ON THE JOB: Public defenders Walter Hennessey and Sherry Staedler appeared with client Jeremy Cramer, accused in the death of his 3-year-old son, in Montana last year. (AP / Matt Volz)
Their home page prominently displays a quote from Thomas Jefferson: “When injustice becomes law, resistance becomes duty.” Their invitation: Join the resistance.
During the past six months, more than 6,000 state and federal public defenders from around the country have accepted the invitation to join a new organization formed to “own” the problems and future of indigent defense, as one of its founders put it. The catalyst was the 50th anniversary of the landmark U.S. Supreme Court decision, Gideon v. Wainwright, in which the justices held that the Sixth Amendment required states to provide counsel to poor defendants charged with serious crimes.
As the anniversary approached last year, a number of leaders of indigent defense programs and allies confronted the nation’s “50-year failure” to live up to Gideon‘s promise. They concluded: “We ought to own our own issue,” recalled Timothy Young, director of the Ohio Office of Public Defender in Columbus.
“We said we could not celebrate 50 years of underfunding, understaffing, underresourcing,” he said. “We needed to create an organization to leverage Gideon.”
The organization, the National Association for Public Defense, arrives at the “right time,” said Stephen Hanlon, chairman of the indigent defense advisory group of the ABA’s Standing Committee on Legal Aid and Indigent Defendants.
“I really do believe we’re at a watershed point,” Hanlon said. “Up until now, this battle has been fought in quicksand — with us standing in the quicksand.” But with recent court decisions in Missouri and Florida addressing the workload burdens of public defenders, “We now have a foothold. These people have been in the trenches forever, and they’re mad as hell and they can’t do it anymore.”
It all started with four state defenders: Young; Kentucky Public Advocate Ed Monahan; Public Defender Mark Stephens of Knoxville; and retired public defender Ernie Lewis of Frankfort, Ky. They drafted a concept paper for the organization and then spread the word by scheduling a meeting in Dayton. The University of Dayton offered free space.
“We did this with no money,” Young said. “We asked people to provide their own airfare and hotel.”
More than 30 leaders of indigent defense organizations came — from New York City to San Francisco; from Washington state to Louisiana, Alabama and Missouri. The group elected a steering committee and set a “shoot the moon” goal of 2,000 members by the end of the first year.
“I am beyond our wildest expectations,” said Young. “We have over 6,000 members and we didn’t open our doors until November.” Thirty-seven public defender organizations have joined, he said. “We didn’t know the nerve we were hitting.”
The National Legal Aid and Defender Association (NLADA) and the National Association of Criminal Defense Lawyers (NACDL), long involved in indigent defense policy issues, each voiced “concerns,” about the new organization, Young said.
“Their concerns were natural and of the kind that any group has when another group comes on the scene,” he said. “We haven’t tried to co-opt anybody else’s membership. We want to partner with all of them, but we are the only organization singularly focused on indigent defense.”
“There’s no particular concern with that organization per se,” said Edwin Burnette, vice president of NLADA’s defender legal services. “It remains to be seen how the likes of funders or the Department of Justice are going to view the different roles the [three organizations] occupy within the defender community. We’re all trying to accomplish the same thing and, as time goes on, we’re going to have to work together.”
TRAINING AND WORKLOAD RELIEF
Unlike those organizations, which view indigent defense as a subset of the criminal justice system, Young said, the new organization’s sole focus is indigent defense. “We want to address training and workload relief for lawyers on the line in the courtroom every day, and all of the support staff that gets us to the courtroom every day.”
To that end, the organization’s education committee is providing training webinars for public defenders and staff, and is blogging and writing articles about the justice system. Committees were formed to contribute amicus briefs when warranted, and to vet ethics and workload standards. The organization has reached out to public defenders in Alaska and Mississippi who lacked training opportunities because of logistical difficulties.
And it seeks to bridge the gap between the separate federal and state defender systems by encouraging federal defenders to join their state counterparts. The federal budget sequester “really brought home to them how fragile that system is and how quickly it can be taken away,” Young said. “We clearly need to partner with them and they with us.”
There is always room for another voice, said Norman Lefstein, dean emeritus of Indiana University Robert H. McKinney School of Law and one of the nation’s leading indigent defense experts. The new organization’s work will be important, he said, but it risks being viewed as a vested interest. “I think oftentimes in order to achieve success in the national field as well as in state and local jurisdictions, you need the interests of the legal profession, which is disconnected in a personal way.”
That is why the involvement of the ABA is “exceedingly important” in indigent defense, he said. “Lawyers with clout and connections are not necessarily those seen as having a vested interest, but have the stature that sometimes transcends those of us who work in the field.”
For now, Hanlon and Young are cautiously optimistic — Hanlon especially so, because Missouri excessive-workload legislation has created a model for use elsewhere. “We are doing studies in Texas and two others will be up soon,” he said.
“After a while, we’re going to have a critical mass. Case refusal is going to play a very important role going forward, and [public defenders] are going to be in a much better position to approach legislators and other government funders and to the judiciary to establish their needs.”
“We didn’t get into this problem overnight, and we’re not going to get out of it overnight,” Young said.
Contact Marcia Coyle at email@example.com.