It’s been half a century since the U.S. Supreme Court ruled that criminal defendants must be given a lawyer, even if they can’t afford to pay. Today, about 80 percent of criminal defendants rely on a public defender. But many public defenders face crushing caseloads that make it hard to give adequate time and energy to each client. Kojo explores representation for indigent defendants and asks what overworked public defenders mean for the criminal justice system.

Guests

  • AJ Kramer Federal Public Defender for the District of Columbia
  • Karen Houppert Journalist; Lecturer, Morgan State University; Author, "Chasing Gideon: The Elusive Quest for Poor People's Justice" (The New Press, 2013)
  • Jonathan Rapping President and Founder, Gideon's Promise; Professor, Atlanta's John Marshall Law School; Former Staff Attorney and Training Director, D.C. Public Defender Service

Scene From ‘Defending Gideon’ Documentary

Scene From ‘Gideon’s Trumpet’ Movie

Panel Discussion On Gideon Case

A conversation with Gideon Supreme Court clerks, litigators and scholars.

Transcript

  • 13:06:41

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. If you watch enough crime shows on TV you know what the police tell suspects as they slap on the handcuffs, "You're entitled to an attorney, if you cannot afford one, one will be appointed by the court."

  • 13:07:11

    MR. KOJO NNAMDIThe right to an attorney comes from the Supreme Court ruling in the landmark Gideon versus Wainwright decided 50 years ago last month. But half a century later overworked public defenders can't keep up with the growing number of poor people who need their help even though crime rates are down nationwide.

  • 13:07:32

    MR. KOJO NNAMDIA tough on crime mentality has led to more prosecutions while public defenders offices are severely underfunded and their attorneys are overwhelmed with cases. The numbers tell the story. More than 80 percent of criminal defendants in this country are indigent and cannot afford a lawyer.

  • 13:07:52

    MR. KOJO NNAMDIMeanwhile, many public defenders handle several hundred clients a year forcing them to plead cases more often than they carve out time to investigate the facts, interview witnesses and mount a defense in court. Joining me to look at the legacy of Gideon and the criminal justice system today is A.J. Cramer, federal public defender for the District of Columbia. He joins us in studio. A.J. Cramer, thank you for joining us.

  • 13:08:19

    MR. A.J. CRAMERThank you very much for having me.

  • 13:08:20

    NNAMDIAlso with us in studio is Karen Houppert. She is a journalist and a lecturer at Morgan State University in Baltimore. She's the author of "Chasing Gideon: The Elusive Quest for Poor People's Justice." Karen Houppert, thank you for joining us.

  • 13:08:36

    MS. KAREN HOUPPERTThanks for having me.

  • 13:08:37

    NNAMDIAnd joining us from studios at WABE in Atlanta is Jonathan Rapping president and founder of Gideon's Promise. He's a professor at Atlanta's John Marshall's Law School and he's a former staff attorney and training director with the D.C. Public Defender Service. Jonathan Rapping, thank you for joining us.

  • 13:08:58

    MR. JONATHAN RAPPINGThank you, Kojo. It's great to be with you.

  • 13:09:00

    NNAMDIYou too can join this conversation by calling us at 800-433-8850. You can send email to kojo@wamu.org. Have you ever been charged with a crime and relied on a public defender? What was your experience or if you or someone you knew ended up in criminal court, would you be confident that a public defender would provide the same quality of legal counsel as a private attorney? 800-433-8850.

  • 13:09:26

    NNAMDIKaren Houppert, let's start with a situation that could happen to any of us. How did 18-year-old Sean Raplogra (sp?) find himself charged with vehicular manslaughter in Spokane, Wa. and why did he turn to a public defender?

  • 13:09:43

    HOUPPERTWell, Sean was, had his first car. He'd only had it about a week when he was 18 years old and was in a car accident. He had the right of way on a road, but an elderly gentleman pulled out in front of him and he hit the car and the older man was taken to the hospital and died about a week and a half later.

  • 13:10:05

    HOUPPERTAnd so Sean was accused of vehicular manslaughter and his family was working class and he ended up with a public defender out there. But what was interesting to me about his case is that he had a very, very devoted public defender, but she was carrying 101 cases at that time, whereas the prosecutor of the case was carrying 28 cases.

  • 13:10:32

    HOUPPERTAnd really pushing to go to trial quickly and she was not ready so she took a stand and said, "I can't do this." The judge threatened to hold her in contempt of court if she didn't go through with the trial and she really resisted and stood up for her client, recognized that she hadn't had the time to investigate the case and to really prepare for a trial.

  • 13:10:58

    HOUPPERTSo I use her case to kind of look at what can happen to someone and in this case it turns out that the elderly gentleman actually had a pre-existing hernia that the emergency room operated on and his own doctor had known about it for years but had declined to operate because the man was too fragile.

  • 13:11:22

    HOUPPERTSo Carol D. Hunikey (sp?) the public defender was able to find that out with the additional time she fought for. But what I thought it illustrated is, what if she hadn't taken a stand? What happens when, you know, you're rushed into trial with these public defenders who just don't have the time to really work a case properly?

