tell them their rights to counsel, and get them to waive (give up) their right to appointed counsel.17
Excessive Caseloads
The twin problem of underfunding is overwork. Professional standards recommend that defense attorneys carry a maximum of 150 felony cases, or 400 misdemeanors, per year. Even these benchmarks are contested and seem very high, particularly if lawyers lack private investigators and other support. Assuming time off for two weeks’ vacation and government holidays, there are roughly 240 working days a year. The recommended caseloads mean that a lawyer would handle one felony every 1.6 days or almost two misdemeanors a day. Obviously very, very few of those cases could proceed to trial or even receive significant investigation or motions practice.
In reality, however, defense lawyers routinely juggle far more than these recommended caseloads, sometimes hundreds more. Miami’s public defenders face annual caseloads of nearly 500 felonies or more than 2,200 misdemeanors, yet that office’s budget was recently cut by an eighth. In Chicago, Atlanta, and Utah, annual misdemeanor caseloads exceed 2,000. As noted, even as criminal caseloads keep rising, the number of public defenders lags behind the number of prosecutors, driving up each public defender’s caseload.18
Underfunding also exacerbates caseloads for assigned counsel. If they are paid low and capped amounts per case, they may have to accept more cases than they can handle well in order to make a living.19
Contract attorneys have it worst of all. Some contracts require the winning bidder to accept however many cases are filed, often for the same overall flat fee. If caseloads jump, they must do far more for the same amount of money by getting rid of cases as fast as possible. One county contracted with a three-person firm to handle about half of its caseload for just over $400,000, amounting to 1,523 felonies plus 3,587 misdemeanors that year. That works out to about $80 per case for all fees and costs. Each case averaged less than one minute of private-investigator time. Of the more than 5,000 cases that year, only 12 went to trial—less than one quarter of one percent. Two of the lawyers split the felonies, meaning each disposed of about 761 felony cases that year, almost all by guilty plea. A single associate handled all 3,587 misdemeanors, nearly 300 per month, by pleading them all out at the first court appearance. When the misdemeanor associate was given a felony case, she saw a strong argument for suppressing the evidence from a warrantless search. But after she asked for more time to develop her client’s strong argument, she was fired for refusing to flush the case with a guilty plea.20
Like underfunding, overwork has long persisted and grown despite calls for change. In 1973, average caseloads already exceeded the professional standards just mentioned. They spiked in the 1980s and 1990s and remained excessive over the last two decades. The problem is a chronic one.21
Instead of thoroughly investigating, discussing, negotiating, and contesting guilt, busy defense lawyers dispose of cases as fast as they can. They rarely file motions or objections, let alone go to trial. They often meet their clients for the first time in courthouse holding cells and hurriedly converse for a few moments before having the client plead guilty and be sentenced. This common practice is known as “meet ’em, greet ’em, and plead ’em” (or just “meet ’em and plead ’em”). Thus, an Atlanta public defender may receive up to forty-five new cases at an arraignment, meet them all while they are chained together in a courthouse cell, and have many of them plead guilty and be sentenced right there.
Of New Orleans defender Rick Teissier’s 418 cases over seven months, dozens of which were serious felonies, he pleaded out nearly a third of them at arraignment, the first formal hearing on the criminal charge. A recent Florida study found that 70% of misdemeanor defendants pleaded guilty at arraignment; one third of them did so without a lawyer. These arraignments lasted, on average, for less than three minutes. A lawyer who has just met his client in a courthouse hallway or holding cell can do little to explore possible defenses or mitigating circumstances. He simply pushes the case along like another widget on the plea-bargaining assembly line.22
In many places, lawyers often are not appointed immediately or are too busy to meet with their clients right away, so their clients may languish in jail for months. By that time, a jailed defendant charged with loitering, prostitution, or public intoxication may already have served more time than the typical sentence for a minor charge. As a result, defendants plead guilty in exchange for time served, rather than fight it out.23
Ineffectiveness
Partly as a result of overfunding and overwork, appointed defense lawyers sometimes perform poorly. Lawyers who are overwhelmed with cases often do little or no investigation, consult no experts, file no motions, and settle for whatever plea and sentence the prosecutor chooses to offer initially. Flooded with cases, they also grow cynical and burn out.
But the effectiveness problem extends beyond lack of time and overwork. Appointed defense counsel receive paltry pay and endure poor working conditions, making it hard to attract talent and retain seasoned veterans. There are basically three types of lawyers who are willing to endure these conditions. First, some lawyers become public defenders out of a sense of mission or ideological commitment to the cause, which can inspire them to brave adversity and fight hard. Many young idealists eventually burn out, but in the meantime they bring energy to their mission. Second, some young lawyers take court appointments or public defender jobs long enough to try some cases, make names for themselves, and gain marketable experience. But once they have trial experience, they are more likely to use it on behalf of more lucrative paying clients. They may continue to take a few court appointments to fill spare time, but seldom specialize in them.24 Third are the leftover lawyers at the bottom of the market. Lawyers whom few private clients would hire may wind up with court-appointed cases instead, regardless of the stakes. There are few checks to ensure minimal talent and performance.
In this third category, there are many stories of defense lawyers who nap during parts of trials, alcoholics who are arrested for driving while intoxicated on their way to court, and defense lawyers who are mentally ill or use cocaine or amphetamines during trial. Yet courts sometimes do not replace these lawyers, remove them from appointment lists, or overturn resulting convictions. On the contrary, some judges discount these evident impairments, let these lawyers continue, and even praise their work. Judy Haney, for example, faced the death penalty for murdering her abusive husband. Though the stakes could not have been higher, the judge held her lawyer in contempt for showing up to trial visibly drunk at 9:30 a.m., and then let him finish out the trial the next day. If even napping, drunk, or drugged lawyers may pass muster, then garden-variety incompetence hardly raises eyebrows. The standard of competence is shockingly low and in hindsight convictions seem to have been inevitable, so there is no harm, no foul. As the vice president of the Georgia Trial Lawyers Association put it, “You put a mirror under the court-appointed lawyer’s nose, and if the mirror clouds up, that’s adequate counsel.”25
Even in capital cases, defendants fighting for their lives may be stuck with defense lawyers who do not take the most basic steps for their clients. They may not find alibi witnesses, medical records that corroborate a self-defense claim, or evidence that a client is mentally retarded or schizophrenic. Some defense lawyers may do nothing for their clients and even undermine their cases. At James Messer’s capital trial, his lawyer gave no opening statement, barely cross-examined the prosecution’s witnesses, presented no defense witnesses or evidence, made no objections, failed to develop obvious mitigating evidence, and repeatedly suggested that his own client deserved to die. As a result, Messer was executed. Other capital defense lawyers have referred to their own clients using racial slurs such as “nigger,” “wet back,” and “little old nigger boy.”26
The bottom line is grim. You get what you pay for, and we as a society are politically unwilling to pay for much. Limited defense funding cannot keep up with rising caseloads, let alone attract and retain enough good, experienced defense lawyers and support.
