President's Message

Posted by: F. Williamson on Nov 1, 2016


On Public Defenders
by F. Lane Williamson
During the eight-year run of “Dirty Jobs” on the Discovery Channel, I probably only watched about a half dozen shows. One of them made a particular impression upon me, however, an episode titled “Dairy Cow Midwife,” where host Mike Rowe visited an Indiana dairy farm. After a bland opening focusing on milking a cow, the next two segments focused on heightened grossness: first, inseminating a cow (inserting arm into cow rectum up to elbow and then working down through the uterus to deposit bull semen in the vagina), and second, birthing a calf (essentially a tug of war between man and cow uterus, with the calf as the rope).
This show made me recall my own dirtiest of jobs on the other end of the bovine life cycle, the summer I spent working in an Ohio slaughterhouse. Thankfully, I didn't work on the "kill floor," but I did have to pass through it on the way to my work station as a "boner" (no snickering and no invoking of our recently retired Senior Resident Judge). The experience caused me to vow to never commit to a career path that involved actual physical labor and also to become a vegan. I stuck by the first, but the second commitment faded after several months, along with the olfactory memory of the stench of rancid meat that my supervisor would sometimes have us try to sneak past the government inspector.
What, you may fairly ask, does this have to do with public defenders? Well, it seems to me that if there were ever a "Dirty Jobs" spinoff for white-collar workers, public defenders ought to be a subject. They do an essential job, do it well, and are for the most part out of the public's conscience. Not to mention that they rarely get any respect or recognition. 
Not even most lawyers realize what a tremendous portion of the caseload of the justice system in general, and the criminal justice system in particular, is handled by public defenders and lawyers who accept appointed indigent cases. The PD's Office in Mecklenburg County is one of the largest local law firms with some 60 lawyers, most of whom are in court almost every day. If they disappeared and all their clients suddenly had to appear pro se, chaos would ensue.
Whatever rewards there may be for being a public defender have to come from the satisfaction of doing the job itself. Unlike their opposite number the prosecutors, public defenders have little opportunity to use their experience as a springboard to a judgeship or political office (former Chief District Judge Fritz Mercer being an anomaly in that regard).
While popular culture tends to venerate the dogged prosecutor, the public defender or appointed counsel, if portrayed at all, generally comes across as an annoyance at best and an unethical sleaze at worst (think Jimmy McGill before he became Saul Goodman in "Better Call Saul"). There have hardly been any television shows about public defenders, though there has been a slew of them about prosecutors. Did anyone ever see "Benched," an insipid and insulting comedy about a woman lawyer who loses her job at a prestigious firm and has to stoop to taking the only job available to her--a public defender? Or "Raising the Bar," cancelled after two seasons despite being helmed by Steven Bochco, who created long running hits such as "L.A. Law," "Hill Street Blues" and "N.Y.P.D. Blue."
In my extensive research for this column (which consisted of Googling "public defender television show"), I came across the aptly-named "Public Defender," a "Dragnet"-style faux documentary series from 1954-55 that featured handsome, baritone-voiced actor Reed Hadley as Bart Matthews, crusading public defender. You can find most of the episodes on Youtube. Through clouds of cigarette smoke (the show's sponsor was Philip Morris), he would narrate each week an inspiring "actual case," whereby an innocent defendant was exonerated through the heroic efforts of a public defender. At the end of each episode he reminded viewers that "the case you have just seen was brought to a fair and just conclusion through the efforts of a public defender," and then the credits would identify the actual public defender by name and office. Apparently no names were changed to protect the innocent (spoiler--that's a "Dragnet" reference you millennials would likely miss). 
As dated and corny as it may seem, it's remarkable that almost a decade before the Supreme Court would hold in Gideon v. Wainwright that criminal defendants have a constitutional right to legal representation, and when there were only a few public defender offices (none in North Carolina), a network television show celebrated public defenders. Too bad that in the ensuing 60 years things have basically gone downhill from that high-water mark. 
There is a sense in which prosecutors and public defenders are two sides of the same coin: they both do the heavy lifting in the criminal justice system; they both are public servants; they both are underpaid; and they both complain about how high the Mecklenburg County Bar dues are. [Author's note--I realize that last point is entirely gratuitous and out of place, but every once in a while I have to at least give lip service to this column ostensibly having something to do with actual Bar business.] 
Yet there are significant differences between the two beyond the stark difference in public perception and respect. One is that prosecutors mostly win and public defenders mostly lose, though not for a lack of trying. Unless you're a Chicago Cubs fan, constant losing is pretty dispiriting. [Author's note--at the time I'm writing this the playoffs have not started. By the time you're reading this the World Series will have been decided. Perhaps the Cubbies have broken the curse.] Public defenders therefore are adept at celebrating small victories ("Yee-hah, I convinced the judge to come down from the middle of the presumptive range in sentencing my guy to the bottom of the presumptive range, saving four months on a three-year sentence") or even a hard-earned defeat (“The jury deliberated until after 5:00, so I must've made 'em think"). There is of course the rare acquittal at trial, a result to be savored.  
