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Appointed Defense Lawyers, Public Defenders: Overworked, Underpaid, Ineffective

by Ed Lyon 

The Sixth Amendment to the U.S. Constitution requires that all criminal defendants have a lawyer’s assistance to prepare and present a defense against whatever crime a prosecutor is accusing him or her of committing, as a matter of right. If a defendant cannot afford to hire a lawyer, the government must provide a lawyer for the defendant because a lawyer’s assistance is a fundamental right. Based on its importance, this fundamental right to a lawyer’s assistance has been ruled to not include assistance of just any quality, but reasonably effective assistance to a criminal defendant by his lawyer, whether the defendant or the government pays for it. 

The overwhelming majority of the U.S. prison population is made up of poor people. This also creates a back-breaking, mind-boggling burden for public defenders, and in jurisdictions without a public defender office, lawyers who are appointed by judges to represent indigent criminal defendants. With only 60 minutes to an hour and only 24 hours in a day, the sheer volume of criminal defendants assigned to and needing assistance from what few public defenders and appointment-receptive lawyers there are available, an overwhelming workload is created that none of these lawyers can handle and still be able to deliver the reasonably effective assistance that the Sixth Amendment requires. 

Although appellate courts have developed, over the years, a huge body of jurisprudence concerning errors trial lawyers commit that constitute ineffective assistance and mandate new trials for the convicted defendants who were prejudiced thereby, those same courts have rejected ineffective assistance claims over lawyers’ misconduct that make about as much sense as a soup sandwich. Instances of defense lawyers appearing at trials high on controlled substances, drunk, and even sleeping at the defense table throughout portions of the trial proceedings have all been rejected by reviewing courts as ineffective assistance claims. Likewise, these same sagacious appellate judges regularly rule that an overworked, underpaid public defender or appointed lawyer who just simply, because of the size of his or her caseload, did not have enough time to devote to any one case in order to provide reasonably effective assistance, was not ineffective for that reason.

An old legal adage advises that if an attorney cannot argue the law, then argue the facts. That approach seems to have turned out to be a viable beginning toward building a legal basis in favor of time needed to reasonably assist clients by overburdened defense lawyers. Enter Stephen Hanlon, a former partner at a noted, national law firm and currently general counsel for an organization called the National Association for Public Defense. With assistance from the American Bar Association and professional accountants, Hanlon is working to complete a data-driven, fact-packed study in several states to determine how many cases appointed lawyers and public defenders can carry at a given time yet still be able to meet the Sixth Amendment’s requirement of reasonably effective assistance. 

In Missouri, that study’s results emerged none too soon. Many of that state’s defense lawyers were being threatened with contempt citations for attempting to set caps on the number of cases they could reasonably, yet effectively handle. One lawyer whose average of over one hundred cases had worked himself into a state of such poor health he had to be hospitalized on several occasions. In a stunning display of legal wisdom and human compassion, the Missouri Supreme Court sanctioned the hapless attorney for missing court deadlines because he was in the hospital. 

In 2018, using the facts and data from Hanlon’s Missouri study, the office of the Missouri State Public Defender (“MSPD”) filed suit in the St. Louis County district court. With the study’s solid facts compiled by recognized experts, the MSPD was able to provide an objective case that excessively large caseloads prevent public defenders from being able to provide reasonably effective assistance for their clients. The case is now pending before an appeals court. The MSPD is hoping for a precedent to allow them to be able to carry a manageable caseload, free of any threats of contempt citations if they refuse to accept more cases than they can effectively handle. 

The study completed in other states brought to light that in Louisiana, criminal defense lawyers carry nearly five times the caseload that they should. Colorado and Rhode Island defense lawyers carry two to three times the caseload that they should. In Texas, excessive caseloads carried by public defenders and appointed lawyers resulted in only .025 of cases adjudicated were tried before a jury rather than the recommended 10 percent to 20 percent. 



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