John Oliver did it again! With more than 2.8 million views, John Oliver in his weekly “Last Week Tonight” analyzes the public defender system in the United States as only he can do it. He begins by quoting the 1963 decision of Gideon v. Wainwright, in which the Court stated that “… any person … who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Does this system works as intended?
He shares quite a few shocking facts and statistics:
- “… anywhere from 60-90 percent of criminal defendants need publicly-funded attorneys, depending on the jurisdiction.” (Brennan Center for Justice, Apr. 9, 2013).
- “… 40% of all county-based public defender offices had no investigators on staff.” (Bureau of Justice Statistics).
- “… about 95 percent of criminal cases never make it to trial.”
He explains that
[t]he Miranda warning includes the right to a public defender. It doesn’t include the fact that public defenders are highly overworked and grossly underpaid.
- Gideon v. Wainwright, 372 U.S. 335 (1963).
- William Lawrence, The Public Defender Crisis in America: Gideon, the War on Drugs and the Fight for Equality, 5 U. Miami Race & Soc. Just. L. Rev. 167 (2015).
- Indigent Defense Systems (Bureau of Justice Statistics) offers statistical data on the right to counsel and methods for providing indigent criminal defense.
- John Oliver, Public Defenders, Last Week Tonight (Sept. 13, 2015).
On Thursday, June 20, the Supreme Court decided whether to hear Garcia v. Louisiana – a case where the Louisiana public defender was forced to decide which of three jointly charged men – all facing the death penalty – should be appointed death-qualified public defenders. Marcia Coyle wrote about the case for the National Law Journal.
Jerry D’Aquila , chief defender and supervising attorney for the 18th Judicial District Indigent Defender Board in Louisiana, assigned himself and his certified lawyers to one of the defendants and assigned non-death certified lawyers to the other two defendants – arguing that his office would go bankrupt if he was forced to assign the more expensive death-certified lawyers to all three defendants.
Although D’Aquila’s decision may have actually saved the lives of the 2 defendants represented by non-death certified lawyers (since the prosecutor eventually reduced the charges against them), that outcome should not determine whether the decision was improperly impacted by the conflict between D’Aquilla’s concern for the well being of his office and his concern for his clients.
Any decision about which particular category of lawyer to assign that is influenced primarily by financial factors cannot be an independent conflict-free decision.
Should a public defender ever be permitted to assign an uncertified lawyer in order to conserve the resources of his office? Must he always spend the extra money? This issue wrecked havoc on the Georgia Public Defender system, which was financially undermined by its mandated representation of Brian Nichols – a capitally charged defendant who escaped from custody and killed a judge, court reporter, and sheriff’s deputy. The defense cost 2.3 million dollars and seriously impacted GPD’s operation.
For more on the Georgia case and it’s impact on the GPD, see Steve Bright and Lauren Sudeall Lucas, Overcoming Defiance of the Constitution, The Need for a Federal Role in Protecting the Right to Counsel in Georgia.