Gideon Alert: Prof. Lefstein points way to securing reasonable caseloads

BY David Carroll on Wednesday, December 14, 2011 at 6:12 PM

“Our nation’s public defense systems in state courts, with few exceptions, should be a source of great embarrassment for all of us: judges, bar associations, lawyers, public officials, and all other citizens,” states former Director of the Federal Bureau of Investigation and former United States District Court Judge, William Sessions, in the foreword to Professor Norm Lefstein’s new book, Securing Reasonable Caseloads: Ethics and Law in Public Defense. The source of that embarrassment is the simple fact that, across much of the country, indigent defendants count themselves among one of several hundred who are all vying for the attention of a single lawyer -- a lawyer who lacks the time, resources, and independence to adequately advocate on their behalf.  States neglect to provide any type of meaningful supervision or accountability for the representation provided by these overworked public defense lawyers.  And, far too often these public attorneys are beholden to the trial judge or the county administration for their pay check, creating a direct conflict between the lawyer’s own personal financial well-being and his ethical duty to advocate solely on behalf of his client.  As Judge Sessions notes, “[t]his undisputed and sad state of affairs undermines, indeed vitiates, respect for the rule of law both here at home and abroad and makes a statement to the world about who we are as a people and a society, a statement that we must no longer tolerate.”

In the Introduction, Lefstein notes, “this book is less about the existence of excessive caseloads in public defense than what can be done about them.” (For more on right to counsel deficiencies in the United States, we recommend: The Constitution Project’s Justice Denied: America’s Continuing Neglect of the Constitutional Right to Counsel; The National Association of Criminal Defense Lawyer’s Minor Crimes, Massive Waste; and Amy Bach’s Ordinary Injustice: How America Holds Court.)  Rather, Lefstein’s comprehensive book seeks answers to difficult questions such as: Should line attorneys “routinely file motions to withdraw and seek to curtail the assignment of new cases? If judges continue to pile on cases despite motions to withdraw, should public defenders force judges to pursue contempt proceedings? Is broad, systemic litigation, the answer?” and “What are the risks to defense programs if they do nothing despite genuinely excessive caseloads?”
Far too often discussions about indigent defense attorney caseloads devolve into a debate about numbers.  Securing Reasonable Caseloads, at its core, centers the caseload debate on whether attorneys do or do not have adequate time -- time for each and every case, so that each attorney can fulfill the duties owed to each client he represents.  This focus on sufficient time goes all the way back to Powell v. Alabama, 287 U.S. 45 (1932), where the United States Supreme Court stated unequivocally that public attorneys must be afforded adequate time to properly prepare and represent each and every defendant. Bemoaning the speed at which the defendants were processed through the system without proper investigation or preparation, the U.S. Supreme Court stated, “[t]he prompt disposition of criminal cases is to be commended and encouraged. But, in reaching that result, a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.  To do that is not to proceed promptly in the calm spirit of regulated justice, but to go forward with the haste of the mob.” (Emphasis added.)  Quoting Commonwealth v. O'Keefe, 298 Pa. 169, 173, 148 Atl. 73, the Powell Court went on to say, "[i]t is vain to give the accused a day in court with no opportunity to prepare for it, or to guarantee him counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case." Powell further underscores the importance of adequate time as the core of effective representation, stating: “The right of the accused … to have the aid of counsel for his defense, which includes the right to have sufficient time to advise with counsel and to prepare a defense, is one of the fundamental rights guaranteed by the due process clause of the Fourteenth Amendment.”  (Again, emphasis added.)

Subsequent cases invoking Powell drive home the point that having appropriate time is the cornerstone of a meaningful right to counsel.  Argersinger v. Hamlin, 407 U.S. 25 (1972) -- which applied the right counsel to misdemeanor cases carrying potential jail time -- in particular makes the connection between high public defense caseloads and the lack of time to properly prepare a case: “An inevitable consequence of volume that large is the almost total preoccupation in such a court with the movement of cases.  The calendar is long, speed often is substituted for care, and casually arranged out-of-court compromise too often is substituted for adjudication.  Inadequate attention tends to be given to the individual defendant, whether, in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction.  The frequent result is futility and failure.”