  • 13:11:41

    NNAMDIBut in his situation, it is my understanding, the case went to trial after two years?

  • 13:11:47

    HOUPPERTYes, yes, it kept, it did drag on for various reasons and part of the problem that public defenders encounter too as cases go on longer and longer is that evidence disappears. In Sean's cases, you know, skid marks on the road, etc had disappeared but part of the problem was the public defenders are carrying so many cases that they can't possibly prepare for trial as swiftly as the prosecutors perhaps want to in that case because the playing field's not level there.

  • 13:12:20

    NNAMDIAnd, of course, because it took two years, it's my understanding, that even though he was ultimately acquitted by then his life had been adversely affected by all this.

  • 13:12:29

    HOUPPERTYes, yes, he ended up suffering from some very serious anxiety. He had huge school loans he could never pay back and he still is not allowed to drive 10 years later. So it has really affected his life and what was interesting was the elderly man's daughter was in the car and she told when I was reporting on this that ultimately the trial didn't make her feel any better. It wasn't restitution of any sort.

  • 13:12:59

    HOUPPERTIt was just dragging this whole thing on and it really makes you question sometimes what the point is and if someone's life like this is going to be severely affected, you have to look at what, you know, what the impact for the courts is and what the impact on people's lives are when the public defender cannot a good job and can't do it in a timely way.

  • 13:13:28

    NNAMDIA.J. Cramer, you've been the federal public defender for the District of Columbia since this office was established in 1991. How big is your staff? Who are your clients?

  • 13:13:37

    CRAMERRight now we have 15 lawyers besides myself. Our clients are people who are accused of federal crimes in the District of Columbia, it runs a whole gambit of crimes from drugs and guns, which are two of the probably the most common crimes that we defend to child pornography, mail fraud, wire fraud, large conspiracy cases, international cases like hijacking and various terrorism cases we've handled over the years, trade sanctions. It's really a very wide gambit of cases.

  • 13:14:12

    NNAMDIThe District of Columbia has a federal public defender service and a local public defender service, what's the difference?

  • 13:14:18

    CRAMERThe difference is our office, the federal public defender, only operates in federal courts, United States District Court for the District of Columbia and the United States Court of Appeals for the D.C. Circuit. The local public defender which is much larger, handles cases only in D.C. superior court and the local D.C. court of appeals.

  • 13:14:37

    CRAMERSo we're funded differently, we're two separate agencies and we operate in two different courts although we have a lot of clients who overlap at various times.

  • 13:14:47

    NNAMDIJonathan Rapping, you started your law career at the D.C. public defender service, how did you end up in Georgia running a sort of Peace Corps for public defenders?

  • 13:14:57

    RAPPINGWell, I was the training director at the D.C. public defender service in 2004 when someone who is a hero of mine who had been doing great work in Georgia for a long time, Stephen Bright, asked I'd consider coming down and being the new training director for a new statewide public defender system in Georgia.

  • 13:15:17

    RAPPINGAnd Steve is someone who's hard to say no to and it seemed like an amazing opportunity to be in on the ground floor of a real reform movement. And so I moved to Georgia to become the training director of that system and really started thinking about how we could recruit new, young lawyers, energetic passionate lawyers to Georgia and put them through a training and mentoring program and develop them into really tomorrow's leaders.

  • 13:15:45

    RAPPINGAnd so that's what brought me to Georgia and led me to develop the model that now is sort of the basis of Gideon's Promise, which is a regional program to recruit, train and mentor public defenders across the South.

  • 13:15:58

    NNAMDIKaren Houppert, how did you decide to write this book about the aftermath of the Gideon decision, the book we mentioned earlier, "Chasing Gideon: The Elusive Quest for Poor People's Justice?"

  • 13:16:08

    HOUPPERTWell, the 50th anniversary of the Supreme Court decision, Gideon versus Wainwright, was coming up and I had been struck by the fact that there was this tremendous crisis in the courts and that everybody that worked there seemed to know about it. Prosecutors, public defenders, judges, law clerks, everyone seemed aware that there was this huge problem in the courts and that they weren't functioning properly and that people's constitutional rights were being violated.

  • 13:16:37

    HOUPPERTAnd yet nothing was really getting done about it and I decided to kind of take a look, see what the lay of the land was 50 years after Gideon and get a sense of why the courts are malfunctioning in this way.

  • 13:16:54

    NNAMDIJohn, what exactly did the Supreme Court say in its Gideon versus Wainwright decision in 1963?

  • 13:17:02

    RAPPINGI think in a nutshell the Supreme Court said, you know, we can't have a fair fight unless people have good lawyers. That without lawyers you can't have justice and you can't equal justice unless poor people get the kind of lawyer that you or I would want for ourselves. and so essentially the court created a right to counsel as sort of a necessary or core principle to ensure that poor people have justice in our courts.

  • 13:17:32

    NNAMDIWhat recourse does a defendant have if he or she thinks that his or her court appointed lawyer did not do a good job?

