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David W. Neubauer, Ph.D. UNIVERSITY OF NEW ORLEANS

Henry F. Fradella, J.D., Ph.D. CALIFORNIA STATE UNIVERSITY, LONG BEACH

E L E V E N T H E D I T I O N

AMERICA’S COURTS

A N D T H E C R I M I N A L J U S T I C E S YS T E M

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L A W S O N , A N G E L A 6 8 5 3 B U

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America’s Courts: And the Criminal Justice System, Eleventh Edition David W. Neubauer and Henry F. Fradella

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172

7 Defense Attorneys

Defense attorney Alan Konop addresses the jury with his hand on the shoulder of the Reverend Gerald Robinson, who was

accused of killing a nun in a hospital chapel 26 years before his trial

date. He was convicted at the age of 68 and sentenced to 15 years

to life in prison. His conviction was affirmed by an Ohio appeals

court.

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THE RIGHT TO COUNSEL Nonfelony Criminal Prosecutions Stages of the Criminal Process

CASE CLOSE-UP: Gideon v. Wainwright and the Right to Counsel

Ineffective Assistance of Counsel Self-Representation

DEFENSE ATTORNEYS AND COURTROOM WORK GROUPS

Rewards and Sanctions Variations in Cooperation An Assessment

THE CRIMINAL BAR Diversity and Stratification of the Legal

Profession Environment of Practice

PROVIDING INDIGENTS WITH ATTORNEYS

Assigned Counsel Contract Systems

Courts, Controversy, & Economic Inequality

Are We Spending Too Little or Too Much on Indigent Defense?

Public Defender Assessing the Merits of Public Defenders

LAWYERS AND CLIENTS Lawyers’ Views on Their Clients Defendants’ Views on Their Lawyers

DEFENSE ATTORNEY ETHICS

Courts, Law, & Media: Boston Legal (ABC Television, 2004–2008)

Chapter Outline

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LO1

had been in and out of prison since the age of 14. His brushes with the law had been minor—public drunkenness and petty theft primarily—but now he faced a much more serious charge: burglarizing a poolroom in Bay Harbor. As he stood be- fore the judge, he appeared to be a shipwreck of a man; his wrinkled face and trembling hands suggested a person much older than 51. Yet “a flame still burned inside Clarence Earl Gideon . . . he had a fierce feeling that the State of Florida had treated him wrongly” (Lewis, 1972, p. 6). He demanded that the court appoint a lawyer to defend him. The trial judge flatly refused; unrepresented by counsel, Gideon was found guilty. But on appeal he was luckier. The Supreme Court plucked this obscure case from the bowels of the criminal justice system to issue a land- mark decision: All indigent defendants were entitled to court-appointed counsel in felony trials. Gideon v. Wainwright (1963) was not only a victory for Clarence Earl Gideon but, more impor- tant, it sent shock waves through the criminal justice system.

The Court’s decision in Gideon underscores the importance of lawyers in the criminal justice system. But what role do defense attorneys play in representing their clients? Some view defense attorneys as fighting to free falsely accused clients. Others, though, often contrast this favorable image with a less complimentary one of the defense attorney as a conniver who uses legal technicalities to free the guilty.

brushes with the law had been minor

Clarence Earl Gideon

174

After reading this chapter, you should be able to:

Interpret the four major legal issues surrounding the right to counsel.

Discuss how the courtroom work group affects how defense attorneys represent their clients.

Explain why most lawyers do not represent criminal defendants.

Compare and contrast the three systems of providing indigents with court-appointed attorneys.

Recognize possible tensions between lawyers and clients.

Analyze the importance of legal ethics to the defense of criminal defendants.

111LO1

LO2

LO3

LO4

LO5

LO6

Learning Objectives

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Defense AttorneysChapter 7 175

This chapter assesses these conflicting images in terms of the daily realities of the small propor- tion of the legal profession who represent defen- dants accused of violating the criminal law. The picture is a complicated one. Some defense attor- neys suffer from the shortcomings mentioned by their critics; others do not. But all face day-to-day problems and challenges not usually encountered by the bulk of American lawyers who represent higher-status clients. The key topics of this chapter are the factors influencing the type of legal assis- tance available to those who appear in criminal courts: the legal right to counsel, the tasks defense attorneys perform, their relationship with court- room work groups, the nature of the criminal bar, the relationship between lawyer and client, and finally, the various systems for providing legal assistance to the poor.

THE RIGHT TO COUNSEL

Like many other provisions of the 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 proceed- ings 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 “Key Development” feature below summarizes key cases affecting the Sixth Amendment right to counsel.

Nonfelony Criminal Prosecutions

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 classi- fied 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 coun- sel, paid by the state if necessary, only in cases that actually lead to imprisonment, not in all cases in which imprisonment is a potential pen- alty (Scott v. Illinois, 1979). 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 (Alabama v. Shelton, 2002).

We know very little about how local courts actually provide indigents in nonfelony prosecu- tions with court-appointed counsel, but there is every indication that compliance is less than full. The National Association of Criminal Defense Lawyers (2009) examined seven states and reported that counsel was not being appointed in some cases. Moreover, 30 percent of misde- meanor defendants who were sentenced to incar- ceration reported that they were not represented by counsel (Hashimoto, 2010).

Stages of the Criminal Process

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 coun- sel in “all criminal prosecutions,” so it is not lim- ited 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 “guid- ing 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. (The only exception is the grand jury, whose peculiar practices will be examined in Chapter 10.) As a general rule, defendants have a Sixth Amendment

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176 Part II / Legal Actors

KEY DEVELOPMENTS IN THE RIGHT TO COUNSEL

Sixth Amendment (1791) “In all criminal prosecutions the accused shall enjoy the right . . . to have the assistance of counsel for his defence.”

Powell v. Alabama (1932) Indigent defendants in a capital case in state court have a right to court- appointed counsel.

Johnson v. Zerbst (1938) Indigent felony defendants in federal court are entitled to court-appointed counsel.

Betts v. Brady (1942) Indigent defendants in a noncapital case in state court have no right to appointed counsel.

Gideon v. Wainwright (1963) Indigent felony defendants have the right to appointed counsel (Betts overruled).

Douglas v. California (1963) Indigents have a right to court-appointed counsel during the first appeal.

In re Gault (1967) Juveniles are covered by the Sixth Amendment’s right to counsel.

Argersinger v. Hamlin (1972) Indigent nonfelony defendants have the right to appointed counsel if they are facing jail time.

Faretta v. California (1975) Defendants have the right to self-representation.

Scott v. Illinois (1979) Although no indigent criminal defendant may be sentenced to a term of imprisonment unless he or she was afforded the right to assistance of appointed defense counsel, trial courts are not required to appoint counsel for a defendant charged with a statutory offense for which imprisonment upon conviction is authorized, but will not actually be imposed.

