Let's Talk About Your Experience as a Public Defender
“Let's talk about your experience as a public defender,” the first one said. “You represented someone who raped a child.”
“It's really a question of impartiality,” another one tag-teamed. “How could victims ever trust that you would be fair when you've asked for reduced sentences for people convicted of things like domestic violence, sex trafficking, and child porn?”
“I'm concerned about your lack of experience,” the third chimed in. “On-the-job training isn't very good when people's lives are at stake.”
“I mean, your clients are vermin, but I very much respect what you do.” *
All public defenders have heard comments like these over a dinner party table. Very few of us have had to endure them in the course of a hearing denying us the opportunity to be an appellate judge, as my former colleague and career public defender, Carl Folsom, did at his recent confirmation hearing in the Kansas Senate.
I want to start with two background points to give you the lay of the land.
First, whatever else may be “the matter” with Kansas, our appellate bench is smart and generally well-prepared. Despite how often I lose in front of them, I continue to have faith that most of our judges are good people just trying to do right by the law. This is not a state where we have prosecutors-in-robes wielding hatchets in our appellate courts.
But still, I can never quite shake the feeling that our judges lack a perspective I'm not even confident they know they're missing. Despite the fact that a huge percentage of their cases are criminal – and a large percentage of those cases are litigated on behalf of indigent people – most of our judges come directly from either civil practice or a lower court bench.
None of them have meaningful experience working for people who can't pay. None of them have meaningful experience having to muster some kind of defense for those people, no matter how bad the facts or law (or both) might be. And sometimes it shows in their opinions and comments.
Second, I need you all to know that Carl's qualifications are without question. A fifth-generation Kansan who grew up in poverty, he worked hard to get a good education and go to law school. Since graduating, he's worked on almost 200 appeals, in addition to about a decade as a trial federal public defender. He's argued a combined 78 cases before our Kansas appellate courts and in the 10th Circuit Court of Appeals. He teaches as an adjunct at the University of Kansas School of Law, and he's the kind of lawyer you want mentoring the next generation.
I'll never forget that he's the first person who ever encouraged me to give my clients hope. “Never make promises you can't keep,” he told me as a baby appellate defender, “But you can always tell them you're going to fight like hell to beat the odds, because that's true, right?”
With that out of the way, let's unpack some of those comments by our state senators.
I don't need to explain to this audience what's wrong with “How can you defend those people?” I don't need to explain how galling it is for folks who wrap themselves in the Constitution at election time to be so ignorant and antagonistic towards it when they have a chance to actually give effect to its words. But in this case, that ignorance and antagonism does more damage than usual.
Our public defender system in Kansas has been quietly dying for a decade. Our new director is trying to bring it back to life – and I have hope that she'll be able to with time – but, in 2018, we had about 24% turnover, and, even with a small pay raise since, young attorneys with school loans and families just can't make it on our starting salary. With COVID-19, everyone has been worried about their safety and what they might be bringing home to their children every time they see a client or go to court. But with our clients stuck in prisons and jails, we feel duty-bound to take those risks. The Black Lives Matter protests have only added to our despair that, even working so hard, we are impossibly out-gunned by the police and prosecutors.
Even defenders who didn't actually listen to the hearing heard about it in short order, making this one of the dirtiest forms of kicking public servants who are already down that I've seen come out of our statehouse in recent memory.
As to Carl's experience in criminal law, according to the 2019 Kansas Office of Judicial Administration report, almost 74% of the Kansas Court of Appeals' cases are criminal or quasi-criminal. That number stays fairly constant year after year.
As such, while I agree with the senator who said “learning on the job” is a bad idea when people's lives are at stake – which, by the way, our young trial public defenders do every day – given the statistics, that particular wisdom is inapplicable here. In combination with the fact that such concerns are rarely raised when civil attorneys apply for judgeships, I fear what he was really saying is that using cases with poor or minority defendants as training for a judge coming from civil practice is just fine. It's only when we're using the paid cases to train judges that there's a concern.
That comment – and that last comment I paraphrased at the beginning of this post, which makes me almost too sick to even want to repeat again – goes back to another comment that was unspoken at this hearing, but that all of us have heard: “Why don't you go be a real lawyer?”
Public defenders file motions, we make arguments, we do research, we negotiate. Just like any other specialty, some of us are good at it, some of us are less so. The only thing that sets us apart from our private bar and other government colleagues is that we take cases from all-comers – our poor, often minority, clients.
As such, the logical conclusion of the “real lawyer” question is disgusting: Real lawyers represent real people – you know, the rich, white ones – we public defenders take the vermin.
I'm proud to say that our Kansas Bar Association and several other groups swiftly pushed back against the comments made in the Kansas Senate. And I have hopes that my friend Carl, or another like him, will be an appellate judge in Kansas sooner rather than later, as more opportunities present themselves.
But, particularly at this moment in history, I think we all have a duty to call out these ideas for the classist, racist, debasement of the Bill of Rights they are. They have no place in our statehouses or at our dinner tables, and I urge, not just public defenders, but all members of the bar to raise their voices to say so.
(* These are not direct quotations from the hearing. While the tone and some of the more offensive language is preserved, they have been paraphrased and condensed for clarity.)