  • 13:17:39

    RAPPINGWell, that's an interesting question because when Gideon was decided there really wasn't a standard set for what qualifies as a good lawyer, a competent lawyer. It wasn't until 21 years later in a case called Strickland versus Washington, that the court was given the opportunity to answer that question. And they set the bar incredibly low and essentially what the court did in Strickland in 1984 was they created a new class of lawyers.

  • 13:18:08

    RAPPINGIt's a class of lawyers incompetent yet constitutionally effective. The court literally said that if you think your lawyer didn't do a good job you have the burden to prove two things. First, you have to show that your lawyer was incompetent, whether they were drunk during trial, asleep for part of trial, didn't do any preparation.

  • 13:18:32

    RAPPINGYou have to show they were incompetent but even if you show they were incompetent you've got to further. You have to show that if you had a competent lawyer, a sober lawyer, an awake lawyer, a prepared lawyer, you would've won your case. It became a burden that is basically impossible to prove and unfortunately states undergoing budget crisis get the message and that is that we do not have to provide poor people good lawyers.

  • 13:18:57

    RAPPINGWe might have to give them a warm body but we don't have to give them much. And what you've seen is what Karen is describing, public defenders who are given caseloads that they can't possibly handle without the resources to do it and poor people are falling through the cracks.

  • 13:19:12

    NNAMDIA.J. Cramer, John just mentioned states facing budget crisis, we're also facing a budget crisis at the federal level. The federal budget sequester is apparently forcing you to furlough attorneys, what will be the impact in your office?

  • 13:19:25

    CRAMERWell, the impact in our office is terrible where, right now, it's at 27 furlough days per person between now and October 1st when the fiscal year. So it's essentially one day a week per person which is a 20 percent pay cut. It's also the problem is that your, this work is still there and trying to do the work when you have 20 percent less time in the office to do the work. So it's a terrible burden on people as far as their living is concerned and it's a terrible burden on people as far as their workload is concerned.

  • 13:20:00

    NNAMDIWe're talking about public defenders and the legacy of Gideon versus Wainwright, taking your calls at 800-433-8850. Do you think the quality of your lawyer determines how well you do in a criminal trial, 800-433-8850? You can always send us a Tweet at kojoshow. Here is Billy in Woodbridge, Va. Billy, you're on the air. Go ahead, please.

  • 13:20:22

    BILLYHi, Kojo. How are you? Thank you for taking my call. I wanted to share my story, which recently affected me and, you know, good about eight years ago. I had expired tags which I got pulled over for. And the day -- and, you know, it was one of those situations I wanted to make sure I kind of fought it. I wanted to take it off. So I wanted to go into court and pay my fine except that same particular day, and it had to be -- it was ironic that my citizenship case came through, so I'd forgotten about the -- I paid attention to more my citizenship case.

  • 13:20:58

    BILLYWhat happened is my -- of course my license got suspended. Now I'm in a little bit more of a situation. I get pulled over in rush hour traffic, no speeding, no nothing. And so now I had to go to court. Obviously I have to get a lawyer. I wasn't able to afford a lawyer so they gave me a public lawyer which, you know, from the beginning it just felt like there was no, you know, interest in what he had to offer me.

  • 13:21:26

    BILLYHe ended up letting me speak in court. I explained to them everything that had happened to me and the reasons to why it ended up being a suspended license. And to me I don't think it was that big of a deal to where the judge ended up giving me a misdemeanor charge. And, you know, eight years later I get this great opportunity at work to where, you know, I was refused employment because of that charge. And I just feel like if I had the money, if I had the resources and if I would've hired him, you know, to give him, you know, 3,000 or $4,000 I think he would've done so much more for me.

  • 13:22:05

    BILLYI just felt like he went through the motions of just saying that, well, I'm here, except that really didn't do -- didn't offer me the services. So, you know, it's stuff I get...

  • 13:22:16

    NNAMDIAnd what is your opinion, Billy, about why that happened?

  • 13:22:20

    BILLYI just think that he wasn't, you know, interested because he wasn't making any money. And I just felt like I don't know if that was the case or was it -- I really don't know. I just felt like if I could afford him he probably would've...

  • 13:22:35

    NNAMDINone of us knows for sure what happened in your situation, Billy. My concern however -- and A.J. Kramer, you can address this -- is whether or not Billy may have come to that conclusion when what was affecting that public defender was an entirely different situation, as in an overload of cases.

  • 13:22:54

    MR. A.J. KRAMEROf course there could be a number of reasons. And I think that all too often it's a common perception that public defenders are not -- if someone had money to hire a private lawyer they would be in a better situation. I think that's not true in the federal system for lots of reasons. But it all comes down to resources when you're talking a public defender office. You need lawyers to handle the cases. A caseload of 100 cases is totally -- the lawyer has no control over it. You can't even interview the clients properly, never mind do proper investigation. And then of course resources to hire the necessary experts and whatever you need to investigate a case.

  • 13:23:34

    MR. A.J. KRAMERSo it does all come down to resources. And if a public defender -- and of course I know nothing about Billy's situation, which is...

