Yeah, if you came here for more about Orin Kerr’s non-response to my articles about his technology neutrality theory, I’m afraid it’s going to be a few days at least before I blog about the Fourth Amendment.  I’m trying to figure out if I can word it in such a way that he won’t say, “I’ve already answered that,” when he hasn’t, or “you’re talking about something different,” when I’m not.

So today I’ve been reading some new blogs I haven’t had as much time to check out.  The recent buzz (link broken, so removed 11/4/2022) is about Ineffective Assistance of Counsel (IAC) and some Public Defenders getting bent out of shape by being called out for providing it, or not providing it, or providing it.  Whatever.

Let’s see if I can start this off right:  Most of the Public Defenders — and by “most,” I mean “a really large number of them” — that I know comprise a group that might be appropriately called “The Bestest Lawyers in the World.”  These include people like Chuck Denton who is a frequent teacher — usually referred to by people who aren’t listening as “speaker” — at California Public Defender Association (CPDA) or California Attorneys for Criminal Justice (CACJ) continuing education fora.  Also included would be Garrick Byers, one of the contributors to the Continuing Education of the Bar (CEB) tome, California Criminal Law: Procedure & Practice, which, around here, we usually just refer to as “the bible.”  (Or sometimes “the tan bible” because it’s always got a tan-colored cover and so we can differentiate it from The Bible.)  I could list a very large number of Public Defenders, but these are the two from whom I’ve personally benefited the most; they’ve taught me a lot.  No doubt I could learn from many more, but I’ve never had the privilege of being a Public Defender.

(If I’ve offended anyone by not creating a huge list, it’s only because 1) it’s not the purpose of this post to do so, 2) these two are two with whom I’ve had a lot of personal contact that has directly benefited me as an attorney, and 3) without more contact, I can’t in good conscience list others as “The Bestest Lawyers in the World.”  Some would say I’m pushing it by listing any, since I haven’t been around long enough to know all the lawyers in the world.)

I have, however, seen large numbers of Public Defenders in action.  Some more than once.  They’re normally very good attorneys.  You won’t find me badmouthing them.

In fact, I think a good argument can easily be made that it’s more likely you’ll find a bad private attorney than it is you’ll find a bad Public Defender.  The job of being a Public Defender is such that if you’re not a very good lawyer, it seems to me that your boss — the Chief Public Defender, for lack of a better title — is going to notice.  If you’ve somehow stayed under his radar, never fear: your peers are going to notice, too, and perhaps (because most Public Defenders I know are quite conscientious) they’re going to murmur about it, or find some more direct way, and you’re eventually going to be found out.  There are enough people who want to be Public Defenders — at least in Fresno, California, where I have my criminal defense law office — that you can be replaced.

As Jamison Koehler noted,

These people receive a tremendous amount of support.  And, if a bad lawyer should happen to slip through the rigorous vetting process, they have people to monitor the situation and fire the lawyer before any real harm can be committed. The system, for the most part, works.

On the other hand, Fresno is a city whose population allegedly just passed 500,000.  A bad private attorney can probably survive for quite awhile simply by “low-balling” on fees in a city with half-a-million souls.  Such an attorney will attract misguided souls who believe that any private attorney is better than any Public Defender.

With attorneys — so far as I’ve seen — it’s not always true that “you get what you pay for.”  But it’s a sure bet that if a number of attorneys are quoting you several thousand dollars for your defense and some attorney offers to take your case for half what everyone else wants, you might want to ask a few more questions.  I’ve seen cases I know I can’t adequately handle for less than $10,000 and up go to other attorneys because the client said “so-and-so told me he can do it for $2,000 and that’s all I can afford.”  I’ve heard of attorneys who agree to take payments to make it easier on the client, then drag the case out long enough to get the money, doing nothing but setting continuance after continuance, only to drop it, or deal it out, after either the bill is paid, or the client runs out of money.  (When I first started practicing, I heard continuances like these referred to as “Green motions” — as in “show me the Green” — and even otherwise good attorneys didn’t see a problem with a continuance for no reason but to make sure they got paid.)

But I digress.  This post isn’t about money.  You can find a good and cheap attorney.  It’s just that usually those kind are called “Public Defenders.”  And thank goodness they exist.

Private attorneys, though, have offices to run.  This means they have overhead.  Rent, electricity, paper, toner, office furniture, books, telephones, computers, secretaries (sometimes), office managers (sometimes), paralegals (sometimes), state and local bar dues, national and state association dues, continuing education fees, legal research services, malpractice insurance, bookkeepers, income tax, self-employment tax, health insurance and any other benefits, etc., are all things these attorneys have to pay for out of their own pockets.  Some even pay for advertising.  And, oh, by the way, when people hear that you’re an attorney, lots of things cost more money than they would if you were not.  I once heard about a private attorney who was bringing in $250,000 per year, which sounded absolutely fantastic until I learned that was before taxes and overhead.  He had one full-time employee and several part-time or contract people he paid for things like research and writing.

