Why the Right to Counsel is Not Enough

I’ve written many times about the pathetic excuse for a public defender system we have in this country, one in which justice is not even hypothetically possible, much less real on a practical level. The New Jersey Supreme Court has now said that as long as there is a warm-blooded person standing at the attorney’s table, that’s enough for justice to be done.

In State v. Terrence Miller, four justices of the state supreme court—over a lone dissent—affirmed the conviction of a man indicted on drug charges who met his lawyer for the first time for a few minutes in a stairwell at the courthouse on the morning of trial. The lawyer had not tried a criminal case in seven years and had been appointed to Miller’s case only four days before trial. He never spoke to any witnesses, or to Miller’s former attorney, or to investigators in the public defender’s office. He didn’t know what his client would say on the witness stand.

Twice, the defense attorney asked the trial judge for a continuance so that he could adequately prepare for trial. Twice, the trial judge refused the request even though there were other cases he could have tried during that time. He had his docket schedule to worry about, the judge said, and the case was not complex. The judge was frustrated, court records revealed, with the “higher ups” in the public defenders office. He thought they were trying to play him. Lost in the middle of this turf war was Miller. He bore the brunt of the judge’s frustration.

To their credit, prosecutors did not oppose the adjournment, but of course they did not complain when it was denied by the judge. The trial proceeded. Miller never had a chance to present his best defense, whatever it was, and was quickly convicted. All of this, the state supreme court declared, satisfied the defendant’s constitutional right to counsel first expressed in Gideon v. Wainwright. Miller, the court said, got a fair trial.

A few years ago I had the opportunity to shadow a public defender for a day and this is exactly how it goes in most states. The PD doesn’t meet his client until immediately before the arraignment, and sometimes not until the trial itself (if they’re lucky enough to get one; more than 90% of all charges result in plea bargains now). They know nothing about the case or the defendant, have no resources or time to do any investigation and couldn’t possibly put on a competent defense no matter how much they might want to. That a society that claims to believe in justice tolerates such a system is beyond appalling.

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  • matty1

    Maybe there needs to be a law mandating equal funding and other resources for public defenders and prosecutors. That would be a start.

  • colnago80

    This is exacerbated by the fact that most judges are former prosecutors, who have no love for defense attorneys. Judge John Jones III was an exception as he started out in a public defender’s office.

  • Alverant

    Let’s not forget how judges are expected to have high conviction rates if they want to get re-elected.

  • Michael Heath

    The needed resources to present a sufficient defense would be far easier to fund if we ended the so-called War on Drugs.

  • eric

    (if they’re lucky enough to get one [a trial]; more than 90% of all charges result in plea bargains now).

    If I were a PD and my experince with a case consisted of a few minutes of conversation with the defendent – no research, no witness list, nothing – then frankly, I’d see plea bargaining as the most rational course of action. You’re going to lose, because you have no idea whatsoever what the prosecutor might have up his sleeve. To go in and try that case without any evidence is taking a huge gamble…with someone else’s livelihood. So instead, it makes perfect sense to me that they instead try and get the best possible deal for their client that they can.

    Well, second most rational defense strategy. The most rational is to demand a continuance and build a case using a reasonable amount of public resources to do so. But evidently, that option is not available.

  • lorn

    The effectiveness and competency of the defense provided by the PD is a matter of funding and funding is a matter of allocation of tax money. In essence the public determines exactly how good the DP office is by the allocation of public funds.

    Most PD offices are grossly underfunded and overworked. The general public tends to believe that the PD office defends ‘criminals’ despite the presumption of innocence the law demands. In comparison the DA and prosecutor’s office is lavishly funded. I would think that fairness would demand that the defenders and prosecutors have similar funding levels but the general public, obviously, doesn’t see it that way.

    Given that the public has selected not to fund the PD it is taken as read that, according to the general public, the defense provided by the state is, by definition, adequate. tales of defense attorneys showing up drunk, so overworked they don’t know what case they are in court for, or so tired they fall asleep during trial are, by the legal system, manifestations of the public funding.

  • Ben P

    If I were a PD and my experince with a case consisted of a few minutes of conversation with the defendent – no research, no witness list, nothing – then frankly, I’d see plea bargaining as the most rational course of action.

    I’ve sat in both a prosecutor’s chair and a defense attorney’s chair. Full disclosure: after four years in private practice I work for a state agency in a slightly different capacity. I’m not exactly a prosecutor, but I’m closer to being a prosecutor than a defense attorney at this point.

