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Encyclopedia > Public defender

In the United States, a public defender is a lawyer whose duty is to provide legal counsel and representation to indigent defendants in criminal cases who are unable to pay for legal assistance. Public defenders are employed by the government (at the federal, state or county level), or they work for non-profit entities funded by the government (see below), as opposed to criminal defense attorneys in private practice. Appointed counsel are required to be available for anyone accused in criminal court, who is exposed to any likelihood of imprisonment, by the 6th Amendment and the Supreme Court decision Gideon v. Wainwright. Most jurisdictions choose to comply with their Gideon duty by establishing public defender offices, but a substantial minority complies with Gideon by having panels of appointed private counsel. A lawyer, according to Blacks Law Dictionary, is a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law. ... This article describes the government of the United States. ... United States of America, showing states, divided into counties. ...

Contents

Legal background and history

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Please see the discussion on the talk page.

The landmark case that helped pave the way for all Americans to be guaranteed an attorney at trial was the case of Gideon v. Wainwright, 372 U.S. 335 (1963) Mr. Gideon was a middle-aged Florida man who was charged with breaking into a bar and stealing money and beer. He argued at his trial that he could not adequately defend himself, and that a system that puts an uneducated man against a trained attorney is fundamentally unfair. The Supreme Court agreed. Image File history File links Unbalanced_scales. ... Holding The Sixth Amendment right to counsel is a fundamental right applied to the states through the Fourteenth, and requires that indigent criminal defendants be provided counsel at trial. ...


Although there had been some provisions for free attorneys prior to Gideon, it was the catalyst for a wave of change. Following the landmark 1963 decision, the 1960s witnessed the creation of programs across the country to make this right available to virtually all criminal defendants who could not afford an attorney to represent them.


The first person to propose the creation of a public defender's office was California's first female attorney — Clara Shortridge Foltz. In a time before there were public defenders, young inexperienced attorneys were often ordered by courts to defend indigents pro bono, and in that capacity, Foltz saw firsthand the inequitable results of that crude system. See Stanford Law. As a result of Foltz's energetic lobbying, Los Angeles County established the first public defender's office in the United States in 1914 [1]. In 1921, the California Legislature extended the public defender system to all state courts. [2] Clara Shortridge Foltz, First female lawyer admitted to the California State Bar (in 1878) Clara Shortridge Foltz (1849-1934) was the first female lawyer on the West Coast. ... Pro bono is a phrase derived from Latin meaning for the good. The complete phrase is pro bono publico, for the public good. It is used to designate legal or other professional work undertaken voluntarily and without payment, as a public service. ... Map of California showing Los Angeles County. ...


State Public Defender Systems

Not all jurisdictions have public defender offices, per se. In some areas, indigent defendants are represented by legal aid attorneys whose offices have contracts with the court. In other areas, representation is provided by attorneys in private practice who are appointed and paid by the court. Defense services can also be provided by lawyers employed by private corporations that receive government grant money for this purpose.


Public defender agencies of all kinds are supported by public funding, but do not take direction from the government as to the acceptance or handling of cases, or to the hiring of staff attorneys.


State public defender offices can vary widely from county to county, and from federal defender organizations. In state offices, issues often arise in jurisdictions with public defenders over appropriate levels of funding. If attorneys are under funded, their case loads can climb to levels where they are unable to provide adequate representation. Further, funding issues can keep salaries too low to attract the best legal talent or to keep experienced lawyers on staff. These issues have come to the fore with recent studies disclosing that innocent people have been condemned to death in part due to inadequate representation in Cook County, Illinois (Chicago), although none of the overturned "death penalty" cases were actually represented by the Cook County Public Defender. To avoid these problems the American Bar Association has promulgated standards as to appropriate case loads for public defenders. Problems of excessive case loads and low salaries still plague many state public defenders' offices. Research has indicated that indigents receive the highest level of representation when assisted by a well funded professional office dedicated to criminal defense. In some jurisdictions, an indigent criminal defendant may be ordered to reimburse the state for the costs of his or her defense, based upon the defendant's ability to do so. However, these orders, when issued, are largely unenforceable, and do not reflect the real cost of defense, since the defendant is, by his nature, without funds. Cook County is a county located in the U.S. state of Illinois. ... Official language(s) English[1] Capital Springfield Largest city Chicago Largest metro area Chicago Area  Ranked 25th  - Total 57,918 sq mi (149,998 km²)  - Width 210 miles (340 km)  - Length 390 miles (629 km)  - % water 4. ... Nickname: Motto: Urbs In Horto (Latin: City in a Garden), I Will Location in the Chicago metro area and Illinois Coordinates: , Country United States State Illinois County Cook & DuPage Settled 1770s Incorporated March 4, 1837 Government  - Mayor Richard M. Daley (D) Area  - City  234. ... The Cook County Public Defender provides legal representation in the areas of criminal, misdemeanor, juvenile justice, child protection, paternity, appeals, post-conviction and traffic cases throughout the Cook County in Illinois. ... American Bar Associations Washington, DC office The American Bar Association (ABA) is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. ...