Attorneys who work on the cheap have to work fast on the cheap.  Either that, or they can’t do much on the cheap.  Or both.  They have to handle more cases than attorneys who charge what they’re really worth.  On the other hand, I guess you could say those charging “too little” are actually charging what they’re worth.

The point of this is that Public Defenders are often better attorneys, on average, than private attorneys.  Note that I said, “on average.”

Public Defenders, by the very nature of their jobs, get more experience.  A private attorney might handle a few-to-several trials a year; a Public Defender will sometimes handle that many in a month.

Like so much in life, there are two ways to learn how to handle the law.  Some people will argue that one way is better than another; it doesn’t matter, there are still two ways.  One is you can learn from your own experiences; another is that you can learn from the experiences of others.  Since “experiences” often include mistakes, it’s sometimes better for your clients if you learn from other attorneys’ experiences.

But most private attorneys are solos.  And for some reason, it’s hard for us solos to “network” with others often enough to really gain the benefit of their experience, unless we go to a lot of continuing education seminars.  Public Defenders practice in what is basically a large “firm.”  If I get a case where some aspect of it puzzles me, I have to try to hunt down someone with more experience who will allow me some time to pick his or her brain.  (Some great attorneys who have helped me in this regard include Michael Idiart, Kathy Hart, Barbara O’Neill, Erin Ormonde, Garrick Byers, Jim Lambe, Serita Rios, Mark Braughton, Antonio Alvarez and Jack Revvill, to name a few.)  A Public Defender usually has enough other attorneys around her that she can just walk down the hall for help.

Having said all that, there is a real dilemma developing in our county, our state, and our nation when it comes to Public Defenders.  The budget crunch means that many Public Defenders — who have always been overworked and under-appreciated — are being worked to the point where they cannot effectively do their jobs.

Very few Public Defenders, however, will have the courage to do what needs to be done when this happens: Resist, tell the court they cannot perform the work, tell their bosses they cannot perform the work, encourage the office to conflict off the case so that it can be assigned out.

[A] deputy public defender whose excessive workload obstructs his or her ability to provide effective assistance to a particular client should, with supervisorial approval, attempt to reduce the caseload…. If the deputy public defender is unable to obtain relief in that manner the ABA Opinion provides, he or she must “file a motion with the trial court requesting permission to withdraw from a sufficient number of cases to allow the provision of competent and diligent representation to the remaining clients.  (In re E.S. (2009) 171 Cal.App.4th 1219, 1245 [90 Cal.Rptr.3d 564].)

Note that this opinion aims the comment at deputy public defenders.  They first try to get supervisorial help to alleviate the problem, but if that doesn’t work, the duty to file a motion with the trial court falls to them.  This makes sense.  The “I was only following orders” defense hasn’t worked since the Nuremberg trials, except when police officers are on trial.  And in the latter cases, it only works because any excuse would work. (“I had a bagel for breakfast instead of a doughnut” would probably work.)

I would be remiss if I didn’t point out why I wrote this post.  I’ve been thinking about it for a long time.  Sometimes clients who clearly cannot afford a private attorney (not me, or any other good private attorney) sob, weep, and even become hysterical at the thought that they’re “going to get stuck with a Public Defender.”  I usually explain to them what I’ve said above.  Public Defenders exist for just these sorts of people and 99% of the time, they do just fine.  Lately, as I’ve seen budget cuts hack the Public Defender’s Office to the bone, I’m not so sure I can honestly say that anymore.  There comes a point where you have to realize, as one commenter to Jamison’s blog put it,

If I’m sitting at the defendant’s table in shackles, I don’t care how good my defender COULD be, I care how good he/she WILL be.

JW, the commenter, complains that when some of us defend Public Defenders,

It often seems that many “blawggers” are talking out of both sides of their mouth.

Increasingly, I have to wonder if I’m doing that in Fresno.  I don’t think so, but the budget cuts have me worried.  I will say that there’s another county where from the stories I’ve heard and the appellate case I’m defending, I’ve decided I cannot soothe indigent defendants by telling them what I usually tell them.  But Jamison’s post covers that problem, too, because the county I’m talking about uses appointed attorneys; not Public Defenders.

I finally decided to write the post today, though, after reading Mirriam Seddiq’s post, “The Thin, Navy Blue Suit, Line.” Her post involved a particular case of bad lawyering by a Public Defender and she ended it by saying:

I don’t mean disrespect when I put, in writing to the court, that this shouldn’t have happened.  Public defender, court appointed, private counsel – we are all in this fight together, but we’re not the thin blue line.  Let the light shine in.

Truer words were never spoken.  We defense attorneys moan all the time about “the thin blue line” that causes police officers to protect the miscreants within their ranks.  We should not be reticent about calling out those within our own ranks who do not live up to their oaths.

More importantly, as the noose tightens around Public Defender budgets around the nation, we should remember that even the bestest lawyer in the world, once he or she becomes one of the busiest, is bound to end up doing a bad job for some (if not all) of their clients.

We must speak up against anything that causes clients to get anything less than what they deserve:  our best defense.