  • 13:23:40

    NNAMDISure.

  • 13:23:41

    KRAMER...but that's something people don't realize, that you can have something on your record and it comes years later and you cannot get it expunged for whatever reason and it sticks with you the rest of your life. And it points up the importance of resources so that lawyers, public defender offices can properly handle cases.

  • 13:23:59

    NNAMDIGot to take a short break. When we come back we'll continue this conversation on public defenders and the legacy of Gideon vs. Wainwright. If you have called, stay on the line. We'll get to your call. If the lines are busy, go to our website kojoshow.org and ask a question or make a comment there. Or send us an email to kojo@wamu.org. I'm Kojo Nnamdi.

  • 13:26:07

    NNAMDIWelcome back to our conversation on public defenders. We're talking with Jonathan Rapping. He is president and founder of Gideon's Promise. He's a professor at Atlanta's John Marshall Law School and former staff attorney and training director with the D.C. Public Defender Service. A.J. Kramer is the federal public defender for the District of Columbia. And Karen Houppert is a journalist. She's also a lecturer at Morgan State University in Baltimore and author of the book "Chasing Gideon: The Elusive Quest for Poor People's Justice."

  • 13:26:36

    NNAMDIKaren Houppert, there's no uniform system for providing counsel for indigents. Some states have public defenders. Some counties and cities do also. Whose job is it to provide an attorney when a criminal defendant can't hire his own?

  • 13:26:51

    HOUPPERTWell, the Supreme Court decision said that every person must be provided with counsel, but they didn't really spell out how that was supposed to happen. And there was obviously no money attached to that mandate. So what's happened is there's been a patchwork of solutions developed. And every state has a different system. Counties have different systems. Cities have different systems.

  • 13:27:14

    HOUPPERTAnd what that's resulted in is a very uneven field where, for example, if you're arrested in New York City, you probably have a pretty good public defender. If you drive two hours north of the city you're likely to get a much worse shot at being let off. And, you know, what that -- and that's common across the country. Because of different caseloads, because of different resources, numbers of investigators, it really is a very haphazard solution to the problem.

  • 13:27:50

    NNAMDIAre there jurisdictions in which law firms that offer attorneys to do pro bono work can also be appointed, can also have...

  • 13:27:58

    HOUPPERTYes.

  • 13:27:58

    NNAMDI...attorney -- private attorneys appointed to cases?

  • 13:28:00

    HOUPPERTYes. That definitely happens. And that can be a very good thing. It can also backfire a little bit. Down in New Orleans recently a third of the public defender staff was laid off. And a judge appointed lawyers to defend these clients who had no attorneys. And, you know, you then had a tax attorney in there trying their first criminal case. So it can be a good thing, but it can also backfire.

  • 13:28:29

    NNAMDIHere is Katherine in Washington, D.C. with her experience. Katherine, you're on the air. Go ahead, please.

  • 13:28:34

    KATHERINEHi, Kojo. I was calling -- I had the very interesting experience and I think that in this country unfortunately justice is too often what you can afford and not what you deserve. But I was in court in Fairfax, Va. And I had the interesting experience of the judge asking my attorney if he was a paid or appointed lawyer. And this was when we were up in front of him. And it struck me as very odd that that would even be a question that would be allowed to be asked or that that would factor in at all to his decision. I was just curious what the panel thought about that.

  • 13:29:20

    NNAMDIDid you feel that it factored in at all?

  • 13:29:24

    KATHERINEI did, I did. I thought it was very strange and I was very lucky have an attorney who fought very hard for me and did his best for me even though it was a pro bono case. And I felt like had I said he was a paid -- you know, had I said he was a paid attorney that would have perhaps swayed the judge one way -- the fact that he even asked the question I think was the concern.

  • 13:29:59

    NNAMDIJonathan Rapping, do you think that makes a difference?

  • 13:30:02

    RAPPINGWell, you know, it's impossible to figure out what's going on in the judge's mind. One thing that the judge may have been doing is trying to figure out if the court is spending its money on a lawyer for a person who doesn't qualify. And then let me just be very clear about what I mean when I say doesn't qualify. I don't mean that a middle class person can afford a lawyer, which is very expensive but the cutoff for an appointed lawyer is very low. You have to really not have any money.

  • 13:30:36

    RAPPINGAnd so if you're slightly above that cutoff, if you're just making ends meet, if you're barely putting food on the table for your four children, you might not qualify and you might have to pay for a lawyer. And there are judges who are counting pennies that want to make sure we're not giving free lawyers to people who come above the cutoff. I think the problem with that judge's question is maybe that judge is more concerned about the court's budget than about ensuring that justice is done. That's what concerns me is judges shouldn't be in the business of counting pennies in the justice system.

  • 13:31:09

    NNAMDIHave you had that experience, A.J. Kramer?

