The Question Remains The Same

With all apologies to Chris Rock,

The question remains the same: Do private attorneys really care if the criminal defendants get adequate representation from a Public Defender? The answer is “Not Really.”

Reason #1 – It would interfere with their ability to make a buck.

Let us think about this rationally. You are a criminal defendant with limited funds. You have three choices: represent yourself, get a public defender, or spend your limited funds to hire a private attorney. If the public defender’s office was properly funded and staffed to provide not just adequate but exceptional representation, why would a criminal defendant spend their limited funds on a private attorney? They would not do so. Therefore, the private attorney has to provide a value added reason to justify to the criminal defendant to pay for the premium of private representation.

And how is that done, boys & girls? Marketing; Self-Promotion. What is one of the most basic marketing strategies that businesses employ? My product is better than the other guys, and the other guys’ product is crap. So, how does this relate to private attorneys and public defenders? Simple, a great number of private attorneys will bad mouth public defenders as a means to show to a potential criminal client why the client should hire him/her. The private lawyer will promise more contact with client than what a Public Defender will provide. The private lawyer will promise to file every possible motion under the sun (regardless of merit) unlike the Public Defender that will not file the silly motion. The private lawyer will promise to argue any ridiculous defense unlike the Public Defender who knows that certain bullshit will not fly in court. The private lawyer will promise the moon & stars to the client unlike the Public Defender that can only offer the dirt beneath his feet. Why would a private lawyer do this? The answer is simple; to quote a line from a song that you can find on any oldies rock station, “Give me money. Lots of Money.”

Let us think of this from another angle. Say you need a critical surgery to be performed and quickly. Your family physician performs this surgery once a year, and only once a year. The reason he does it only once a year because the surgery takes him away from the moneymaking aspects of his practice. Yet, you know of a surgeon that works at county hospital that does the procedure at least once a week, and is quite good at it. Are you going believe the smack talk from your family physician about how incompetent the surgeon at the county hospital is and how he can do surgery better, but you are going to have to pay the premium for his services? We would be appalled and aghast at the family physician’s behavior, but the trash talking of Public Defenders (whether to make money or under the auspices of “trying to help”) is accepted fare.

So, the question remains the same: Do private attorneys really care if the criminal defendants get adequate representation from a Public Defender? The answer is “Not Really.”

Reason #2 – If they were honest about it, they would have to realize that a great number of them are guilty of the same things that they accuse public defenders of doing.

So, what are the most common complaints about public defenders?

a.) they do not (or will not) talk to their client’s,

b.) they do not return the client or his family’s calls

c.) if they talk to their clients, they do not listen to the client,

d.) they do not visit the client at the jail,

e.) the public defender belittles the client by calling the client names or cursing at the client, and

f.) the all-time favorite . . . . Survey says – The public defender made the client enter a guilty plea.

For every self-righteous private attorney that laments about the state of Indigent Defense and blogs about how he has seen public defenders commit these transgressions, I can point to an equal number of private attorneys that have done the exact damn thing. I contend that the private attorney’s actions are more horrendous because they had to take the hard-earned money of another person under false hope. So, to those pious private attorneys that criticize public defenders, I would like to  quote a line from a blues tune to you, “Before you accuse me, take a look at yourself” or to quote the good book, “He that is without sin among you, let him cast the first stone.”

So, the question remains the same: Do private attorneys really care if the criminal defendants get adequate representation from a Public Defender? The answer is “Not Really.”

Reason #3 – If they really care about the state of Indigent Defense, it would require them to do something other offer empty rhetoric about how public defenders should practice law.

Across the fruited plain, a crisis looms large in the state of Indigent Defense. A down economy, tightening state budgets, rates of prosecution rising, caseloads going from the tens to the hundreds, from the hundreds to tens of hundreds. What advice does the private bar give to us, the few, the proud, the Public Defenders? Refuse cases. File motions challenging the constitutionality of the inadequate funding of Indigent Defense. Stand up and resist. In addition, by the way, have a preliminary hearing on every client, file that marginal motion to suppress, track down every last witness, and try every damn case. They tell us not to be afraid of the political backlash. They tell us not to be worried about the loss of our jobs. They tell us “be not afraid” because we are the guardians of the Constitution and the guarantors of the promise of Gideon (the court case and not the guy from Connecticut). They tell us that if we trample on these cherished liberties, what is our worth as attorneys?

To the sanctimonious private attorney that espouses this guilt-ridden drivel in my direction, answer me the following:

a.) are you going to pay my contempt fine, when the Judge throws me in the county jail?

b.) Are you going to pay my rent, my car note, my student loan payments, my bills, when I get fired from my job as a public defender for heeding your advice?

c.) Are you going to help me find another job?

d.) Are you going to hire me?

e.) Are you going to take over my caseload to make sure that my clients are properly represented?

I didn’t think that you would. In fact, I know that you won’t. It is easier to sit on the sidelines and complain about the problem than do anything about it.

What? What was that you say? You say that you are litigating the issue by filing motions with the court to stop the prosecution of your appointed clients, due to the lack of adequate funding for Indigent Defense? That’s nice. However, the primary beneficiary of your motion is your client and not the public defender that you claim that you are trying to help. I have heard about “Trickle Down Economics.” This must be “Trickle Down Litigation.”

What? What was that you say? You say that you filed motions with the Court telling it that you cannot continue representing your appointed client because of the lack of adequate funding for Indigent Defense. And that until you receive additional funds that you cannot and will not represent your client any further? Hell, I have heard of “No taxation without representation.” I guess then your mantra should be “No representation without compensation.” I fail to see how this is more honorable than a Public Defender that maintains his employment but does not refuse taking on additional cases.

What? What was that you say? You claim that you do not make criticisms of public defenders lightly, and that you wish only to help improve the state of Indigent Defense. I call bullshit. It is easier to criticize on someone on the web than meet with that person in the real world and to engage him or her about the practices that he employs as an attorney. In addition, if you were do this, it would whittle away your valuable time, and we know that time is money.

What? What was that you say? You were a public defender not too long ago, and that you know our plight? Okay, Batman, riddle me this: What are you now? Well, you tell me, a private criminal defense attorney, and from your blather, I can see that you are a very good private criminal defense attorney. Nevertheless, I am confused. Why did you leave the Indigent Defense that you care so much about to go into private practice? Could it be your love of money is stronger than your love of the Constitutional guarantees that you champion so boisterously?

So, the question remains the same: Do private attorneys really care if the criminal defendants get adequate representation from a Public Defender? The answer is “Not Really.”

CODA:

My comments are meant to be in jest or serve as a parody of the utter garbage that I hear from private attorneys on a regular basis. Yet, we can agree on the following:

a.) Criminal Defense is not for everyone,

b.) Regardless  if the attorney is privately retain or a public defender, there are certain attorneys that suck at criminal defense, and should never practice it,

c.) Both sides of the criminal defense bar needs to take steps to get rid of said attorneys,

c.) The Legislative Branch does an unsatisfactorily job of funding Indigent defense,

d.) All of us can do more to fulfill the promise of Gideon and to protect the Constitution, and

e.) We are in this thing together.

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