America’s Public Defense Scandal

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Multimedia courtroom in Suffolk County, NY. Photo by Jake Wark via Flickr

Watching the video footage of former Minneapolis police officer Derek Chauvin‘s senseless murder of George Floyd was horrifying. Observing Chauvin’s trial for Floyd‘s death was equally disturbing.

Unlike the majority of criminal defendants who are mostly poor people of color, Chauvin was represented by over a dozen highly trained attorneys that carried a bill well over a million dollars.

While Floyd’s death has sparked a national movement for criminal justice reform, Chauvin’s trial highlights one of the most glaring inequalities in the U.S. criminal justice system: the disparity in defense representation.

The majority of people charged with a crime in this country cannot afford to hire defense representation. Instead, they have to rely upon poorly funded public defender’s offices or overloaded indigent defense appointments to defend themselves against the crimes they have been charged with.

The stark inequality has often been the determining factor on who goes to prison and who does not―and for how long the person stays there.

My own story is an example.

In the beginning of 1999, I was arrested for the murder of Andre Wright in Dallas, Tx.. Indigent and without any means to secure adequate defense representation, I wrote an attorney I had consulted with a year or so earlier to help the mother of my child address a legal entanglement.

The attorney, Robert Michael Thomas, wrote me back and said that he would try to help me.

For the next four months I sat in the county jail without hearing any news from the state’s prosecuting attorney or from Thomas. No one came to inquire about my participation – if any – in Wright’s death.

There was no plea offer to consider; nor did I have any inkling about what to expect next.

After sitting in the county jail over four months, I was finally notified by the deputy jailer that I was scheduled to have a court proceeding the following day.

“This is where you are going to finally meet your attorney,“ one of the elderly guys in the jail told me.

“He is going to ask you all types of questions about the crime, and inform you what type of plea agreement the state will offer you to avoid an expensive trial.“

The following morning, I was transported to the courts. After sitting in the court’s holding cell for a couple of hours, the bailiff notified me that my defense attorney, Thomas, was there to speak with me.

About 10 minutes into the meeting, Thomas informed me that we were starting jury selection in about half an hour!

Jury trial? I had just met the guy he was supposed to represent me in person for the first time since my arrest. We had barely spoken for ten minutes. It was clear to me that there would be no lengthy pre-trial investigation, no intense plea agreement negotiation.

I was not even aware of whether Thomas had read any of the police reports or spoken with any of the state’s witnesses against me.

Less than 24 hours later, I would be found guilty of murder from the sole testimonials of three jail house snitches, and sentenced to 75 years in prison. There was no motive offered for the murder, no witnesses called by my attorney, and no real effort to save my life. Michael Thomas had practically represented me from the back of his ass pocket.

That was almost 23 years ago. I have not been a free man since.

Watching Chauvin‘s trial, the average American might ask themselves, how is it that he had access to such quality defense representation and others don’t? It’s a reasonable question, and we should all be looking for an answer.

The U.S. Constitution mandates that anyone accused of a crime has the right to reasonable defense representation. The U.S. Supreme Court in the landmark case Gideon v. Wainwright, ruled that every person accused of a felony should be guaranteed adequate defense representation, even if that person is indigent.

However, the country’s highest court failed to provide a meaningful structure on how that “adequate defense representation“ should be provided. Ultimately, it gave each individual state the power to erect guidelines to ensure the promises mandated by Gideon.

It is there where the allocation of power has been a complete failure, and it should be a focal point for anyone concerned with meaningful criminal justice reform.

Most critics have identified the Supreme Court’s failures to outline how each state would pay for indigent defense representation as the culprit. In fact, more than 20 lawsuits have been filed on behalf of poor defendants across the nation in the past ten years. These lawsuits identified how some state lawmakers are faced with the difficult decision of balancing the funding of schools, roads, and other basic necessities with indigent defense.

As a consequence, public defenders’ offices have been severely understaffed .

In my state, Texas, funding has been a real problem. While the state spent nearly $273 million in 2018 on indigent defense representation, the average court-appointed attorney was received only about $600 for every felony case they took. That left little room to hire expert witnesses or to conduct any real investigations.

Conversely, attorneys seeking to make a living from court appointments were compelled to take two or three times the recommended caseloads just to make a decent living wage. That doomed indigent representation.

Former U.S. Attorney General Eric Holder highlighted these inequalities experienced by poor defendants during a speech honoring the 50th anniversary of Gideon.

“This is unacceptable and unworthy of a legal system that stands as an example to all of the world,” he said.

Despite being fired from the police department, Chauvin’s legal expenses, including a 12-lawyers team, were paid from a one million-dollar legal defense fund arranged through the Minneapolis Police and Peace Officers Association.

Most would think that this was all for nothing since Chauvin was found guilty on all counts. However, they fail to consider the fact that this defense representation allowed Chauvin to remain free before and during his trial.

And it will permit him certain luxuries that indigent defendants are often deprived: more freedom until his sentencing, an aggressive appeal process, and the possibility of a new trial or a reduction in sentence somewhere down the line.

While progressive states like New York have attempted to correct these inequalities with lawsuits, there is no reason to believe that class action lawsuits can solve this problem. A problem of this magnitude requires legislative action, either on a federal or state level. An indigent defense representation system has to be standardized and properly funded in this country.

There is a running gag in Texas that goes, “those without the capital, get the punishment.“

If the current Biden-Harris administration is serious about criminal justice reform, let’s begin by ensuring all criminal defendants are afforded adequate representation regardless of their abilities to pay for it.

jeremy busby

Jeremy Busby

Jeremy Busby has served more than 20 years of a 75-year sentence for murder. Currently housed in the Mark Stiles Unit, a maximum-security facility in Beaumont, Tx., where he is seeking exoneration for what he maintains is a wrongful conviction at age 21. Meanwhile, he has earned a graduate degree from the University of Houston-Clear Lake and is a former staff writer for The ECHO, the Texas prison newspaper. Readers’ comments are welcome. Follow Jeremy on, on Instagram @joinjeremy2020, or on Facebook.

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