Strickland v. Washington (1984) A defense attorney is ineffective only if proceedings were unfair and the outcome would have been different.

Wiggins v. Smith (2003) The failure of an inexperienced defense attorney to conduct a reasonable investigation of the defendant’s troubled personal background constituted ineffective assistance of counsel.

Halbert v. Michigan (2005) Indigent defendants who plead guilty are entitled to state-paid legal help on appeal.

Schriro v. Landrigan (2007) 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 defendant was not denied effective assistance of counsel under Strickland.

Indiana v. Edwards (2008) A mentally ill defendant who is nonetheless competent to stand trial is not necessarily competent to dispense with a lawyer and represent himself.

Padilla v. Kentucky (2010) Failing to inform one’s client that a plea carries a risk of deportation constitutes ineffective assistance of counsel under Strickland.

Missouri vs. Frye and Lafler vs.

Cooper (2012)

Defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused, and defendants have a right to competent advice from a lawyer on whether to accept or reject such an offer.

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Defense AttorneysChapter 7 177

From his prison cell, Clarence Earl Gideon drafted a

petition that, despite the garbled prose of a man with

no real education, nonetheless raised a major legal

principle:

When at the time of the petitioner’s trial he ask the

lower court for the aid of counsel, the court refused this

aid. Petitioner told the court that this [Supreme] Court

made decision to the effect that all citizens tried for a

felony crime should have aid of counsel. The lower court

ignored this plea. (Lewis, 1972)

Every year thousands of pauper petitions like

this are sent to the Supreme Court; few are ever

heard. But this petition struck a responsive chord. The

Court signaled the importance of the issue when it

appointed Abe Fortas, one of the best-known lawyers

in Washington, D.C., to represent Gideon. (Fortas would

later be appointed to the Court.)

In what became officially known as Gideon v. Wain-

wright, the Court forcefully noted that “in our adversary

system of criminal justice, any person, hauled into court,

who is too poor to hire a lawyer, cannot be assured a

fair trial unless counsel is provided for him. This seems

to us to be an obvious truth. . . .”

The Sixth Amendment states that “in all criminal

prosecutions, the accused shall enjoy the right . . . to

have the assistance of counsel for his defence.” As

written by the framers more than 200 years ago, this

constitutionally protected right to counsel meant

only that the judge could not prevent a defendant

from bringing a lawyer to cour t. (In England, defen-

dants had been convicted despite requests to have

their lawyers present.) Thus, the Sixth Amendment

affected only those who could afford to hire their

own lawyers.

Beginning in the 1930s, the Supreme Cour t

took a more expansive view of the right to counsel.

Criminal defendants in federal cases were entitled to

a cour t-appointed lawyer if they were too poor to

hire their own. But a different rule prevailed in the

state cour ts. Only defendants accused of a capital

offense were entitled to cour t-appointed counsel;

indigent defendants charged with ordinar y felonies or

misdemeanors were not (Betts v. Brady, 1942). Thus,

a significant number of defendants in state cour ts

had to face the legal maze of criminal proceedings by

themselves.

Gideon v. Wainwright (1963) significantly expanded

the legal meaning of the right to counsel. As occasion-

ally happens, the Court reversed its earlier precedent

in Betts:

That the government hires lawyers to prosecute and de-

fendants who have the money hire lawyers to defend

are the strongest indications of the widespread belief that

lawyers in criminal courts are necessities, not luxuries. The

right of one charged with crime to counsel may not be

deemed fundamental and essential for fair trials in some

countries, but it is in ours.

Now, all indigent defendants charged with a felony

were entitled to the services of a lawyer paid by the

government, irrespective of whether they were on trial

in state or federal court.

Gideon proved to be a major transforming event

in the American criminal justice system. It was the first

major decision of the Warren Cour t’s revolution in

criminal justice. But unlike other decisions, it proved

not to be controversial. The Cour t’s rationale, focus-

ing on basic fairness and the impor tance of lawyers,

gave it widespread legitimacy. Moreover, Gideon

focused on the need for a lawyer at the trial itself.

Later decisions—Miranda in par ticular—restricted

police gathering of evidence and proved to be highly

contentious.

GIDEON WAINWRIGHT AND THE RIGHT TO COUNSELC A S E C L O S E - U P

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178 Part II / Legal Actors

right to the assistance of counsel once any adver- sarial proceedings have begun (Brewer v. Williams, 1977; Rothgery v. Gillespie County, 2008).

The right to counsel in the pretrial stage is much more limited, however. Applying the critical- stages test, subsequent decisions held that defen- dants have the right to court-appointed counsel during custodial interrogations (Miranda v. Arizona, 1966) and police lineups (Kirby v. Illinois, 1972; U.S. v. Wade, 1967). However, merely being detained by the police is not sufficient grounds to guarantee a right to counsel (United States v. Gouveia, 1984). (The controversy surrounding the extension of the right to counsel in the police station will be exam- ined in Chapter 11.)

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 right to counsel also extends to certain post-trial proceedings, but as in pretrial proceed- ings, the right to counsel is more limited. Work- ing on the assumption that a person’s right to an appeal can be effective only if counsel is available, the Court held that indigents have the right to court-appointed counsel for the appeal (Douglas v. California, 1963), as well as free trial transcripts (Griffin v. Illinois, 1956). The Burger Court, how- ever, rejected attempts to extend the Douglas ruling

TABLE 7.1 ■ RIGHT TO COUNSEL DURING STEPS IN FELONY PROSECUTIONS

Extent of Right Supreme Court Case

Arrest No lawyer required

Initial appearance Lawyer required if critical stage Rothgery v. Gillespie County (2008)

Bail Lawyer required if critical stage Coleman v. Alabama (1970)

Charging No lawyer required

Preliminary hearing Lawyer required Coleman v. Alabama (1970)

Grand jury No lawyer allowed

Arraignment Lawyer required Hamilton v. Alabama (1961)

Interrogation (preindictment) Lawyer on request Miranda v. Arizona (1966)

Interrogation (postindictment) Lawyer required Massiah v. United States (1964)

Lineup (preindictment) No lawyer required Kirby v. Illinois (1972)

Lineup (postindictment) Lawyer required United States. v. Wade (1967)

Plea bargaining Lawyer required Brady v. United States (1970); Tollett v. Henderson (1973); Missouri v. Frye (2012)

Trial Lawyer required Gideon v. Wainwright (1963)

Sentencing Lawyer required Mempa v. Rhay (1967)

Probation revocation Lawyer at court’s discretion Gagnon v. Scarpelli (1973)

Parole revocation Lawyer at board’s discretion Morrissey v. Brewer (1972)

First appeal Lawyer required Douglas v. California (1963)

Discretionary appeal No lawyer required Ross v. Moffitt (1974)

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Defense AttorneysChapter 7 179

beyond the first appeal. Thus, in discretionary appeals and appeals to the Supreme Court, indi- gent defendants have no right to court-appointed counsel (Ross v. Moffitt, 1974).