  • 13:31:11

    KRAMERYes. You know, it can also come up sometimes -- of course it's a terrible question to ask because it seems like you're going to be somehow treated differently. It does sometimes come up, judges will give -- might have a long calendar, say ten or fifteen cases or more and they might give preference to paid lawyers with the -- thinking that, well, public defenders, they're going to be paid their salary, and they're going to be here. And having them sit around waiting is no big deal as compared to a paid lawyer who might be charging someone by the hour.

  • 13:31:44

    KRAMERNow I think that's terrible too because public defenders have a lot of work to do, if not more than paid lawyers. So -- but that could also be part of the equation.

  • 13:31:54

    NNAMDIKatherine, thank you very much for your call. Speaking of public defenders having a lot of work to do, Karen, you write about the overwhelming caseloads that make it difficult for public defenders to do a good job for some clients. How many cases does a typical public defender handle in a year? And what does the American Bar Association consider a manageable caseload?

  • 13:32:15

    HOUPPERTWell, the number of cases that an attorney, public defender carries can vary widely. But they go as high as 2,200 misdemeanor cases a year down in Miami. One public defender I spoke to out in Washington had 460 juvenile cases. But what the American Bar Association recommends is 150 felony cases a year.

  • 13:32:40

    NNAMDI...a year.

  • 13:32:42

    HOUPPERTRight, as a manageable caseload. And most places are well over that.

  • 13:32:48

    NNAMDIYeah, I've read about places that had as many -- attorneys with as many as 800 cases a year?

  • 13:32:52

    HOUPPERTYeah, yeah. And, you know, if you break that down timing-wise that's, you know, half an hour a client or something, you know. So it's a serious crisis.

  • 13:33:03

    NNAMDIOn to Oswald in Alexandria, Va. Oswald, your turn.

  • 13:33:08

    OSWALDYeah, I just want to talk about all this nonsense about, you know, that they're, you know, oh boo-hoo, you know, we have heavy cases, blah, blah, blah. First of all, (word?) if she wanted a real defense, she should've paid for her defense, you know, rather than stick the taxpayers with it.

  • 13:33:23

    NNAMDIWhat about somebody who cannot afford to pay for a lawyer, Oswald?

  • 13:33:29

    OSWALDWell, they probably did something wrong and I think that...

  • 13:33:32

    NNAMDIOswald, let's start over again. Somebody is charged with an offense and needs a lawyer to defend them. What causes you to come to the conclusion that that person probably did something wrong?

  • 13:33:46

    OSWALDWell, here, here's the thing. I saw it. My professors showed a video of the judge speaking on the -- I guess on congress or whatever. And she said what happens is that these lawyers who are doing this indigent defense are practicing something like, you know, defensive medicine. Like they're so afraid of like their version's malpractice, stuff like, you know, that you didn't give good counsel or something, that they go ahead and they do all sorts of unnecessary experts and tests and investigative...

  • 13:34:14

    NNAMDIWould you...

  • 13:34:15

    OSWALD...instead of taking what the FBI said, their word for it. They had to have...

  • 13:34:20

    NNAMDIWould you be willing to share the name of that professor who told you that they should be taking the FBI's word for everything that the FBI says? Because I'd be interested in having that professor frankly investigated, Oswald. Thank you very much for your call. We will move on to Sampson in Falls Church, Va. Sampson, you're on the air. Go ahead, please.

  • 13:34:42

    SAMPSONThank you very much, Kojo. Great show. You have the best job in the world. My question is to Mr. Kramer. I just sat through the master D.C. bar exam and I've always wished to be a defense attorney. And I intend on being on the CJA panel in superior court, and perhaps in D.C. court in D.C. -- U.S. District Court for D.C. My question to Mr. Kramer is -- well, first of all, please, I think the public needs to know that there is a difference between public defenders and court-appointed lawyers, even though we are all despised equally, I believe.

  • 13:35:24

    SAMPSONMy question is, I've been trying to, you know, get ready and find out the application, the procedures. And there is not, you know, one place where you could, you know, in an understandable, easy fashion apply to the CJA panel both on the district and superior courts, like deadlines for example. And my last question was...

  • 13:35:52

    NNAMDISo you're asking A.J. Kramer to facilitate how you can best join his service or his office? I'll give him the opportunity for a brief response.

  • 13:36:02

    KRAMERWell, I think he's asking how to join the Criminal Justice Act panel, the CJA panel. And there is...

  • 13:36:07

    NNAMDIWhich is what?

  • 13:36:08

    KRAMERThat's the act that created shortly -- well, it took a while after Gideon was decided -- Congress passed an act called the Criminal Justice Act which established the federal public defender system for the federal courts of the United States. And also the cases where private lawyers would be appointed when the federal public defender office either could not handle the case or primarily has a conflict with the case. We handle every case with which our office does not have a conflict. But if there's two defendants, our office cannot represent both. And what's called a CJA lawyer then represents one.

  • 13:36:46

    KRAMERAnd the simple answer is our office administers that panel for the court and has the application forms to apply to become a member of that panel.

  • 13:36:56

    NNAMDISampson, thank you very much for your call. Good luck to you. Jonathan Rapping, can you talk about the imbalance between funding for prosecutors and funding for public defenders? Only a tiny fraction of the money we spend on criminal justice in this country apparently goes to public defenders.

