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Who Defends the Public Defenders?

by Jayson Hawkins

The Sixth Amendment to the U.S. Constitution offers a guarantee of the assistance of an attorney when accused of a crime. This guarantee has become a trope in countless movies and TV shows where suspects are advised: “If you cannot afford an attorney, one will be provided for you.” The right immortalized in these Miranda clichés grew out of a series of U.S. Supreme Court decisions that interpreted the Sixth Amendment as a guarantee to effective assistance of counsel.

These decisions culminated in the landmark U.S. Supreme Court decision in Gideon v. Wainwright, 372 U.S. 335 (1963), in which the Court held indigent defendants accused of felonies in state courts must be appointed counsel.

As a result of Gideon, many states developed Public Defenders Offices that employed attorneys in the full-time task of defending the indigent. This noble task, however, often functions at the whim of other, more powerful officers of the court, and as a result, public defenders sometimes find themselves in need of defending.

Two such defenders were Dean Beer and Keisha Hudson of Montgomery County, Pennsylvania. These attorneys filed a brief with the state supreme court detailing what they called excessive and unwarranted bail amounts for certain indigent defendants. They cited numerous examples, including a first offender teen mother still nursing an infant assigned $50,000 bail.

Despite this situation being described by University of California-Davis law professor Irene Oritseweyinmi Joe as incumbent upon public defenders by the standards of “human decency and the laws of professional responsibility governing the legal profession,” not only did the court decline the motion, but after one of the named judges demanded an apology, Beer and Hudson were fired by the Montgomery County Board of Commissioners.

Bennet Baur, chief public defender for New Mexico, also faced trouble for trying to do his job. After his repeated demands for more funding were ignored, he ordered one of his county offices to stop accepting clients. A district judge subsequently found him in contempt of court, and had Baur not relented, he, too, would have been out of a job.

The inherent vulnerability of the public defender’s office stems from the institutional structures in which they operate. In most cases, public defenders are part of executive or judicial branches of government. Each form has problems. The executive branch is tasked with law enforcement, creating a built-in adversarial relationship with public defenders. If an attorney is deemed too zealous or troublesome, removal is often an easy task and more pliant replacements are in abundant supply. The judicial branch is nominally neutral, but in reality, it prefers cases to move without the hitches a determined defense attorney can cause.

If the offending attorney literally works for the frustrated judge, it is unlikely he will continue to do so.

What many advocates say is necessary is a public defender who is independent of other court officers and protected by a state-actor with the clout to both guarantee their independence and ensure adequate funding flows into the defender’s coffers.

Professor Joe recommends public defenders be placed under the aegis of the Inspector General. “This position would reaffirm the role of the public defender as a protector of the general public, as it serves as a check on the government’s intrusion into a citizen’s life through the criminal process,” she said.

Of all the criminal justice reforms being advocated in the reckoning that followed George Floyd’s murder, few voices have been raised in favor of reforming the system that so many poor people of color depend on when they are caught up in the machinery of the criminal justice system. But as Beer and Hudson’s case so clearly demonstrates, something needs to be done to defend the public defenders. 



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