Public Defenders on the Ropes: No Cash, No Conviction

Budget cuts to the nation’s public defenders could set killers free.

Suspected serial killer Ellis appears in court with Public Defender Lockwood in Milwaukee
Serial killers like Walter E. Ellis (above) can have their convictions overturned if they lack proper legal counsel. (Photo: Allen Fredrickson/Reuters)
Matt Fleischer is a TakePart contributor who was awarded a Fund for Investigative Journalism grant for his series “Dangerous Jails.”

Crisis is a word that gets tossed around frequently in the news. But when it comes to the budget of public defenders officers in the state of Louisiana, the term is about as accurate as a laser sight.

In February, the New Orleans public defender’s office laid off a third of its lawyers—including some of the most senior and experienced members of staff—due to budget shortfalls. In a city where 80 percent of defendants are too poor to pay for a lawyer, the effect was legal paralysis.

Meanwhile, months later, the East Baton Rouge, Louisiana, public defenders office threatened to stop taking death penalty cases entirely if the budget for its office wasn’t raised. Louisiana is still dealing with the fallout of both situations.

MORE: A Tale of Two Executions

The Sixth Amendment guarantees individuals on trial the right to legal counsel—even if they can’t afford it. Not only are those on trial entitled to counsel, thanks to the Supreme Court case Strickland v. Washington (1984), but they’re also entitled to “competent counsel.”

If you don’t have public defenders, you don’t have a criminal justice system.

The competent counsel guarantee means that even if a defendant is guilty as sin, their conviction can be overturned if they can prove they had a terrible or overworked lawyer. If a defendant is shown to have inadequate counsel, the trial starts again—which means more money spent, more public resources exhausted, and more trauma for the victim’s family, who have to relive the crime all over.

If you don’t have public defenders, you don’t have a criminal justice system.

Of course, underfunded and overwhelmed public defender’s offices are nothing new in America—and they’re certainly not isolated to Louisiana. The Missouri Public Defender Commission has been begging for adequate resources since 1979. In 2008, the state was spending barely 50 percent of the national average on indigent defense—well behind even poverty-stricken states like Alabama. 

Several months ago, TakePart spoke with former Federal prosecutor Donald Heller, the author of California’s 1979 death penalty law. A lifelong Republican who earned himself the nickname “Mad Dog” for his aggressive approach to prosecution, Heller told us that a few years of witnessing overmatched and incompetent public defenders on death penalty cases made him regret ever getting involved with reinstating the death penalty.

“In my drafting the initiative I assumed courts would appoint serious lawyers to death penalty cases—never suboptimal,” Heller said. “That didn’t happen.”

Inadequate public defense is one of the main reasons Heller is now backing the SAFE Initiative—a California ballot measure that will end the death penalty in the Golden State should voters approve it in November.

Heller had his change of heart in the early ’80s. Things were bad back then. In our current economic climate of austerity fetishism, they’ve only gotten worse.

Despite facing arguably the biggest caseload in the nation, the Los Angles County Public Defender’s Office is currently up against a hiring freeze. Stan Shimotsu, Chief Deputy Public Defender of L.A. County, tells TakePart that while the current budgetary situation is tough, his office is holding the fort.

With upward of 10 million people, Los Angeles County is the most populous in the nation. That density and size allows for pooling of resources that smaller counties lack—allowing defenders to handle expensive, drawn-out death penalty cases without sending the office into financial crisis.

Shimotsu says his office has 130 “Grade-4” lawyers capable of trying a capital case—out of a staff of more than 730 lawyers. These lawyers handle roughly 50 to 80 death cases per month, as well as all other serious felony cases.

“We are very cost effective because of the scale of our office,” explains Shimotsu. “We have the ability to employ investigators. Our paralegals are highly trained. We have been very successful at petitioning the court for experts. Because of the built-in resources we have, we’re able to manage these cases in a cost efficient manner.”

Smaller counties with fewer resources don’t have these luxuries. Between the cost of contracting experts, investigators, and a host of other specialty services, a single protracted capital case can cost upward of a million dollars.

“A capital case trial can absolutely bankrupt a smaller county,” says Shimotsu.

If prosecutors bring death penalty charges, counties often have no choice but to eat these expenses. Interestingly, despite the popularity of the death penalty across America, the crisis in our public defender’s officers could eventually become capital punishment’s downfall.

If public defender budgets keep being cut across the country, counties will eventually be forced to decide whether keeping the death penalty alive is more important than securing actual convictions for murderers.

America has never been accused of being the world’s leader in rational criminal justice decisions, but letting killers go free just to maintain the death penalty is one issue even the most rabid law-and-order rhetoricians will have a hard time spinning. 

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