Overview of This Week’s Report: “Public Defenders”

Twenty-one years ago, an intruder broke into a home in Billings, Mont., and brutally raped an 8-year-old girl. The police created a sketch of the rapist based on the victim’s description, and an officer thought it resembled a young man in town, 17-year-old Jimmy Ray Bromgard, who had recently been jailed on an assault charge. Eventually, the victim picked out Bromgard in a lineup.

But the young girl told officers she was only “60 to 65 percent” certain she had picked the right man and at trial said she was “not too sure.”

The prosecution’s case rested on the victim’s identification and the discovery of several hairs found on her bed sheets. The manager of the state’s crime laboratory testified there was less than a one-in-10,000 chance the hairs belonged to someone other than Bromgard – a statistic, it turned out, the state’s witness had fabricated.

Bromgard’s court-assigned lawyer never hired a forensic expert, nor did he conduct an independent investigation. He filed no motions to suppress the shaky identification, gave no opening statement, prepared no closing statement and failed to file an appeal. Convicted, Bromgard spent more than 14 years in prison before the Innocence Project used DNA analysis of semen stains to show Bromgard was innocent.

There have been hundreds of similar cases in the United States. A University of Michigan study located 328 exonerations between 1989 and 2003. The report said there are perhaps tens of thousands more “miscarriages of justice” in that time period that have gone undetected: “rape convictions that have not been reexamined with DNA evidence; robberies, for which DNA is useless; murder cases that are ignored because the defendants were not sentenced to death; assault and drug convictions that are forgotten entirely.”

“There is simply no better way to prevent wrongful convictions than to provide competent defense counsel,” said Peter Neufeld, co-director of the Innocence Project, in testimony before Congress several months after Bromgard was exonerated. “Competent counsel can uncover police practices responsible for misidentifications, coerced or false confessions and fraudulent forensic science.”

The Sixth Amendment to the U.S. Constitution establishes the right to counsel in federal criminal prosecution. Through a series of landmark decisions, the U.S. Supreme Court has extended that right to all criminal prosecutions – state and federal, felony and misdemeanor – where a conviction can result in imprisonment. If someone cannot afford to hire an attorney, the court must assign one. Counsel can be a staff public defender, a private lawyer who accepts such cases for a fee or a contract lawyer who has won a bid to provide these services. Roughly 80 to 85 percent of all criminal defendants in state courts, where the bulk of crimes are prosecuted, are indigent and represented by some kind of public counsel. The annual cost to states and counties is more than $3.5 billion a year.

But many public defense lawyers and researchers argue that much more needs to be spent because too many indigent defense systems are in crisis. “I know that because I spend my life traveling around the country and visiting public defenders and court systems,” says Robert Spangenberg, whose firm has conducted research for justice organizations in every state. “We have public defender systems in the country where one public defender will handle 1,000 cases in a year,” he says. “What kind of representation could one provide with that caseload?”

In 2004, the American Bar Association (ABA) published a report on the state of indigent defense after holding a series of public hearings. Among its findings:

  • Funding for indigent defense is “shamefully inadequate,” often leading to overwhelming caseloads and ineffective representation;
  • Lawyers are often poorly trained and poorly supervised;
  • Prosecutors “too often” seek waivers of counsel and guilty pleas from the unrepresented accused;
  • Judges and elected officials often exercise undue influence over indigent defense lawyers.

But not all agree with the ABA’s conclusions. David LaBahn, director of the American Prosecutors Research Institute, a division of the National District Attorneys Association, says indigent defendants receive adequate representation. “Public defenders are publicly funded, they are well trained and they have access to a great amount of resources to defend their clients,” he says. They often offer better representation, he says, than a private lawyer hired by a lower-middle-class person who does not qualify for indigent defense.

Besides, says LaBahn, where funding is tight, prosecutors suffer, too. “Both public defenders and prosecutors are burdened by high caseloads and high turnover.”

Florida is a case in point. “I shouldn’t be asking my parents for money,” said Allison Haney, a prosecutor in South Florida who tries rape, robbery and the occasional murder case for an annual salary of just $50,000 while shouldering more than $100,000 in law school loans. Assistant Public Defender Ayana Harris also relies on her parents to help pay bills. “It makes me feel like I’m not a complete adult,” said Harris.

Low salaries lead to high turnover. The Miami-Dade County State Attorneys Office lost just under half its lawyers in 2005 and 2006; the public defender’s office lost a third.

With economists warning the U.S. is in or will soon enter a recession, this is a particularly difficult time for public defenders to go hat in hand to county and state governments. The 28 states that fully fund their public defense systems may be in better shape than the rest that rely on a mix of state and county funding, since states have a wider range of revenue sources than localities.

Still, it’s a tough year for states, too, with seven particularly hard hit, according to Raymond C. Scheppach, executive director of the National Governors Association. “They are primarily the states that rode up the housing bubble and are now riding it down,” says Scheppach, “and are pretty much in recession.” The seven are California, Arizona, Nevada, Florida, Michigan, Ohio, and Minnesota. About a dozen oil and farm states are doing just fine, he says, benefiting from the run-up in oil and commodity prices. The rest may not yet be in recession, but their tax revenues are definitely slowing.

Some public defender systems already have been told to make cuts, and at least one is fighting back. In Illinois, the Cook County Public Defender, whose territory includes Chicago, sued the Cook County Board president after his staff was trimmed from about 485 in recent years to as low as 430 in 2007. In Kentucky, the governor has proposed budget cuts for both public defenders and county prosecutors while recommending increased funding to expand a state prison. Kentucky expects the number of state prison inmates to grow 6 percent over the next two years, an increase of 1,000 inmates. And that’s on top of a 12-percent surge last year, the largest of any state.

In fact, a recent study reports that after three decades of growth in America’s prison population, for the first time more than one in every 100 adults is now in jail or prison – the highest rate in the world, according to the Pew Center on the States. It is not an increase in crime or population growth that’s behind this disturbing figure, however, but the policy choices of federal and state governments, according to the Pew report. For instance, the war on drugs has resulted in hundreds of thousands of convictions, wrote Robert M.A. Johnson, the prosecutor for Anoka County, Minn., in a recent issue of Criminal Justice magazine. In addition, he noted, “What was once bad or reckless behavior, such as child endangerment or failure to secure a firearm, which might have exposed a wrongdoer to civil liability, is today becoming a criminal offense punishable by incarceration and fines.” No wonder caseloads for public defenders are often unmanageable.

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