Why haven’t you gone into private practice?

With the mania of college football gone, these are dull days until the baseball seasons starts anew. These are days where I start to think about the things that are important in life. One such matter is whether I should remain a Public Defender.

Last night, a local at Loco’s was amazed that I was working at a job that paid me less than he paid his drivers. This sentiment is nothing new to me. I have been told a number of times by family & friends that I should go into private practice.

Yet, after I gave the matter much thought, I came to the same conclusion as I have done before. I like being a public defender. A reason why I like being a PD goes back to my high school days when I met Ms. Melvin.

I was in the 10th grade. I was in 2nd semester typing class. I realized on the first day that I was not able to get over 35 wpm. Since I had plans to go to college, I could not have a poor grade or a failing one in this class. Thus, I made the decision to withdraw from the class. I went to my counselor, and she told me only class that was “Street Justice.” While she had concerns about me being in the class, she approved my transfer into the class.

Now, just a little aside is needed here. It is 1989. I had a mullet. I was into metal music. I had the act down pat or as much as a poor-boy / dork could have it down. I look back on those days with a sense of humor & WTF? Nevertheless, back on that fateful day, I was wearing my Metallica “…And Justice For All” t-shirt.

Mrs. Melvin was the teacher of this class. To describe her to y’all, will require me to invoke an image from an old Warner Bros. Cartoon. Mrs. Melvin reminded me of “Prissy,” the skinny hen that was in love with Foghorn Leghorn. However, Mrs. Melvin had more personality & more nerve than that cartoon hen.

Anyhow, here I come into her class with more attitude than sense. She took one look at me, and sighed as if she was thinking, “not another knucklehead for me to set straight.” Plus, the only seat left in her class was in front of her podium. So, she had to see my mug everyday for the remainder of the semester. Yet, over the semester, I found my passion in life in that class, the law. However, only now, do I realize that my calling to be a PD had its genesis in that class.

I don’t know what Mrs. Melvin was paid as a teacher, but Lord knows that it was not enough to put up with unruly, arrogant, and self-righteous children like me. Yet, she did do it. She provided guidance, love, and insight to a number of children as if they were her own. Her devotion to us has rubbed off on me to be devoted to those less fortunate, even if it does not provide a great monetary reward.

I will not lie to you and claim that I’m a PD for life. I subscribe to the ideal that the future is not set, and that I’m open to new opportunities. However, I feel and believe that I’m where I belong.

10 Reasons Why I Love being a Public Defender – Part Two

5. My father told me a story about Chester Pulley, a Marine that served in the Korean War. My dad told me that during one battle in the Korean war when his enemies had surrounded him and his troops, Chester Pulley said to them, “We have them where we want them! You can shoot in all directions.” I really don’t know whether this tall tale is true, but it has some application to being a Public Defender. When the all of the facts are against you, when the law is against you, and you feel all is lost, remember you can take shots at the State’s case in all directions. Go For Broke. There is no greater feeling to know that you are fighting a battle with nothing but  your wits and your will.

6. This reason is rather personal. So, I will make it brief. As a public defender, I feel that I am mimicing what I believe my saviour is doing with me in front of the Almighty.

7.  It reminds me how blessed I am, and what is important in this world: faith, family, and friends.

The Question Remains The Same

With all apologies to Chris Rock,

The question remains the same: Do private attorneys really care if the criminal defendants get adequate representation from a Public Defender? The answer is “Not Really.”

Reason #1 – It would interfere with their ability to make a buck.

Let us think about this rationally. You are a criminal defendant with limited funds. You have three choices: represent yourself, get a public defender, or spend your limited funds to hire a private attorney. If the public defender’s office was properly funded and staffed to provide not just adequate but exceptional representation, why would a criminal defendant spend their limited funds on a private attorney? They would not do so. Therefore, the private attorney has to provide a value added reason to justify to the criminal defendant to pay for the premium of private representation.

And how is that done, boys & girls? Marketing; Self-Promotion. What is one of the most basic marketing strategies that businesses employ? My product is better than the other guys, and the other guys’ product is crap. So, how does this relate to private attorneys and public defenders? Simple, a great number of private attorneys will bad mouth public defenders as a means to show to a potential criminal client why the client should hire him/her. The private lawyer will promise more contact with client than what a Public Defender will provide. The private lawyer will promise to file every possible motion under the sun (regardless of merit) unlike the Public Defender that will not file the silly motion. The private lawyer will promise to argue any ridiculous defense unlike the Public Defender who knows that certain bullshit will not fly in court. The private lawyer will promise the moon & stars to the client unlike the Public Defender that can only offer the dirt beneath his feet. Why would a private lawyer do this? The answer is simple; to quote a line from a song that you can find on any oldies rock station, “Give me money. Lots of Money.”

