Discussion 3
Prosecutor and Defense Attorney
A. Origin of the Public Prosecutor
Most modern prosecutors in the United States hold a public office. They are
government employees in civil service. But the public prosecutor of today evolved from
private prosecutions at English common law “where the legal system primarily relied
upon the victim or the victim’s relatives or friends to bring a criminal to justice”. Private
citizens were permitted to institute criminal proceeding in Great Britain “as means of
facilitating private vengeance” (Bessler, 1994, p. 515). This tradition of private
prosecution carried over to the American colonies, even though a few public prosecution
offices had existed since at least the 1640s, when Virginia created an office of the
attorney general to prosecute select cases on behalf of the British monarchy (Bessler,
1994). In 1704, Connecticut enacted the first statutory scheme for public prosecutions.
And in 1711, “Virginia established a formal system of county prosecuting attorneys” (p.
516). Nonetheless, private prosecution remained the norm in the United States until the
late 1800s. Victims who could afford to retain private counsel to prosecute on their behalf
hired lawyers to present their cases before grand juries and at trials. Victims who lacked
the funds to hire a lawyer prosecuted cases for themselves.
Due to the small size or budgetary restrictions (both of which are typically
applicable in rural areas), some U.S. jurisdictions have adopted one of two models of
quasi-public prosecution. Under the prosecution outsourcing model, the jurisdiction
might contract with a nongovernmental lawyer in private practice or a law firm to
prosecute cases on behalf of the state either on a fixed time basis (e.g., for a year) or on
an ad hoc basis when the need arises. Under the part-time prosecutor model that is used
in approximately 25 percent of the states, lawyers are hired or elected to serve as part-
time government prosecutors, but they are simultaneously permitted to maintain a private
law practice. In both of these models, “private or semiprivate actors are given the
tremendous discretion and power associated with the public prosecution of criminal
offenses”.
Although due process concerns are lessened by quasi-public prosecutions in
comparison to true private prosecutions, problems with conflicts of interest remain a real
concern with both part-time and outsourced prosecutors. For example, “allegations of at
least the appearance of impropriety were made when it was revealed that the part-time
prosecutor in Surry County, Virginia, investigating dogfighting charges against NFL
superstar quarterback Michael Vick had represented, at one time, Vick’s father in the
prosecutor’s private civil law practice” (Fairfax, 2009, p. 438 n. 95). Nonetheless, some
jurisdictions are so small that “the outsourcing of the prosecution function is not a choice
among alternatives; it is the recognition of the reality that a public prosecutor is a cost-
prohibited luxury”.
B. Role of the Prosecutor
The prosecutor is of critical importance because of the office’s central position in
the criminal justice system. Whereas police, defense attorneys, judges, and probation
officers specialize in specific phases of the criminal justice process, the duties of the
prosecutor bridge all of these areas. This means that on a daily basis, the prosecutor is the
only official who works with all actors of the criminal justice system. As Justice Robert
Jackson (1940, p. 18) once remarked, “The prosecutor has more control over life, liberty,
and reputation than any other person in America.”
Prosecutors stand squarely in the middle of the fragmented nonsystem of criminal
justice discussed in Chapter 1. Naturally, the various actors have conflicting views about
how prosecutorial discretion should be used—the police push for harsher penalties;
defense attorneys, for giving their clients a break; and judges, to clear the docket. Thus,
prosecutors occupy a uniquely powerful and highly visible position in a complex and
conflict-filled environment. Amid the diffusion of responsibility that characterizes the
criminal justice system, power has increasingly been concentrated in the hands of the
prosecutor (Misner, 1996; Sklansky, 2016; Worrall & Borakove, 2008). The “Law on the
Books vs. Law in Action” feature provides an overview of the role of the prosecutor
throughout the criminal justice process.
A key characteristic of the American prosecutor is broad discretion. Although the
prosecutor works in the courthouse, the office of prosecutor is part of the executive
branch of government. This independence from the judiciary is vital for the proper
functioning of the adversary system, since prosecutors at times challenge judicial
decisions. The breadth of prosecutorial power stems from numerous court cases since
1833. Typical is People v. Wabash, St. Louis, and Pacific Railway, an 1882 decision in
which the Illinois Court of Appeals stated that the district attorney (DA) “is charged by
law with large discretion in prosecuting offenders against the law.
Appellate courts have placed restrictions on the exercise of prosecutorial power
during the trial itself. In the context of the adversary system, the prosecutor is expected to
advocate the guilt of the defendant vigorously. But the prosecutor is also a lawyer and is
therefore an officer of the court; that is, he or she has a duty to see that justice is done.
Violations of the law must be prosecuted, but in a way that guarantees that the
defendant’s rights are respected and protected. In 1935, the Supreme Court spelled out
the limitations imposed on prosecutors by their obligation as officers of the court: “He
may prosecute with earnestness and vigor—indeed, he should do so. But while he may
strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain
from improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one”.
As the quote from Berger v. United States (1935) indicates, prosecutors are
supposed to play by the rules. They are expected to be tough, but fair. As Mike Nifong’s
conduct the Duke lacrosse case illustrates, however, prosecutors do not always live up to
this duty. And sometimes such misconduct results in horrible miscarriages of justice.
Consider what happened to Michael Morton. He served 25Fyears in prison for murdering
his wife until DNA evidence demonstrated that he had been wrongfully convicted of the
crime. Importantly, though, the prosecutor, Ken Anderson, had evidence that Morton’s 3-
year-old son witnessed the murder and said his dad was not home at the time. But
Anderson kept that information from the defense. While Morton spent 25 years in prison
for a crime he did not commit, Anderson’s career flourished, eventually landing him a
judgeship in Texas. Anderson was eventually criminally charged with tampering with
evidence. He agreed to surrender his license to practice law in exchange for having the
charges dropped. And he was sentenced to serve 10 days in jail on a contempt of court
charge for telling the judge in a pretrial hearing during Morton’s prosecution that he had
no favorable evidence to give to Morton’s lawyers. He was released after five days for
good behavior.
The permissive attitude toward prosecutorial misconduct in the states may be
changing. In late 2016, California enacted a law making it a felony punishable by up to
three years in prison for a prosecutor to intentionally withhold or tamper with evidence.
In recent years, the Supreme Court has expressed repeated concern about prosecutorial
misconduct. Convictions have been reversed because prosecutors were too zealous in
their advocacy. But at the same time, the nation’s highest tribunal has also decided that
prosecutors enjoy absolute immunity from civil lawsuits when acting as courtroom
advocates. However, under other conditions, prosecutors may be sued civilly.
Of all the discretionary decisions prosecutors routinely make, perhaps none is
more important than the decision of whether to file charges, thereby transforming a
suspect into a criminal defendant. There are few, if any, legislative or judicial guidelines
to guide prosecutors in the exercise of their discretion in this domain. Indeed, the
Supreme Court has made it clear that, “So long as the prosecutor has probable cause to
believe that the accused committed an offense defined by statute, the decision whether or
not to prosecute, and what charge to file or bring before a grand jury generally rests
entirely in his discretion” (Bordenkircher v. Hayes, 1975, p. 364). Scholars posit that
prosecutorial discretion in charging decisions is guided by a set of focal concerns on the
practical constraints and consequences regarding both organizational efficiency and the
certainty of conviction.
