Friday, November 30, 2007

Defending the Damned on the Cheap: Do Public Defenders Deserve Bigger Budgets?

Via Gideon, Radley Balko has a book review at Reason in which he argues that public defender offices, far from deserving scorn, arguably deserve bigger budgets in light of what we've learned from dozens of recent DNA exonerations about how innocent people come to be convicted.

Yes, that's a senior editor at Reason magazine, the small "l" libertarian bastion, calling for increased spending on a government program. (I've been scanning science articles on Google News ever since looking for the inevitable story about genetically engineered, winged pigs.) Writes Balko:
underfunding, coupled with the threat of mandatory minimum sentences and an increase in the number of crimes on the books, results in an overwhelmingly high number of plea-bargained admissions of guilt, as prosecutors look to pad conviction rates and defense attorneys have no choice but to slough off burdensome caseloads. A 2005 report from the Texas Office of Court Administration, for example, found that less than 1 percent of felony cases in Texas ever make it to trial. The rest are resolved by plea bargains. The federal courts aren’t much better: Only about 10 percent of felony cases go to trial. In state courts across the country, it’s 7 percent.

“I can confirm from my own experience as a judge that indigent defendants are generally rather poorly represented,” the federal appeals court judge Richard Posner writes in his 1999 book The Problematics of Moral and Legal Theory. But Posner, chief judge of the U.S. Court of Appeals for the 7th Circuit and one of the country’s most renowned legal scholars, isn’t much bothered by this. “If we are to be hardheaded we must recognize that this may not be entirely a bad thing,” he says. “The lawyers who represent indigent criminal defendants seem to be good enough to reduce the probability of convicting an innocent person to a very low level. If they were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A barebones system for the defense of indigent criminal defendant may be optimal.”

Posner’s position is widely shared. Indeed, most advocates of limited government would probably instinctively resist the idea of devoting more public resources to the legal representation of indigent defendants. But perhaps it’s time to reconsider that resistance.

The fundamental function of government is to secure the rights of its citizens. There has never been much problem generating support for the law enforcement side of that responsibility: courts, police, prosecutors, and prisons. The government seems eager to protect us from criminals. But it’s also obliged not to violate our rights in the process.

If we’re serious about giving everyone a fair crack at justice, indigent defendants need access to the same sorts of resources prosecutors have, including their own independent experts and investigators. If we’re going to generously fund the government’s efforts to imprison people, we need to ensure that everyone the government pursues is adequately defended and protected from prosecutorial overreach. The ongoing stream of exonerations in felony cases suggests we’re a long way from that goal.
Of course, in most of Texas indigent defendants are represented by private attorneys, who in some cases are paid more for entering into a plea bargain than for seeking a dismissal of the case!

Balko quotes Judge Posner declaring that poor-quality indigent defense may not be a bad thing "if we are to be hardheaded." What he left unsaid is that to be hard-headed about providing quality defense counsel, we must simultaneously be hard-hearted toward innocent people caught up in the system who do not receive a zealous defense.

There is little middle ground here - the overarching design of the adversarial system assumes each defendant receives an attorney's competent and zealous representation, but at the micro-level, underfunding thwarts that goal and makes mockery of claims to sure justice. Since Posner wrote those words at the end of the last century, advancements in DNA technology and the resulting exoneration of more than 200 people (so far) put the lie to his assumption that our system has "reduce[d] the probability of convicting an innocent person to a very low level."

Much has changed since then. We now know to a certainty that eyewitnesses frequently misidentify suspects who they didn't know previously, and that the failure to use "double blind" lineups can cause police assumptions to influence witnesses. We know that crime labs make errors and that forensic science is not the same as objective science. We know that informants will lie to reduce culpability for their own crimes, and that the average person only recognizes a lie when it's told to them about half the time, including prosecutors, judges and jurors.

Finally, as Balko points out, we know that public defenders and private counsel for indigent defendants are underfunded and frequently fail to adequately vet the system for flaws.

All of the primary reasons for wrongful convictions - faulty eyewitness testimony, mendacious snitches, sloppy crime lab work, slacker defense counsel, police or prosecutorial misconduct - inarguably occur in other cases besides the few where DNA evidence was gathered or preserved. (Jeff Blackburn, Chief Counsel at the Innocence Project of Texas, tells me he expects more exonerations to come before the Texas Legislature reconvenes in January 2009.) With more than 150,000 adults incarcerated in Texas prisons alone (more than 2 million nationwide), who believes the same flaws in the justice system haven't trapped hundreds or even thousands more people whose names were never cleared?