Few public defender offices are headed by elected officials. One notable exception is the San Francisco Public Defender, which is elected. There are often debates about whether a public defender agency should be headed by an elected official. Average people often do not understand or care about the importance of having decent indigent representation. In conservative areas, it is quite possible that a public defender might be elected on the platform of providing "the bare minimum defense." In any event, funding is always a problem for public defender agencies. County and state governments are generally reluctant to fully and adequately fund indigent defense because it is politically unpopular to do so.


Full-time public defenders are specialists who only handle criminal matters (although some public defender officials handle quasi-criminal civil cases, on which defendants are entitled to appointed counsel), and can tap into a nation-wide network for guidance and assistance.


Many, if not most, public defenders enjoy some form of civil service protections, such as a requirement that any employment termination be only for "good cause." Many also belong to unions. These protections can allow public defenders more freedom in vigorously handling their caseloads. Thus, areas with vigorous public defenders may be more able to challenge the system and give defendants more of a fighting chance when charged with a crime. Unfortunately, because of the wide variance of criminal justice systems between states, and even between jurisdictions in each state, no reliable large study has been performed to show how effective having a public defender system is versus a private or appointed system.


Low Pay

In jurisdictions where indigent defense is handled on the basis of contracts or ad-hoc appointments, there has been increasing concern about the low pay and minimal resources given to public defenders.[1] Public defenders in Missouri can spend about six hours per case regardless of whether it is a misdemeanor or a murder case. For indigent criminal defendants, low-paying assigned-counsel systems offer the worst of all possible worlds. They virtually guarantee sub-par representation, given that low assigned-counsel rates almost always imply huge caseloads—a nightmare for poor defendants desperately in need of legal attention.[2]


In jurisdictions where the public defender is a government agency, public defenders are generally on the same or similar pay-scale to prosecutors. This rate of pay is generally (but not always) below that of the private sector.


Federal Public Defender Systems

Federal Public Defender offices follow one of two models. They are either federal agencies operating under the Judicial Branch of the US government, or corporations that receive federal grant money. Public defender agencies of all kinds are supported by public funding, but do not take direction from the government as to the acceptance or handling of cases, or to the hiring of staff attorneys.


The Federal Public Defender offices are well funded, offices dedicated to defense work. By law, lawyers employed by Federal Public Defender offices have salaries set to match those of lawyers in the U.S Attorney's office. The combination of decent salary, benefits and support team tends to attract, and more importantly, retain, highly qualified attorneys. Especially in more rural areas, where a federal criminal job is one of the top paying local legal jobs, many of the federal defense attorneys had long and successful records as prosecutors and defenders at the state level prior to moving-up to the federal system.


Comparison of State and Federal PD Systems

A federal defender's case load is usually substantially lower than his state counterpart's. While a state public defender may have to juggle over one hundred cases, an Assistant Federal Public Defender routinely has 30-50 cases, a very manageable amount, though the severity and complexity of such cases may be greater. The federal system has over 4,000 separate offenses, and uses a very mechanistic, sentencing scheme based on a set of "advisory" sentencing guidelines. That said, state public defenders (as well as state prosecutors) often begin their careers handling misdemeanor cases. Since misdemeanors generally do not involve serious injuries, the parties are often more willing to ask that charges be dismissed, and less likely to appeal a dismissal by a judge. Therefore, although the volume may appear high, the work-per-case is significantly lower for misdemeanors.


Furthermore, in jurisdictions without an organized public defender agency, some courts and legislatures in some states tend to "cap" the amount a panel attorney who does not work for a public defender agency can receive in compensation on a case, there is much more pressure on the "panel" attorneys to resolve a case or issue quickly than there is for a full-time Federal Public Defender, who can afford to invest all the time necessary to fully develop an unusual motion or issue. In this federal system, the title of Assistant can create a belief in some clients that their attorney is new. The title has nothing to do with the attorney's experience or ability. There is only one United States Attorney for a district (all the other federal prosecutors are called Assistant United States Attorneys), and there is only one Federal Public Defender for a district. Thus, an attorney with thirty years experience, who supervises twenty other attorneys, could still be an Assistant Federal Public Defender.