Blameworthiness generally refers to the offender’s culpability and the severity of
harm caused. The protection of the community factor primarily concerns preventing
future crime through deterrence and incapacitation. This, in turn, requires judges to
examine the defendant’s dangerousness and likelihood that he or she will reoffend in the
future (Albonetti, 1991; Helms & Jacobs, 2002; Johnson, Klahm, & Maddox, 2015).
Finally, the practical constraints and consequences concerns both the organizational and
social costs associated with sentencing certain individuals (e.g., mothers, the elderly,
etc.), as well as those facing courts and correctional facilities (such as overcrowding).
According to the focal concern perspective, because they are frequently
constrained by time, resources, and limited information about the defendant, judges often
rely on social stereotypes as part of a “perceptual shorthand” that connects these
stereotypes to key offender characteristics, such as their blameworthiness and their future
dangerousness (Steffensmeier, Ulmer, & Kramer, 1998). As a result, conduct and
characteristics that are stereotypically associated with specific social groups—especially
on the basis of race, ethnicity, gender, and age—can result in defendants being treated
with greater leniency or severity, depending on whether offenders fit into positive or
negative schemas ascribed to the larger social stereotype.
Research has extended focal concerns theory to explain, in part, how prosecutors
make charging decisions (Beichner & Spohn, 2005; O’Neal & Spohn, 2016; Ulmer,
Kurlychek, & Kramer, 2007). Prosecutorial charging decisions share many of the same
concerns presented by judicial sentencing decisions, especially with regard to a
defendant’s blameworthiness and the risks the defendant poses to the community.
Although there is overlap, prosecutors weigh some practical constraints and
consequences when making charging decision that are different from those considered by
judges. For example, prosecutors have to carefully consider how their charging decisions
affect organizational efficiency and resources both in their own offices and in court.
Few people assume that racism, sexism, and other forms of intentional bias are, in
and of themselves, responsible for invidious discrimination in charging decisions. Rather,
most researchers believe these factors influence prosecutors’ predictions of how judges
and jurors might assess the background, behavior, and motivations of both suspects and
victims (Frohmann, 1997). Indeed, there is ample evidence that prosecutors are more
likely to file charges when there is a “stand-up” victim—someone whose personal
characteristics align with societal stereotypes concerning who is credible and undeserving
of victimization (see LaFree, 1980; Stanko, 1988). These factors are particularly salient
in sexual assault cases.
Another characteristic of the office of prosecutor is decentralized organization.
Although the American prosecutor represents the state in the prosecution of criminal
cases, the office is not centralized, as it is in England and most of Europe (Flemming,
1990; Jehle & Wade, 2006; Sklansky, 2016). Instead, prosecution is highly decentralized,
with more than 8,000 federal, state, county, municipal, and township prosecution
agencies. Commensurate with the nation’s often confusing dual court system, separate
prosecutors are found in federal and state courts. The structure, however, is not parallel
with court structure; that is, each court does not have attached to it a specific prosecutor.
DAs, for example, often conduct the trial in the trial court of general jurisdiction and then
appeal through both layers of state courts and, on rare occasions, even to the U.S.
Supreme Court (a federal judicial body). Moreover, different prosecutors’ offices may
handle the same case; sometimes, the city attorney conducts the preliminary stages of a
felony case in the lower courts, and the district attorney prosecutes in the trial court of
general jurisdiction.
C. Prosecution in Federal Courts
The department is headed by the U.S. attorney general, who is a member of the
president’s cabinet. Top-level officials are presidential appointees who reflect the views
of the administration on important policy issues. Day-to-day activities are carried out by a
large cadre of career lawyers, who enjoy civil service protection and have, over the years,
developed invaluable expertise in particular areas of law. f bureaucracies including
investigatory and law enforcement offices such as the Federal Bureau of Investigation,
the Drug Enforcement Administration, the U.S. Marshals Service, and the Federal Bureau
of Prisons. Also in the Department of Justice is the Office of Justice Programs, which
oversees the Bureau of Justice Assistance and other entities.
The U.S. Solicitor General is the third highestranking official in the Justice
Department. The solicitor general’s principal task is to represent the executive branch
before the Supreme Court. But at the same time, the justices depend on the solicitor
general to look beyond the government’s narrow interests. Because of the solicitor
general’s dual responsibility to the judicial and executive branches, the officeholder is
sometimes called the Tenth Justice, an informal title that underlines the special
relationship with the Supreme Court.
The office of the solicitor general is in essence a small, elite, very influential law
firm whose client is the U.S. government. As the representative of the United States in
litigation before the U.S. Supreme Court, the solicitor general’s office argues all
government cases before the Court. For example, the assistant solicitor general argued the
major issues in Burns v. Reed (1991). But the influence of the office extends further.
The criminal division formulates criminal law enforcement policies over all
federal criminal cases, except those specifically assigned to other divisions. The criminal
division, with the U.S. attorneys, has the responsibility for overseeing criminal matters
under thousands of statutes, as well as certain civil litigation. The criminal division is
organized into a number of units that handle matters such as fraud, organized crime, and
public integrity. Several of the units deal with international matters and have become
more visible with the U.S. efforts to fight terrorism.
The U.S. attorneys serve as the nation’s principal litigators under the direction of
the attorney general. Ninety-four U.S. attorneys are stationed throughout the United
States, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands. U.S.
attorneys are appointed by, and serve at the discretion of, the president of the United
States, with the advice and consent of the Senate. One U.S. attorney is assigned to each of
the judicial districts, with the exception of Guam and the Northern Mariana Islands,
where one U.S. attorney serves both districts. Each U.S. attorney is the chief federal law
enforcement officer of the United States within his or her particular jurisdiction.
D. Prosecution in State Courts
Decentralization and local autonomy characterize prosecution in state courts. The
result is divided responsibility, with state prosecution authority typically found in three
separate offices: state, county (or district), and local. At times, the relationship among
these separate agencies is marked by competition; various prosecutors jockey to be the
first to prosecute a notorious defendant. We will examine the three major state
prosecutors from the top down, but bear in mind that each office is separate and not
necessarily subject to the dictates of the office above it.
The position of attorney general, the state’s chief legal officer, is typically spelled
out in the state’s constitution. Among the most important duties are providing legal
advice to other state agencies and representing the state in court when state actions are
challenged. In recent years, attorneys general have focused on their civil responsibilities
by emphasizing their role in protecting consumers from various forms of fraud. Thus, the
typical home page of the attorney general of a state proclaims how many individual
consumer complaints (many of which involve motor vehicle and home repair fraud) are
handled annually. Many state attorneys general have also been visible in filing consumer
lawsuits against major U.S. businesses. The biggest of all involves the suits by more than
30 states against the tobacco industry.