    Here’s the problem with your argument.

    Here’s the average interaction between a public defender and his client.

    PD: “Hi, my name is Ben P, I’ve been appointed to be your lawyer, you mind stepping outside with me for a minute so we can talk?….ok, it says here you’re charged with misdemeanor disorderly conduct and felony possession of a controlled substance because the police arrested you for public intoxication and found 25 grams of methamphetamine in your pocket when they searched you.”

    Defendant: “this is all bullshit, those weren’t my drugs, I don’t know where they came from….”

    PD: (blank stare)

    Defendant: “I swear those weren’t my drugs!”

    PD: “ok, you know no one’s going to believe that right?”

    Defendant: “ok….what can you do for me”

    PD: SInce you weren’t able to bond out, and there’s no evidence you were selling drugs, I can get the prosecutor to reduce this to misdemeanor drug possession, you’ll get time served, and be on probation. You’ll have to stay clean and undergo drug tests, otherwise you could end up back in jail for a long time. Can you do that?”

    Defendant: yeah.

  • Ben P

    I didn’t really mean to submit the comment just yet.

    This is oversimplified and is a caracature, but you get the point. When you really get into the trenches of criminal prosecution and defense work, most of the cases really aren’t all that complicated. Sure, the big ones are fiendeishly complex, but a WHOLE lot of cases are going to consist of the prosecutor calling a police officer as his only witness saying

    “Yeah, on such and such a date we saw the defendant, in my opinion he was under the influence, so we arrested him, then performed a search incident to arrest and found drugs.”


    “I stopped the defendants vehicle and when they rolled down the window, I smelled the strong scent of marijuana. I asked them to step out of the car, and when I searched the vehicle I found a baggie with marijuana’

    or call the victim as a witness

    “Yeah, that guy punched me in the face.”

    Sure, everyone who can’t afford a lawyer is entitled to a lawyer, and public defender caseloads are often extremely high. But a lot of criminal cases are also open and shut and plea bargaining is a pretty natural reaction.

  • eric

    @7-8: I don’t doubt it. In my county, the *average* court case lasts 1-2 days. I know because I was just on a jury and they told us the statistics. The hollywood vision of court cases using many witnesses, all sorts of forensic evedince, and grandiose speeches just isn’t reality.

    Having said that, I can still see PDs as being rationally risk averse when it comes to a relatively unknown client (and no research, etc…). You’re basically playing poker without knowing what’s in your hand. Sure, the other guy might be bluffing. But if he offers to split the pot with you, there’s a pretty rational argument for doing so, regardless of what you think he might have.

  • D. C. Sessions

    The problem, even as Ben P illustrates, is that the PD’s office has no opportunity to do any triage. If the first time the attorney and defendant meet is on the courthouse steps and no continuances are allowed in the unusual cases, it really doesn’t matter what the details are, does it?

  • I don’t get what’s wrong, Ed. If he wasn’t guilty, he could have afforded a lawyer, right? Look at the lawyers for the bankers, and they’re never guilty. You’re not very good at logic, are you?

  • Ben P

    no continuances are allowed in the unusual cases, it really doesn’t matter what the details are, does it?

    I think the judge not allowing a continuance is noteworthy enough that it’s what made the news story.

    In my experience continuances are routinely and freely granted to a point. Both opposing counsel and judges are quite willing to grant professional courtesy to another lawyer if he is seeing the case for the first time and says he needs time to prepare.

    It’s also relevant that the first contact between the public defender and client is usually not the trial, but plea and arrangnment day. The trial is often weeks or in many cases months down the road. Shorter for a bench trial, longer for a jury trial.

    For example, in the courts I practice, if you were to be arrested today, you’d get a bond hearing very quickly, via TV if you were in jail, then plea and arraignment probably next week. Then, if you plead not guilty, your jury trial will be set for, oh, April of next year?

    The problem then isn’t so much that the public defender meets you for the first time at trial, it’s that he met you for the first time today, he also met his 6 other clients this week alone, and between now and your trial, he’ll see 50 or 100 new clients.

    As a prosecutor, I carried 70-100 open cases at any given point, but it’s important to note that in my cases, the police had already done a great deal of my investigation for me and police and victims were “cooperative” witnesses, meaning I didn’t usually have to fight with them to get them to come to court.

    Public defenders rarely have the same privilege.

  • Ben P

    I don’t get what’s wrong, Ed. If he wasn’t guilty, he could have afforded a lawyer, right? Look at the lawyers for the bankers, and they’re never guilty. You’re not very good at logic, are you?

