Courthouse ‘Warrior’ or Diplomat? The Public Defender’s Challenge

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Le Jour ni l'Heure by Pierre de Cortone (Pietro Berrettini), 1596-1669. Illustration by Renaud Camus via Flickr,

Give The New York Times credit. When it comes to exposing our indigent defense crisis, the paper keeps at it.

Last month, reporters Richard Oppel, Jr. and Jugal Patel produced a story that introduced readers to a public defender in Louisiana with a list of pending cases long enough to require five years’ work, and to bewildered indigent clients in Rhode Island who received one to five minutes of defender counseling at their first court appearance.

The Oppel and Patel survey was given prominent placement. The Times digital edition deployed interactive features. Photographs of 113 of one defender’s 194 clients were published to give human faces to the numbers. It was a serious piece.

Still, while I don’t enjoy saying this, I’ve been doing public defender work for 45 years, and I have read variations of this story 200 times. The caseload count is worse now in many places than it was in the mid-1970s when I first got involved.

I’m not sure this story—and the legion of stories like it— will make a difference on their own.

The impact of straightforward case counts is unpredictable. Back in my days as a state public defender in Massachusetts, I was attacked by a legislator outraged that our state’s too-high (but in the middle-of-the-pack nationally) caseloads were luxuriously low, compared with the desperate situations described in Bob Spangenberg’s pioneering data studies, the precursors of the line of inquiry The Times is now pursuing.

And while we certainly need better time-per-case adequacy standards, the problem isn’t convincing an audience that defenders want more time. People know that by now.

The challenge is communicating what it is that defenders would do with the time.

Some decision-makers have a jaundiced view of public defenders. One legislator told a colleague who was complaining that defenders were paid less than sanitation worker that “the trash men take the garbage off the streets; you guys just put the garbage back out there.”

The defender community’s own infatuation with Herbert Packer’s Battle Model of a criminal process seen as a stylized war—a zero sum conflict between the Crime Control Warrior Cop and the Due Process Warrior Defender—contributes to this situation.

Often, this Battle Model vision is wheeled out as a convenient morale-building shortcut. But it does contain a germ of truth.

In every courthouse where criminal cases are heard, there are damaged or apathetic individuals who have been granted power over the lives of impoverished clients, who enjoy their roles, and who abuse their authority at leisure from positions of complete security.

I’ve represented almost 100 murderers over the years, but only one of them makes his way onto my private roster of The Dozen Worst People. The remaining eleven places are held by a variety of judges, prosecutors, cops, and other lawyers: racists, sadists, bullies, and liars among them.

It’s true that if you’re not ready to go to war with these people you shouldn’t take a defender job.

But for defenders, as for actual military war-fighters, charge-the-machine-gun-nest courage is an ultimate requirement, more than an immediate one. Having it is necessary, but not sufficient.

It turns out that living humbly in a good cause, not dying gloriously for one, is the actual challenge.

The indispensable personal quality for a defender is resiliency.

That means the capacity to bounce back, the ability to return tomorrow and the next day and summon empathy, to doggedly prepare for battles that will probably never occur, and-—at the risk of sounding insufficiently warlike—to sustain and draw on a reservoir of  patience and kindness toward clients, their families, and their victims.

Thinking about resiliency is important because resiliency is not only a quality in individuals; it is also a crucial property of safe systems.

For better or worse, the criminal courthouse really is a system.  It is not a mechanical system like a clock.  It is not a chaotic eco-system like a swamp.

But it is a complex socio-technical system, like a hospital or an airport.

To begin with, thinking about criminal justice as a system can remind us that this system has an intake valve. There are simply too many cases. The prosecutors, (according to one quoted by The Times) feel just as overworked as the defenders.

So, stop filing the cases.

As Alexandra Natapoff demonstrates in her brilliant new book Punishment Without Crime, many of them don’t matter, and pursuing them inflicts wide, radiating circles of collateral harm.

Besides, we can learn a lot about the safety of systems under pressure from aviation, medicine, and other fields.

Some systems under pressure break catastrophically:  they are “brittle.”   (Think of the Chernobyl nuclear reactor.)

But others are resilient. They adapt and adjust. They innovate in the face of surprises and anomalies. The recognition of the importance of resiliency illuminates how the new, data-driven approaches to defending can help convey the indispensable value of defenders’ contributions.

Brady wrongful conviction cases fuel the Villain Prosecutor v. Warrior Defender narrative. But from a system perspective, they raise the question whether an adequately funded defender might have caught the mistake.

Apart from evidence the prosecutors have and knowingly conceal is evidence they didn’t have (and couldn’t easily get) and that the defenders don’t have the time to uncover and provide. There is still other evidence the prosecutors had, but didn’t recognize as exculpatory because the starved defense couldn’t provide the context.

Systems-oriented “sentinel event reviews” of these wrongful convictions could help us understand why particular prosecutors in particular cases zigged when they were supposed to zag.  It would also show us why the defenders in those cases were unable to provide the resiliency that would have avoided tragedy:  how an overwhelming caseload and the absence of investigative capacity influenced the outcome.

A pair of Rand Corporation studies led by James Anderson and Paul Heaton has compiled and interrogated the data about these issues.

The earlier of the two studies, subsequently published in the Yale Law Journal, shows the influence of adequately funded defense in Philadelphia murder cases.

The salaried staff attorney defenders, who handled murder cases in two lawyer teams with access to in-house investigators and forensic science expertise, produced superior outcomes compared with private attorneys, whose fees were capped and who had to scrounge for investigative and forensic expert resources.

The second study assessed defender performance at the other end of the case-seriousness spectrum by examining a “natural experiment” provided by comparing the “holistic” defense approach of the Bronx Defenders with the traditional approach of the New York Legal Aid Society in the high-volume retail processing of criminal cases.

See also: Tom Reed, “Can Public Defenders Be Reformers?”

I won’t attempt to untangle at this point the complex questions of why the outcomes are different. I just want to point out that the style of defending adopted did clearly produce differences, and that the differences were on metrics—e.g., reductions in incarceration and expense, without rises in the re-offense and failure-to-appear rates—that everyone would accept as system goals.

These studies indicate that, given the time to perform it, the defense function not only protects the clients the defenders “champion.”

It bolsters the overall system’s resiliency.

By mobilizing the defenders’ capacity to “stop the line” and fill the information gaps about the client or the case when the police have followed the wrong trail or our shiny new Risk Assessment algorithm has failed to account for an individual feature, the system saved money, protected the community, and preserved just outcomes.

Of course, “stopping the line” on a Friday afternoon when the judge is trying to clear his docket requires a “warrior” equipped to advocate for some local sacrifice (“No golf!!!??”)  in order to reach the larger systems goals of more justice and lower cost.

But those local sacrifices are what a resilient system delivers.

Understanding American criminal justice requires understanding both the searing individual narratives of persons and communities entangled with that system and the statistical vision derived from a careful consideration of the data.  The vision and the narrative are not only complementary, they are mutually dependent.  One is meaningless-—even misleading—without the other.

The Times coverage and the data-based efforts it describes should help us see that system resiliency—and, ultimately, safety—is “emergent.”   It grows out of the individual narratives that only adequately funded defenders can fully develop, and what it grows into is more than the sum of a pile of anecdotes and sob stories.

Resiliency might be required in different ways and at different times by different failures and challenges.

The current realities of our criminal justice world set ostensibly independent silos—cops, courts, defenders, corrections—fighting with each other over scarce resources.

But it would be good to remember that these elements constitute interdependent parts of a larger whole that can, if its parts are adequately funded, provide greater safety for everyone.

James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.