State attorneys general have chosen to emphasize their civil responsibilities
because they typically have limited authority over criminal matters. Local autonomy is a
key characteristic of the office of prosecutor. In general, state officials do not monitor the
activities of local prosecutors. Although the state attorney general is the state’s chief law
enforcement official, his or her authority over local criminal procedures is quite limited.
Indeed, in a handful of states, the attorney general has no legal authority to initiate or
intervene in local prosecutions. In other states, this authority is limited to extreme
situations.
The American prosecutor has few direct parallels elsewhere in the world
(Flemming, 1990; Jehle & Wade, 2006; Sklansky, 2016). Compared with their
counterparts in England and Europe, American prosecutors enjoy unmatched
independence and discretionary powers (Albonetti, 1987; Sklansky, 2016). Moreover, the
United States is the only country in the world where voters elect prosecutors (Ellis,
2012). Variously called the “district attorney,” “county attorney,” “commonwealth
attorney,” “state’s attorney,” or “prosecuting attorney” (among other, less common titles),
the prosecutor is the chief law enforcement official of the community. Altogether, 2,330
chief prosecutors are employed across the nation, with a staff of almost 80,000. Structure
and workload differ according to the size of the population. The typical office serves a
population of 36,000 people, with 400 adult felony cases in the district, a staff of 10, and
a budget of $526,000. But deviations are readily apparent (Perry & Banks, 2011). The
great majority of the nation’s prosecutors’ offices are small ones (Table 6.2). Frequently,
rural prosecutors are part-time officials who also engage in private law practices.
Little is known about the activities of local prosecutors—variously called “city
attorneys,” “solicitors,” or the like. In some jurisdictions, local prosecutors are
responsible for the preliminary stages of felony cases as they are processed in the lower
courts. In these jurisdictions, it is the local prosecutor (not the chief prosecutor) who
represents the government at the initial appearance, argues bond amounts, and conducts
the preliminary hearing. These decisions may have important consequences for later
stages of the felony prosecution, but the chief prosecutor’s office has no direct control
over these matters.
E. The Prosecutor's Office at Work
In the courtroom, one’s attention normally gravitates toward the individual
lawyers as they call witnesses, ask questions, and cross-examine the opponent’s
witnesses. These individual activities, however, must be understood within the larger
context in which they occur. As Table 6.2 illustrates, the day-to-day work of the
prosecutor’s office is executed by nearly 78,000 people—approximately 34,288 attorneys
and 43,640 investigators, legal services personnel, victim advocates, and support staff.
How these persons are hired, trained, and supervised has a major bearing on the exercise
of prosecutorial discretion.
Most assistant district attorneys (sometimes called deputy district attorneys) are
hired immediately after graduation from law school or after a short time in private
practice. Traditionally, these young attorneys attend local or regional law schools, rather
than the nation’s most prestigious law schools (whose graduates are usually able to obtain
higher-paying jobs in private practice with prestigious law firms). This has changed
somewhat in the past decade or two, as competition for positions in major prosecutor’s
offices has increased significantly, especially since new prosecutors gain valuable trial
experience that new lawyers in law firms typically cannot.
The turnover rate among assistant DAs is high. Most serve an average of three to
six years before leaving prosecution to enter private practice, politics, business, or
another field. Thirty-five percent of all prosecutors’ offices nationwide report significant
problems retaining assistant DAs, with low salaries cited as the leading reason for the
high turnover (Perry, 2006). Indeed, low salaries were “the primary obstacle cited by
prosecutors’ offices with recruitment problems (83%) and offices with retention problems
(71%),” especially when compared to the higher salaries lawyers earn in private law
practice—a disparity that seems to grow over time.
Turnover is also a product of assistants growing tired of the job. With its never-
ending stream of society’s ills, the criminal courthouse can become a depressing place to
work. Moreover, regular trial work creates numerous physical and psychological
pressures. In the words of a former New Orleans prosecutor, “The average trial assistant
leaves work every day with a huge stack of papers under his arm. The grind can really
wear you down. There’s just too much work” (Perlstein, 1990). In Bronx D.A., Sarena
Straus (2006) discussed the day she reached her breaking point. She was a felony
prosecutor in the Domestic Violence and Sex Crimes Unit. She had just interviewed a
six-year-old autistic boy who watched his sister get stabbed to death that morning. “When
I finished the interview, I went back to my office. It was 7 pm. Everyone else had gone
home for the evening. I sat in my office and cried.” Realizing she could no longer
separate herself from her work, she left the job.
Law schools provide an overview of law on the books—criminal law, criminal
procedure, evidence, and constitutional law, to name just a few. But most law schools
give their students very little exposure to law in action. Thus, the typical assistant DA
comes to the job having little familiarity with the day-to-day realities of the profession.
For decades, training in prosecutors’ offices was almost exclusively on the job; it was not
unusual for recent law school graduates with no experience to be sent into court on their
first day on the job. One assistant summed up the office tradition as follows: “They have
a very unique way of breaking people in. They say, ‘Here’s a file. There’s the jury. Go
try it’” (Flemming, Nardulli, & Eisenstein, 1992). More recently, large prosecutors’
offices have begun to train new employees more systematically. After a week of general
orientation to the different divisions of the office, new assistants are allowed to watch
various proceedings and observe veteran trial attorneys at work.
Promotions are also related to the candidate’s reputation as a trial attorney.
Assistants are invariably judged by the number of convictions they obtain. In the
courthouse environment, however, not losing a case has a higher value than winning.
Thus, assistants learn that if the guilt of the defendant is doubtful or the offender is not
dangerous, it is better to negotiate a plea than to disrupt the courtroom routine by
attempting to gain a jury conviction.
Wright and Levine suggest that new prosecutors can be helped to grow out of
young prosecutors’ syndrome more quickly by spending more time with more senior
prosecutors who can mentor them “much in the way that rookie police officers learn from
riding on patrol with veterans” (p. 5). They also recommend that law schools could do a
better job developing a more balanced approached to criminal prosecution by instilling “a
professional commitment to flexibility” and emphasizing “the value of negotiation as an
alternative to litigation”.
As assistants gain experience and settle into the courthouse routine, they are
promoted to more demanding and also more interesting tasks. Promotions are related to
office structure (Flemming, Nardulli, & Eisenstein, 1992). Small prosecutors’ offices
usually use vertical prosecution, in which one prosecutor is assigned responsibility for a
case from intake to appeal (Nugent & McEwen, 1988). In these offices, assistants are
promoted by being assigned more serious cases. However, such an assignment system is
administratively burdensome in large courthouses; assistants would spend much of their
time moving from one courtroom to another and waiting for their one or two cases to be
called. Therefore, most bigcity prosecutors’ offices use horizontal prosecution, in which
prosecutors are assigned to specific functions, such as initial appearance, charging,
preliminary hearing, grand jury, trial, or appeal. On a regular basis, one or two attorneys
are systematically assigned to one courtroom with a given judge. Over time, prosecutors
come to know the judge’s views on sentencing and the like. Under horizontal
prosecution, assistants spend a year or more handling misdemeanor offenses before they
are promoted by being assigned to courtrooms with felonies.
