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Saturday, December 3, 2011

Why we need to train young Public Defenders and a few thoughts about how

The following post was written by L. Richard Walker, a Public Defender who attended the Advocacy Teaching meeting at Stetson (Watch for info about the 2012 meeting on this blog). As with all posts we hope that his thoughts generate comment and provoke more posts so that we are all better teachers and our students better advocates.


There is a compelling need for effective representation for indigent defendants charged with criminal offenses. This has been said for decades. It remains true. Lawyers and many non-lawyers know that the constitutional right to legal counsel for the accused was established decades ago by the precedent of the Supreme Court of the United States. See Gideon v. Wainright, 372 U.S. 335 (1963).

Since 1998, I have worked as a public defender almost continuously in state and federal courts. I began in law school at Temple University, Philadelphia, Pennsylvania, gaining invaluable experience as a legal intern at a criminal court in the area. This was a battleground, in the constitutional sense, and one of the many locations across the country where the work of indigent defense really gets done.

This post is neither a tribute to Clarence Earl Gideon, nor a celebration of the Court’s 1963 decision. The opinion, of course, is hugely important, but it has been praised many times by more prominent people. Instead, it is an argument, based on my personal experience, that not enough has been done to uphold the constitutional right in actuality. In my conclusion, I will discuss what I’ve done about the problem.

The Needs of the Indigent Defense Profession.

Now, more than ever, there is a need for skilled and dedicated trial lawyers willing to handle criminal cases on behalf of indigent defendants. First, criminal trials are the exception. More than 90 percent of federal criminal cases are settled with a plea of guilty. State courts are not much different. Often, this is done by way of plea agreements, which include bullet proof waivers of appellate rights. This means that the government is almost never required to meet its burden of proof beyond a reasonable doubt. This was not the intent of the Sixth Amendment to the Constitution of the United States. It also means that, without appeals, the common law is not developing in a natural and free manner, which is antithetical to the idea of a common law system.

Second, the government is strong. I am, of course, referring to the U.S. Department of Justice, FBI, DEA and the other federal agencies charged with investigating and prosecuting criminal offenses in the United States. Since the war on drugs began, the government has had the upper hand in criminal trials. It dedicates, for all intents and purposes, unlimited resources and unlimited personnel to criminal prosecutions. In terms of criminal trial work, the government is the ultimate adversary.

Third, there is no shortage of substandard representation. Anecdotally, in the last two or three years alone, I have seen numerous cases that have fallen well below the standard for “effective assistance of counsel”. I take no pleasure in detailing a few examples:

In the case of United States v. K.A., the government charged a Jamaican man who worked in Manhattan with a large cocaine conspiracy, involving multiple people and extending through the northeastern United States. As the case progressed, the government turned all co-defendants against the defendant. When the evidence seemed overwhelming, the defendant decided to enter a plea of guilty based on a written agreement with the government. The defendant did not fear prison time, provided he could remain in the United States upon release where his entire family lived.

The defendant’s retained counsel did no legal research and failed to confer with an immigration attorney. The attorney expressly advised the defendant during the guilty plea hearing that the conviction for drug trafficking was not grounds for removal. Once the defendant settled in federal prison, U.S. Immigration and Customs Enforcement entered a detainer for removal proceedings. The attorney’s advice was 100 percent wrong!

To be sure, there are federal offenses that do not constitute grounds for removal. The attorney should have attempted to negotiate a settlement based upon such a charge, rather than pushing forward without care as he did. If that was not possible, trial would have been the more attractive option, despite the challenges presented by the evidence.

In the case of United States v. D.S., the state charged the defendant with misdemeanor domestic violence. The defendant was innocent, but entered a so-called plea of convenience and served no jail time. However, the appointed lawyer – who was paid $124 to handle the case – failed to mention that a misdemeanor domestic violence conviction renders one a “prohibited person” who cannot possess a firearm under federal law. The judge and the prosecutor overlooked this, too. A few years later, the defendant called 911 for assistance with his unruly teenage daughter, and the police observed his firearms collection. The Bureau of Alcohol, Tobacco, Firearms and Explosives took an interest and the defendant was charged in federal court with a felony firearms offense, which carried 10 years in prison.

Then there was a drug case involving the charge of conspiracy to distribute in excess of 50 grams of cocaine base. That normally carries a 10-year minimum mandatory prison penalty. The particular defendant, however, had two prior convictions for serious drug offenses. The government filed an information and invoked 21 U.S.C. § 851, which increased the minimum mandatory penalty from 10 years to mandatory Life in prison. The attorney for the defendant negotiated a plea agreement based on the conspiracy charge. The attorney failed to realize, however, that the recidivist enhancement applied and that the penalty under the plea agreement would be mandatory Life in prison, i.e., the same as if convicted after trial!

