Chandler Criminal Defense

I spent last week in trial. My client was charged with one count of aggravated assault. If he had been convicted and the state proved his priors and its allegation that he was on probation, he faced ten to fifteen years. The theory of the state’s case was that my client kicked his live-in girlfriend in the face five or six times, causing her “temporary but substantial disfigurement.” The jury acquitted my client after a four-day trial and an hour of deliberation. Like any trial, it was an interesting experience. A few things stood out though.

I only had the case for about ninety days, and I was the client’s fifth or sixth lawyer, depending on whether you count his third (and last) public defender. I know his first two public defenders pretty well, and I could tell from the file that they really worked his case. They are great lawyers, and he was lucky to have them. Unfortunately, he didn’t agree. He filed some documents with the court saying not-so-nice things about the public defender’s office and his first lawyer in particular.

My client’s friend only brought him one shirt for trial, and I didn’t find that out until the second day of trial. My office is an hour from court. My house is even farther. Knowing the public defender had trial clothes for defendants, I asked if I could borrow a shirt. Maybe I shouldn’t have asked, but I did. I’ve had appointed clients complain about me being a “public pretender” in letters and pro per pleadings, and I’ve never taken it personally. People tend to undervalue what they don’t pay for themselves. I’d have given any of them a shirt. Not doing that just inconveniences their next attorney.

Well, the public defender felt differently. The receptionist was okay with me perusing their wardrobe, but the public defender herself came up and asked me who was going to get the clothes. Not just a public defender, but the public defender, the county official in charge of the office. She told me she would not let my client wear one of her office’s shirts because he “dissed” one of her lawyers. I got to spend a morning recess shopping for my client.

I’d consider the public defender who got the brunt of my client’s ire a friend. We’ve even discussed the case over beers. He later told me he would have gotten me a shirt if I’d asked him. Does anyone think I was wrong asking his office for a shirt? Does anyone think the public defender was right refusing to give me one?

Another thing that stood out was my conversation with jurors after trial. Win or lose, I haven’t had much luck with jurors wanting to talk after trial. These jurors were different, and what they told me increased my faith in juries.

All of the jurors said the case came down to reasonable doubt. They doubted the victim’s story, they doubted the physical evidence in the case, and they doubted the police investigation. It made me feel good that they actually thought about the burden of proof and the fact the state had to prove my client guilty beyond a reasonable doubt. After a 2009 with nonsensical and even internally inconsistent verdicts for and against me, it made me happy to hear from smart jurors who clearly took their duties seriously.

Finally, the trial made me think about risk tolerance. On the first day of trial, the prosecutor offered my client a plea to time served. My client could have walked out of jail that day, but he rejected the offer. He spent three extra days in custody during trial and risked spending a decade or more in prison. The gamble paid off for him in the end, but it wasn’t always clear it would. The victim recanted prior to trial, but she eventually recanted her recantation. Over a plethora of objections, the prosecutor even admitted into evidence a letter from my client telling her what to say. Some of the time, my case looked downright ugly.

I can honestly say I would have taken the plea. Innocent or not, I would’ve done it. No doubt about it. I don’t mind risk, but in my client’s situation, it would’ve been too much. I firmly believe there is no such thing as a guaranteed winner at trial. Should I trust the system more? Would any of you have done what my client did?

I found this post by Murray Newman at Life at the Harris County Criminal Justice Center fascinating. I’ve been thinking about it and figured I’d write something. I’ve never practiced in a county that doesn’t have a public defender’s office. I can see how it might work in a very small, rural county, but it’s incredible to me that one of the biggest counties in the US doesn’t have one.

I think it’s natural that voters begin demanding that a giant, bureaucratic, government agency take over a task the moment they realize it’s sufficiently daunting. Indigent criminal defense for an entire major metropolitan area seems pretty overwhelming, so I’m amazed the people of Harris County haven’t insisted that committees of politicians be created to form an agency and appoint qualified bureaucrats to run it. Don’t people always turn to the government when they think something is too important to leave up to individuals? I may have just answered my own question. Maybe there’s no PD because people in Harris County don’t think indigent defense is very important.

