I’ve never understood why folks don’t regard public defenders as real lawyers. Some of the best lawyers in the state are public defenders — I am thinking of New Haven’s Thomas Ullman, Beth Merkin and Joe Lopez, among others. What’s more, many folks accused of crimes would be better off with a public defender at their side than with a private lawyer.
I’ll go so far as to say that the single most important criminal justice reform this nation can undertake would be to appoint a public defender for each and every person accused of a crime.
The notion will seem offensive to some. “Public pretenders” don’t fight for their clients, right? They are part of the “state,” right? They’re not “real” lawyers, right?
Wrong, wrong and wrong again.
Connecticut has one of the best public defender systems in the United States. Its lawyers are well paid, and, significantly, they are supported by funding necessary to retain experts in difficult cases. Each office also has the service of full-time investigators. There are cases in which the right expert and a good investigation can be the difference between liberty and a long jail sentence.
I spoke not long ago at a conference on defending against allegations of sexual abuse. Two of the speakers were New Haven public defenders, Joe Lopez and Beth Merkin. Their presentation was dazzling. They talked about the experts necessary to investigate and possibly rebut the state’s case.
I listened to their presentation with the envy of a person who took a staycation listening to a neighbor report on a trip to exotic places. Very few of my clients can afford to retain the services of the experts they mentioned. Indeed, on another occasion, I asked them how much it cost to retain some of their experts. They didn’t know. They don’t need to pinch pennies.
Some of you are reading this and scoffing.
“Why should the accused have access to free, or taxpayer, supported experts and lawyers?”
I see your scoffing and raise it: “Why should the state have prosecutors, police officers, medical examiners, forensic laboratories, all available without regard to cost whenever someone makes an allegation that a crime has been committed?”
No one belly aches about the cost of investigating and prosecuting an allegation. Ought we not to spend as much defending a principle to which we give great lip service — the presumption of innocence?
It costs a great deal of money to retain experts to evaluate a case and testify at trial. Yet, a private-pay client of modest means has his or hands full coming up with fees to hire a lawyer. Often, there’s not enough money for experts, too.
Unless you are of relatively modest means, you don’t get a public defender. In Connecticut, a person with three dependents can earn no more than $44,700, to be eligible for a felony defense. Suppose the defendant earns $45,000? What then?
Then he must find his own lawyer. Defending a serious offense, one that can land you in prison for decades, is expensive. It often takes days to pick a jury. Indeed, I just finished picking a jury in a murder case in Hartford. It took 16 days to pick the jury. That’s 16 days in court before the first witness is even sworn.
As a private lawyer, I’ve got to support my office staff, pay the rent, the insurance, and the thousand and one miscellaneous expenses of keeping a law office open while in trial sometimes for a month or more. I look to clients to pay those expenses. That’s what being in private practice means.
How many folks earning $45,000, or $50,000 or even $100,000 a year have a significant war chest put aside to defend against criminal charges? Not many. Not in this economy, where credit has vanished, equity in real estate is hard to find, and cash has long since been spent fending off a recession.
The result for the middle class is a partial defense. Folks can typically afford a lawyer, but not more. No expert; little, if any, investigation by a competent investigator. Lawyers try too many cases by the seat of their pants.
Only those eligible for a public defender and the wealthy can give the state a run for its money complex cases.
We ought not to tolerate this.
If each and every defendant had access to a fully funded defense, folks would still be free to opt out of the system, and hire the lawyer of their choice, just as medical patients with means can opt out of the universal British health-care system.
If you think this is a debate about abstractions, consider the role that eyewitness testimony plays in our courts. Until 2012, defendants did not have the right to put experts about the reliability of eyewitness testimony before a jury. That changed after the Connecticut Supreme Court decided, in State v. Guilbert, that such evidence was proper.
Most folks think of eyewitness testimony as highly reliable. After all, who could ever forget the face of the man pointing a gun at them during a robbery? I can’t recall how many times I’ve heard a prosecutor argue: he’ll never forget that face.
However, the fact is that the presence of a gun during a confrontation makes an eyewitness identification less reliable. A recent study at John Jay College in New York City found the following: When no weapon was visible, an identification of a stranger was accurate 78 percent of the time. Add a gun, and the accuracy rate plummets to 33 percent, according to the study.
Eyewitness identifications are routine in criminal cases. The state must prove, after all, that it has charged the right person. Yet, how many defendants can afford to combat prosecutorial folklore with expert testimony?
All clients represented by public defenders can do so. So can the wealthy. The middle class, more often than not, can’t afford the freight. I am surprised there isn’t a public outcry about double standards in the criminal justice system: it’s ordinary, hardworking people who suffer most.