  • 13:37:12

    RAPPINGWell, that's true at every level. So not only generally do states spend less money on public defenders than they do on prosecution. But prosecution has additional resources like police departments, government state forensic labs at their disposal. And public defender offices have to come up with those resources on their own. But also, you know, at the federal level, the federal government does invest in state criminal justice. The federal government spends about a half a billion dollars in what's called burn grant money on criminal justice writ large at the state and local levels.

  • 13:37:55

    RAPPINGAnd the vast majority of that money goes to arresting people, prosecuting people, incarcerating people. Less than 1 percent of that goes to support public defense. And so I actually think one thing we should be demanding is that the federal government support this right to counsel at the state level. And I will say up until now, the federal government has not really put pressure on states to do that.

  • 13:38:24

    RAPPINGThe one thing the federal government has done up until now, and is starting to backslide on, is at least been -- they've had the moral voice of showing that at the federal level they have been relatively good about providing funds for federal defender offices. And now in the wake of the sequestration, as A.J. described, they're even going back on that. And so they're even losing sort of their moral authority to point to the federal system as a model for states to follow. And I think they're sending the message to the states that when economic times are tough, we can cut it out of indigent defense in the promise of Gideon.

  • 13:39:01

    NNAMDIWho controls how many cases flow into the criminal justice system? And what are the consequences for defendants when the number is high and the system is crowded, Karen Houppert?

  • 13:39:12

    HOUPPERTWell, I think one of the things that's helped fuel this crisis is the fact that there's the war on drugs, that there's pretrial detention. Keeps people in jail longer, tough-on-crime policies. All of those things have led to this flooding of defendants in the courts such that 30 years ago about 300,000 people would go through the courts in a year. And now that number exceeds 2 million. So that has really, you know, created this crisis in the courts. And that's part of what I think public defenders are trying to get out from under.

  • 13:39:52

    HOUPPERTAnd some of that has to do with then changing the laws. Does a teenager who's picked up for possession of marijuana really need to go through the courts or can he be fined? A lot of jurisdictions are now experimenting with that. So, you know, all of that has helped fuel the problem.

  • 13:40:10

    NNAMDIWe got an email from June who says -- and this is a bit long, so bear with me. "I'm a former assistant U.S. attorney for the District of Columbia, and I want to say that the District of Columbia is an aberration. A.J. Kramer's office, and the D.C. Public Defender Service give outstanding zealous representation to their clients. A defendant who gets a D.C. public defender in a first-degree murder case in D.C. Superior Court will have a very good lawyer indeed.

  • 13:40:33

    NNAMDI"D.C.'s Public Defender Service also has support services for its clients, and they monitor the practices of the U.S. Attorney's office. It is not like that in most of the country as I understand it. For example, not so long ago a defendant in a capital case in Alabama could be appointed a lawyer fresh out of law school. The state would pay that lawyer $2,000 to handle the case, including the appeal. You will not get adequate, competent, zealous, rigorous representation for $2,000, unless the lawyer is just giving away his services as a matter of principal and has resources of his own to fund the case."

  • 13:41:08

    NNAMDII did get the impression A.J. Kramer and Jonathan Rapping, that the federal and D.C. Public Defender Services are in a way superior in their representation.

  • 13:41:19

    KRAMERWell, I don't like to say superior.

  • 13:41:22

    NNAMDIThat was my word, not yours.

  • 13:41:24

    KRAMERIt really is a question of resources, and I think as John averred to, for years, the federal public defender system was seen as an example of what a public defender system should be and was when it's adequately funded, and I don't mean extravagantly funded, I just mean adequately funded. Believe me, we were always scrambling for resources, but when you're adequately funded it makes a huge difference and D.C. was fortunate that its local public defender was also -- has also been adequately funded.

  • 13:41:56

    KRAMERBut right now, as John averred to, the federal public defender system is being decimated by both spending cuts and on top of that sequestration. So what was the shining light I think of a public defender system is now being devastated.

  • 13:42:12

    NNAMDI800-433-8850. We're going into a break, but you can still call us. Do we have a separate system of justice for poor people in this country? What do you think? Do poor people have adequate if each public defender routinely handles hundreds of cases a year? 800-433-8850. Send us an email to kojo@wamu.or, or a tweet @kojoshow. I'm Kojo Nnamdi.

  • 13:44:14

    NNAMDIWelcome back to our conversation about public defenders. It's be 50 years since Gideon v. Wainwright was ruled by the Supreme Court that each person has the right to have an attorney representing him or her in a case. We're talking about how that works for poor defenders today with Karen Houppert. She's a journalist and a lecturer at Morgan State University in Baltimore. She's author of the book "Chasing Gideon: The Elusive Quest for Poor People's Justice."

