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This is the one area where America really needs more lawyers
A lack of public defenders is leaving millions of Americans without a competent, focused attorney
 
Lady Justice has seen a dizzying uptick in cases over which to preside.
Lady Justice has seen a dizzying uptick in cases over which to preside. (Thinkstock)

Mike Engle, a public defender in Nashville, stood up in a local courtroom last month and raised a troubling issue that has national resonance. After prosecutors notified a trial judge that they were seeking the death penalty against an indigent defendant named Lorenzo Jenkins, who is accused of murdering three people, Engle asked the judge to assign a private attorney to handle the case on behalf of the defendant.

"Our office," he told the court, "quite frankly lacks the resources to defend a death penalty case."

It's not even a close call, according to Dawn Deaner, Nashville's elected public defender, who supported Engle's motion. "There are maximum caseload standards that are recommended for public defenders in Tennessee," she told The Tennessean in December. "If you apply those standards to the number of cases we handled in fiscal year '13, we were 22 lawyers short in our office to be able to handle the workload that we have."

This surely is not what the United States Supreme Court had in mind in 1963 when it first recognized a constitutional right to counsel in Gideon v. Wainwright. What the justices did not do in Gideon, and what has haunted the court system ever since, is to require states to enforce the right to counsel through policies and programs (and most of all funding) that ensures adequate representation in all criminal cases. The result has been catastrophic for millions of Americans who cannot afford their own attorney. There are no precise, recent figures telling us how many indigent defendants need lawyers each year — but in 2007 the figure was at least six million people.

In the Nashville case involving Lorenzo Jenkins, Judge J. Randall Wyatt, Jr. rejected the public defender's request. "While Mr. Engle's concerns certainly have merit," the judge wrote, "it is also important to recognize the interests of the state of Tennessee." Judge Wyatt instead authorized another lawyer to assist Engle as "second chair" for Jenkins' trial, a result that disappointed Deaner. "The real issue," she told me last week, "is whether our office can continue meeting its ethical responsibilities to all our clients, including this client, when our workload increases but our resources do not."

What's happening in Nashville in the Jenkins case is happening in jurisdictions all over the country. And thankfully, Judge Wyatt notwithstanding, there appears to be a growing willingness on the part of many judges to do something about it. Last spring, the Michigan Court of Appeals allowed a reform lawsuit to proceed on behalf of indigent defendants in three counties there. Reform efforts are also underway in Maryland and New York.

And just days before Engle stood up in that Nashville court, a federal judge in Washington, encouraged by a Justice Department brief supporting indigent defense reform, issued an injunction against two northwest cities after finding that indigent defendants there were not receiving their constitutional right to counsel. The judge's factual findings in that case, styled Wilbur v. City of Mount Vernon, are breathtaking: Public defenders, he found, "often spent less than an hour on each case."

At the other end of the country, meanwhile, the Florida Supreme Court issued a ruling last May that highlighted many of the same problems about the sorry state of indigent defense. "We are struck," the Florida justices wrote, "by the breadth and depth of the evidence of how the excessive caseload has impacted the public defender's representation of indigent defendants. For example," the justices continued, "the number of criminal cases assigned to the public defender has increased by 29 percent since 2004, while his trial budget was reduced by 12.6 percent through budget cuts and holdbacks…"

There are simply too many criminal cases handled by too few public defenders who are not provided with nearly enough resources by state legislators. Moreover, the combative nature of the relationship between prosecutors and defense attorneys often brings out the worst in the former. When Engle made his request in Tennessee, the prosecutor in the case publicly mocked him. "I am involved in three cases," Deputy District Attorney General Tom Thurman told Judge Wyatt. "So, I guess, according to the ABA, I should be in the psych ward." This surely is not what the justices had in mind when they issued the Gideon ruling.

And that's probably the best place to look for solutions to this mess. As the Supreme Court has gotten more conservative since Gideon, it has consistently refused to force state legislators to adequately fund defense work or to overturn convictions even where criminal defendants received patently ineffective assistance from overworked public defenders. As a matter of law, this must change.

State lawmakers, meanwhile, squeezed by budget constraints, say they have far more important (and politically viable) spending priorities than funding defense attorneys. This mindset, too, must change to recognize that there are enormous costs, both financial and societal, to putting people in prison without providing them with a fair trial. The result, for the poor, is that they have a constitutional right but no meaningful remedy.

The last word here goes to a defense attorney who asked for anonymity to make this trenchant point about the Nashville case. Judge Wyatt's conclusion that the state and the defendant "would be better served by keeping" Engle in the case, this lawyer told me, is akin to saying that passengers on an airplane are better served letting a pilot land a plane who has become disabled during flight, or who is being asked to help 25 other planes land at the same time, because the pilot is highly capable and he was the one flying the plane when it took off. Anyone can be really good at something," the lawyer told me, "but if you distract them enough, their expertise falters, and they are not as good. They might even crash."

 
Andrew Cohen is a contributing editor at The Atlantic, a fellow at the Brennan Center for Justice, and a legal analyst for 60 Minutes and CBS Radio News. He has covered the law and justice beat since 1997 and was the 2012 winner of the American Bar Association's Silver Gavel Award for commentary.

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