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 16). 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 coun- sel for situations in which the Supreme Court has not required counsel under the Sixth Amendment. All states except Alabama provide some level of taxpayer-funded legal assistance (Maples v. Thomas, 2012; Mears, 2012).

Ineffective Assistance of Counsel

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 “objec- tive 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 pro- duced 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 vir- tually unchallengeable” (Knowles v. Mirzayance, 2009). In short, appellate courts must reverse only if the proceedings were fundamentally

unfair and the outcome would have been differ- ent 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 neces- sarily 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 sen- tencing hearing in a death penalty case because the inexperienced defense attorney failed to conduct a reasonable investigation of the defen- dant’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. Dur- ing 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 (Schriro v. Landrigan, 2007).

Self-Representation

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 defen- dants choose to represent themselves (McKaskle v. Wiggins, 1984). Standby counsel is available during the trial to consult with the defendant, but it is the

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180 Part II / Legal Actors

defendant, not the standby lawyer, who makes the decisions.

Although self-representation occurs rarely, these cases have the potential to become media spectacles. Perhaps the oddest case of self- representation was that of Colin Ferguson. Fer- guson 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 inevi- table guilty verdict, was perceived as not a trial but a spectacle and underscored the limits of self- representation. More recently, Dr. Jack Kevorkian represented himself in an assisted suicide case in Michigan, and Zacarias Moussaoui represented himself against charges that he was the 20th par- ticipant in the terrorist attack of September 11 (Chapter 3).

A recent case proved that the Court appears ready to limit self-representation in bizarre situ- ations. The Court held that a mentally ill defen- dant who is nonetheless competent to stand trial is not necessarily competent to dispense with a lawyer and represent himself (Indiana v. Edwards, 2008).

An empirical study, however, challenges the conventional wisdom that there is no good reason for a defendant to choose self-representation. Pro se defendants fare as well as represented defendants 80 percent of the time, and most do not suffer from mental illness (Hashimoto, 2007).

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.

Assessing how well lawyers represent their clients is difficult because of different ways of assessing the work performed. How do we define winning? Our popular culture suggests that win- ning means an acquittal. But experienced lawyers reject such simplistic notions. A veteran Los Ange- les public defender explained:

What is our job as a criminal lawyer in most in-

stances? Number one is . . . no kidding, we know

the man’s done it, or we feel he’s done it, he may

deny it, but the question is: Can they prove it? The

next thing is: Can we mitigate it? Of course you

can always find something good to say about the

guy—to mitigate it. Those are the two things that

are important, and that’s what you do. (Mather,

1974b, p. 278)

Thus, many defense attorneys define winning in terms of securing probation, or accepting a plea to a misdemeanor charge. One attorney put it this way: “Given the situation, what is the best that can be done for my client?” (Neubauer, 1974b, p. 74). At virtually all stages of the criminal justice process, defendants may have the guiding hand of counsel (see “Law on the Books vs. Law in Action” feature on the following page).

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. Simi- larly, private defense attorneys—although they practice before several judges—are a perma- nent fixture in the criminal courts, for a hand- ful of lawyers dominate the representation of fee-paying criminal defendants in any city. This

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Defense AttorneysChapter 7 181

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 attor- ney, the day-to-day activities of the courtroom work group stress cooperation.

The legal system, civil and criminal, is based on controversy. Norms of cooperation work to chan- nel such controversy into constructive avenues. All too often, advocacy is falsely equated with antago- nism. Although defense attorneys exchange pleas- antries with judges and prosecutors, their personal contacts with these officials outside the courtroom are limited.

Another qualification to bear in mind is that cooperative attorneys do not bargain every case;

they also take cases to trial. If the defense attorney thinks the prosecutor is driving too hard a bargain or that the state cannot prove its case to the jury, a trial will be recommended. Furthermore, no evi- dence exists to show that cooperative attorneys do not argue the case to the best of their abilities dur- ing a trial.

Rewards and Sanctions

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 informa- tion about the cases by letting them examine the

LAW IN ACTION VS. LAW ON THE BOOKS THE ROLE OF DEFENSE ATTORNEYS IN A TYPICAL FELONY CASE

LAW ON THE BOOKS LAW IN ACTION

Crime Counsels the client about the crime charged.

Arrest Rarely present.

Initial appearance Allowed to be present. Typically advises client to say nothing during the court proceedings.

Bail Argues for client’s release on bail. Judge more likely to listen to the district attorney’s (DA’s) recommended bail.

Charging May urge the prosecutor to charge the client with a less serious offense.

Preliminary hearing Allowed to be present but typically cannot call witnesses.

Good opportunity to find out what really happened in the case.

Grand jury Only in some states may defense attorney be present.

Grand jury transcripts may be useful for discovery.

Arraignment Allowed to be present. Chance to talk to the client; may suggest entering a plea of guilty.

Evidence Requests discovery information from the prosecutor; files motions to suppress confession and/or search and seizure.

Cooperative defense attorneys receive greater discovery information from the DA. Rarely successful in winning suppression motions.

Plea bargaining Often a direct participant in plea discussions. Negotiates for most beneficial deal possible.

Trial Advocate for defendant’s rights. Typically stresses that the prosecutor has not proved the defendant “guilty beyond a reasonable doubt.”

Sentencing Makes a sentencing recommendation to the judge. Argues for sentence at the low end of the normal penalty scale.

Appeal Files notice of appeal and writes appellate brief. Rarely successful on appeal.

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182 Part II / Legal Actors

police reports, revealing the names of witnesses, and so on.

The court community can also apply sanc- tions to defense attorneys who violate the norms. Some sanctions work indirectly, by reducing a lawyer ’s income-generating ability. The clerk may refuse to provide beneficial case schedul- ing, or the judge may drag out a trial by continu- ously interrupting it for other business. Other sanctions are more direct. A judge can criticize a lawyer in front of his or her client (thus scar- ing away potential clients in the courtroom) or refuse to appoint certain attorneys to represent indigents—a significant source of income for some lawyers (Nardulli, 1978). A final category of sanctions involves the prosecutor ’s adopting a tougher stance during bargaining by not reduc- ing charges or by recommending a prison sen- tence that is longer than normal.

Sanctions against defense attorneys are seldom invoked, but when they are, they can have far- reaching effects. Every court community can point to an attorney who has suffered sanctions, with the result that the attorney either no longer practices criminal law in the area or has mended his or her ways.

Variations in Cooperation

Defense attorneys are the least powerful mem- bers of the courtroom work group. Because of the numerous sanctions that can be applied to defense attorneys, they are forced into a reactive posture.