We need procedural reforms in all these areas, but Balko's right that the one element holding them all together is quality defense counsel. Creating new procedural tools to protect innocence won't help if defendants' lawyers don't aggressively avail themselves of them.

When even Reason magazine thinks government is underspending on one of its functions, it's hard not to think we might have reached a tipping point in regards to changing public perception in the wake of 200+ DNA exonerations.


Anonymous said...

PD's should receive as much or more than the prosecution. Now days a defendant/citizen must prove he is innocent rather than the opposite as out system today would have you believe. This would not only stop or prevent pleas to a lesser charge for an innocent person in the first place, but also prevent wrongful prosecution of innocents by score-card, personal promotion type mentalities of certain Texas prosecutors. Enjoy your Free Ham sandwiches at your local prosecutors office today!!!

JSN said...

We have found out the hard way that it is a false economy to reduce spending for public defenders. The conservatives hate the idea of PDs but without them the criminal justice system bogs down and they have even more people incarcerated (those in jail waiting for their case to be processed and those in prison where a PD would have worked out an alternative sanction).

I think our PDs do a good job and because they work for the state they are paid reasonably well. The assistant county attorneys are not paid that well because they are paid by the county.

Anonymous said...

Many of those in the legal community have indicated it's all about the money. I would seem our incarceration problem then stems on the same premise. Let's indict the Governor and few prosecutors doesn't matter on what, then just offer a plea bargin and get that cash. All is well!!!!!!!!

Anonymous said...

It would seem to be a no-brainer - but most Texans won't support it until they become the wrongfully accused defendant. The first poster has it exactly right.

Don said...

I agree with all of this. I think low felonies and misdemeanors are the most widespread of the miscarriages of justice, because the big cases are more under the microscope. But I have seen people plead to something just to get on with their lives, albeit on probation. And not just a few. This is wrong, and the court appointed private attorneys might as well be working for the prosecutors office. Railroad jobs are all too common. The only thing notable about the Tulia case was that they got greedy and tried a wholesale deal on 40 at the same time and attracted too much attention. The same thing is done daily on a smaller scale. It's outrageous, but as anonymous says, its ok with everybody until it's their ox that's being gored.

Anonymous said...

There is a post on grits discribing the plight of a injured veteran and how he got screwed over by law enforcement. If I can find it this would be a good post for it. If true, a sad, sad case to be involved in.

Bobby C.

Anonymous said...

I would like to know if a government lawyer can be held accountable for taking a case to a trial that he knows is bad or that there is manipulation going on to win a case. Is there anything the public can any person do to stop the obvious over crowding of prisons because of these acts?

Anonymous said...

The problem is that it is too easy for the prosecution to get a conviction. Trials are the rare exception. Plea bargains are the rule. Torture, on some scale, is always allowed. Snitches rat on their friends and are forgiven their own crimes. When there are trials, criminals will give perjured testimony in exchange for money, drugs, lesser penalties, and even freedom. Prosecutors use discredited forensic 'science' to back their claims. Evidence is fabricated or doctored. And all that is SOP.

Juries should be the only people empowered to convict, not cops, not prosecutors, and not judges either.

Judges should be held responsible for what goes on in the courtroom. When the prosecution withholds exculpatory evidence, the judge should be checking their work to make sure they don't hold out, and quick to punish them for their wrongs. Judges generally can hold prosecutors in contempt of court and summarily sentence them to jail -- no wait, no bail, in handcuffs right now and off to jail they go.

Judges who misbehave themselves should not be fired, they should be imprisoned.

Trey said...

Scott, don't forget we libertarians aren't anarchists, per se. We don't mind government spending money on the few functions government should engage in -- like criminal justice. That PDs aren't on equal footing with DA offices is just, for wont of a better word, criminal.

Anonymous said...

Bobby C. forwarded post: Long but interesting. Prime example why PD's need bigger budget's. This case may need serious investigation due to the stupid acts of those we intrust to do the right thing. This is what happens when they don't and that's why incases such as this wrongfully arrested citizens can escape the claw's of injustice.

Every law enforcemnt officer needs to read the below incident. Below is an example of "Politicians who think they are getting tough on crime and where taxpayers think their hard earned money is going for fighting dangerous criminals (NOT). The incident below should never have happend. This is street law enforcement incompetence at the highest level. When I read this story I was incensed to do something.

Hopfully all of us in law enforcement will check Security Officers's status, listen to both sides before arresting someone and putting them through what this Vet has and is enduring.


This fall a Disabled Veteran was mistaken for drunk inside a restaurant/club in Round Rock Texas, in the fine county of Williamson. It was misperceived by a manager that the DAV had to much to drink because of the manner in which he walked. The manager did not understand the DAVet walked the way he did due to an explosion that blew him off a Armored Vehicle while serving our country.

