Public Defender and Legal Aid Systems

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In many countries the right to counsel requires the creation of public defender and legal aid systems because most criminal defendants are from low-income backgrounds and cannot afford a paid attorney.

United States

The first state to recognize the right to counsel for indigent defendants was Indiana:

"It is not to be thought of in a civilized community for a moment that any citizen put in jeopardy of life or liberty should be debarred of counsel because he is too poor to employ such aid . . . No court could be expected to respect itself to sit and hear such a trial. The defense of the poor in such cases is a duty which will at once be conceded as essential to the accused, to the court and to the public."[1]

Despite this case, public defender offices were not organized for another 50 years. Private organizations such as the Legal Aid Society in New york were formed as early as 1896. The first public defender office opened in Los Agneles in 1914, established by Clara Shortridge Foltz, California's first female attorney. By 1921, the right to counsel was widespread in California.

The creation of public defender offices began to increase in the early 20th century but it was not until the U.S. Supreme Court ruled that indigent defendants had a Constitutional right to counsel at the state's expense that these institutions began to proliferate. Justice Black rendered the decision:

"A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama: "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be [372 U.S. 335, 345] heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." 287 U.S., at 68 -69"[2]

After Gideon the state was required to provide assistance to counsel at the request of an indigent defendant. It provided little instruction as to how that counsel was to be provided. As a result, several models exist in different jurisdictions around the country. The vast majority of public defenders are appointed. However the public defenders are elected in Florida; Tennessee; Lincoln, Nebraska; and San Francisco.

Public Defender's remain unique in that they are government employees whose job it is to challenge and work "against" the government's case. Because of their special role in the criminal justice system, courts have concluded that public defenders do not act "Under Color of Law" and are therefore not liable for civil rights damages under 42 USC Section 1983 [3].

Government-Run Public Defender Offices

Typically found in large urban areas, government-run public defender offices are often said to be more effective because they can aggregate training and implement a more systematic appraoch

Most public defenders are appointed to head these offices, although a few -- the San Franciso Public Defender Office [4] and Public Defender for Miami-Dade County[5] -- are headed by eleted "chief public defenders".

In many states public defenders must work misdemeanor cases for several years before they can accept felony cases. Finally, capital cases require the highest level of counsel. Many states restrict these cases to panels of the most qualified attorneys.

Public defenders typically work full-time for the government and are prohibited from accepting private cases. However in some jurisdictions, such as Indiana, attorneys may still represent private clients as long as they do so responsibly and do not abuse the right.

Contracted Public Defender Offices

In a limited number of jurisdictions, municipalities provide contracts to independent organizations which then represent indigent criminal defense lawyers. The Legal Aid Society of New York City had a virtual monopoly on these city services in all five buroughs until a series of crippling strikes led then-mayor Rudolph Giuliani to terminate automatic renewal of the orgnization's contract. Through the bidding process, several new service providers grew rapidly including the Neighborhood Defender Service of Harlem [6], Brooklyn Defender Services[7] and Bronx Defenders[8]. Several of these new organizations helped pioneer a holistic approach to public defense.

Panel Systems

Smaller municipalities may function more effectively using a panel system in which the court directly assigns private attorneys to represent clients. Attorneys are then paid an hourly rate to complete the representation of the client. While potentially cost saving, some have criticized these systems, concluding that the unsupervised representation leads to low quality and higher instances of ineffective assistance of counsel.

Horizontal v. Vertical Representation

Public defense offices may offer horizontal or vertical representation. If an office is organized under the vertical representation model, the client is represented by one lawyer during all stages of the case: arraignment, hearings, trial, and sentencing. Attorneys may even represent the client on appeal.

If an office is organized under the horizontal model a client may be repesented by different attorneys during different stages of the case. Under this model, lawyers may conduct only arraignments or only suppression hearings.

Vertical representation offers several benefits. The attorney-client relationship is strengthened by continuous representation. However, under this model younger attorneys may have to represent the client in various stages, none of which they may have mastered.

Horizontal representation offers certain benefits as well. Attorneys must master each stage before they can move to another stage, leading in theory to higher quality of counsel at each stage. Sometimes likened to an "assembly system", the this model leaves nobody in charge of the client's entire case. As a result, the defense can become disjointed for lack of a unified theory of the case.

Individual Representation v. Team Approach

Traditionally, public defender offices were organized around individual representation model with each lawyer being assigned directly to the client. The lawyer was ultimately responsible for all aspects of the case although he may "subcontract" certain aspects to investigators, paralegals or social workers. Some offices prefer to use a team approach in which the lawyer may play a lead role. Under this model, investigators, paralegals and social workers play a more significant role in developing strategy for the client's case.