The Trials of the Public Defender

By Jill Smolowe

Every day, as he ambles through the cobwebbed halls of the New Orleans criminal court building, public defender Richard Teissier feels he violates his clients' constitutional rights. The Sixth Amendment established, and the landmark Gideon Supreme Court case affirmed, the right of poor people to legal counsel. At any given moment, when Teissier is representing some 90 accused murderers, rapists and robbers, his office has no money to hire experts or track down witnesses; its law library consists of a set of lawbooks spirited away from a dead judge's chambers.

With so many clients and so few resources, Teissier decided he could not possibly do justice to them all. So he filed suit against himself. He demanded that the court judge his work inadequate, and find more money for more lawyers. A judge agreed and declared the state's indigent-defense system unconstitutional. The ruling is now on appeal before the Louisiana Supreme Court. "This is a test of whether there is justice in the United States," Teissier says. "If you're only going to pay it lip service then get rid of Gideon."

Thirty years ago last week, the Supreme Court unanimously voted in favor of Clarence Earl Gideon, an uneducated gambler and petty thief who insisted on his right to legal counsel. "Any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him," wrote Justice Hugo Black. "This seems to us to be an obvious truth." Over the next two decades the court expanded the protection to apply to all criminal cases and stressed that the representation must be "effective." But today, as defenders of indigents handle a flood of cases with meager resources, the debate rages on whether the promise of Gideon has been fulfilled.

Most public defenders think not. In Memphis, lawyers lament the plead-'em- and-speed-'em-through pace. "It reminds me of the old country song we have here in Tennessee: 'We're not making love, we're just keeping score,' " says chief public defender AC Wharton. Across the country, lawyers watch with frustration as the bulk of criminal-justice funds goes to police protection, prisons and prosecutors, leaving just 2.3% for public defense services. "We aren't being given the same weapons," says Mary Broderick of the National Legal Aid and Defender Association. "It's like trying to deal with smart bombs when all you've got is a couple of cap pistols."

During the war on crime of the '70s and the war on drugs of the '80s, funneling money to defend suspects was a low priority. Meanwhile, the ranks of police and prosecutors were beefed up, leading to more arrests, more trials and more work for public defenders. "Indigent defense is a cause without a constituency," says Stephen Bright, director of the Southern Center for Human Rights. Over the years, states have unenthusiastically devised three strategies to handle indigent cases: public defender offices, court-appointed lawyers and contract systems. In all cases, the emphasis is on holding costs down. Justice -- and sometimes people's lives -- can get lost in the mix.

PUBLIC DEFENDERS: NO RESPECT

"Felonies worry you to death, misdemeanors work you to death," says Mel Tennenbaum, a division chief in the Los Angeles public defenders' office. "We're underappreciated and misunderstood." L.A. lawyer David Carleton had his teeth loosened by a client who didn't like his plea arrangement. Manhattan's Judith White needs all seven days of the week to handle her load of drug cases -- a task she continues to tackle even since a crack addict murdered her father four years ago. When Lynne Borsuk filed a motion with Georgia's Fulton County Superior Court seeking to reduce her load of 122 open cases, she was demoted to juvenile court. She was lucky; others have been fired for similar actions.

Across the country, the lawyers who staff big-city public defender offices strike a common note: they get no respect. "Clients figure if we were really good, we'd be out there making big money," says Maria Cavalluzzi, a Los Angeles public defender. In courthouse waiting areas -- known variously as the | Tombs, the Pits, the Tank -- defendants cavalierly dismiss their free counselors as "dump trucks," a term that reflects their view that public defenders are more interested in dumping cases than mounting rigorous defenses.

The typical public defender is underpaid and overwhelmed. When Jacquelyn Robins was appointed New Mexico's state public defender in 1985, there were six lawyers in Albuquerque's Metro court to handle the annual load of 13,000 misdemeanor cases. Three years later Robins persuaded state legislators to put up funds for three more lawyers. Even then, lawyers could manage only cursory conferences with clients just 30 minutes before their court appearance. In 1991 Robins again went begging for dollars. When she was accused of having a "management problem," she quit. The move caused such a furor that the Governor promised additional funds. Albuquerque's chief public defender, Kelly Knight, now has 16 lawyers, but the pace is still grueling. "I'm 34, not married, and I have no children," Knight says. "But I'm really, really burned out." She plans to take a sabbatical next year -- whether she is granted one or not.

