Public Defenders for All

Keep an eye on the case of State v. Lishan Wang, soon to be argued in the Connecticut Supreme Court. It has the potential to force significant and fundamental changes in the state’s criminal justice system.

Dr. Wang, 47, is charged with murdering Dr. Vanjinder Toor in 2010. The two men were former colleagues, then Dr. Wang’s medical career hit the skids, and he blamed Dr. Toor for forcing him out of medicine. The shooting, police and prosecutors believe, evened the score, a classic revenge killing.

The case is before the Supreme Court even though there has yet to be a trial, a rare event, as cases must typically await a final judgment before the appellate courts will hear them. But Dr. Wang is pressing the boundaries of the law, raising a claim which has, in fact, no clear answer: Must the state pay for the experts he requests to prepare for his defense?

Although he is trained as a physician, Dr. Wang has fallen on hard times. He is eligible for a public defender, a lawyer paid for by the state. But he’d rather represent himself, a right guaranteed to a defendant by the Sixth Amendment to the United States Constitution.

Lawyers like to say that a person who represents himself has a fool for a client. Dr. Wang’s decision does, indeed, look foolish. He has access to some of the best lawyers in the state free of charge, but he’d rather stand in front of a jury himself and plead his own case. Why?

Public defenders often get a bad rap, with clients sometimes complaining that they want a “real lawyer,” rather than counsel provided by the state. In many cities, especially in New Haven, folks accused of serious crimes and qualifying for public defenders are lucky: The public defender’s office headed by Thomas Ullman is top notch — I rate his office as among the state’s top criminal defense law firms.

But Dr. Wang has been granted his wish. He is his own lawyer, assisted, at public expense, by what is called stand-by counsel, a lawyer whose role it is to advise him of the law’s intricacies.

The relationship between lawyer and client is often difficult, and always complex, in a high-stakes criminal case. Clients come facing charges that could land them in prison for the rest of their lives: they want from their lawyers what patients hope for from their oncologists — the lives they once lived before everything changed. Some folks find it hard, even impossible, to trust another with their life, so they represent themselves in court. I am aware of no one foolish enough to try to perform their own surgery, however.

Being your own lawyer has its benefits, I suppose. For one thing, a self-represented party gets to call all the shots. Under the law of lawyering, clients in criminal cases can veto a lawyer’s decision only rarely, deciding whether or not to enter a guilty plea, whether or not to testify, and whether or not to request a jury trial. In the thousand and one other decisions that must be made, lawyers are required to consult their client, even, in many instances, to get their client’s informed consent about how to proceed, but lawyers get the last word. Most clients, most of the time, follow their lawyer’s advice.

One of the most important decisions a lawyer must make regards what witnesses to call at trial. Clients often have unusual ideas about whom to call, and why. Sometimes the clash between what a client wants and what his lawyer believes is wise is so profound that a lawyer asks the court to be relieved of the requirement to represent a client, a process called withdrawing from a case. Lawyers aren’t able to quit a client’s case without permission of the court.

For reasons only he perhaps can understand, Dr. Wang has decided to represent himself. As a result, he gets to decide what witnesses to call and what defense to pursue. This includes the selection of expert witnesses.

Most witnesses can testify only about things they themselves have seen or heard. Experts, by contrast, get to offer opinions based upon their unique skills, education, training or experience. Expert testimony can be very expensive, as parties are not permitted to subpoena an expert to court out of the blue and not pay the expert for their services.

So Dr. Wang is representing himself, but with the assistance of a publicly financed stand-by counsel. As the captain of his own ship, Dr. Wang gets to decide what witnesses to call, including experts. Who should pay for the experts?

The public defender’s office refuses to pay for the experts of Dr. Wang’s choice, perhaps fearing that a man foolish enough to represent himself in a murder trial is also improvident enough to waste scarce resources on the selection of unnecessary, and perhaps irrelevant, experts. Dr. Wang now claims he is being deprived of his right to defend himself. It’s a constitutional conundrum that requires the Supreme Court to decide how broad is the scope of services offered to indigent defendants.

Under the law now, only the wealthy and indigent get full and vigorous defenses. The vanishing middle class can’t afford both a lawyer and experts. Attorney Ullman recently told me he thinks as many as 85 percent of folks accused of crimes now have public defenders. Dr. Wang is calling the system’s bluff — why can’t he have a rich man’s defense? Or, if not that, why can’t he have the full defense the public defender’s office can provide? Why is he being starved of the resources he needs to mount the defense desired by his lead counsel, in this case, himself?

I say give every American accused of a crime the right to free public representation. We should also set a unit cost on the prosecution of a crime. Set a reasonable cost on what the prosecution can spend to take a defendant to trial. Then set an equal sum aside for the defendant to spend defending himself. If the affluent want their own counsel, let them pay for it out of their own pockets, with the state reimbursing any defendant who wins — let’s hold the state accountable, too.

I’ve never met Dr. Wang. His decision to represent himself strikes me as bizarre, and it may be the experts he wants aren’t really necessary at all. But he’s got the right to decide that. He ought to be given resources at least equal in value to what the state is spending trying to lock him up for a lifetime.

Also listed under: Journal Register Columns


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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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