Let us think of this from another angle. Say you need a critical surgery to be performed and quickly. Your family physician performs this surgery once a year, and only once a year. The reason he does it only once a year because the surgery takes him away from the moneymaking aspects of his practice. Yet, you know of a surgeon that works at county hospital that does the procedure at least once a week, and is quite good at it. Are you going believe the smack talk from your family physician about how incompetent the surgeon at the county hospital is and how he can do surgery better, but you are going to have to pay the premium for his services? We would be appalled and aghast at the family physician’s behavior, but the trash talking of Public Defenders (whether to make money or under the auspices of “trying to help”) is accepted fare.

So, the question remains the same: Do private attorneys really care if the criminal defendants get adequate representation from a Public Defender? The answer is “Not Really.”

Reason #2 – If they were honest about it, they would have to realize that a great number of them are guilty of the same things that they accuse public defenders of doing.

So, what are the most common complaints about public defenders?

a.) they do not (or will not) talk to their client’s,

b.) they do not return the client or his family’s calls

c.) if they talk to their clients, they do not listen to the client,

d.) they do not visit the client at the jail,

e.) the public defender belittles the client by calling the client names or cursing at the client, and

f.) the all-time favorite . . . . Survey says – The public defender made the client enter a guilty plea.

For every self-righteous private attorney that laments about the state of Indigent Defense and blogs about how he has seen public defenders commit these transgressions, I can point to an equal number of private attorneys that have done the exact damn thing. I contend that the private attorney’s actions are more horrendous because they had to take the hard-earned money of another person under false hope. So, to those pious private attorneys that criticize public defenders, I would like to  quote a line from a blues tune to you, “Before you accuse me, take a look at yourself” or to quote the good book, “He that is without sin among you, let him cast the first stone.”

So, the question remains the same: Do private attorneys really care if the criminal defendants get adequate representation from a Public Defender? The answer is “Not Really.”

Reason #3 – If they really care about the state of Indigent Defense, it would require them to do something other offer empty rhetoric about how public defenders should practice law.

Across the fruited plain, a crisis looms large in the state of Indigent Defense. A down economy, tightening state budgets, rates of prosecution rising, caseloads going from the tens to the hundreds, from the hundreds to tens of hundreds. What advice does the private bar give to us, the few, the proud, the Public Defenders? Refuse cases. File motions challenging the constitutionality of the inadequate funding of Indigent Defense. Stand up and resist. In addition, by the way, have a preliminary hearing on every client, file that marginal motion to suppress, track down every last witness, and try every damn case. They tell us not to be afraid of the political backlash. They tell us not to be worried about the loss of our jobs. They tell us “be not afraid” because we are the guardians of the Constitution and the guarantors of the promise of Gideon (the court case and not the guy from Connecticut). They tell us that if we trample on these cherished liberties, what is our worth as attorneys?

To the sanctimonious private attorney that espouses this guilt-ridden drivel in my direction, answer me the following:

a.) are you going to pay my contempt fine, when the Judge throws me in the county jail?

b.) Are you going to pay my rent, my car note, my student loan payments, my bills, when I get fired from my job as a public defender for heeding your advice?

c.) Are you going to help me find another job?

d.) Are you going to hire me?

e.) Are you going to take over my caseload to make sure that my clients are properly represented?

I didn’t think that you would. In fact, I know that you won’t. It is easier to sit on the sidelines and complain about the problem than do anything about it.

What? What was that you say? You say that you are litigating the issue by filing motions with the court to stop the prosecution of your appointed clients, due to the lack of adequate funding for Indigent Defense? That’s nice. However, the primary beneficiary of your motion is your client and not the public defender that you claim that you are trying to help. I have heard about “Trickle Down Economics.” This must be “Trickle Down Litigation.”

What? What was that you say? You say that you filed motions with the Court telling it that you cannot continue representing your appointed client because of the lack of adequate funding for Indigent Defense. And that until you receive additional funds that you cannot and will not represent your client any further? Hell, I have heard of “No taxation without representation.” I guess then your mantra should be “No representation without compensation.” I fail to see how this is more honorable than a Public Defender that maintains his employment but does not refuse taking on additional cases.

What? What was that you say? You claim that you do not make criticisms of public defenders lightly, and that you wish only to help improve the state of Indigent Defense. I call bullshit. It is easier to criticize on someone on the web than meet with that person in the real world and to engage him or her about the practices that he employs as an attorney. In addition, if you were do this, it would whittle away your valuable time, and we know that time is money.