Taken together, these points make it clear: more needs to be done in order to ensure that our justice system is fair and that defendants – especially indigent defendants – have a true voice. Rather than point the finger or complain, I decided to teach interested law students and new lawyers about the importance of indigent criminal defense.

Training for Indigent Defense Work in Criminal Court.

Prior to learning criminal trial advocacy, interested law students and emerging public defenders naturally must have a solid understanding of Criminal Law, Evidence, Criminal Procedure, and Legal Ethics. Students should begin to develop this knowledge in law school and during preparation for the state bar.

Then instructors should introduce students and new lawyers to reliable secondary sources, which clearly and accurately outline the cases, statutes, rules and procedures of their specific jurisdiction. For instance, most state public defender systems develop comprehensive training manuals and, at the federal level, there is Defending a Federal Criminal Case, by the Federal Public Defenders. Sources like these are essential starting points and will serve as the playbooks for the first couple years of practice.

It is equally important for instructors, early on, to offer formal training sessions. These should include substantive discussions along with traditional trial advocacy skill sessions. Like an advanced trial advocacy class, the instructors should focus on each phase of a criminal trial. Importantly, in my opinion, instructors should utilize files from actual criminal cases, rather than contrived or modified trial problems, which are often limited and unrealistic. The extent of the critiques and the number of skill sessions for each phase of the criminal trial will depend upon the ability of the students. These formal training sessions should conclude with mock trials so that no young lawyer, much less a law student, is asked to handle an actual criminal jury trial without at least one live and authentic mock trial experience.

In addition to trial advocacy skill sessions, law students and emerging public defenders should utilize the Internet if they have not already done so. There are thousands of videos, articles, transcripts, blogs and instructional resources relating to trial advocacy in criminal court. Nobody knows it all. Indeed, there is probably no method here. But students and emerging public defenders should probe it deeply. I suggest using the Internet to shadow the best trial lawyers of criminal courts, including, but not limited to, F. Lee Bailey, Jerry Spence, Roy Black and the late Johnny Cochran. If students and emerging public defenders study video of these criminal trial lawyers, they will be prepared and inspired during their first trial.

On a different note, instructors of law students and emerging public defenders should pay close attention to the needs and circumstances of the client. Indigent defendants in criminal court face many obstacles. They are poor and often at risk. Many are mentally ill and under-educated. In many cases, their lives have disintegrated as a result of incarceration. The public defender must be supportive of the client and empathetic. Instructors should encourage an open-minded approach. Students and young lawyers should do their best to understand the life experiences and hardships of the client and be attentive and engaged whether the client is having a good day or bad. That is not always an easy task, but that is the only way to develop a productive and trusting relationship with the client. Without that foundation, it is highly unlikely to win at trial or otherwise obtain the best result in a case.

Similarly, once students and emerging public defenders are able to embrace the client’s perspective, they can tell the client’s story. We all know that’s what good trials are about. Jurors care about people. Jurors listen to and are moved by compelling stories and ultimately make decisions based on what fits best within their natural sense of right and wrong. I do not know the best way to teach or improve storytelling, but I read scores of children’s books to my kids. The old favorites capture the essence of storytelling. Our top selection, if you are wondering, is Rikki Tikki Tavi, by Kipling.

Finally, we must teach students and young public defenders to be strong and zealous advocates. Public defenders are never the winners of the criminal justice popularity contests. Rather, they are often criticized even when they are doing what is legal, right and required by their ethical duties. The clients – especially in high-profile cases – are characterized by the media and others often as society’s greatest enemy, even when they turn out not guilty. Therefore, it is critical for those entering the public defender profession to understand that they might lose more than win. Some days will be frustrating. Many will have a dim view of the public defender’s clients and work. But none of that means that these lawyers are performing poorly. In fact, the contrary is true much more often than not. We must teach that, through it all, public defenders need to have courage while they fight within the law and try many cases.2


1. L. Richard Walker, Esq., is the Senior Litigator at the Office of the Federal Public Defender for the Northern District of West Virginia and a Trial Team Coach for the West Virginia College of Law.
2. Richard plans to illustrate the ethical issues facing public defenders and perhaps more about the need for courage in a later contribution to this blog.

1 comment:

  1. Amen on all counts. This is a superb post, and I plan to share it with several colleagues and friends. It is reminiscent of a conversation I had just last week with one of our alums about the need for an advanced criminal trial advocacy course that goes through all the steps of a criminal case using a realistic case file.

    We did something like this at the Army JAG School when I was there. Our fearless department chair, Lieutenant Colonel (now Colonel) Patty Ham, insisted that we use a real case--and an ugly one with lots of warts and difficulties, to boot--to teach new Army Judge Advocates how to try a court-martial case. The approach was successful beyond our dreams and illustrated perfectly just what Richard is talking about.