Prosecutors assess a defense attorney in terms of “reasonableness”—that is, the ability to “dis- cern 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 cri- terion, Skolnick put attorneys into three catego- ries. One category consisted of defense attorneys who handled few criminal cases. One might sup- pose 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 defend- ers and private attorneys who represented large numbers of defendants. These attorneys worked within the system.

An Assessment

Are criminal defense attorneys, especially pub- lic defenders and regular private attorneys, the co-opted agents of a court bureaucracy or simply calculating realists? This question has been a preoccupation of research on defense attorneys for decades (Flemming, 1986b).

Some studies argue that defense attorneys’ ties to the court community mean that defen- dants’ 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 defend- ers were more interested that a given case fit into a sociological cubbyhole than in determining whether the event met the proper penal code pro- visions. As a result, the public defenders seldom geared their work to securing acquittals for their clients. Thus, from the beginning, the presump- tion of guilt permeated the public defenders’ assessment of cases. Similarly, Abraham Blumberg (1967b) concluded that all defense attorney regu- lars 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.

However, other studies have concluded that defendants’ best interests are not eroded when their attorneys adopt a cooperative posture within the courtroom community. Indeed, Jerome

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Skolnick (1967) suggested that clients do better as a result of a cooperative posture. Working within the system benefits the client because the pros- ecutor will be more amenable to disclosing infor- mation helpful to the defense, the bargains struck will be more favorable, and the defendant will not be penalized for the hostility of the defense attorney. Furthermore, attorneys identified as agitators may harm their clients’ causes because prosecutors and judges will hand out longer sen- tences. Neubauer ’s (1974a) study of Prairie City, Illinois, also found that attorneys who remained on good terms with other members of the court- room work group functioned better as counsel- ors, because they were better able to predict the reactions of the court community to individual cases. In short, the studies by Skolnick (1967), Neubauer (1974a), and Mather (1974b) concluded that attorneys who work within the system are better able to develop a realistic approach to their work, based on experience and knowledge of how their clients will fare.

Little evidence exists, then, that defense law- yers have been co-opted by the criminal justice system. Indeed, a study of what motivates public defenders reaches the opposite conclusion. Based on a study of 48 public defenders in three offices, Weiss (2005) concluded that public defenders are cynical about police, prosecutors, and judges. In the end, a skepticism about justice being done motivates public defenders to vigorously defend their clients.

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 crimi- nal 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 pre- sented on television. A number of factors account for the low economic and professional status of the criminal bar.

Diversity and Stratification of the Legal Profession

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 organiza- tions (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 politi- cal lawyers. The personal client sector is divided into personal business and personal plight lawyers (divorce, tort, and so on).

Most of the attorneys who appear in criminal court are drawn from the personal-client sector. They are often referred to as “solo practitioners,” because they practice alone or share an office with another attorney. For this group of courtroom regulars, criminal cases constitute a dominant part of their economic livelihood. Thus, studies of private attorneys in different cities report that the bulk of nonindigent defendants are repre- sented by a handful of attorneys (Nardulli, 1986; Neubauer, 1974a).

Environment of Practice

It is no accident that in many large cities, a dis- tinct 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.

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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 per- ceives attorneys as freeing known robbers and rapists to return to the streets. “Realistically, a law- yer who defends notoriously unpopular clients becomes identified in the public’s mind, and not infrequently in the mind of his own profession, with his client” (Kaplan, 1973).

To earn a living, lawyers first need clients. Attorneys working in the personal-client sector of the legal profession seldom have a regular cli- entele. 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 repre- sent them, not a firm of lawyers. Second, attorneys who do not practice criminal law often refer cli- ents 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 representa- tion 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 (Wice, 1978).

Obtaining clients is only half the problem facing private attorneys who represent criminal clients. The second half is getting paid. “Criminal lawyers are more concerned than other lawyers with col- lection of the fee—after all, their clients are mostly criminals” (Lushing, 1992, p. 514). The lawyer’s fee in a criminal case is generally a flat fee paid in advance. The three most important considerations in setting the fee are the seriousness of the offense, the amount of time it will take the lawyer to deal with the case, and the client’s ability to pay. Well- known criminal lawyers, for example, often charge their prosperous clients considerable fees. In the words of a prominent New York City defense attor- ney, “Reasonable doubt begins with the payment of a reasonable fee” (Gourevitch, 2001, p. 111). The myth that criminal lawyers receive fabulous sala- ries is mostly untrue; although a few have become

quite wealthy, most earn a modest middle-class liv- ing (Wice, 1978). Of course, many defendants are so impoverished that they cannot afford to hire a private attorney at all.

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). 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 pro- grams (Worden & Worden, 1989). As with other aspects of the American dual court system, the characteristics of defense systems for the indigent vary considerably, with some state governments funding virtually all indigent criminal defense ser- vices, other state governments sharing the finan- cial costs of providing counsel with counties, and still other jurisdictions in which county funds are used exclusively (Farole & Langton, 2010; Langton & Farole, 2010).

How best to provide legal representation for the poor has been a long-standing issue for the courts and the legal profession. In the United States, the three primary methods are assigned counsel (attorneys appointed by the judge on a case-by-case basis), contract systems (attorneys hired to provide services for a specified dollar amount), and public defender (a salaried public official representing all indigent defendants). The ongoing debate over the advantages and disad- vantages of these three systems highlights some important issues about the quality of legal repre- sentation provided the poor.

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Assigned Counsel

The assigned counsel system reflects the way pro- fessions such as law and medicine traditionally respond 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. The list may consist of all practicing attorneys in the jurisdiction or, more commonly, the attorneys who volunteer. The assigned coun- sel system is used in half of all U.S. counties but serves less than one third of the nation’s popula- tion. It predominates in small counties, those with fewer than 50,000 residents, where an insufficient volume of cases exists to support the costs of a pub- lic defender system.

Critics contend that the assigned counsel sys- tem results in the least-qualified lawyers being appointed to defend indigents (Iyengar, 2007). In most counties, the only attorneys who volunteer are either young ones seeking courtroom experi- ence or those who seek numerous appointments to make a living. Even where appointments are rotated among all members of the practicing bar (as in New Jersey and in Houston, Texas), no guarantee exists that the lawyer selected is qualified to handle the increasing complexity of the criminal law; the appointee may be a skilled real estate attorney or a good probate attorney, but these skills are not readily transferable to the dynamics of a criminal trial.

The availability of lawyers willing to serve as assigned counsel is directly related to financial compensation. In the past, a number of jurisdic- tions 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 out-of-court and in-court work. However, hourly fees for in-court felony work usually range far below the fees charged in private practice. Crit- ics contend that inadequate compensation pres- sures attorneys to dispose of such cases quickly in order to devote time to fee-paying clients.

The widely held assumption that rates of compensation are directly related to the qual- ity of criminal defense representation has been

challenged by one study. The extent of effort of lawyers in Michigan who handled appellate rep- resentation did not vary significantly in relation to the rate of compensation. Overall, professional role expectations of lawyers may have a greater influence on their work than financial consider- ations (Priehs, 1999).

