Indigent Defense and Wrongful Convictions

Why are criminal defense lawyers letting so many innocent people get convicted?

That was a question posted by a non-lawyer in an online forum of criminal defense attorneys. Specifically, the asker criticized court-appointed lawyers and claimed to base the question upon numerous news stories of innocent people being released from prison.

My initial thought was how ironic it was the questioner didn’t seem to look at any other factor as a cause, as if the defense is the only thing in our criminal “justice” system. The tone of the question was a broad, sweeping indictment of criminal defense attorneys being responsible for the problem.

On one hand, I understand many wrongful convictions are due to inadequate lawyering, and most cases involving criminal defense lawyers are court-appointed, at least in Texas. Percentages alone almost dictate a large portion of wrongful convictions are handled by court-appointed lawyers.

I found it doubly ironic on a number of levels to ask defense attorneys the question. Why not ask cops why innocent people are even being accused in the first place? Why not ask prosecutors why they are prosecuting innocent people the cops wrongfully arrested? Why are judges and juries convicting innocent people?

Instead, the asker squarely placed the blame on criminal defense attorneys.

The problem of wrongful convictions is systemic, not the purview of only one segment of the system. It is undeniable criminal defense attorneys need to do a better job. However, that alone will not address the issue.

One major change which would help would be to pay court-appointed criminal defense lawyers more money. Unfortunately, counties are constantly trying to lower those costs.

Put yourself in the shoes of a court-appointed attorney whose practice primarily consists of those cases. You are self-employed as a solo practitioner or in a small firm and pay all of your expenses out of your own pocket. The court pays you a few hundred dollars per case, even for felonies. Misdemeanors may be $100-$200 per case.

What does that mean? You pay your staff, your office space, your internet connection, your office phone, your long-distance, your mobile phone, your professional subscriptions, your required continuing education, your travel, your office supplies, your office equipment, your utilities, your case management system, your website, your business cards, your postage, and countless other expenses necessary to your business. If you have an investigator, you have a luxury few can afford.

Let’s generously assume you are paid $350 per case. Let’s assume 250 business days in a year. Let’s further assume you take one case per day. That amounts to $87,500, which doesn’t sound awful. However, take into account all the expenses you have, plus your $500-$1,000 per month student loan, and you may be struggling to afford a one-bedroom apartment.

Meanwhile, the police budgets swell every year, and they spend as much time on cases as they deem necessary. Prosecutors’ budgets typically increase, as well.

Prosecutors have investigators, support staff, expert witnesses available in any case they choose, exemption from court fees, and the cooperation of virtually all governmental entities at no cost. Prosecutors may not be paid especially well, but they don’t have to concern themselves with running a business and having to cut corners.

Judges often scrutinize billing by court-appointed counsel and flatly refuse to pay for time spent on the case the judges deem unnecessary or excessive. Asking for help with experts and investigators is frowned upon and limited. Not all judges are unreasonable about expending funds, but they all must work within the parameters of budgets they are provided.

Now, ask yourself, as a court-appointed criminal defense attorney, how in the world can you afford to give a great deal of time and attention to each and every case? The answer is obvious.

Changes must be made to how counsel is provided for indigent defendants. Texas is taking some baby steps, at least.

The problems of using court-appointed criminal defense as a model for indigent defense are so numerous and massive, the simple fact is a major overhaul of the ENTIRE system is required, including a dramatic shift in the attitudes of all parties involved.

For an interesting look into the problem on a wide scale, take a look at the following article. http://www.motherjones.com/politics/2013/05/public-defenders-gideon-supreme-court-charts

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About Phillip W. Goff

I'm Phillip Goff, and I've been an attorney for over 20 years in South Texas. I'm passionate and dedicated to serving client's interests and promoting freedom.
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