Office policies are often general and somewhat vague. In small offices, they are
seldom even put in writing. Official and unofficial policies are simply part of what the
assistant learns informally; for this reason, it is hard for the bureau chief to enforce them.
In large offices, decentralized work assignments mean that supervisors can exert only
limited control over specific cases or individual assistants. Assistant DAs spend most of
their time not in the central office but in the courtroom. Indeed, in crowded courthouses,
trial assistants often have offices adjoining the judge’s chambers and only rarely appear
in the prosecutor’s office at all. It is therefore difficult for supervisors to observe and
monitor the assistant district attorney’s activities. Each assistant has dozens of cases that
require individual decisions on the basis of specific facts, unique witness problems, and
so on. A supervisor has no way to monitor such situations except on the basis of what the
assistant reports orally or writes in the file. Here, as elsewhere, information is power.
Assistants can control their supervisors by selectively telling them what they think they
should know.
The traditional form of prosecutorial management is centered on autonomy; each
individual assistant DA is granted a great deal of freedom to make his or her own
decisions. The Erie, Pennsylvania, DA’s office is typical; it “promulgated few formal
written policies, gave most of its assistants fairly wide latitude to dispose of cases in ways
consistent with the general aim of the office, and relied on informal supervision”.
Concerned that autonomy allows too much unchecked discretion, some
prosecutors have attempted to exert greater supervision by adopting a rigid system of
office policies. Some forbid any charge reductions whatsoever for some types of
defendants (habitual offenders) and for serious charges such as violent offenses and
major drug dealing (Eisenstein, Flemming, & Nardulli 1988). To ensure compliance with
these detailed office policies, formal, detailed, bureaucratic enforcement mechanisms are
imposed. Typical is DuPage County, Illinois, where the DA’s office “was highly
centralized, rigidly enforcing the ‘bottom-line’ pleas established by the indictment
committee. The DA’s office relied on a formally structured hierarchy to administer its
policies” (Eisenstein, Flemming, & Nardulli, 1988, p. 215). Chief prosecutors believe
that these management systems monitor prosecutorial discretion, minimize differences
among individual assistants, and concentrate scarce crime-fighting resources.
The Duke lacrosse team rape case has become the contemporary poster child for
prosecutorial misconduct. But this was a truly exceptional case and needs to be analyzed
within an array of legal issues that limit prosecutorial power. Ethical issues facing
prosecutors are very different from those confronting defense attorneys because
prosecutors do not represent individual clients. Prosecutors often define their jobs as
representing victims of crime (Chapter 9), but these are not typically considered to fit
under the attorney– client relationship. Rather, the client of the prosecutor is the
government, and for this reason, prosecutors are given special responsibilities. In the
words of the Criminal Justice Standards: “The duty of the prosecutor is to seek justice,
not merely to convict” (Standard 3-1.2c, American Bar Association, 2012). And, because
prosecutors represent the government, they enjoy a great deal of protection from civil
lawsuits.
F. Prosecutors and Courtroom Work Groups
The prosecutor’s role within the courtroom work group also needs to be
understood within the broader political context in which the office functions. This was
the conclusion of Roy Flemming’s (1990) study of nine prosecutors’ offices in three
states. Because they exercise broad discretion (in the context of decentralization and local
autonomy), elected prosecutors choose political styles. This choice is both personal and
strategic. It depends first on the prosecutor’s satisfaction or dissatisfaction with the
office’s status within the courthouse community. It also depends on the prosecutor’s
perception of the value of conflict as a means of changing the office’s status.
Prosecutors satisfied with the status of the office adopt an “office conservator”
style. Office conservators accept the status quo. Continuity is often a key consideration;
former assistants are elected with the blessings of the previous officeholder and the
support of the local political establishment. Once in office, conservators do not
deliberately step on toes; if they push for change, it generally comes as a response to the
requests of others. Montgomery County, Pennsylvania, provides an example. The newly
elected DA retained the preexisting staff intact. He did fashion some guidelines regarding
guilty pleas, but they were flexible, symbolic gestures—signals that a changing of the
guard had taken place, not a revolution. Most important, however, the DA tolerated the
judges’ traditional dominance of the courthouse community.
Prosecutors who are less content with the status of their offices face a more
complicated set of choices. They must decide whether conflict is an effective tool for
them to use. These “courthouse insurgents” are very dissatisfied with the status quo and
are prepared to do battle to change it. They do not shy away from open conflict, nor do
they hesitate to challenge the courthouse community in pursuit of their goals. DuPage
County, Illinois, is an example. The state’s attorney was an outsider to the county who
won the office by narrowly defeating the Republican Party’s favored candidate in a
bitterly fought, mudslinging primary. Perceiving that the office failed to stand up to
defense attorneys, the new state’s attorney turned the office inside out. Immediately after
election, he eliminated the part-time staff, hired aggressive assistants, and instituted
policies severely restricting plea bargaining. Moreover, the insurgent DA minced no
words in publicly criticizing judges and defense attorneys.
“Policy reformers” are also dissatisfied with the status quo, but unlike courthouse
insurgents, they are cautious, often conciliatory, in their approach. Upon taking office,
they gradually move to tighten their offices’ guilty-plea policies, encourage more
assertive attitudes among their assistants, and try to develop innovative approaches to
prosecutorial work. They do not shrink from trying to alter their relationships with
judges. Erie, Pennsylvania, provides a case in point. Embittered by the decline of the
office when he left as an assistant to enter private practice, the new Erie prosecutor
bucked the political establishment and decisively trounced the incumbent in the
Democratic Party primary to win the office. However, his plans to restore the respect of
the office clashed with the docket policies of the court. Rather than fighting openly, the
Erie DA mounted an indirect campaign to wrest control of the docket from the judges.
G. The Expanding Domain of the Prosecutor
The domain of the prosecutor has been expanding throughout the past century,
and pressures to place greater authority in the hands of the prosecutor are likely to
continue (Davis, 2009; Worrall & Borakove, 2008). Within the fragmented, sometimes
nonsystem of criminal justice, the prosecutor is in the best position to provide
coordination. Moreover, with crime as a dominant issue in elections, the prosecutor is
uniquely able to capitalize on his or her role as the community’s chief law enforcement
official and to promise the voters to expand crimefighting efforts. We will examine two
types of programs that exemplify the contemporary expansion of the domain of the
prosecutor: improving police–prosecutor relationships and community prosecution.
Police and prosecutors are commonly viewed as members of the same crime-
fighting team, but a closer look reveals a more complex reality (Harris, 2011; Rowe,
2015). Police and prosecutors have differing perspectives on the law. To the police, the
case is closed when the suspect is arrested, but prosecutors stress that they often need
additional information to win in court.