    This is another point.

    Keep in mind, prior to Gideon the “right to be represented by counsel” meant merely that you had the right to hire a lawyer if you wished. Gideon v Wainright found this right was not protected if the indigent could not afford to hire a lawyer.

    Many public defenders offices, including those in my area, hamstrung by lack of funding and caseloads absolutely enforce this requirement that you be “indigent.” To qualify for a public defender you have to fill out a long questionaire documenting your financial condition and you have to be deemed too poor to afford a lawyer.

  • colnago80

    All to many folks either watched the O. J. Simpson trial or the pontifications of “experts” who appeared on Giraldo Schmuckarera, Larry King live, etc., most of whom weren’t watching the trial, disagreed with the verdict, and then concluded that the system is stacked against the prosecutor as Simpson was “obviously” guilty. Pretty hard to change the minds of those folks. This in addition to the books written by schmucks like Judge Katz who accused the jury of jury nullification.

  • dave

    @13 — In point of fact, he did hire a lawyer. Then fired a lawyer. Then appeared pro se. Then took a PD. Then hired his first lawyer back for the sentencing.

  • dugglebogey

    It just seems weird that a Kennedy gets a new trial based on the fact that he had incompetent representation, but this guy doesn’t.

    It seems really unlikely that someone representing a Kennedy would be less competent than the poor unprepared guy this accused person had.

  • Walton

    Unfortunately, here in the UK, the Tory government is trying to drag our criminal defence system down to the same level as its US counterpart, with further vicious cuts to legal aid planned in the new consultation paper. The fee cuts will essentially destroy the publicly-funded criminal Bar as we know it. The result: a race to the bottom, with crappy representation for the poorest clients.

  • coffeecat

    And at the same time Michael Skakel’s conviction was thrown out because the best representation money could buy wasn’t enough to get an acquittal, so obviously, it was inadequate. Travesty is not a strong enough word!

  • loren

    The Atlantic’s reporting on this case makes it sounds worse than it was, and the details they omit are what explain the court’s decision.

    First, the Atlantic says “The lawyer had not tried a criminal case in seven years.” No, the decision says he had not tried an ADULT criminal case in seven years. He was already an employee of the public defender’s office, but he had just been transferred from the JUVENILE division. So he was familiar with criminal law and procedure; it’s not like he was a divorce attorney on his first criminal case.

    Second, except for a passing reference in the course of listing the things the trial attorney didn’t do, the Atlantic appears to completely ignore that Miller had prior counsel, including prior counsel from the same public defender’s office who had been assigned to the case for approximately two months. While the trial attorney may have been hampered in his individual ability to investigate, he certainly had access to whatever notes and research that his predecessors had done. The decision explicitly talks about the time he spent reviewing earlier discovery.

    Which leads to omission three, that the decision flatly states “Defendant’s counsel also acknowledged, however, that he had an opportunity to ‘review and prepare’ for trial.” The public defender ultimately spent about 14 hours preparing for trial before he met his client. And the only time the defendant testified was at the suppression hearing; he didn’t take the stand at his own trial.

    Now as a matter of judicial courtesy, I would’ve still been in favor of a continuance. But the question before the appellate court here was whether the denial of a continuance constituted a deprivation of counsel. And given the full facts, I’m inclined to agree with the court. If the attorney had told the court that he hadn’t had time to prepare, then that’d be different. But he said that he HAD.

  • colnago80

    Re coffeecat @ #18

    Skakel’s father Rushton made two blunders that ended up sending his son to the slammer. Blunder #1 was his failure to let sleeping dogs lie; all the evidence against Skakel was provided by a private investigative agency that his father hired to investigate the case. Blunder #2 was the fact that he hired the agency himself instead of hiring an attorney who would then hire the agency. If he had hired an attorney who then hired an investigative agency, any statements made by Skakel to detectives working for the agency would be considered work product and thus would be covered by the attorney/client privilege and would thus not be admissible in court. It was statements that Skakel made to the detectives working for the agency that did him in.

    There is also a question as to whether Skakel was was subjected to a law ex post facto. Skakel, who was eventually tried in an adult court, was 15 at the time of the crime and the law at the time stated that 16 was the minimal age for an adult court trial. Subsequently, the age was lowered to 15. The judge applied the subsequent law to the case, rather then the prior law. This would appear to be applying a law ex post facto and thus prohibited by the US Constitution.