Contract Systems

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, 2011; 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 representa- tion through the bidding system, which empha- sizes cost over quality. The second is that the pri- vate bar will no longer play an important role in indigent defense (Spangenberg Group, 2000).

The contract system was held unconstitu- tional in Arizona when the Arizona Supreme Court held that the Mohave County contract system, which assigned defense representation of the indigent to the lowest bidder, violated the Fifth and Sixth Amendments because the system: (1) did not take into account the time the attor- ney is expected to spend on a case, (2) did not provide for support staff costs, (3) failed to take into account the competence of the attorney, and (4) did not consider the complexity of the case (Smith v. State, 1984). Likewise, courts in several other states have found legal defects in contract systems that result in inadequate funding levels (Spangenberg Group, 2000).

Skepticism that contract systems actually save money is growing. Several jurisdictions have been frustrated by contract firms submitting increas- ingly higher budgets after their initial low bids (Wice, 2005). Moreover, in some markets, contract systems have failed to reduce the costs of indigent defense, and may actually increase such costs,

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Is Gideon’s promise broken? Fifty years after the Court’s landmark right-to-counsel decision, some argue that the promise of equal justice under law has given way to a two-tiered system of criminal representation—one for those

with money and another for those without it. Still others contend that the way Gideon has been implemented is way too costly.

From the perspective of the due process model, unman- ageable caseloads are the single greatest obstacle to effective representation of the indigent (Lefstein, 2011; National Right to Counsel Committee, 2009). In 1973, the National Advi- sory Commission on Criminal Justice Standards and Goals recommended that a maximum effective felony caseload for a public defender is 150 cases per year. Today, most states have workload standards that recommend a felony caseload of between 50 and 300 cases, with most states continuing to embrace the figure of 150 cases recommended by the National Advisory Commission in 1973 (Spangenberg Group, 2001). Yet, in many jurisdictions, it is typically much higher—sometimes approaching 1,000 clients per year (Cauchon, 1999; Lefstein, 2011). “No more. We can’t ethically handle this many cases,” argues David Carrol of the National Legal Aid and Defender Association. Typical is Florida’s Miami–Dade County, where the public defender’s office refused to accept any new lesser-felony cases so they could concentrate on defending current clients (Eckholm, 2008).

The short-term failure to adequately fund indigent defense can prove to be expensive in the long run. The advent of DNA evidence (Chapter 13) has led to the freeing of hundreds of the wrongfully convicted (Chapter 16), but only after major expen- ditures for lawyers and the like, to say nothing of damage to the reputation of the criminal justice system. Likewise, the lack of attorneys available to defend death row inmates is a major point of contention regarding the death penalty (see Chapter 14).

The problem of out-of-control caseloads is in state courts, not in the federal courts, where funding has long been greater than among the states (Lefstein, 2011). In the wake of the eco- nomic downturn of the early 21st century, state after state has

often been forced to reduce funding for indigent defense. At issue is who should pay for public defenders. County boards believed that it is the state’s responsibility to pay these expenses. But offi- cials of the state countered that its budget was in dire straits, and therefore it was unable to afford such services (Liptak, 2003).

Crime control proponents, on the other hand, have long been concerned that the government is paying too much for indigent defense. As expenditures for defense services for the indigent have risen dramatically (DeFrances, 2001), there has been a noticeable trend toward containing the costs. One technique is the adoption of stringent indigency standards. Traditionally, big-city judges rarely inquired into the financial capabilities of defendants to determine whether they satisfy the court’s definition of indigency. However, a report funded by the National Institute of Justice stresses that courts should screen applications “to ensure that only the truly indigent are provided representation at public expense” (Spangen- berg, Wilson, Smith, & Lee, 1986, p. 69). However, indigency standards set too high obviously deprive defendants of their constitutional right to court-appointed counsel. This is particularly true in counties that consider making bail in de- termining indigency—the bail bonds person’s fee may exhaust the financial resources to hire a lawyer (Hashimoto, 2010).

Another way of containing government expenses is cost recovery. In screening applications for defense services for the indigent, many courts now distinguish between defend- ants so poor that they are exempt from paying any costs of their defense and a new category of “partially indigent” defendants who may be able to pay a portion of the costs (Lee, 1992; Spangenberg et al., 1986). Defendants in many jurisdictions may be required to pay application fees for court-appointed counsel (Hashimoto, 2010; Wright & Logan, 2006). It “seems only fair” that defendants be required to pay, argues Jim Rams, president of the National District Attorneys Association. “Since the vast majority of criminal defendants do not get sentenced to jail . . . their job status and econom- ics can and should change relatively quickly allowing repay- ment” (quoted in Johnson, 2010). The Brenan Center for Justice counters that in practice these fees often discourage individuals from exercising their constitutional rights, leading to wrongful convictions (Bannon, Nagrecha, & Diller, 2010).

ARE WE SPENDING TOO LITTLE OR TOO MUCH ON INDIGENT DEFENSE?

COURTS,

C O N T R O V E R S Y,

& ECONOMIC

INEQUALITY

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because there are too few attorneys to generate a competitive market (Cohen, 2011; Spangenberg & Beeman, 1995).

Public Defender

The public defender is a 20th-century response to the problem of providing legal representation for the indigent. Public defender programs are public or private nonprofit organizations with full- or part-time salaried staff who represent indi- gents in criminal cases in a jurisdiction.

Started in Los Angeles County in 1914, pub- lic 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 crim- inal cases—reported programs in only 117 coun- ties. 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 indi- gents. Today, the public defender system repre- sents approximately 70 percent of all indigents nationwide. It predominates in most big cities and has also been adopted in numerous medium-sized jurisdictions.

The administration and funding of public defender programs occurs at either the state or local level. Twenty-two states have a state public defender program that oversees the policies and practices of the 427 public defender offices located in these states (Langton & Farole, 2010). In another 27 states and the District of Columbia, public defender offices were funded and administered at the local level (Farole & Langton, 2010). Maine is the only state that does not have a public defender office.

Proponents of the public defender system cite several arguments in favor of its adoption. One is that a lawyer paid to represent indigents on a con- tinuous basis will devote more attention to cases than a court-appointed attorney who receives only minimal compensation. Moreover, many members of the practicing bar like the idea that they no lon- ger have to take time away from fee-paying cases to meet their professional obligations.

A second advantage often claimed for the public defender system is that it provides more experi- enced, competent counsel. Because public defend- ers concentrate on criminal cases, they can keep

abreast of changes in the law, and the day-to-day courtroom work keeps their trial skills sharp. The public defender is also likely to be more knowl- edgeable about informal norms and is therefore in a better position to counsel defendants and negoti- ate the best possible deal.

