Do As We Say, Not as We Do

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.”

"Let That Which Is Unsaid Be Said"

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

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

Of Lawsuits and Reform

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:

PD Bill of Rights

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.

Blogkeeping Notes No. 1

I am working on a Public Defender Bill of Rights to post, and would welcome ... am fairly desperate for ... need (please!) suggestions. I am trying to include things that are necessary to zealous representation of our clients and to our own sanity. I am struggling to censor my sarcastic side (a beer in every briefcase!), and am thinking of things like "a manageable caseload" and "an office with walls." Send ideas to frayedknotpd@gmail.com. Contributors will receive a Yep We Can button. I will also be adding links to more resources and news. Additionally in blogkeeping, I hope to find a way to make the banner and yep thing better color coordinated, because I am crazy that way.

PDR Manifesto

We will fight for anyone.

We will fight for the innocent, the underdog, the unlucky, and the guilty. We will fight the power. Because if we know anything as public defenders, we know that people in power tend to abuse it. We may not have known this when we started our jobs, but we learned it about 5 minutes into it, when the prosecutor wanted to send our first client to jail for a year for driving without a license. We learned it when the judge put our client in jail for being 5 minutes late to court (and we then tried to figure out what to do with the client's dog left locked in the car). We learned it when the judge told us we had to go to trial on a case he had just appointed us on.

Maybe we didn't know how to fight at first, either. But we learned it when we told the prosecutor that if he wanted a year for driving suspended, he could prove it at a jury trial, with a constitutional challenge thrown in for fun. We learned it when we took the dog to the client's girlfriend's house, against all office policy. We learned it when we told the judge we would not do a trial unprepared. We learned how tough we can be when the judge threatened to put us in jail, and we just shrugged, "Go ahead, but I'm not doing this trial." The lesson became a part of us when the judge backed down and gave us a continuance.

But there's one thing we haven't figured out: How to fight for ourselves. I don't know if we're too busy, or too tired, or only like fighting other people's battles--but we haven't figured out how to advocate for our own public-defender rights. It seems so strange that lawyers who specialize in questioning authority seemingly bow to it regarding systems of public defense. We have no real organized voice, and because of this, allow the people in power to define our world.

I know this sounds a little theoretical, but the real-world implications abound. I am going to get to the details of my argument in coming posts, but first, for today, let me clarify my thesis: We, as street-level public defenders, have to unite. We have to unite and advocate for the changes we know we need. We can't leave it to our bosses, or the courts, or the bar associations, or legislatures to do it for us. We have to fight for ourselves, because no one else really wants to do it, or can do it.

And here's how I can sell it to you: By fighting for ourselves, we're really fighting for our clients.

So, join PD revolution--it's not my revolution, it's ours, and we've got to get going!