Gold and Copper pt.2: A Poor Defense




A former co-worker of mine from many years ago once told me of an ordeal he had due to a suspended driver’s license. His license had been suspended several times for DUIs as well as charges of driving without a license. Despite his seemingly frequent involvement with the police he otherwise did pretty well for himself. In addition to working part-time in labor and retail, he also ran a small business in the construction trade, off the books, of course.

It hadn’t been the first time he’d been in trouble with the police, and probably would not be his last. Considering the nature of his charge and repeated offenses he should have done at least some jail time, by his own admission. The judge decided instead to collect a $1,000 fine, a steep penalty but the way he described the circumstances he might as well have gotten off Scott-free. How did he do it? He had a good lawyer. One of the best, he said. He’s the one everyone goes to if they’re in trouble, especially serious trouble. That is, of course, assuming you can afford his services.

It is a tale as old as time. When you are sitting in the defendant’s chair you will be up against a prosecutor who is trained in the art of law and of expertly navigating a courtroom. Even the founders seemed to understand that without an attorney almost no defendant stood a chance at a verdict of “not guilty”. The prosecutor is paid to convict, their careers are built on conviction rates and for the most part, they have no remorse.

The reality of this could be displayed in the case of Gideon Vs. Wainwright. In this case, in the year 1962, a man by the name of Clarence Earl Gideon stood accused breaking into a pool hall and stealing fifty dollars in cash. A poor and elderly drifter who had run away from home in middle school, Mr. Gideon could not afford a lawyer so he requested one provided by the state. Contrary to the constitution and the guidelines of Habeous Corpus, however, Florida forbade the state courts from providing legal representation for anything less than a capital offense. Literally, that meant unless you were facing the death sentence or unless you could afford to pay for your own lawyer you would be representing yourself as Mr. Gideon did.

Old man Gideon did his best to represent himself, and as noted in the opinion of the supreme court decision he did remarkably for someone with no legal background, indeed for someone with little education at all. There were many strict guidelines that need to be followed for an appeal to be heard, for example, the grievance must have been brought up as an objection during trial. In other words, you couldn’t just appeal after a bad verdict is delivered and suddenly move for a mistrial. Remarkably Gideon followed these closely and was able to win his day when taking this grievance all the way to the U.S Supreme Court. As well as establishing a precedent for states across the country in how they handled their public defender programs it also displayed the necessity of proper legal counsel if there is any hope for an individual to prove his innocence.

This was further proven in that when Gideon was retried an attorney provided by the state of Florida smashed the case against him to pieces, especially in successfully discrediting a key piece of witness testimony. One judge wrote this of the case and of the reality of the necessity for good defense for any man or woman accused of a crime in the U.S:
bandicam 2018-01-20 18-04-58-510

Because of this court decision, every state is required to have a solid and include public defender program. Unfortunately, they do not always benefit everyone. If for example, you own the car you use to get to work every day the state may deem that you possess the necessary assets to pay your own legal fees, the same can be said of a house, though admittedly these are considered on a case by case basis.

Even more disturbing, however, is the quality of the defense you will receive assuming you prove eligible for these programs. Most public defenders could be described as overworked and underpaid while prosecutors enjoy the benefit of a larger payscale and a lighter caseload. Furthermore, while prosecutors build their careers on conviction rates public defenders receive incentives for case volume. In other words the more people they can shuffle through the system as quickly as possible to save the court time and money, the better. Indeed while public defenders are instructed to do what’s best for the client, they are also reminded to consider the needs of the District Attorney who signs their paychecks along with those of the prosecution.

Due to the heavy caseload, they carry you might be lucky to get a 20-minute meeting with your state-provided attorney to discuss the details of their case. Not only that but because the pay is low compared to more competitive private law firms that offer better pay, better benefits, and likely a much lighter caseload, most public defenders take the job as a stepping stone. It’s a way to get some community service in and to build a resume before moving on to the next big thing. Because of that, your attorney may be handling his first ever case, while your accuser may be a seasoned veteran.

Because of this unless you have a solid, open and shut case the public defender will probably perform the classic act of desperation in pursuing a plea bargain. The plea bargain will get you less time or no time at all but you will have a criminal record, you’ll be in the system, and the damage will be done. You could still demand to pursue your innocence and the public defender will do their best but it will be mostly up to you. They won’t have the same amount of time and energy to devote to the case as their accusing counterparts and they will be pressured to finish as soon as possible rather than to take their time to build a good defense as has been allotted to prosecution.

In a truly fair system, the legal counsel provided by the state would be equal to the prosecution they provide. They would have similar credentials and exist on a similar pay scale. They would also handle a similar caseload affording them the same amount of time and effort available to dedicate to the case. If a public defender is brand new to the trade and unable to meet the same qualifications of a state prosecutor they should undergo a period of guidance and apprenticeship under a more experienced attorney.

And finally, in a fair trial, no judge would give special consideration to the prosecution over the defense. If we are ever to claim we are a fair and just society, as the founders intended, we must demand serious reform in how we provide legal counsel, especially in criminal cases.



Leave a Reply