There remain some perceived differences between the quality in state versus federal public defenders offices, and the difference between poorly supported state programs versus properly supported state offices has caused much confusion in the general public. The horror stories have created a frequent public perception that all* defenders are over-worked and have to "dump cases". "Dump truck" and "public pretender" are terms sometimes used by defendants when complaining about their public defender. (The origins of the phrase "dump truck" are somewhat obscure, however it probably means that in the eyes of the defendant, the public defender is simply trying to "dump" him by encouraging a guilty plea rather than afford him a vigorous defense.) Ironically, particularly in the federal system, it is the public defender, free of the pressures of hourly billing, who can actually afford to spend time developing unusual issues, motions, and trial strategies. Nevertheless, client-attorney relations are frequently strained by that perception and the horror stories. Although public defenders are available because of the United States Constitution's 6th Amendment right to counsel guarantee, they are perceived as being a form of welfare, and like anything else that comes for free, are looked upon with some distrust. It is a sad truth that many criminal defendants would prefer to have any private counsel rather than a public defender, regardless of comparative competence.


Legal Issues

Conflict of Interest

Because conflict of interest problems could exist where multiple defendants participated in a single crime, such as a bank robbery or a drive-by shooting, only one person in a group of co-defendants will be assigned an attorney from a public defender office. For many defendants, it is in their best interest to testify against co-defendants in exchange for a reduced sentence. To ensure that each defendant is afforded his constitutional right to an effective defense, jurisdictions may have several public defender entities, or a "conflict panel" of private practice attorneys. This enables the court to assign each defendant an attorney from a completely separate office, thereby guarding against the risk of one client's privileged information accidentally falling into the hands of another client's attorney. Some jurisdictions, like in Los Angeles County, employ a separate entity for legal representation called the Alternate Public Defender's office. Any further conflicts are handled by court-appointed private attorneys.


In Civil Law Jurisdictions

In civil law countries, following the model from the Napoleonic Code of Criminal Procedure, the courts typically appoint private attorneys at the expense of the state. As a rule defense attorneys in such countries are not directly employed by the government. In Brazil, however, the constitution provides for a public defender's office at both state and federal levels. In some states, like Rio de Janeiro, the public defender's office has a long tradition of assisting the poor and lower middle-class in both civil and criminal matters while other, poorer states, are still struggling to set up a public defenders office. There the federal public defender's office has only recently began hiring attorneys and lacks in infrastructure, which causes the general public to rely on lawyers assigned and paid by the federal judicial branch on a case to case basis. Civil law or continental law is the predominant system of law in the world. ... First page of the 1804 original edition The Napoleonic Code, or Code Napoléon (originally called the Code civil des Français) was the French civil code, established at the behest of Napoléon I. It was drafted rapidly by a commission of four eminent jurists and entered into force...


Regarding conflicts of interest, the public defender may also be precluded from representing a defendant if the office previously represented a witness to the crime charged--not only a co-defendant (other defendant)


Miscellaneous

If a concern involves a local matter, local court staff can provide direction to the appropriate public defender organization. Note that in some states, the office is not titled as "Public Defender"; for example, Kentucky's public defender office is called the Department of Public Advocacy. For federal matters, look under US government listings in the telephone directory, or contact the clerk's office of the nearest US Courthouse for information. Federal Public Defender offices are customarily located in larger metropolitan areas of the district, but serve clients throughout their assigned area. Official language(s) English[1] Capital Frankfort Largest city Louisville Area  Ranked 37th  - Total 40,444 sq mi (104,749 km²)  - Width 140 miles (225 km)  - Length 379 miles (610 km)  - % water 1. ...


If a concern involves a civil case (e.g., personal injury or a landlord-tenant dispute), as opposed to a criminal case, one needs to contact a legal aid office, as public defenders are typically prohibited from taking civil cases. Most liberal democracies consider that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. ...


Notes

  1. ^ Report: Hamilton County pay for public defenders near bottom in Ohio. Associated Press Thursday, PM cycle, State and Regional (2000-02-03). Retrieved on 2007-05-29.
  2. ^ Feige, David (2004-09-03). Public Offenders: Why criminals in Massachusetts are getting out of jail free.. Slate. Retrieved on 2007-05-29.

  Results from FactBites:
 
Public defender - Wikipedia, the free encyclopedia (1481 words)
Public defenders are employed by the government (at the federal and county level), or they work for non/profit entities funded by the government (see below), as opposed to criminal defense attorneys in private practice.
Public defender agencies of all kinds are supported by public funding, but do not take direction from the government as to the acceptance or handling of cases.
To ensure that each defendant is afforded his constitutional right to a zealous and loyal defense, jurisdictions may have several public defender entities, or a "conflict panel" of private practice attorneys.
NodeWorks - Encyclopedia: Public defender (298 words)
Public defenders are employed by the government (at the federal and county level), as opposed to criminal defense attorneys in private practice.
In certain areas, indigent defendants are represented by private attorneys that are appointed by the court, or by legal aid attorneys whose offices have contracts with the court.
Some defendants may be in a situation where it is in their best interest to turn on their co-defendants and testify for the state as a witness in exchange for a reduced sentence.
  More results at FactBites »

 
 

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