Thoughts for Independence Day
I was a young lawyer for Kentucky DPA, hired as an appellate lawyer but tasked with going out to talk to the Jessamine County “Fiscal Court” (the equivalent of a county commission) about their public defense “system.” This was in the early days, 1978 most likely, and Jessamine County, like most of Kentucky's 120 counties, had an assigned counsel system. I went to a fiscal court meeting to try to convince county leaders to increase their contribution to their public defense system as required by statute. After my presentation, the first question asked by the “magistrate” was, “why should we pay for lawyers for criminals?” What I heard was “the hell we'll contribute more, why should we contribute at all?” It stunned me then and now that a county official, then charged with funding their local public defender system, wanted to have nothing to do with it.
That question has stayed with me for many years. Once I understood it, asked some 15 years after Gideon v. Wainwright had placed on the state the responsibility for providing lawyers to poor people, I began to appreciate the importance of the requirement of independence of the public defense function, now Principle #1 of the ABA Ten Principles of a Public Defense Delivery System (2002). I understood that if given the choice, many political authorities would underfund, undermine, or otherwise scuttle their public defender system. It is now a consensus in our community that public defense, however it is to be provided, must be independent from the judiciary, independent from the prosecution and law enforcement, and independent from improper political usurpation. The first two are easy and well understood. The third one, independence from improper political usurpation and influence, continues to roil our community.
Improper political usurpation has occurred many times over the years. We have witnessed a chief public defender being fired in Georgia for continuing to assert that his office was overworked and needed more attorneys due to the caseload. We have seen a chief defender who was told not to file motions in a capital case. We have seen a county using a selection process for chief defender that consisted of a hiring committee of a prosecutor, a sheriff, a probation officer, and others. We have seen a chief defender told not to assert before the state legislature that she needed more resources than that allotted by the governor's budget. We now have LA County that, over the objections of most of the staff, has appointed an interim chief defender who has no experience with public defense and who represented a deputy sheriff in a police shooting case. The underfunding of public defense, in itself a form of political interference, is rampant nationwide.
Of course, is public defense ever truly independent? Someone always must make the call of who is to be the chief defender, what the nature of the system is going to be, how big the budget is going to be, and what kinds of public positions the organization is going to take. If a public defender organization is inside government, whether it be county, state, executive, judicial, or legislative, pure and total independence remains a goal rather than a reality for the most part.
That's why NAPD made as Principle #2 in its Foundational Principles (2017) that the “fair administration of justice requires that representation by lawyers be free from real or perceived inappropriate influence. Representation should be without political influence and subject to judicial supervision only in the same manner and to the same extent as are prosecutors and attorneys in private practice.” The principle goes on to emphasize the selection of payment of lawyers, policy making, and oversight as areas where independence is particularly important. See the Foundational Principles here:
Most recently, Alex Bunin, the Harris County, Texas, chief defender, was threatened by a Harris County Commissioner (and supported by 4 of 5 of the commissioners) because he had assisted the plaintiffs in a lawsuit objecting to the cash bail system in Harris County. In other words, Alex had stood up for his clients who were being denied bail due to their poverty. The NAPD Steering Committee endorsed a letter to the Harris County Attorney, Vince Ryan, expressing our “deep concern” about “criticism of Mr. Bunin regarding his advocacy for juveniles and adults who were being denied bail due to their poverty.” Citing both the ABA Ten Principles and Principle #2 of the NAPD Foundational Principles, we asserted that an “independent public defender must be able to advocate for his or her clients independent of the county or state organization that funds the public defense function.” See the full letter here: http://www.publicdefenders.us/files/NAPD_letterhead_Harris%20County%20Commission_June%2018%202018_SIGNED.pdf
I'm not sure what I said to that magistrate that day in Jessamine County, Ky. back in 1978. I was probably too inexperienced to articulate a full-throated response to him. Kentucky has since moved beyond its assigned counsel system first to a mixed system of contract counties and full-time offices and then completing its full-time system covering all 120 counties with a full-time office in 2005. Kentucky now has a 12-member commission chosen by a wide variety of entities that provides an element of independence to the public defense system, despite being placed structurally in the executive branch of government. I am sure I would say something different to that magistrate today, something more similar to NAPD's Foundational Principles. I am certain I would say that Jessamine County poor people had been guaranteed a right to an attorney funded by the state, and that attorney had to be independent of him, the county, the prosecutor, and the judge and devoted only to him or her, the client.
Happy Independence Day.