Within 5 to 10 minutes of entering the establishment in Round Rock the DAVet was told to take it easy on the drinks or he needed to take a taxi home. He briefly explained he just arrived, he was not intoxicated. Later when moving out of the way of an employee the DAVet lost his balance and fell backwards to the floor where the employee then fell forward on our DAVet. The DAVet helped the employee up and apologized. The DAVet then decided to leave because beer was spilled on his clothes falling backwards. He was also embarrassed and felt bad about being perceived as drunk.

The irony regarding this entire matter was this Disabled Veteran was mistaken for being drunk not disabled. He explained again to the manager and a security guard that he had a balance condition because of head and ear injuries he was not intoxicated. Even with that explained he was being forced to utilize a cab to go home in. When the DAVet explained again he did not need a cab neither seemed to want to listen to him. The DAVet refused the cab, entered his own vehicle with the cab following our Veteran to his vehicle. The cab pulled up to his front right vehicle corner and stopped. The DAVet turned to the left on an angle to clear the front of the cab. He continued on slowly about 20ft and began to turn right out the parking lot. At that moment the security guard came running up from behind opens the DAVet's driver door and pepper sprays the DAVet in the left ear and facial area. The DAVet becomes incapacitated and his vehicle continues right running into a stone column at the exit. The DAVet was parked 20 to 40feet from the exit and at least 60 to 80 yards from the building entrance where the security guard began his run to stop the DAVet from leaving the property.

After being pepper sprayed and hitting the stone column the DAVet exited his vehicle dazed from being slammed into the windshield. He stood there with the security guard looking at his damaged vehicle. The DAVet asked why the security guard did that/sprayed him etc. The security guard said I told you to take a cab. The DAVet then again explained to the security guard his medical condition and pointed to his DAV license plates. The security guards face turned white as snow. The DAVet then told the security guard he was going to sue him for what he did to him and the damage to his vehicle. The security guard then walked away and went inside. As he was walking away the DAVet asked him to call the police and a tow truck. About 10 minutes later the security guard came back with 5others. The 5 confronted the DAVet by asking the DAVet what his problem was and why did he try to run down security. The DAVet said "what," and told them he was trying to leave and that person assaulted me with pepper spray. The DAVet then ask them who they were and that they had no business being involved. Then the manager came outside and called them all back. They all stood there talking looking and pointing at the DAVet and his ruined vehicle. The DAVet was by himself with no support.

The Round Rock police arrived. The security guard and his associates then fabricated and told the RRPD Officer a TALL TALE that the DAVet tried to run him or them over. The diligent RRPD Officer using all those expensive resources walked over to the DAVet spun him around and pushed the DAVet against his car. He then hand-cuffed the DAVet and told him he was being arrested for aggravated assault with a deadly weapon.

In shock and after going thru all he did already the DAVet tried to explain to the RRPD Officer what happened. Our DAVet had no idea why he was being arrested for such an offense. Our DAVet tried to explain what happened but the RRPD officer refused to listen to the DAVet or his story. In fact the RRPD never wrote any comments made by the DAVet in the police report. The RRPD police report was all one sided for the suspended security guard. Later the DAVet learned from other law enforcement professionals that RRPD Officers work part-time security at this establishment to supplement their pay and re-energize themselves by getting "free ones."

Why some may ask, why would the security guard act this way or the RRPD. Lets look at the facts:
1. The security guard after pepper spraying the DAVet, causing his wreck, finally listened to the DAVet as he explained again clearly, standing right next to him, knew he as a security officer made a big mistake. Especially when the DAVet pointed to his DAV license plates.
2. The security guard knew he had a criminal history and was prohibited from working security in the state of Texas by statute.
3. The security guard has a criminal history similair to the overzealous actions of above with other citizens.
4. The security guard realized he assaulted a DAV, not a drunk. OOOPs
5. The DAVet made the mistake of telling the security guard he was going to sue him for what he did to him for no legal reason. The SO blaming the DAVet for a crime was the security guards way of stopping that also.
6. The security guard had to come up with a way to cover-up what he did and his illegal suspended status to take the focus off himself and away from further criminal trouble/charges.
7. RRPD did not bother to check his DPS commissioning credetials as they are required to. Why?
8. RRPD would not give the DAVet a breath test after requesting one to prove he was not intoxicated. Why?

This entire incident was nothing but a real screw up for our DAVet. A suspended lying security guard and an incompetent RRPD police officer working to figuare a way out of this. Today, both are out there going about their daily activities, probably planning to have a great holiday. Yet our DAVet won't. Most his extra money went to pay legal bill's brought on by others foolishness and lack of integrity. Our DAVet now must pay another high price for his injury brought by the ignorance of and misperception of disability by others in(Law Enforcement).