Inadequate police reports present a classic illustration of noncoordination within
the criminal justice system. The thoroughness of police investigations and the quality of
their arrests directly affect the likelihood of the prosecutor’s obtaining a conviction. In a
survey of 225 (mostly big-city) prosecutors, 66 percent cited inadequate police
preparation of crime reports as a major problem in their offices (Nugent & McEwen,
1988). Commonly mentioned problems were that names and addresses of victims and
witnesses were lacking, full details of how the crime was committed were missing, and
vital laboratory reports were not forwarded on time. Faced with incomplete or inaccurate
police reports, the prosecutor may be forced to drop charges.
The historic image of the district attorney stresses case processing: The DA files
charges and doggedly pursues a conviction. But this traditional image is becoming
blurred as locally elected prosecutors respond to a wide variety of social problems such
as domestic violence, drug abuse, disorder on city streets, and growing numbers of
juvenile offenders. In responding to these types of social problems, which often reflect
disintegrating neighborhoods, prosecutors today are more likely to stress problem-
oriented approaches (Center for Court Innovation, 2012b). At times, the specifics are
hard to pin down because the approaches are truly shaped to local needs rather than to
national program guides (Coles, 2000; Porter, 2011; Williams & Steward, 2013). But
these new approaches have three elements in common.
The Neighborhood District Attorney approach in Multnomah County (Portland,
Oregon) provides a case in point. Business leaders in the Lloyd District (an inner-city
neighborhood) called for more police protection as well as the assignment of a special
prosecutor to the district (for which they provided one-year’s funding). Citizen demands
were invariably expressed in traditional law enforcement terms—more police, more
arrests, and more convictions, particularly of repeat offenders. The Lloyd District special
prosecutor, however, quickly saw that people’s concerns were more immediate than he
had imagined. “They wanted something done about prostitution, public drinking, drug
use, vandalism, [minor] assaults, littering garbage, and ‘car prowls’ (thefts from cars)”
(Boland, 1996, p. 36). Although none of these problems (except thefts from cars) fit
traditional notions of serious crime, they nonetheless raise serious concern among
citizens.
As the program developed, several distinctive features became apparent. For one,
the assistant DA used the laws in new ways, including using civil remedies to fight crime.
Perhaps most important, the program was problem-oriented: Rather than focusing on
individual arrestees, the neighborhood district attorney addressed problems from a larger
perspective, with long-term goals in mind. Ultimately, what emerged was an approach,
not a program. Rather than being guided by clear-cut procedures, Portland has adopted a
highly flexible organization that can meet the different needs of different neighborhoods.
H. The Right to Counsel
Like many other provisions of the U.S. Constitution, the Sixth Amendment has a
different meaning today than it did when it was first ratified. In a landmark decision, the
U.S. Supreme Court held that, based on the Sixth Amendment’s provision of right to
counsel, indigent defendants charged with a felony are entitled to the services of a lawyer
paid for by the government (see “Case Close-Up: Gideon v. Wainwright and the Right to
Counsel”). Later, the Sixth Amendment right to counsel was extended to juvenile court
proceedings as well (In re Gault, 1967). But as so often happens, answering one question
raised several new ones. In the wake of the Gideon decision, the Court wrestled with
issues involving the right to counsel with regard to (1) nonfelony criminal prosecutions,
(2) stages of the criminal process, (3) ineffective assistance of counsel, and (4) self-
representation. The following “Key Development” feature summarizes key cases
affecting the Sixth Amendment right to counsel.
The Gideon ruling was limited to state felony prosecutions. In Argersinger v.
Hamlin (1972), the Court refused to extend the newly discovered constitutional right to
court-appointed counsel to those accused of minor violations (misdemeanor or ordinance
violations), holding that “absent a knowing and intelligent waiver, no person may be
imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless
he was represented by counsel.” Later, the justices narrowed the Argersinger decision,
ruling that a defendant is guaranteed the right to legal counsel, paid by the state if
necessary, only in cases that actually lead to imprisonment, not in all cases in which
imprisonment is a potential penalty (Scott v. Illinois, 1979). Scott clearly had a chilling
effect on an indigent person exercising his or her right to counsel (Christopher, 2014;
Hashimoto, 2015). The net effect of the Scott case was to limit the right to counsel in
nonfelony prosecutions, particularly if the guilty faced only paying a fine. Nonetheless,
indigents are entitled to a court-appointed attorney even if facing only a suspended jail
term for a minor charge.
The Gideon ruling spawned another important question: When in the criminal
process does the right to counsel begin (and end)? Note that the Sixth Amendment
provides for the right to counsel in “all criminal prosecutions,” so it is not limited to the
trial itself. The Supreme Court adopted a “critical stages” test, under which a defendant is
entitled to legal representation at every stage of prosecution “where substantial rights of
the accused may be affected,” requiring the “guiding hand of counsel” (Mempa v. Rhay,
1967). As Table 7.1 summarizes, indigent defendants have a right to court-appointed
counsel from the time they first appear before a judge until sentence is pronounced and
the first appeal concluded.
In the companion cases of Missouri v. Frye (2012) and Lafler v. Cooper (2012),
the Court held that defendants have a right to competent advice from a lawyer on whether
to accept an offer to plead guilty in exchange for a lighter sentence. Specifically,
defendants must be told of any formal plea offers from prosecutors that would result in a
favorable deal and then be given competent advice about the consequences of rejecting a
favorable offer.
The Ross decision has major consequences in death penalty cases (Chapter 14).
The right to court-appointed counsel typically extends only to the first appeal (Chapter
15). But death penalty cases also undergo numerous post-appeal proceedings termed
“postconviction remedies.” Under Ross, defendants sentenced to death often must rely on
voluntary counsel in pursuing these postconviction remedies. Some state supreme courts,
however, have gone considerably further in mandating counsel for situations in which the
U.S. Supreme Court has not required counsel under the Sixth Amendment. In fact, all
states except Alabama provide some level of taxpayer-funded legal assistance to litigate
such appeals (Mears, 2012). And even in Alabama, the decision in Maples v. Thomas
(2012) clearly raised the bar in terms of the right to counsel during postconviction
appeals in death cases (Steiker, 2013). The Maples Court reversed the conviction of a
capital defendant who procedurally defaulted on his appeals after lawyers left the law
firm that had agreed to represent Maples in his appeal pro bono (free of charge) and no
one had notified Maples.
Is it enough to have a lawyer? Must the lawyer also be competent and effective?
The Supreme Court has recognized the effective assistance of counsel as essential to the
Sixth Amendment guarantee (McMann v. Richardson, 1970). The Court’s most
significant holding came in 1984 in Strickland v. Washington, in which an “objective
standard of reasonableness” was set forth as the proper criterion to be applied in making a
determination of the ineffectiveness of counsel. Speaking for the Court, former Justice
Sandra Day O’Connor emphasized that the “benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result.” It is important to note that an attorney’s decisions regarding trial strategy and
tactics—such as the order of presentation of evidence; whether to cross-examine an
adverse witness; whether to make an objection—all carry a strong presumption of
competent performance. Indeed, the Supreme Court has said, “Strategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable” (Knowles v. Mirzayance, 2009). In short, appellate courts must reverse
only if the proceedings were fundamentally unfair and the outcome would have been
different if counsel had not been ineffective.