Sufficient time is, as this column has argued numerous times before, directly linked to independenceSecuring Reasonable Caseloads makes clear that the lack of independence is a primary reason why public defense attorneys and systems are not able to limit their own caseloads.  As the book explains in detail, many defense system attorneys reasonably fear they will lose their jobs if they challenge the court or the county administration that is telling them, or telling the chief defender who supervises them, to represent more clients than they can effectively and ethically represent.  Lefstein’s book opens with the story of his correspondence with “Pat” (not his real name), a recent law graduate newly employed as an assistant public defender in a northeastern metropolitan public defender office.  Within less than a year of starting the job, Pat’s caseload had gone from excessive to unbearable, and all of his attempts to get help through his supervisors and chief had been rebuffed.  He was discouraged from filing motions to withdraw, through anecdotes about the last lawyer who moved to withdraw having been promptly fired.  He was told that taking his complaints to the judges “could destroy the office” and would be “disastrous.”  He was eventually explicitly told not to file a motion to withdraw in any of his cases.  Less than a year after becoming a public defender, Pat left the agency. 

Pat’s story exemplifies what happens every day, all across the nation, in the indigent defense systems of our counties and states, where the defense function is not independent.   In the unfolding chapters of the book, Prof. Lefstein explains the primary causes of excessive caseloads, how independent systems are better able to address those root causes and limit caseloads, and why and how individual attorneys and their leadership and systems are obliged to limit caseloads to levels that allow effective representation.

Those of us privileged to assist states in meeting their constitutional duties under the Sixth Amendment know that we are simply developing new strategies for improvement based on the work of those that have been fighting the good fight for decades.  We are standing on the shoulders of giants, and Norm Lefstein is one of those giants. Professor of Law and Dean Emeritus of the Indiana University School of Law—Indianapolis, Lefstein’s accomplishments are far too numerous to mention.  His expertise on caseloads dates back to the 1970s when he served as director of the Public Defender Service for the District of Columbia (PDS).  Lefstein made critical and extremely difficult decisions as Director of PDS that gave the agency its well-deserved legacy.  During the first half of the 1970s, court appointed assigned counsel in the District of Columbia went on strike after a lack of appropriations prevented the court from paying all of their vouchers.  When the private attorneys declared unavailability en masse, the chief judge immediately asked PDS to increase its caseload.  Mr. Lefstein responded with a letter signed by the PDS Board of Trustees, announcing that PDS would continue to control its availability to take cases and detailing how the assignment process would work, including enforcing vertical representation.  As may have been expected, the Chief Judge was less than pleased to receive such a decree.  Nevertheless, with the backing of an independent board, Lefstein stood firm in his declaration of unavailability for cases in excess of the agency’s self-imposed caseload limits.  The Chief Judge backed down, as he was unwilling to erode the tradition of excellence demonstrated by PDS throughout its early existence.  Lefstein has personally walked much of the path that he lays out in his book, calling on public defense attorneys and leadership to fulfill their ethical duties to their clients first and foremost and to resist excessive caseloads.

In closing, we echo the words of Judge Sessions, “[t]his book serves as an insistent wake-up call for all of us, particularly for lawyers and judges who have taken an oath that we will never reject or ignore the causes of the oppressed or defenseless.  For too long, we have tolerated, through ignorance or design, systems of indigent defense that violate the Constitution, our own Rules of Professional Conduct, and common standards of human decency.”  Securing Reasonable Caseloads is published by the American Bar Association, Standing Committee for Legal Aid and Indigent Defendants and is posted online where you may access a free PDF of the entire book (click here).  The ABA is also offering a limited supply of complimentary print copies of the book.

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