Finally, a public defender system ensures con- tinuity and consistency in the defense of the poor (Silverstein, 1965). Public defenders are usually able to provide early representation, entering the case at the initial appearance. Moreover, issues that transcend individual cases—criteria for pre- trial release, police practices, and so forth—are more likely to be considered by a permanent, ongoing organization than under appointment systems.

Assessing the Merits of Public Defenders

Critics contend that public defenders—as paid employees of the state—will not provide a vig- orous 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 dif- ference (Eisenstein, Flemming, & Nardulli, 1988; Flemming, 1989; Hartley, Miller, & Spohn, 2010; Wice, 1985).

Several studies, however, find that defen- dants represented by assigned counsel attorneys fare less well (Cohen, 2011; Iyengar, 2007; Roach, 2010). Most importantly, though, the research continues to report that clients of private attor- neys and public defenders receive similar case outcomes.

The National Center for State Courts drew the following conclusions from the nine jurisdictions it studied:

1. Appointed counsel resolved the cases of their indigent defendants more expeditiously than did privately retained counsel.

2. Appointed criminal defense counsel gained as many favorable outcomes (acquittals, charge reductions, and short prison sentences) for their indigent clients as privately retained at- torneys did for their clients.

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3. Appointed criminal defense counsel pros- ecuting attorneys were equally experienced (Hanson, Hewitt, & Ostrom, 1992).

Likewise, the outcomes of criminal appeals do not vary between public defenders and privately retained counsel (Williams, 1995).

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 zeal- ously. 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.

Why, then, does the public defender ’s image not reflect this? The freedom to defend against the state cannot include the freedom to embarrass it. Hence, the complexity of the public defender ’s institutional role requires that the office not adver- tise its successes. McIntyre shows that the public defender ’s office deliberately retains its image of incompetency in order to guarantee its continued existence. Public defenders may practice good law, but they must do it in the darker shadows of repute.

The long-standing debate over the adequacy of court-appointed counsel is beginning to give way to a new reality—large governmental expenses. Images and myths play a central role in the debate over funding levels for court-appointed lawyers (see “Courts, Controversy, and Economic Inequal- ity: Are We Spending Too Little or Too Much on Indigent Defense?”).

The vast majority of public defender agen- cies attempt to survive from one crisis to the next amid a perpetual flux of inexperienced lawyers. In response to the on going problems of the tra- ditional agencies, some reform defender agencies have emerged. Public Defenders and the American Justice System by Paul Wice (2005) focuses on one reform defender system—Essex County (New- ark), New Jersey. These reform agencies strive to maintain a group of experienced lawyers by emphasizing their independence from any politi- cal or judicial influence. One of their hallmarks is

stressing the importance of one-on-one representa- tion for each client.

LAWYERS AND CLIENTS

One of the most important tasks of defense attor- neys is counseling. As advocates, defense attor- neys 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 evalu- ate the strengths and weaknesses of the prosecu- tor’s case, assess the probable success of various legal defenses, and—most important—weigh the likelihood of conviction or acquittal. In apprais- ing 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 pro- tections. Statements made by a client to his or her attorney are considered privileged communica- tion, 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.

Based on trust and a full exchange of infor- mation, the attorney assumes the difficult task of advocating a client’s case. In civil litigation, the relationship between lawyer and client is often (but not always) characterized by trust and full disclosure (Cox, 1993). In criminal cases, how- ever, the relationship is more likely to be marked by distrust and hostility. Indeed, more than half of defendants are described by their attorneys as passive participants in the overall defense, and 10 percent are described by their attorneys as recalcitrant—that is, rarely or never accepting the attorney’s advice (Bonnie, Poythress, Hoge, Monahan, & Eisenberg, 1996).

In the modern era, high caseloads clearly complicate the ability of lawyers, particularly those appointed by the court to represent indi- gents, to find time to talk with clients. In the book

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Indefensible: One Lawyer’s Journey into the Inferno of American Justice, David Feige (2006) reflected on days in court when he was unable to make court appearances because he was busy elsewhere. Given a caseload ranging from 75 to 120 active cases, “the simple matter of where to be when becomes one of the most complicated and taxing puzzles we face. It’s not unusual to have six, eight, or even ten different courtrooms to go to in a sin- gle day”(p. 87). And on some days, an unexpect- edly lengthy appearance in one courtroom means that a lawyer will be unable to meet with a client in another courtroom. In short, becoming a good client manager is something that every public defender has to learn.

Lawyers’ Views on Their Clients

Getting along with clients is one of the most difficult tasks of public defenders. One veteran New York City public defender recounts the lec- ture he received from his boss early on. “If you’re working this job looking for appreciation, you’re never gonna last,” she said. Instead it has to come from inside “even though we lose and lose, and we get creamed every day . . . you have to wake up the next morning and fight your heart out, looking for those few times we can stop it” (Feige, 2006, p. 33). Nonetheless, client disrespect irritates attorneys and sours their associations with clients. As one public defender complained, “It is frustrating to have to constantly sell your- self” to clients. “The standard joke around this county is, ‘Do you want a public defender or a real attorney?’” (Flemming, 1986a, pp. 257–258). Many eventually leave the job because of the dif- ficulty of dealing with their clients (Platt & Pol- lock, 1974).

Refusal to cooperate, deception, and dishon- esty 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. Eva- sions and deceptions can affect tactical and strate- gic decisions.

Lynn Mather (1974b) described a case in which a public defender went to trial at the request of a client who claimed she had no prior record. To the attorney’s surprise, the defendant’s presen- tence report revealed that she had a 5-year history of similar crimes. She was sentenced to prison. The public defender said that his client “fooled everyone.” The lack of trust in the attorney–client relationship may stem from the necessity for the lawyer to prepare the client for less than total vic- tory. The defense attorney may at some point have to inform the defendant that imprisonment is a likely result, given the crime, prior record, facts of the case, and so forth. Since defendants involved in the criminal process often do not look beyond the present, postponing bad news from day to day, such statements are not to their liking. Preparing the client for the possibility of conviction clashes with traditional notions that the attorney should always win.

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 pri- vate attorneys have a choice and have shown their commitment by paying a fee.

Defendants’ Views on Their Lawyers

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

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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 clas- sic statement, a Connecticut prisoner responded to Jonathan Casper’s (1972) question as to whether he had a lawyer when he went to court with the barbed comment, “No, I had a public defender.”

A partial explanation for a breakdown of trust between the client and public defender involves the absence of one-to-one contact. Most public defenders’ offices are organized on a zone basis. Attorneys are assigned to various courtrooms and/ or responsibilities—initial appearance, preliminary hearing, trial sections, and so on. Each defendant sees several public defenders, all of whom are sup- posed to be working for him or her. This segmented approach to representation for indigents decreases the likelihood that a bond of trust will develop between attorney and client. It also increases the probability that some defendants will be over- looked—that no attorney will work on their cases or talk to them. One can certainly understand the frustration of this 33-year-old accused murderer with no previous record:

“I figured that with he being my defense attorney,

that as soon as that grand jury was over—because

he’s not allowed in the hearing—that he would call

me and then want to find out what went on. After

that grand jury I never saw him for two months.”