This standard places a heavy burden on the claimant; few appellate courts reverse
decisions on these grounds. Indeed, the Court held that a lawyer’s failure to file an appeal
did not necessarily constitute ineffective assistance of counsel (Roe v. Flores-Ortega,
2000). However, the Court appears to have a higher Strickland threshold in death penalty
cases. The Court ordered a new sentencing hearing in a death penalty case because the
inexperienced defense attorney failed to conduct a reasonable investigation of the
defendant’s troubled personal background (Wiggins v. Smith, 2003). Similarly, the Court
overturned a Pennsylvania death sentence because the defense attorney failed to search
the record for evidence that could have persuaded the jury to spare the defendant’s life
(Rompilla v. Beard, 2005). But not all appeals on these grounds are successful. During
the penalty phase of a death penalty trial, the defendant refused to allow his attorney to
present mitigating evidence about organic brain damage. The Court held that the
defendant was not denied effective assistance of counsel under Strickland.
Can defendants represent themselves if they wish? An important qualification was
added to Gideon when the Supreme Court ruled that defendants have a constitutional
right to self-representation. This means that criminal defendants have the right to proceed
pro se (Latin for “on his or her own behalf”). The Court, however, did establish limits.
Defendants who wish to represent themselves must show the trial judge that they have the
ability to conduct the trial. The defendant need not have the skills and experience of a
lawyer, and the judge may not deny self-representation simply because the defendant
does not have expert knowledge of criminal law and procedure (Faretta v. California,
1975). This decision has been qualified by the Court’s recognition that the trial judge
may appoint standby counsel when defendants choose to represent themselves (McKaskle
v. Wiggins, 1984). Standby counsel is available during the trial to consult with the
defendant, but it is the defendant, not the standby lawyer, who makes the decisions.
One of the oddest cases of self-representation was that of Colin Ferguson.
Ferguson fired into a crowded Long Island Railroad commuter train, killing 6 passengers
and wounding 19 others. Ferguson claimed that he acted out of a sense of “Black rage”;
his lawyer argued he was insane. Ferguson then dismissed his court-appointed lawyer,
who objected that the trial would become a complete circus because “a crazy man cannot
represent himself.” The prediction proved accurate (McQuiston, 1995). Broadcast
nationwide, the trial, with its inevitable guilty verdict, was perceived as not a trial but a
spectacle and underscored the limits of self-representation.
I. Defense Attorneys and Courtroom Work Groups
Lawyers are expected to be advocates for their clients’ cases, arguing for legal
innocence. As one defense counsel phrased it, “If the attorney does not appear to be
taking the side of the defendant, then no one will” (Neubauer, 1974b, p. 73). But the
zealous advocacy of a client’s case is not the same thing as winning at all costs. As a
member of the legal profession, a lawyer’s advocacy of a client’s case is limited by
professional obligations. Like prosecutors, defense attorneys are officers of the court,
who must fulfill their responsibilities within the framework established by legal ethics.
They cannot deliberately mislead the court by providing false information. Nor can they
knowingly allow the use of perjurious testimony.
How defense attorneys seek to reach the best solution possible for their client is
directly related to their relationship with other members of the courtroom work group.
Usually, assistant public defenders are permanently assigned to a single courtroom and
work every day with the same judge, the same prosecutor(s), the same court reporter, and
the same clerk of court. Similarly, private defense attorneys— although they practice
before several judges—are a permanent fixture in the criminal courts, for a handful of
lawyers dominate the representation of fee-paying criminal defendants in any city. This
daily interaction of the criminal bar with the court community shapes the type and quality
of legal representation received by those accused of violating the law. Whereas the
adversary system stresses the combative role of the defense attorney, the day-to-day
activities of the courtroom work group stress cooperation.
Defense attorneys who maintain a cooperative stance toward judges, prosecutors,
and clerks can expect to reap some rewards. Defense attorneys have limited (in some
instances, nonexistent) investigative resources. Prosecutors can provide cooperative
defense attorneys with information about the cases by letting them examine the police
reports, revealing the names of witnesses, and so on.
Prosecutors assess a defense attorney in terms of “reasonableness”—that is, the
ability to “discern a generous offer of settlement and to be willing to encourage his client
to accept such an offer” (Skolnick, 1967, p. 58). Based on this criterion, Skolnick put
attorneys into three categories. One category consisted of defense attorneys who handled
few criminal cases. One might suppose that prosecutors would prefer dealing with such
inexperienced attorneys, but they did not. Because these attorneys did not know the
ropes, they were too unpredictable and often caused administrative problems. In another
category were attorneys who had active criminal practices and maintained a hostile
relationship with the prosecutor’s office. Known as “gamblers,” these attorneys
exemplified the aggressive, fighting advocate, but because they either won big or lost big,
they also served to show the other attorneys the disadvantage of this posture. The final
category of attorneys consisted of public defenders and private attorneys who represented
large numbers of defendants. These attorneys worked within the system.
Some studies argue that defense attorneys’ ties to the court community mean that
defendants’ best interests are not represented. David Sudnow (1965) argued that public
defenders became co-opted when public defenders and prosecutors shared common
conceptions of what Sudnow called “normal crimes.” Public defenders were more
interested that a given case fit into a sociological cubbyhole than in determining whether
the event met the proper penal code provisions. As a result, the public defenders seldom
geared their work to securing acquittals for their clients. Thus, from the beginning, the
presumption of guilt permeated the public defenders’ assessment of cases. Similarly,
Abraham Blumberg (1967b) concluded that all defense attorney regulars were double
agents, working for both their client and the prosecutor. His study of a large New York
court likened the practice of law to a confidence game, in which both the defendant and
the defense attorney must have larceny at heart; a con game can be successful only if the
“mark” is trying to get something for nothing. Judges and prosecutors depended on the
defense attorneys to pressure defendants to plead guilty. In short, both Sudnow and
Blumberg portray defense attorneys as ideological and as economic captives of the court
rather than aggressive advocates.
J. The Criminal Bar
Law offices of solo practitioners are a permanent feature of urban architecture.
They can be found huddled around the stone edifice of the criminal courts and near the
neon lights proclaiming “Harry’s 24-Hour Bail Bonds.” In Detroit, they are called “the
Clinton Street Bar,” and in Washington, D.C., “the Fifth Streeters”—titles that are not
meant to be complimentary. These lawyers spend little time in their offices; they are most
often at the courthouse, socializing with other members of the courtroom work group.
Their proximity to the criminal courts and the sparseness of the law books in their offices
are good indicators that the law practiced from these offices bears little resemblance to
images of defense attorneys presented on television. A number of factors account for the
low economic and professional status of the criminal bar.