Our DAVet is the true victim in this incident, he is not nor ever was the offender.

This security guard had been suspended twice this year and again on 08/01/2007 and indefinately. He decided to work security anyway and illegally. This is what happens when we are citizens are victimized by a one sided law enforcement mentality and a wannabe renta a cop.

Both these piece's of trash have ruined an already difficult life for our DAVet. Both the suspended security guard and the incompetent Round Rock Texas Police Officer did a hell of a job of deception and lying, in order to protect himselves, at least for now!

Due to the actions against our DAVet he received additional injury to existing injuries, sent to the hospital for those injuries and suffering a vertigo attack in custody cause by further head injury. Our DAVet brought in by RRPD to the hospital was medically treated but also treated like a common drunk or criminal by the staff. Our DAVet then spent 18 hours of painful agony at Wilco jail where he got none of his daily require medications, even after it was brought to Wilco for him. Then our DAVet was placed in front of a Magistrate where he was told he had a $20,000 Bond, with more Court to follow for an offense that was made up. He now faces much more in legal expenses including a damaged vehicle to repair costing $7030.00. Seems like RRPD did their job well and used all their available resources in order to get themselves an arrest and prosecution.

What is wrong with our CJ system when things like this happen. To spend the amount of resources we do to give our officers the tools to do their jobs properly, then they do stupid shit like this to a Disabiled Veteran in a circumstance such as this is criminal. If this Officer failed here to properly perform his job we are all screwed. To allow Officers with so much incompentence to have so much resources and power at their disposal is truely unbelieveable.

The City of Round Rock, Williamson County Texas and RRPD you should be embarrassed and ashamed. This Veteran was wounded losing his ability to walk properly. He comes to Round Rock Texas to shop and enjoy himself and your city. Instead he gets treated like he was a drunken nuisance because of his gait disability. He is then persecuted for it by being arrested for something made up and irrelevant to the initial issue of misperception of drunkeness. This Veteran/citizen had NO criminal history, NO history of violence and has NO vehicle or DPS violation history. Those concerned send your comments to the City of Round Rock, RRPD and Williamson County Officials.

Anonymous said...

I don't think the libertarian philosophy is compromised in the slightest by supporting more funding of PDs.

But this is only because the criminal justice and enforcement systems are so unbalanced in the first place.

Beneath the excessive numbers of innocents pleading to lesser charges are a number of factors such as mandatory minimums, the popularity of "zero tolerance" enforcement of drug and DUI laws, and the general consensus among conservatives that "You can beat the rap, but you can't beat the ride" is somehow a good thing.

Add to that the mis-application of property seizure laws that were ostensibly passed to impact major drug pipelines being used to confiscate any cash in the vicinity of a petty drug user, and you create defendants who can't even afford bail, much less an attorney.

The real solution is to reform the laws. Until then, it is still a good application of libertarian principals to spend tax money on indigent defense at a level that actually delivers justice.

Today, we're just pretending.

Anonymous said...

TO: BC There needs to be accountability in cases like this. Is the entire criminal justice system out of control in this state? That whole incident looks like BS. The suspended guard and police officer should be charge for illegal restraint and false arrest if both not fired first.

John D. McLauchlan said...

Why, yes, yes they do! Thanks for this post, Scott.

Anonymous said...

A Public Defender won't need allot of money to defend the DV in this case.

Anonymous said...

I saw a vehicle the other day at our local Williamson County Courthouse parked in a space marked for "Legally Blind."
It had Texas Judicial plates?

Anonymous said...

I think the case about the dis-vet is probably one that tops anything I have recently read regarding rotton decisions by police officers. Let's help the vet by not saying to much. If Round Rock Police have not looked into this already I would be suprized. Remember police are slick. When one of their own is as unprofessional as this arrest suggests there has to be an underlying reason. It would be interesting to follow this case as proceeds through the system. In fact it would be hilarious to see if it was presented at all. They have some real A------'s as DA's but I do not believe they are as stupid or as incompetent as the police officer who gave them this case in the first place. What a Roar!!!!

Anonymous said...

Seems like the cop had other alternatives to arrest. Still most Cops in Williamson County would give the disabled vet a break or at least work with him. That Cop did not have to treat anybody that way besides a vet. There is something weird about this. I would like to know what club or resturaunt this took place at?

Anonymous said...

Let's hope that the problem for the dv is mitigated in some manner. What a disgrace for an officer to act in this way whether the vet was wrong or not. A failure of human decency to say the least.