LAWYER LIMELIGHT: David Carroll

Photo provided by NLADA

Public defenders are underpaid and facing huge case overloads. Defendants are falling through the cracks. And the government has cut public defender funding. David Carroll, the director of research for the National Legal Aid and Defenders Association, discusses the problems of huge caseloads, inadequate representation and what can and should be done to protect the accused and improve the system. As Carroll notes, our justice system is based on an adversarial process, and an overwhelmed public defender system invariably compromises its effectiveness and the ability of defendants to receive adequate representation as guaranteed by the Constitution.

Lawdragon: What are the major problems with the public defender system and how it currently works?

David Carroll: An adequate indigent defense program must have binding workload standards for the system to function because public defenders do not generate their own work. [Their] workload is determined ... by other governmental agencies and is beyond the control of the indigent defense providers. As opposed to district attorneys, who can control their own caseload by dismissing marginal cases, diverting cases out of the formal criminal justice setting, or offering better plea deals, public defense attorneys are assigned their caseload by the court and are ethically bound to provide the same uniform-level of service to each of their clients.

Restricting the number of cases an attorney can reasonably handle has benefits beyond the impact on an individual client's life. The overwhelming percentage of criminal cases in this country requires public defenders. More than 80% of people charged with crimes are deemed too poor to afford lawyers. The failure to adequately control workload will result in too few lawyers handling too many cases in almost every criminal court jurisdiction -- leading to a burgeoning backlog of unresolved cases.

The growing backlog means that people waiting for their day in court fill local jails at taxpayers' expense. Forcing public defenders to handle too many cases often leads to lapses in necessary legal preparations, resulting in endless appeals -- delaying justice for victims and defendants alike - and ever-increasing criminal justice expenditures. And, when an innocent person is sent to jail as a result of public defenders not having the time, tools or training to effectively advocate for their clients, the true perpetrator of the crime remains free to victimize others and put public safety in jeopardy.

LD: What needs to be done to address these problems and shortcomings?

DC: The American Bar Association's Ten Principles of a Public Defense Delivery System states unequivocally that defense counsel's workload must be "controlled to permit the rendering of quality representation" and that "counsel is obligated to decline appointments" when caseload limitations are breached. In May 2006, the ABA's Standing Committee on Ethics and Professional Responsibility further reinforced this imperative with its Formal Opinion 06-441, observing that: "[a]ll lawyers, including public defenders, have an ethical obligation to control their workloads so that every matter they undertake will be handled competently and diligently."

Both the trial advocate and the supervising attorney with managerial control over an advocate's workload are equally bound by the ethical responsibility to refuse any new clients if the trial advocate's ability to provide competent and diligent representation to each and every one of her clients would be compromised by the additional work. Should the problem of an excessive workload not be resolved by refusing to accept new clients, Formal Opinion 06-441 requires the attorney to move "to withdraw as counsel in existing cases to the extent necessary to bring the workload down to a manageable level, while at all times attempting to limit the prejudice to any client from whose case the lawyer has withdrawn."

LD: How should the court system address the needs of the accused while factoring in the inability of the public defenders to devote the time to provide quality representation in so many cases?

DC: Policymakers should guarantee to the public that critical decisions regarding whether a case should go to trial, whether motions should be filed on a defendant's behalf, or whether certain witnesses should be cross-examined are based solely on the factual merits of the case. When the public fears that the court process is unfair, people tend to be less cooperative with law enforcement, less likely to appear as witnesses and for jury duty and, in general, tend to be more cynical about the capacity of government to treat all members of the community in a fair and evenhanded manner.

The same standards that call for independence from undue judicial interference also recognize that political interference is equally deleterious to a public defender system. Public defense delivery programs that fail to guarantee professional independence for public defenders, assigned counsel or contract attorneys are fatally flawed. These programs compromise the integrity of the attorney-client relationship and work to the detriment of public defense clients by providing them with counsel whose professional judgment may be influenced by concerns that are, at best, irrelevant to their clients' adequate representation.

LD: What options are available--increased pro bono, requiring firms to take on a certain number of cases per year, court assignment to firms at reduced rates?