Law is a diverse profession based partially on the law school attended and the
place of work (Mather & Levin, 2012; Wilkins, 2012). Based on extensive interviews
with practicing attorneys, Heinz and Laumann (1982), in Chicago Lawyers: The Social
Structure of the Bar, reported dramatic differences among several sorts of lawyers, and
these differences persist (Heinz, Nelson, Sandefur, & Laumann, 2005). The most
important differentiation within the legal profession involved which clients were served.
Some lawyers represent large organizations (corporations, labor unions, or government).
Others represent mainly individuals. By and large, lawyers operate in one of these two
hemispheres of the profession; seldom, if ever, do they cross the line separating these
very different types of legal work. The corporate client sector involves large corporate,
regulatory, general corporate, and political lawyers. The personal client sector is divided
into personal business and personal plight lawyers (divorce, tort, and so on).
It is no accident that in many large cities, a distinct criminal bar exists. Low
status, difficulty in securing clients, and low fees are three factors that affect the
availability of lawyers to represent those accused of violating the law. Most lawyers view
criminal cases as unsavory. Representing criminal defendants also produces few chances
for victory; most defendants either plead guilty or are found guilty by a judge or jury.
Also, despite the legal presumption of innocence, once defendants are arrested, the public
assumes they are guilty. As a result, the general public perceives criminal defense
attorneys as freeing known robbers and rapists to return to the streets. To earn a living,
lawyers first need clients.
Attorneys working in the personal-client sector of the legal profession seldom
have a regular clientele. Accordingly, a part of their time is spent securing clients. The
criminal lawyer’s most important commodity in securing clients is his or her reputation,
which often develops on the basis of the lawyer’s handling of a specific case. A lawyer’s
reputation is important in several ways. First, defendants want a specific attorney to
represent them, not a firm of lawyers. Second, attorneys who do not practice criminal law
often refer clients to a specific lawyer who does. Finally, a repeat offender may seek out
the previous attorney, if he or she felt the lawyer provided good representation in the
past. In securing clients, some defense attorneys rely on police officers, bail agents, and
court clerks to give their names to defendants who need counsel.
K. Providing Indigents with Attorneys
Indigents are defendants who cannot afford to pay a lawyer and, therefore, are
entitled to a lawyer for free. Three-quarters of state prison inmates had court-appointed
lawyers to represent them for the offense for which they were serving time. In urban
courthouses, the indigency rate is a little higher: 82 percent of felony defendants cannot
afford to hire their own lawyer (Bureau of Justice Statistics, 2012; Council of Economic
Advisers, 2015). Obviously, the Supreme Court’s decision in Gideon, requiring the state
to provide attorneys for indigents, applies to a substantial number of criminal defendants.
Although the Supreme Court has essentially mandated the development of
indigent-defense systems, it has left the financing and type of delivery system up to states
and counties, which have considerable discretion in adopting programs (Worden &
Worden, 1989). As with other aspects of the dual court system in the United States, the
characteristics of defense systems for the indigent vary considerably, with some state
governments funding virtually all indigent criminal defense services, other state
governments sharing the financial costs of providing counsel with counties, and still other
jurisdictions in which county funds are used exclusively.
The assigned counsel system reflects the way professions such as law and
medicine traditionally responded to charity cases: Individual practitioners provide
services on a case-by-case basis. Assigned counsel systems involve the appointment by
the court of private attorneys from a list of available attorneys on an as-needed basis. The
list may consist of all practicing attorneys in the jurisdiction or, more commonly, the
attorneys who volunteer. There is great variability in how lawyers on the list are actually
appointed to represent a particular client.
Under the ad hoc appointment method, the oldest and still the most common
method, “the court appoints attorneys at random, with a minimum of consideration for
the qualifications of the attorney or equitable distribution of cases among members of the
private bar” (Allison, 1976, p. 403). Most jurisdictions have improved the coordination of
their assigned counsel systems in the past 40 years so that case assignments are made by
systematic rotations through the list of lawyers (Ogletree & Sapir, 2004). Some
jurisdictions even maintain a few specialized lists of lawyers skilled to handle particular
types of cases, but that is the exception, not the rule.
The availability of lawyers willing to serve as assigned counsel is directly related
to financial compensation. In the past, a number of jurisdictions expected attorneys to
represent indigents as part of their professional responsibility, without being paid (pro
bono). Today, however, attorneys assigned to represent indigent defendants are paid.
Most commonly, lawyers are compensated for such defense work on the basis of separate
hourly rates for outof-court and in-court work. However, hourly fees for in-court felony
work usually range far below the fees charged in private practice. Indeed, a study by the
National Association of Criminal Defense Lawyers (Gross, 2013) revealed “staggeringly
low rates of compensation for assigned counsel across the nation” averaging $65 per hour
for felony cases, “with some states paying as little as $40 an hour” (p. 8). No state
compensates assigned counsel near anything approximating the federal rate of $125 per
hour (which is still quite low compared to what attorneys in private practice charge).
Notably, many states’ rates have been stagnant for years. Such low rates of compensation
do not even cover overhead such as rent, office equipment, secretarial support, or access
to reference materials (which can cost between $9 and $20 per minute under certain
pricing packages; flat-rate plans can cost thousands of dollars per month, depending on
the robustness of the subscription package). And few states allow for any adjustments
based on geography, meaning that attorneys in practice in a metropolitan area with high
overhead are compensated at the same rates at which their counterparts are paid in rural
parts of a state in which overload is dramatically lower.
Contract systems involve bidding by private attorneys to represent all criminal
defendants found indigent during the term of the contract, in return for a fixed payment
(Cohen, 2014; Priumu, 2016; Worden, 1991, 1993). Contract systems are most often
found in counties with populations of fewer than 50,000, where the key feature is that
they place an absolute budget limit on defense services for the indigent. The primary
advantage of contract systems is that they limit the costs government must pay for
indigent defense. Critics counter with two types of concerns. The first is that contract
programs will inevitably lead to a lower standard of representation through the bidding
system, which emphasizes cost over quality. The second is that the private bar will no
longer play an important role in indigent defense.
The public defender is a 20th-century response to the problem of providing legal
representation for he indigent. Public defender programs are public or private nonprofit
organizations with full- or part-time salaried staff who represent indigents in criminal
cases in a jurisdiction. Started in Los Angeles County in 1914, public defender offices
spread slowly. By 1965, the National Legal Aid and Defender Association—the national
organization that promotes better legal representation for indigents in civil as well as
criminal cases— reported programs in only 117 counties. Since 1965, public defender
programs have spread rapidly because of Supreme Court decisions (Gideon and later
Argersinger), as well as increased concern for more-adequate representation of indigents.
Today, the public defender system represents approximately 70 percent of all indigents
nationwide. It predominates in most big cities and has also been adopted in numerous
medium-sized jurisdictions.