That's especially true for the federal defenders. [Author's note--to be picky the federal defender office in the Western District of North Carolina is a federal community defender organization rather than a federal public defender office, though through judicial action that supposedly is about to change. As a founding board member and former chair of said organization, I'll hold my piece about that lest I incur the disapprobation of the local Article III office holders.] It's sort of a truism that just about the only way to win a federal criminal case is to convince the U.S. Attorney not to indict your client in the first place. Since most cases don't come to the federal defender or to an appointed panel attorney until after indictment, then quod erat demonstrandum the lawyer's client has already lost before the lawyer gets the case. You can understand why when I used to accept federal appointed cases, I would often remind myself of the old Richard Pryor joke--"You go down there looking for justice; that's what you find: just us." 
Another difference between prosecutors and public defenders is that public defenders have clients, and criminal clients can be very frustrating to deal with. Some think they are smarter and more experienced than the lawyer; some are absolutely convinced that a public defender works for the prosecution; and some think that you get what you pay for and that a public defender or appointed lawyer is not a "real" lawyer. As a judge, I often was faced with an inquiry into the status of counsel whereby the defendant wanted a new lawyer because the one he had "isn't fighting for me." This usually translated into "despite my lawyer's informed and reasoned case evaluation that the evidence against me is overwhelming and that I should accept the State's generous plea offer, nevertheless in my delusional alternative universe I'm convinced that I should win this case." On such occasions, what I really wanted to do was to ask the bailiff to bring the defendant to the bench so I could try to slap some sense into him. Ditto the request from a defendant with a perfectly diligent and competent appointed counsel who wanted to waive his right to counsel so he could hire a substitute private attorney to represent him, particularly where I suspected that the substitute attorney would not do nearly as good a job representing the defendant as the attorney he was trying to get rid of. 
There's also a disparity in resources between prosecutors and public defenders. The district attorney here has an entire police force investigating crimes. The PD's office has exactly one investigator. The U.S. Attorney has all sorts of law enforcement agencies staffed by highly educated and sophisticated men and women who can carry guns, obtain search warrants and arrest people. Then if you go to trial and attempt to cross examine these federal law enforcement types, they are so effective at counter-punching that the defense lawyer is better off trying to dance away rather than go after them directly. What civil practice lawyer wouldn't love to be able to hire paralegals with such useful skills?
Finally, consider how isolating in terms of your personal network being a PD can be. A prosecutor deals not only with the PD's office, but all of the criminal defense lawyers who practice in the community. The public defender's network of attorney interaction is mostly confined to the roster of prosecutors. Even where, as here in Mecklenburg County, the relationship between the District Attorney's Office and the Public Defender's office is a good one, having most of your dealings be with your natural "frenemies" must be stressful. And then there’s the post-conviction lawyers, the pathologists of criminal practice, who have even less human interaction and are even further removed from any popular recognition of their dedicated work.
So why do public defenders do what they do? I don't really know, but I assume you'd hear if you asked, in addition to the hackneyed bromides about seeing justice done and protecting the rights all people, an admission that even with all the problems they have to deal with, it’s still more fun and interesting than other kinds of law practice. It’s no accident that in my last column on “vicarious voyeurs,” all of the anecdotes came from criminal cases. It’s not that civil cases can’t be interesting too, but it’s just that on the whole criminal cases are more compelling, at least from the human interest standpoint. So I therefore suspect that criminal defense practice draws some of the biggest voyeurs in the legal profession—and I don’t mean that to be an insult.
Which brings me back to the opening dealing with the strange fascination with certain aspects of animal husbandry. My wife is a native of Sioux Falls, South Dakota. Sue, her childhood friend, stayed in South Dakota and married a cattle rancher. They own and live on a “modest” ranch of several thousand acres, where they raise Black Angus beef cattle. Several years ago she came to visit and we all spent a weekend in Charleston, SC. On the way back, with just a bit of prodding she, to my slack-jawed wonder, described in even greater detail what I saw on that episode of “Dirty Jobs” and more. As to artificially inseminating a cow, she clinically summarized the procedure, sighed, and in that blunt but matter-of-fact way so many Midwesterners have, allowed that “I sure am tired of staring at cow assholes.”
So, if you like to eat some beef from time to time, think of what a rancher has to do to make that possible. Likewise, if you like to live in a society under the rule of law with a functioning justice system, think how public defenders contribute to that. If you should encounter either a rancher (not likely around these parts nowadays) or a public defender (highly likely if you frequent the courthouse), tell them how much you appreciate what they do. And ask them to tell you about it: I’d bet they’d have some good stories.