent-minded warriors for justice that can be occasionally unruly in fighting the man.
1. Adequate Funding for which we get extraordinary results.