Critics contend that public defenders—as paid employees of the state—will not
provide a vigorous defense because they are tied too closely to the courtroom work
group. Several studies have investigated this concern by comparing the adequacy of
representation provided by assigned counsel to that by public defenders’ offices. The
dominant conclusion is that there is not much difference (Buller, 2015; Eisenstein,
Flemming, & Nardulli, 1988; Flemming, 1989; Hartley, Miller, & Spohn, 2010; Wice,
1985). One recent study, however, reports that Florida defendants represented by public
defenders fare less well than those represented by retained attorneys.
The Public Defender: The Practice of Law in the Shadows of Repute offers a
radically different view of public defense attorneys. In this book, Lisa McIntyre (1987)
demonstrated that public defense lawyers are indeed free to defend their clients zealously.
She found that in the courts of Cook County, Illinois, public defenders are adversarial and
even combative opponents of the state’s prosecutorial apparatus. McIntyre argues, in fact,
that the office of the public defender survives because its effective advocacy for its
clients bolsters the legitimacy of the court system.
L. Lawyers and Clients
One of the most important tasks of defense attorneys is counseling. As advocates,
defense attorneys are expected to champion their clients’ cases. But as counselors, they
must advise their clients about the possible legal consequences involved. Lawyers must
fully and dispassionately evaluate the strengths and weaknesses of the prosecutor’s case,
assess the probable success of various legal defenses, and—most important—weigh the
likelihood of conviction or acquittal. In appraising risks and outlining options, lawyers
interpret the law to their clients, who are often unversed in what the law considers
important and what the law demands.
To be an effective advocate and counselor, the lawyer must know all the facts of a
case. For this reason, the American legal system surrounds the attorney–client
relationship with special protections. Statements made by a client to his or her attorney
are considered privileged communication, which the law protects from forced disclosure
without the client’s consent. The attorney–client privilege extends not only to statements
made by the client but also to any work product developed in representing the client.
Refusal to cooperate, deception, and dishonesty are serious problems public
attorneys face in dealing with their clients (Flemming, 1986a). At times, defendants tell
their attorneys implausible stories, invent alibis, or withhold key information. A veteran
public defender observed that in drug cases, the clients all had the same defense—they
left home to buy milk or Pampers for the baby. In the end, “when you’ve heard every
defense a thousand times, true or not, they can all start to sound like bullshit” (Feige,
2006, p. 228). The defendant’s lack of candor greatly complicates the job of the attorney
in representing him or her. Evasions and deceptions can affect tactical and strategic
decisions.
Ultimately, it is the defendant’s choice whether to accept the attorney’s advice to
plead guilty or to go to trial. Lawyers differ in their ability to influence their clients.
Private attorneys find their advice accepted more readily than court-appointed lawyers
do. This difference in part reflects the type of commitment the defendant has made. The
indigent defendant has no choice in receiving the services of a public defender or
assigned counsel, whereas defendants with private attorneys have a choice and have
shown their commitment by paying a fee.
Public clients are skeptical about the skills of their lawyers and are worried about
whose side the lawyers are on. Thus, many defendants view their lawyers, whether public
or private, with suspicion, if not bitterness. This is particularly the case with court-
appointed attorneys, whom many defendants consider the same as any other government-
paid attorney. Some defendants think that public defenders will not work hard on their
cases because they are paid whether or not they win. To others, the defense attorney has
ambitions to become a judge or prosecutor and therefore does not want to antagonize the
court system by fighting too hard. Overall, then, many defendants view the public
defender as no different from the prosecutor. In prison, PD stands not for “public
defender” but for “prison deliverer.” In what has become a classic statement, a
Connecticut prisoner responded to Jonathan Casper’s (1970–1971) question as to whether
he had a lawyer when he went to court with the barbed comment, “No, I had a public
defender.”
Clearly, not all defendants’ criticisms of their attorneys are valid. But valid or not,
defendants’ lack of trust and confidence in their lawyers is a major force in shaping the
dynamics of courthouse justice. Defendants try to con their attorneys, and the lawyers
respond by exhibiting disbelief when defendants state unrealistic expectations or invent
implausible alibis. For an attorney, failure to gain “client control” can lead to a bad
reputation in the courthouse and jeopardize his or her own position within the courtroom
work group.
M. Defense Attorney Ethics
Lawyers occupy an ambiguous position in American society. They are admired
and respected and at the same time distrusted. These contradictory assessments are
reflected in myths about lawyers as either heroes or villains (Wolfram, 1986). Popular
culture often portrays lawyers as heroes who valiantly protect clients falsely accused or
depicts attorneys as villains for going too far in defending the obviously guilty.
Discussions of good lawyers and bad lawyers invariably focus on legal ethics.
Years ago, one of the authors was in an Illinois courtroom talking with a top
police official. When asked what was wrong with the criminal justice system, he singled
out a specific defense attorney. “We arrest the guilty, but he [pointing to a defense
attorney] gets them off on a technicality,” he opined. Less than a week later, a police
officer in his department was accused of manslaughter for shooting an unarmed youth.
The police association immediately hired that same lawyer to defend the indicted officer.
This saga illustrates the duality of viewpoints about attorneys and perceived ethical
problems. More so than the other lawyers in the criminal justice process, defense
attorneys are most often identified as having ethical issues.
The duty of candor to the tribunal, as it is known, is the most important
responsibility that all lawyers owe to the courts. This ethical rule prohibits lawyers from
knowingly making false statements to the court, failing to disclose adverse legal
precedents, obstructing access to or tampering with witnesses or evidence, making
frivolous discovery requests, and offering any evidence known to be false—including
perjurious or misleading testimony. This last restriction can pose a serious ethical issue
for defense attorneys, since they are often reluctant to refuse clients’ efforts to present
their defense. But, as officers of the court, they may not knowingly allow the use of
perjured testimony. So, if defense attorneys cannot talk their clients out of taking the
stand (particularly if they think that a client is now making the situation worse because
the jury will not believe the testimony), the lawyers’ duty of candor to the tribunal may
require defense attorneys to tell a judge in chambers about such a situation and then let
the client testify without the lawyer’s help.
Confidentiality is another key component of legal ethics. Based on the attorney–
client privilege, the lawyer may not voluntarily disclose what the client confided. Nor
may judges, prosecutors, or other officers of the court typically force such disclosure.
Holding to this principle may expose the lawyer to charges of obstruction of justice.
Consider the case of a client who provided his lawyer a diagram of where he buried the
kidnapped baby: The lawyer was severely criticized for failing to show the police where
the body was buried. Eventually, a Texas judge ruled that the facts of the case constituted
a valid exception to attorney–client privilege.
Potential conflict of interest is a key ethical issue facing lawyers. Attorneys are
prohibited from engaging in representation that would compromise their loyalty to their
clients. The most common problem found in the day-to-day practice of law in the
criminal courts involves representing two clients who have opposing interests. In a
murder case involving more than one defendant, for example, a lawyer may represent
only one defendant because the defense might seek to lay the blame solely on another
defendant. On the civil side, a lawyer who has represented a couple in various legal
matters may be ethically prohibited from representing either party in a divorce
proceeding because the lawyer may have learned important details of the couples’
finances or other confidential matters.