What? What was that you say? You were a public defender not too long ago, and that you know our plight? Okay, Batman, riddle me this: What are you now? Well, you tell me, a private criminal defense attorney, and from your blather, I can see that you are a very good private criminal defense attorney. Nevertheless, I am confused. Why did you leave the Indigent Defense that you care so much about to go into private practice? Could it be your love of money is stronger than your love of the Constitutional guarantees that you champion so boisterously?

So, the question remains the same: Do private attorneys really care if the criminal defendants get adequate representation from a Public Defender? The answer is “Not Really.”

CODA:

My comments are meant to be in jest or serve as a parody of the utter garbage that I hear from private attorneys on a regular basis. Yet, we can agree on the following:

a.) Criminal Defense is not for everyone,

b.) Regardless  if the attorney is privately retain or a public defender, there are certain attorneys that suck at criminal defense, and should never practice it,

c.) Both sides of the criminal defense bar needs to take steps to get rid of said attorneys,

c.) The Legislative Branch does an unsatisfactorily job of funding Indigent defense,

d.) All of us can do more to fulfill the promise of Gideon and to protect the Constitution, and

e.) We are in this thing together.

A few inconsiderate and rude comments to my clients

1. I don’t have the patience to listen to incessant whining about how life is not fair, how the DA is out to get you, that the State has no evidence against you, that the Judge cannot send you to prison because this is your first offense, or how you cannot do prison time for the charge against you. Life is not fair. The DA does not know or care who the hell you are much less spend a lot of time devising ways to ruin your life. If the State did not have some evidence against you or if the determination of your case was left solely up to you, then you would not be in my office, on my caseload, and getting ready for trial. Yes, the Judge will send you prison for your first offense, especially if your first offense is aggravated battery, armed robbery, or trafficking in cocaine. Every criminal offense carries the potential for prison time. Get that through your head. And the Judge does not give a rat’s ass whether you can or cannot do prison time. If you plea to that aggravated assault, sale of cocaine, et cetera, you better believe the Judge will send your ass to prison and may do it with a smile on his face.

2. I don’t have a magic wand to make your case go away. Think about this seriously. If I had said magic wand, wouldn’t I use it to make you go away and make my life sweet.

3. I cannot make chicken salad out of chicken shit. When you confess to a crime twice, and there are multiple witnesses that saw you commit the offense, then you don’t leave me a lot to work with.

4. Just because they give probation for sale of drug cases or trafficking cases in some other county, city, or judicial circuit, it does not mean that it will happen here. Different judges, different priorities, different circuits. The law provides the judge the ability to sentence you within the range provided by statute, not by what some judge does in Atlanta.

5. Don’t ask me to explain why the DA made his recommendation so high or why the judge ruled a particular way. I don’t read minds. Again, if I did, do you think I would be here?

6. The police are not there to act as marriage counselors, mental health providers, or provide other social services. The police are there to arrest “law breakers” and try to send them to prison.

7. No, the State will not provide you with a rehab program at no cost to you. Take that back. Yes, they will. It is called prison. If you want to get a rehab program for yourself to treat your addiction, you are going to have to find it yourself.

8. Prior Inconsistent Statements is a valid way for the State to prove to a jury that you beat the shit out of your girlfriend. Get over it.

9. On a related note, just because your girlfriend claims that she does not want to testify against you does not mean shit. There are ways the State can compel her to testify. Also, remember she was the one that called the cops on your ass when she was pissed with you. You don’t think she is going to testify against you, if you piss her off again. Please.

10. Despite all of the crap that you throw at me, the grief you cause me, the headaches that you send my way, and everything else that y’all do to make my job more difficult that it already is, I still enjoy being a public defender, and it is something that I am good at.

Empty Promises and Fear.

During my seven plus years of practice, I have handled a number of domestic violence cases. One of the reoccurring things that I have heard from judges is the following: “Counselor, if I let your client out, what promises or assurances do I have that your client won’t go out and do this again?”

I hate this question. There are no guarantees in life other than death. So, how can I a public defender, a man, a mere mortal promise to a judge that my client will not go and attack his girlfriend? I cannot. I do not have the ability or the authority to control my client’s every movement. I am not God. So, I argue that the Court take a leap of faith on the behalf of my client. Most of the time, the Judge won’t take that leap of faith with me, and tells me that if he lets my client out, then he will go out and kill his girlfriend; and that he (the Judge) won’t take that gamble.

Today, I was faced with the scenario that these Judges love to throw in my face.

Without going into great detail, here is the situation. The former client that I wrote about earlier that complained that I sold him out is now wanted for murder. It is alleged that he stalked his ex-girlfriend, and confronted her at her residence, after she had obtained another temporary protective order against him. The ex-girlfriend had her sister and the sister’s boyfriend there. The sister’s boyfriend attempted to protect the ex-girlfriend, but was allegedly stabbed and killed by my former client.

My former client is now on the run. I am afraid, but I press on.