A lot of my surprise is based on the respect I have for many of the public defenders I encounter here in Arizona. Some of the finest lawyers in the state are PDs. I know many devoted, brilliant, and trial-tested public defenders whose clients should feel like they won the lawyer lottery. Many of those lawyers, however, would never think about going out on their own. They may have the legal skills, but they lack the business skills. They don’t want the hassle of dealing with the nuts and bolts of running a practice. They want regular hours, a salary, and benefits. They may not be “successful enough to survive in their private practice,” as Murray puts it, but that has nothing to do with their legal abilities. They’re amazing attorneys, and if there was no public defender’s office, many of them probably wouldn’t be doing criminal defense. We’d all be worse off.

Murray’s post rightly notes that a support network of administrative assistants and investigators provides priceless assistance. It allows attorneys to practice law, not make copies or wait on hold. I don’t, however, agree with his skepticism about whether a PD’s office would save money. I never thought I’d be arguing that a government agency might save money, but I honestly don’t know. When you have an office of full-time public defenders, you have a good idea about what your cost is going to be. Many public defenders are overworked because they’re carrying unbelievably large caseloads. When a case spirals out of control, a salaried PD hopefully sucks it up and puts in the extra time. I’ve never heard of a PD getting paid more for having more clients or putting in exceptional effort. On the other hand, contract attorneys tend to be quick to be request extraordinary compensation, and rightly so. If they spend all their time on one case, they may starve. With a PD’s office, the burden can be shifted around to other lawyers. Clients don’t get pushed to the side because their lawyer doesn’t know if he’s going to get paid next month. I imagine costs are better fixed with an actual PD’s office. I think it’s possible costs are lower.

I generally agree with Murray’s points though, especially his comments about experience. Public defense offices in Arizona, especially those in Maricopa County, do tend to employ a lot of newly minted lawyers without much experience. I have nothing against new lawyers if they’ve had good mentors, find proper support, and work hard for their clients, but many new lawyers working for the PD have no desire to do any work on their own to prepare themselves to defend other human beings. I see an it’s-just-my-job mentality in a lot of new PDs that worries me immensely. These people want nothing more than security. They want to be one safe little cog in a big machine and are more than happy accepting authority and having a boss tell them exactly what to do. It’s always bothered me hearing PDs talk about “baby defender school.” Human beings’ lives are in their hands, and they’re being called babies? They’re calling other defenders of human beings babies? Whether their using it to describe themselves or someone else, it tells me they’re okay with a system where helpless babies are the only thing standing between the big, bad State of Arizona and a client. That should offend anyone with a decent sense of justice. I don’t think many contract attorneys running their own firm would be okay being called “baby” anything.

A pure contract counsel system might weed out the kind of PDs that give PDs a bad name, but almost every Arizona jurisdiction would have to change its selection process. It should be a lot tougher to get on the court-appointed lists here, as most of the criteria have nothing to do with legal ability. Time and a lack of bar complaints seems sufficient to get you even the best contracts. There’s no test, and they don’t require any special trial credentials, at least to my knowledge. I know a number of contract attorneys with years of experience who’ve never tried a felony case to a verdict. I know a number of contract attorneys who have no clue about very basic aspects of criminal law. A comprehensive test on relevant aspects of criminal law would get rid of a lot of dead wood on the contract panels.

I wonder if not having a PD’s office would invite competition among the criminal defense bar. For the most part, I think that would be a good thing. Do attorneys in Harris County fight to get the best contracts? Does the contract system serve as incentive to better themselves as lawyers? I don’t think there’s much competition in a lot of Arizona’s public defender offices. The support network in each office, instead of making everyone better at their job, sometimes seems to promote the status quo. It can quickly turn an office into a support group for lawyers who want to complain about their clients or justify the mediocre representation they’re providing. They’re all going to get paid the same no matter how lazy and incompetent they are. They just have to make sure they don’t mess up bad enough to get fired.

I doubt I’m contributing anything new to the conversation, but it’s fun to muse nonetheless. Whether I’m right or not on everything else, there is one thing that I do know for sure: if Harris County gets a big, bureaucratic, public defense agency, it’ll be there for good. Once the government starts doing something, even if it’s supposed to be for a short time or just a test, it isn’t going to stop. Like Milton Friedman said, “nothing is so permanent as a temporary government program.”