In Los Angeles, which boasts one of the best public defender programs in the country, salaries start at $42,000 and go as high as $97,000. A staff of 570 lawyers juggles roughly 80,000 cases a year. The work is often thankless, but every so often a case upholds the promise of Gideon. Earlier this month Frank White, 36, a tall, muscular man covered with tattoos, landed in L.A. County court, accused of murdering a tiny Korean woman with his bare fists. White, diagnosed as a paranoid schizophrenic, refused to take his medication and grew angry when the deputies would not remove his handcuffs. White glared as he stalked into the courtroom and dropped heavily into the seat beside public defender Mark Windham. Without a word, Windham slid his chair closer to his explosive client until they were touching shoulders. And there he stayed throughout the proceeding. "Male bonding," a sheriff's deputy quipped. But to everyone's astonishment, White quieted down. "I did it to make him and everyone else in the room feel better," Windham explained.

Seasoned defense lawyers know the value of the small gesture. And the large. Anticipating the guilty verdict returned by the jury two weeks ago, Windham built a parallel argument that White was not guilty by reason of insanity. If the jury agrees, White will be locked up in a hospital instead of being imprisoned.

ASSIGNED ATTORNEYS: NO EXPERIENCE

In smaller cities, defendants are usually assigned attorneys by the court. Often these lawyers, who tend to be young and inexperienced or old and tired, receive only $20 to $25 an hour. Capital cases go for as little as $400. At Detroit's Recorder's Court, lawyers are paid a flat fee: $1,400 for first- degree murder, $750 for lesser offenses that carry up to a life sentence. "The more time you spend on a case, the less money you make," says attorney David Steingold, a 14-year veteran. Hence lawyers have learned to plead cases quickly and forgo time-consuming motions, a phenomenon known among lawyers as the "plea mill."

Slapdash pleas are sometimes less brutal than the farcical trials that can result when ill-prepared lawyers are thrown in over their heads. In 1983 a man named Victor Roberts and an accomplice stole a car and drove to an Atlanta suburb hunting for a house to burglarize. Posing as insurance salesmen, they entered the home of Mary Jo Jenkins. A skirmish ensued and a gun went off, shooting Jenkins through the heart. H. Geoffrey Slade, a lawyer for 13 years, was assigned to handle the capital case. When he realized he was in over his head and requested co-counsel, the court appointed Jim Hamilton, 75, who had almost no criminal experience.

Their efforts, while well intended, served no one's interests. They conducted no investigation. They interviewed no witnesses in person. They never visited the crime scene. During the trial they introduced no evidence in Roberts' defense. The prosecution, meanwhile, trotted out gory photographs of Jenkins -- taken after she had been autopsied. Slade knew enough to object, but he was overruled. The jury deliberated only 45 minutes; Roberts found himself on death row. A federal judge subsequently ordered a new trial, on the ground that the first had been "fundamentally unfair," in part because Roberts' lawyers had failed to "adequately and effectively investigate" the crime. Pretrial proceedings are scheduled to get under way this month -- 10 years after Roberts' arrest.

CONTRACT LAWYERS: NO SATISFACTION

A variation on court-appointed attorneys, popular in rural areas, is a contract system under which lawyers receive a flat rate. The fee is usually so meager that these attorneys maintain a private practice on the side. Such a system, says Bright, results in "lawyers who view their responsibilities as unwanted burdens, have no inclination to help the client and have no incentive to learn or to develop criminal trial skills." When expenses mount, they economize by refusing the collect calls of their jailed clients. Under a contract system, says L.A.'s Tennenbaum, "you don't investigate, you don't ask for continuances, you plead at the earliest possible moment."

Or worse. In Indiana's Marion County, which includes Indianapolis, reform was sparked after a 1991 study documented abuses in a system where the six superior court judges hired defense lawyers for $20,800 a year to handle the area's indigent work on a part-time basis. Bobby Lee Houston, a truck driver, hired a private counselor whom he couldn't afford when he was arrested in 1989 on charges of child molestation. The lawyer urged him to plead guilty and serve five years; Houston insisted he was innocent. He wrote to a judge complaining of delays and, after 14 months, was assigned David Sexson, one of the contract lawyers. Sexson suggested that Houston plead guilty and get off with time served. Houston was firm: no dice.

One month later, Houston's case was dismissed -- but no one bothered to tell him. It would be four more months before Houston learned that he was a free man. After 19 pointless months in a jail cell, Houston has his own bottom line: "Justice is a money thing."

That is precisely what Clarence Earl Gideon complained of in 1962 when he put pencil to lined paper in his Florida cell and and wrote the Supreme Court: "The question is very simple. I requested the court to appoint me attorney and the court refused." Since then, lawyers and judges have stated and restated Gideon's assertion of a fundamental right to adequate representation. Chief Justice Harold Clarke of the Georgia Supreme Court warned state legislators earlier this year, "We need to remember that if the state can deny justice to the poor, it has within its grasp the power to deny justice to anybody." Richard Teissier and his fellow public defenders surely would agree with Judge Clarke: Justice on the cheap is no justice at all.

With reporting by Julie Johnson/Washington, Michael Riley/New Orleans and James Willwerth/Los Angeles