DC: Conscripting the private bar is not the answer. All national standards require attorneys representing public defense clients in criminal proceedings to have the appropriate experience to handle a case competently... Policymakers should not assume that a newly admitted attorney is skilled to handle every type of case or that an experienced real estate lawyer would have the requisite skill to adequately defend a person accused of an armed robbery or serious homicide. ABA Principle 6 acknowledges that attorneys with basic skills can effectively handle less complicated cases and those with less serious potential consequences. However, significant training, mentoring and supervision are needed ... to handle more complex cases.

New-attorney training is essential to cover matters such as how to interview a client, the level of investigation, legal research and other preparation necessary for a competent defense, trial tactics, relevant case law, and ethical obligations. And training should be an ongoing facet of an indigent defense delivery system. As the practice of law grows more complex each day, even the most skilled attorney practicing criminal law must undergo training to stay abreast of such continually changing fields as forensic sciences and police eye witness identification procedures, while also learning to recognize signs of mental illness or substance abuse in a client. Expecting even the most skilled real estate lawyer to similarly keep abreast of changes in criminal law is absurd.

LD:: So what is the answer?

DC: NLADA does not believe that the only answer to the indigent defense crisis is for the state to spend its way out of it. A publicly financed lawyer is only required under our Constitution if there is a threat of a loss of the client's liberty upon conviction. State legislatures should consider decriminalizing nonviolent, low-level misdemeanors or look to remove a large number of cases out of the formal court setting through exploring alternatives to incarceration.

LD: How are public defender's offices handling the problem?

DC: Public defenders in seven states are finally standing up and saying "no more" and challenging their caseloads in court. It should not be surprising that the majority of states where caseload litigation is occurring are in those jurisdictions where public defender independence is more secure. In Florida and Tennessee, for example, public defenders are elected and therefore answerable to the public and not the local judiciary.

However, in most instances across this country . . . public defenders are not taking action.

LD: What can be done to preserve the rights of the accused?

DC: There is a critical need for media outlets to increase public attention to the current state of the American justice system and how poorly our government delivers on its constitutional obligation. The constituency most directly impacted by the failure of government to ensure equal access to justice is the one most limited to affect public discourse. By definition, people of insufficient means have limited resources to gain access to forums that promote public awareness of their concerns.

On top of this, people in need of public defender services oftentimes are undereducated, inarticulate, mentally ill, developmentally delayed, under aged, and/or suffering from substance abuse. It can be easy for state policymakers to paint the funding of indigent defense services as "giving money to criminals" without the people most affected by their actions being able to effectively respond. Indeed, many indigent clients processed through the criminal justice system are, upon conviction, stripped of their ability to participate in the electoral process altogether by state laws that deny the franchise to convicted felons.

We have a constitutional right to counsel because it is unfair to expect people of insufficient means to know how to go about preserving their own rights.

LD: How can we address these problems?

DC: As a country, we need to turn our focus from "tough on crime" policies to establishing "smart on crime" policies. For example, at-risk juveniles, in particular, require special attention from public defenders if there is hope to change behavior and prevent escalating behavioral problems which increase the risk that they will eventually be brought into the adult criminal justice system in later years. These are commonly children who have been neglected by parents and the range of other support structures that normally channel children in appropriate constructive directions.

When they are brought to court and given a public defender who has no resources and a caseload that dictates that he dispose of cases as quickly as possible, the message of neglect and valuelessness continues, and the risk of not only recidivism, but of escalation of misconduct, increases. Our current policies, which result in overloading public defenders do not consider the long-term problems we are creating. Investing on the front side will produce savings on the back end of the criminal justice system.

LD: Do you have any further thoughts you'd like to share?

DC: Despite the overall dedication and professionalism of the hundreds of thousands of citizens employed in the police and prosecution functions in this country, it is simply impossible to always arrest and prosecute the right defendant for the right crime in every single instance. ... because American jurisprudence is based on an adversarial court process, competent defense lawyers are necessary to scrutinize and challenge the arresting officers' tactics, the police investigation, the lawfulness of any searches and seizures, the credibility of the evidence, and the district attorney's theory of the case to improve the overall quality and effectiveness of law enforcement itself.

Arguably, it is because of a strong adversarial process that the United States is in the forefront of cutting edge public safety technologies - like DNA evidence - that help to exonerate the innocent while convicting the guilty. In many jurisdictions in this country we have lost such checks and balances.