Slate Suggests Public Defenders Are Incompetent; Public Defenders Disagree

This one escaped our attention for a while, but apparently Slate writer Matthew Yglesias set off a war of words a couple weeks ago with an article about the Zimmerman trial and the role of public defenders. Yglesias, best known for having a much better handle on inflation than Ben Bernanke, waded into legal commentary, contrasting Zimmerman’s trial experience with the experience of indigent criminal defendants.

Former public defenders took offense at the article and have taken to the Internet and social media to rip Yglesias. Yglesias has offered an apology and been rebuffed.

So what’s the deal here?

Yglesias wrote a short piece on July 15 that said this:

What if Zimmerman, like most criminal defendants in the United States, was relying on a public defender with little emotional or financial investment in winning the case and no resources with which to pursue a robust defense even if he’d been inclined to do so. Wouldn’t that defender have told Zimmerman that the smart way to avoid a second-degree murder sentence was to plead guilty to manslaughter and work out terms of incarceration that would be less onerous than what he’d end up with if he fought and lost. And of course the last thing any sensible person wants to do is go to trial with his entire life on the line in a situation where his own attorney has just plainly said he’s not enthusiastic about running the case.

There are three controversial claims in that passage: (1) public defenders don’t really “care” about their clients; (2) public defenders are the driving force behind plea bargains; and, (3) public defenders have “no resources.” One more controversial line that Yglesias tosses out a little later in the article that follows the same logic describes private defense attorneys as “a competent, well-financed, and highly motivated defense team,” inviting the reader to contrast the public defender as “incompetent, poorly-financed, and lowly motivated.”

In case it wasn’t obvious, some public defenders took offense, as one might imagine, to a few of these statements:

Public Defenders are many things. But unemotional is not one of them. The reason public defenders (and yes I am comfortable generalizing about all public defenders here) are public defenders is because they are emotional people. Yes, public defenders lose a lot of cases. That is the nature of the criminal justice system. But it is not because they don’t fight like hell and aren’t driven by pure emotional passion to win.


In fact, every public defender office I’ve worked in (read: 3 different counties and 1 federal PDs office) has some sort of picture frame of a public defender Polaroid when (s)he wins a case. One office had a bullhorn they sounded when someone won so everyone knew to come out of their office to congratulate the fierce fighter. The head PD comes down if (s)he’s in the same office to congratulate the person. Colleagues take the person out to celebrate. Hearing the words “not guilty” from a jury are often the most memorable, satisfying, purely emotional times of a public defender’s career. Many of my former colleagues and I have cried with our clients in front of the jury when we heard those beautifully constitutionally mandated (in those particular cases) words. Those moments are just fuel in the fire of the beautiful belly that PDs have for each case (s)he gets.

Pretty hard to say that public defenders don’t care about their clients. It’s an idealistic bunch working over there under tough conditions for relatively little pay. Yglesias is likely confusing anecdotal tales of PD burnout with the idea that all PDs are fed up with their jobs. Unfortunately, the opposite is true — burnout occurs because PDs care too much.

The idea that public defenders are driving plea bargains also raised the ire of public defenders:

Do you really believe that the reason the statistics are the way they are regarding plea bargains versus trial is that public defenders are “railroading” (word you use below) poor people into deals on daily basis because public defenders are uninvested, incompetent, and unmotivated into going to trial? Because I am pretty sure that is what you are saying. There are many fundamentally basic reasons which you could have learned with a google search (you do know how to use google right?) that explain why plea bargains are the most common way cases are resolved in this country. These reasons do not have anything to do with a terrible defense attorney railroading his client. They are more practical and realistic.

Do public defenders recommend a lot of plea deals? Yes. Do private defense lawyers recommend a lot of plea deals? Also yes. The criminal justice system and out-of-whack sentencing put defendants in a horrible bind, making guilty pleas the rational decision in many cases. This is fundamentally at odds with the way a criminal justice system should work, to the extent that defendants should never face an incentive structure that makes pleading guilty easier than holding the government to its burden of proof. In any event, public defenders are making the same rational decisions that private practice lawyers are.

But the real crux of the Yglesias piece is the claim that public defenders have “no resources” to defend clients:

You overstated this. Again, not researched. Let me ask you this. What is the average budget for investigation and experts for a murder trial at a given PD office in this Country? Do you know? If you do not then don’t write in a published article on a highly reputed website a statement implying that you do know. I can tell you this, the figure is not zero United States Dollars which is what you implied by the phrase “no resources.”

This is where I think Yglesias is making an excellent point. Public defender offices are all different, but the fact that governments are systematically placing defenders at the short end of the resource stick is not in dispute. The Federal Defender of the District of Connecticut summed it up in a recent editorial:

In February 2013, I cancelled training, cellular phones, and most of our law book subscriptions. That is virtually all the discretionary spending I had. The only way to achieve the necessary 20 percent reduction in budget was to reduce salaries and benefits. I had to furlough employees.

We faced as many as 28 furlough days — basically one day a week from mid-March to the end of September. One attorney resigned, and I am unable to replace him, but his leaving allowed me to reduce our office’s furlough days by applying his remaining salary and benefits to our deficit. Six attorneys are now doing the work of seven. Still, we face furloughs.

This is not limited to the federal system:

For a yearly salary of $54,000, Patrick Barber juggles between 100 and 120 cases in his Washington County, N.Y., office – on top of his private practice. Between himself and four part-time defenders, he says they represent 1,661 cases.

“If I had more money, could I do more? Of course,” he says. “But the public doesn’t care. They want the DA’s office to be funded, but they don’t care about the public defender.”

He agrees with his former client. He doesn’t have much time to visit clients. It’s not possible to see every defendant, he said. Many have no car, and can’t get to his office. Others are in jail, and he simply can’t get to all of them, he says.

Sure, public defenders have some resources, but hardly the resources available to the privileged capable of hiring a private defense attorney who will be able to commit more personal time to a specific case. How important are these resources? It’s hard to say. Contrary to the assertion in the Slate article, prosecutors don’t take it easy on private practice attorneys, nor do public defenders accept deals less rationally than private attorneys. But there’s obviously value in being able to focus on fewer cases — if only in avoiding burnout and giving clients more confidence that their attorney really is doing everything they can.

Yglesias has “apologized” in a sense:

Yglesias later apologized, to be fair, and said that his article was more about the lack of funding for public defenders. You read it and you decide, because if that’s what his article really was about, then he’d have spent a significant portion of it (read: all) focusing on the ways in which the federal government’s sequester is destroying the federal public defender’s office and the Constitutional right to counsel.

I’m inclined to agree that if Yglesias intended to focus on the financial pressures facing public defenders, there’s not much reason to spend the whole article casting them as incompetent lawyers who are to blame for the imbalance in the system.

Today Yglesias wrote about getting rid of wedding gifts.

So he’s not exactly steering clear of controversy.

What If George Zimmerman Had A Public Defender? [Slate]
Nationwide, public defender offices are in crisis [AP via Seattle Times]
Opinion: Federal Public Defender’s Office Hit Hard By Cuts [Connecticut Law Tribune]
What if we focused on things that really mattered? [A Public Defender]

(hidden for your protection)

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