“You stayed in jail?” “Yeah.” (Casper, 1972, p. 8)

Clearly, not all defendants’ criticisms of their attorneys are valid. But valid or not, defen- dants’ lack of trust and confidence in their law- yers is a major force in shaping the dynamics of courthouse justice. Defendants try to con their attorneys, and the lawyers respond by exhibit- ing 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 (Eisenstein, Flemming, & Nardulli, 1988).

DEFENSE ATTORNEY ETHICS

Lawyers occupy an ambiguous position in American society. They are admired and respected and at the same time distrusted. These contradic- tory assessments are reflected in myths about law- yers 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. But this focus often reflects consider- able misunderstanding about what lawyers do and what legal ethics is all about.

Years ago, one of the authors was in an Illi- nois 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 tech- nicality,” 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 identi- fied as having ethical issues.

Defending unpopular clients is the basis for a great deal of criticism of lawyers. People often ask, “How can you defend a person like that?”—a question that implies that lawyers’ actions are an offense to morality. But at the core of legal ethics is the notion that every party is entitled to legal rep- resentation, even unpopular defendants who have committed heinous crimes or defendants whose guilt is overwhelming.

Each state has adopted its own code of profes- sional responsibility for lawyers licensed within it. All 50 U.S. states, however, have adopted some vari- ation of the American Bar Association’s Model Rules of Professional Conduct. These rules impose ethical obligations on lawyers to their clients, as well as to the courts, since all attorneys are officers of the court.

The duty of candor to the tribunal, as it is known, is the most important responsibility that all lawyers

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owe to the courts. This ethical rule prohibits law- yers 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 attor- neys 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.

Another key responsibility all lawyers owe to the court, including prosecutors and criminal defense attorneys, is refraining from making any out-of-court statements that an attorney knows or reasonably should know will be disseminated to the public and would have a substantial likelihood of prejudicing any judicial proceeding. Recall from Chapter 6 that Mike Nifong, the prosecutor in the Duke lacrosse rape case, was disbarred for violat- ing this duty.

The duties that defense attorneys owe to their clients include:

zealously representing the client’s interests within the bounds of the law;

abiding by a client’s decisions concerning the objectives of representation;

avoiding providing any counsel that would encourage or assist a client, in conduct that the lawyer knows is criminal or fraudulent (although a lawyer may discuss the legal consequences of any proposed course of con- duct with a client and may counsel or assist a client to make a good faith effort to deter- mine the validity, scope, meaning, or applica- tion of the law);

acting with reasonable diligence and prompt- ness in representing a client;

keeping the client reasonably informed about the status of his or her case;

maintaining client confidentiality; and avoiding conflicts of interest.

The duty of zealous advocacy forms the bed- rock of legal ethics. Lawyers are expected to be diligent in asserting valid defenses for their cli- ents. However, this ethical standard does not mean that the lawyers must always do what their clients say. Lawyers are professionals bound by ethical rules of the profession. Within these parameters, people often support the zealous advocacy of their own lawyers, while objecting that the advocacy of opposing counsel goes too far. Conversely, defen- dants often complain that they lacked competent counsel, which typically translates into a complaint that they were convicted.

Confidentiality is another key component of legal ethics. Based on the attorney–client privi- lege, the lawyer may not voluntarily disclose what the client confided. Nor may judges, pros- ecutors, 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 pro- vided 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 excep- tion to attorney–client privilege (Dzienkowski & Burton, 2006).

Potential conflict of interest is a key ethical issue facing lawyers. Attorneys are prohibited from engaging in representation that would com- promise their loyalty to their clients. The most common problem found in the day-to-day prac- tice of law in the criminal courts involves repre- senting two clients who have opposing interests. In a murder case involving more than one defen- dant, 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 prohib- ited from representing either party in a divorce proceeding because the lawyer may have learned important details of the couples’ finances or other confidential matters.

Lawyers who fail to properly represent their cli- ents may be sued for civil damages (Chapter 2). For

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192 Part II / Legal Actors

BOSTON LEGAL (ABC TELEVISION, 2004–2008)

Welcome to the law firm of Crane, Poole, & Schmidt, the fictional firm at the heart of Boston Legal. While the plots of many episodes differ, most of the

storylines center around Alan Shore (played by James Spader), an ethically challenged attorney who, with the help of Denny Crane (played by William Shatner), a senior partner in the firm, gains recognition as an attorney of last resort—the guy who can win cases that no other attorney in private practice would ever want to take. Crane, however, possesses an eccentric personality and engages in bizarre conduct as a function of being in the early stages of Alzheimer’s. Shirley Schmidt (played by Candice Bergen) is the firm’s star litigator and managing partner. In that latter role, she not only has to make major decisions for the firm, but also has to supervise the questionable behaviors of the arrogant and narcissistic team of Shore and Crane.

Crane’s own outrageous behavior helps to men- tor Shore in his unethical ways. Indeed, it becomes clear that Shore’s knack for winning is a function of his highly questionable methods. Shore will not “let trivial things like honesty and integrity get in the way of winning a case” (Smitts, 2004). For example, in one episode, he had an unli- censed physician remove a potentially life-threatening bullet from a client who had refused to seek medical treatment in a hospital for fear that the evidence gathered through tra- ditional medical channels would lead to his being criminally convicted.

Television portrayals of fictional lawyers like Alan Shore and Denny Crane create unreasonable expecta- tions in viewers who may need to hire a lawyer. After all, who would not want to be represented by an attorney- gladiator ready to “fight the battle for them” (Slocum, 2009, p. 516)? But such expectations are not realistic. In real life, attorneys who practiced law the way Alan Shore and Denny Crane did on Boston Legal would find

themselves in a lot of trouble with judges and their state bar association. Lawyers are bound by codes of profes- sional responsibility and the rules of court to behave in ways that conform to a set of legal ethics.

Despite the media portrayal of lawyers as angry, avenging gladiators, such a role is less common than most clients think. … But in real life, lawyers like the ones we see on TV and in the movies often end up costing their clients money—that kind of “litigation-as-war” mentality usually ratchets up the attacks and counter-attacks, with the cli- ents becoming even angrier and more frustrated as the litigation escalates into all-out war. And the end result is not only that the lawsuit ends up costing both parties a lot of money in legal fees, but also that clients often end up pretty unhappy with the whole legal process, even if they end up getting much of what they wanted in terms of a financial outcome. Far from getting the justice they wanted and believe they deserve, they end up feeling that the legal system let them down (Slocum, 2009, p. 517).