  • 13:44:42

    NNAMDIJonathan Rapping is president and founder of Gideon's Promise. He's a professor at Atlanta's John Marshall Law School, and a former staff attorney and training director with the D.C. Public Defender Service. And A.J. Kramer is federal public defender for the District of Columbia. Can you talk about timing, John Rapping? Some defendants don't even meet with a public defender for weeks or months after they've been arrested and, in many cases, put in jail. What does that mean for the attorney's ability to put together a strong case?

  • 13:45:12

    RAPPINGLook every good lawyer knows that getting on a case early, getting to a crime scene early, investigating early, getting to know your client, is critical, but because of all these pressures we've been talking about, in much of the country that doesn't happen. You know, I left Georgia after two years, and I was working in the New Orleans public defenders' office helping rebuild that office in the wake of Hurricane Katrina, and the first time I walked into a courtroom, the judge was just processing cases.

  • 13:45:42

    RAPPINGThere were a row of men in orange jumpsuits shackled together, and the judge was calling cases, and he'd spend 10 or 15 seconds on each person and go on to the next name. And he called a case and there was no name, and turned to this row of men and said, is Mr. So-and-So here, and a man stood up and the judge said, where's your lawyer, and he said I haven't seen a lawyer since I got locked up 70 days ago, and the judge said, thank you, sit down, and went on with the processing. And what was more shocking to me than the fact that a man hadn't seen a lawyer in 70 days, is that everyone in that courtroom was used to that.

  • 13:46:15

    RAPPINGThat had become the standard of justice in New Orleans, and in far too much of this country, these really low standards of justice have become the accepted practice, and good passionate people go into the system, and some very quickly learn that if you're going to survive you have to give into the status quo (unintelligible) .

  • 13:46:34

    NNAMDIKaren Houppert, what could happen in those 70 that that client had not seen an attorney that could be disadvantageous to the client?

  • 13:46:44

    HOUPPERTWell, as Jonathan Rapping was just detailing, all of that work that could be -- all of that time could be spent working on this particular crime and talking to witnesses while their memories were still fresh, visiting the crime scene before evidence disappeared, like as I've mentioned before, you know, skid marks on the road, et cetera. But what Jonathan Rapping was talking about too is, you know, down in New Orleans where they've really be decimated in the public defender's office, I talked to one guy who had been sitting in jail for 16 months and had no attorney.

  • 13:47:21

    HOUPPERTHe had been arrested for a burglary charge, and he had no attorney, and he was one of 400 people down there who was languishing in the jails without representation. And, you know, I tell people that and they're like, how can that be, that's illegal. You have a constitutional right to counsel, and I just shrug. I don't know. How can that be?

  • 13:47:44

    NNAMDII found the other side to that coin in a series that the New York Times ran for the last couple of days indicating that -- and this is a quote from yesterday's edition, "Delays are a New York Court epidemic, but the Bronx is a special case with more old criminal cases languishing longer than anywhere else in the city. The results have bolstered the conventional wisdom that delays lead to acquittals." The New York Times in that piece was writing about a private attorney in the Bronx, who is -- as the Times described him, a master of delay, and said his approach bolsters this conventional wisdom that delays lead to acquittals. Is that true for public defenders, A.J. Kramer?

  • 13:48:24

    KRAMERI read that article also. I don't think, frankly, any defendant wants to delay, especially if they're locked up pending the case. Nobody wants to stay in local jails for long periods of time. So -- and as Karen said, any good lawyer wants to get out there and interview witnesses, find witnesses before memory fades, before evidence disappears. Of course, it does work the other way sometimes, that witnesses disappear or memories fade against the prosecution, so that can work. But delay is not generally something defense lawyers want or defendants want.

  • 13:49:02

    KRAMERThey want to have their case adjudicated so they know what's going to happen, and the lawyer doesn't want to handle a case for two or three years. There's too many other cases waiting, and cases need to -- it's people's lives at stake, and they -- if they're sitting in jail languishing, they want to have a resolution.

  • 13:49:23

    NNAMDIHere is Russell in Annapolis, Md. Russell, you're on the air. Go ahead, please.

  • 13:49:28

    RUSSELLThank you for taking my call, Kojo. Great show. Quick question. I was wondering why there's such a disparity between the caseloads for the prosecuting attorney versus the number of caseloads for the public defenders. I mean, does that imply that there's a better return on investment in dollars and cents? And I'll take my response off the air. Thank you very much.

  • 13:49:48

    NNAMDIWhat have you found, Karen Houppert?

  • 13:49:52

    HOUPPERTI think it's actually just an inadvertent underfunding of the public defenders' office, but I also think that underfunding comes from a societal perception that these folks, if they're arrested, are guilty. There's an assumption there that a lot of people make, and that makes it hard to persuade people that public defenders need to be adequately -- offices need to be adequately funded. So that perception kind of colors the way we think about our justice system in the country, unfortunately.

  • 13:50:27

    NNAMDIComment from you, John Rapping?

  • 13:50:30

    RAPPINGNo. I agree with everything Karen says. I think that if you're a politician and you are promising to put dollars somewhere, you're going to probably get farther in today's lock-them-up society, by promising to invest in policing and prosecuting than you would in investing in people who the public believes committed terrible crimes.

