Some of the best lawyers I know are public defenders. Period. What's more, I envy public defenders. Imagine the practice of law without the grimy necessity of having to ask clients for money? But there is no paradise, life keeps reminding me. Times are tough now from coast to coast. Even public defenders seem to be crying uncle.
Last week, the Southern Oregon Public Defenders Office refused to represent a man accused of murdering a two-year-old child. Why? The lawyers in the office did not have time to devote to the case. In other words, although the office could easily have agreed to represent the man, the lawyers would not have been able to give his case the care it deserves. So rather than offer merely the facade of justice, the office decided it could not take the case.
This is terrifying. No one imposes budgetary restraints on the state when it comes time to prosecute. The police make an arrest, the state sets its sites on a person's life or liberty, and the game is on. We say that a defendant has a right not just to counsel, but to effective assistance of counsel. But what happens when we refuse to fund one side of the aisle?
Benjamin James George appeared in from of a Jackson County, Oregon judge last week and learned that the public defender's office could not represent him. The office is too busy. It has too many case. It has a full load of murder cases and cannot handle another.
I'm not sure what to make of this. The public defender's office says that its lawyers can only handle one murder case at a time. When all of the folks in the office are assigned a file, there isn't room for more.
That sounds laudable, and, perhaps, it is laudable. No one should settle for second-class justice. But lawyers rarely work on one complex case at a time. [EDITED WITH SPECIAL THANKS TO TRAVIS.] Assuming this isn't grandstanding on behalf of the public defender's office, it raises the troubling specter of a criminal justice system unable to cope.
Mr. George's arraignment was postponed until July 14th. Another public defender's office will be consulted to see whether it can provide counsel. But suppose, for argument's sake, that office is also too busy for another murder case. What then?
The real danger is that showboat counsel will arrive; some lawyer, perhaps fresh out of law school, or hungry for a headline, will grab the case at a discount rate and do little or nothing to prepare the defense of Mr. George. This practice is far more common than folks realize. In a lean economy there are lawyers on the verge of bankruptcy. Some will reason that even nonpaying work of a certain type is better than no work at all. Why not a murder? After all, isn't murder the crown jewel of a criminal defense lawyer's caseload?
The market for legal services is unregulated. Those without means get public defenders, or so we hope, Oregon teaches. The wealthy hire the best that money can buy. Folks in the middle class are often caught without either a public defender or counsel. They scrape by with whatever counsel they can afford. The sad reality is that many Americans charged with crimes settle for second-rate justice because the alternative is no justice at all.
I'm watching the George case in Oregon to see how the system responds. Suppose no public defender's office will step forward because all are stretched to the breaking point? What then? Does the state drop the case in the interest of justice? Of course not.
But suppose there is no money to hire defense counsel. What then? Oregon is blazing a trail few of us want to travel but all of us need to recognize.