The idea that we should furnish the poor with a public defender has been an effort to save our nation from shame – for sending the poor to prison without adequate representation. But today the nation’s public defender system has become a mockery of justice.
To provide an accused with a public defender who has three hundred other cases to defend is simply to laugh in the face of both justice and the accused himself. It takes me months to prepare the average criminal case for trial. The trial itself can take weeks, even months.
While O.J. Simpson was being tried in Los Angeles for murder, a case that cost millions to defend and months to conclude, another black man was being tried in the same courthouse for a similar murder. It took only three days for a jury to find him guilty. He had a public defender with scores of other cases to defend. Many prosecutors boast that they have over a 90 percent conviction rate. Little wonder. Under the present public defender system the prosecutors should enjoy one hundred percent convictions, and many in fact approach perfect conviction rates.
The public defenders in seven states have finally refused to take on any new cases. It’s about time. If I walked into court to defend my client and had never talked him, never previously opened his file, never discovered the witnesses against him, much less interviewed them, never reviewed the evidence in the hands of the prosecution, never demanded my clients rights to discovery, never read the cases relevant to the case at hand, never prepared the cross examination of the witnesses against my client, never …and on and on, I would be guilty of legal malpractice.
Every public defender who purports to represent an accused under circumstances in which he or she has neither the time nor the resources to fully defend the client is guilty of malpractice. These public defenders cannot be saved from malpractice because they are crushed under a ridiculous case load – some with even as many as five hundred cases or more. No one who was accused with such an attorney has received a fair trial and every such accused is entitled to an appeal on that basis alone. The judge must not sentence the accused under these circumstances because the judge would be taking part in a fraud on the system. Yet hundreds of thousands of indigent persons go to prison each year under circumstances no better than those outlined above.
When I was coming up as a young prosecutor, the defendants were represented pro bono by the lawyers in the local bar. It was part of the duty of members of the bar to take part in the justice system. Today that idea is unheard of. The practice of law is first and foremost a money-making profession. I see nothing wrong with that notion, but what about giving back?
Every trial lawyer should be required to take on a couple of pro bono cases every year. At our office we have a separate pro bono law firm and have for over ten years. It often brings us more satisfaction than our big money wins. The job of a lawyer is to represent the people – the lost, the forgotten, the damned, the hated, the voiceless and the poor. Indeed, God forbid, we may one day become one of those who are entitled to representation but cannot afford it.
Every time an accused goes to prison without having received a fair trial we are one step closer to the loss of our own freedoms. Our rights are, in fact, being fought for by public defenders who can never fulfill their duty to their clients because of their pathetic, impossible, caseloads. When they fail, we are in danger. Our system becomes a hypocritical charade. And we prove, once and for all, that the promised justice for all in America is an evil lie that is imposed on the poor.
If only those with money can receive justice, then how can we permit our children to recite a horrible falsehood in school when they chant, “with liberty and justice for all.” That can no longer be the truth in America.