After watching one or more episodes of Boston Legal, be prepared to discuss the following questions:

1. Do you think that depictions of the lawyers on Boston Legal contribute to the image of unethical criminal defense attorneys? Explain your reasoning.

2. Alan Shore and Denny Crane are just two examples of the media depicting the “win at all costs” defense attorney. Sebastian Stark on Shark is another. What other examples of unethical defense attorneys can you find in popular culture?

3. The fictional defense attorneys of yesterday, like Perry Mason, Matlock, or Atticus Finch in To Kill a Mock- ingbird, were consistently depicted as highly ethical attorneys who won cases not by ignoring the rules of professional responsibility, but rather by exercising their superior lawyering skills with uncompromised integrity. Why do you think that media portrayals of fictional defense attorneys have changed so much in a generation or two? What, if anything, does this say about the legal profession?

COURTS,

LAW, &

MEDIA

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this reason, lawyers carry legal malpractice insur- ance. It is important to stress, though, that law- yers are liable only in very limited situations. Just because a lawyer loses a case does not mean that the lawyer is incompetent.

CONCLUSION

From the bleak perspective of his prison cell, Clar- ence Gideon had no way of knowing that his peti- tion to the Supreme Court would have the impact it did. Overnight, Gideon went from defending himself to having Abe Fortas—one of the nation’s most prestigious lawyers—represent him. Follow- ing the Supreme Court reversal of his conviction, Clarence Earl Gideon was given a new trial. His court-appointed lawyer discovered evidence sug- gesting that the man who had accused Gideon of burglarizing the poolroom had himself committed the crime. Moreover, as a result of the Gideon deci- sion, thousands of other prison inmates in Florida and elsewhere were freed.

Nor could Gideon have realized that his name would become associated with a landmark Supreme Court decision. He achieved no small degree of legal immortality. His case was chronicled by New York Times reporter Anthony Lewis (1964) in the book Gideon’s Trumpet. Gideon v. Wainwright transformed the law, signaling a due process revo- lution in the rights of criminal defendants. Gideon himself was not transformed, however. He avoided any more major brushes with the law, but he died penniless on January 18, 1972, in Ft. Lauderdale, Florida.

The travails of Clarence Earl Gideon illus- trate the importance of legal access to the justice system. Perhaps nowhere else is there a greater contrast between the images and the realities of the criminal court process than in the activities of the defense attorney. Unlike fictional defense attorneys, who always defend innocent clients successfully, most defense attorneys deal with a steady stream of defendants who are in fact guilty, and their representation focuses on plea bargaining.

1. Interpret the four major legal issues surrounding the right to counsel.

After Gideon v. Wainwright established a right to counsel for indigent felony defendants, courts have wrestled with four areas: (1) right to counsel in nonfelony prosecutions, (2) stages of the criminal process, (3) ineffective assistance of counsel, and (4) self-representation.

2. Discuss how the courtroom work group affects how defense attorneys represent their clients.

Lawyers who work within the parameters of the courtroom work group receive benefits for their clients, including more case information from prosecutors and perhaps better plea bar- gains. Lawyers who are less cooperative find that they do not get favorable case-scheduling

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considerations and get less favorable plea bargains.

3. Explain why most lawyers do not represent criminal defendants.

Most lawyers practice civil law because it is more lucrative, they have higher prestige, and they have fewer problems dealing with clients.

4. Compare and contrast the three systems of providing indigents with court-appointed attorneys.

The three major ways of providing indigents with court appointed attorneys are: (1) assigned counsel, (2) contract systems, and (3) public defender. Studies find no major differences between these three systems in the results achieved.

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Chapter Review

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194 Part II / Legal Actors

6. Analyze the importance of legal ethics to the defense of criminal defendants.

Legal ethics seek to ensure that lawyers will zealously advocate for their clients. Lawyers must assert valid defense and ensure confidentially. But legal ethics places professional limits on how far that advocacy may go, including not using perjured or misleading testimony.

6LO65. Recognize possible tensions between lawyers and clients.

Lawyers sometimes view their clients as not telling them the whole truth about a case and at times seeking to manipulate their lawyers. Defendants may view their attorneys as not fighting hard enough for them and seeking to accommodate the judge and prosecutor.

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assigned counsel system 185

contract system 185

indigents 184

Model Rules of Professional Conduct 190

privileged communication 188

pro se 179

public defender 187

right to counsel 175

Key Terms

Go to the America’s Courts and the Criminal Justice System companion website at

http://www.cengage.com/criminaljustice/neubauer,

where you will find more resources to help you study.

Resources include web exercises, quizzing, and flash cards.

Web Resources

1. The public generally views defense attorneys as too zealous in their advocacy of obviously guilty clients, while many scholars portray an image of defense attorneys, particularly public defenders, as too willing to plead their clients guilty. What do you think? What evidence would you cite for either position?

2. In what ways have contemporary decisions by the U.S. Supreme Court modified the original meaning of the Sixth Amendment? Is the original intent of the Sixth Amendment relevant in today’s world?

3. What factors hinder a defense attorney in his or her attempt to protect the rights of the

defendant? Think of both system factors and individual ones.

4. What are the major contrasts in the workaday world of private defense attorneys and court- appointed lawyers?

5. Should all attorneys be required to provide pro bono defense for indigents? Would such activities improve the image of the bar? Would such activities be in the best interests of the defendants?

6. If you were arrested, which would you rather have: a private lawyer or a public defender?

Critical Thinking Questions

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Defense AttorneysChapter 7 195

Davis, Kevin. Defending the Damned: Inside Chicago’s Cook County Public Defender’s Office. New York: Atria, 2007.

Etienne, Margareth. “The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyers as Cause Lawyers.” Journal of Criminal Law and Criminology 95: 1195, 2005.

Gould, Jon. “Indigent Defense—A Poor Measure of Justice.” Judicature 92: 131, 2008.

Klebanow, Diana, and Franklin Jonas. People’s Lawyers: Crusaders for Justice in American History. Armonk, NY: Sharpe, 2003.

Mossman, Mary Jane. The First Women Lawyers: A Comparative Study of Gender, Law, and the Legal Profession. Oxford, U.K.: Hart, 2006.

The Spangenberg Group. Keeping Defender Workloads Manageable. Washington, DC: Bureau of Justice Statistics, 2001.

Williams, Marian. “A Comparison of Sentencing Outcomes for Defendants with Public Defenders versus Retained Counsel in ‘Florida Circuit Court.’” Justice System Journal 23: 249–258, 2002.

For Further Reading

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Ch 7: Defense Attorneys��

Learning Objectives
The Right to Counsel��
Defense Attorneys and Courtroom Work Groups��
The Criminal Bar��
Providing Indigents with Attorneys��
Lawyers and Clients��
Defense Attorney Ethics��
Conclusion��
Chapter Review��
Critical Thinking Questions��
Key Terms��
Web Resources��
For Further Reading��