  • 13:50:53

    NNAMDIGot to interrupt because we're getting news that a source from CNN -- that a source from Boston law enforcement is telling CNN that officials have made an arrest in the Boston bombing investigation. This comes after law enforcement officials said they identified a suspect with help from video obtained from the department store Lord & Taylor, and a TV station. Law enforcement apparently plans to hold a news conference this afternoon at 5:00. At that point I guess we will find out more information.

  • 13:51:22

    NNAMDIBack to the topic at hand, A.J. Kramer, when public defenders look at their caseloads, are there certain types of cases they're more likely to plead than take to trial?

  • 13:51:32

    KRAMERWell, I don't think so in the sense of in the end it's the client's decision what to do, whether to plead or go to trial, and our office will honor that decision absolutely. We advise them of what the evidence is, we advise them if they ask questions how they think the trial might go. We give them -- answer any of their questions. We do all the work and prepare them. So I think -- and it should not make a difference, whether you think a case is going to plead or go to trial. It should be worked up the same way by the lawyer no matter which way you think it's going to go until the client makes the final decision which way the want to go.

  • 13:52:12

    KRAMERUnfortunately, as we've talked about all too much here, it all comes -- in the end it often comes down to resources and allocation of resources.

  • 13:52:23

    NNAMDIHere is Brian in Silver Spring, Md. Brian, your turn.

  • 13:52:27

    BRIANHi. Thank you for taking my call, Kojo. My questions is, they've been talk a lot about the right to counsel, but there's another provision in the Constitution that says you have the effective assistance of counsel. I'm just curious if there isn't some way to kind of solve the funding problem with lawyers to go out and play -- if enough people band together saying if you did not get effective assistance from the public defender service and then kind of suing the public defender service or the state agency that funds them to say, we want effective assistance of counsel, therefore, you should match the prosecution for public defender funding, and then that way kind of spur on funding innovation. And I also had a quick follow up question about...

  • 13:53:01

    NNAMDIWell, allow me to deal with the first question first. John Rapping, care to respond to that?

  • 13:53:07

    RAPPINGYeah. I love that point, Brian. I think it's going to take a movement. It's going to take a movement that raises awareness in the public to demand that we correct this injustice. What we're trying to do is build a movement of lawyers who are in systems that are broken were everyone's lost sight of justice to go into courtrooms every day across the south, and remind people on the front end, before the convictions occur, this isn't what Gideon was all about. But I think we need a movement at every level to reawaken society to these principles that we seemed to believe in 50 years ago and have forgotten now.

  • 13:53:41

    NNAMDIFrankly, Karen Houppert, when we hear about the overwhelming caseloads facing many public defenders, it's hard to understand why there's not more outrage over this situation, why this movement has not taken hold as yet.

  • 13:53:53

    HOUPPERTYeah. It is shocking. And to respond to Brian's question, there are cases that are going through the courts where there is an effort to really rally folks, and one is the New York Civil Liberties Union right now has a class action suit going on where they have collected a bunch of defendants to get together and are pushing through the court saying we, as a group, because of the system, have received inadequate representation. And so that is actually making its way through the courts, and I think is slated for trial in October.

  • 13:54:28

    NNAMDIBrian, we remembered you had another question.

  • 13:54:31

    BRIANThe other quick question was, in the -- talking about recruits, is I wish I could see more law schools or the ABA requiring more law schools to set up criminal defense clinics whereby I think law students could take on some of the smaller misdemeanor cases and be able to take the pressure off and have the public defenders focus more on the longer term, harder felony cases, and I wonder if you could talk more about that a little bit.

  • 13:54:51

    NNAMDIA.J. Kramer.

  • 13:54:51

    KRAMERYes. Actually there is, and D.C. is fortunate to have that. Georgetown has a criminal justice clinic. It's a terrific idea, I think, as long as there's adequate supervision, obviously, and it obviously can be, as you said, some of the misdemeanor cases, and I think that the law students have a great deal of innovation and energy to devote to those kind of cases, and it works very well here in the District, I think.

  • 13:55:17

    NNAMDIBrian, thank you very much for your call. Here now is Lawrence in Sterling, Va. Lawrence, you're on the air. Go ahead, please.

  • 13:55:23

    LAWRENCEHi. I wondered how the speakers felt about the public's general perception that a public defender attorney is somehow of a lower quality attorney. I once heard someone go as far to say that they simply couldn't hack it at a real -- and I'll take my answer off the air.

  • 13:55:42

    NNAMDIWell, I can answer on behalf of them. They hate that perception, but I'd like to know in your research for your book, Karen Houppert, how widespread is that perception?

  • 13:55:52

    HOUPPERTI think that that perception is out there, but what I found was really a wide variety. I found some incredibly devoted, hard-working, committed public defenders out there, and what I think the biggest problem is, is that it's hard to sustain that energy and commitment in the face of the systemic problems in the courts, and Jonathan can probably talk too because he's working with these young public defenders too, and he hears every day how -- what obstacles they face in terms of doing good work.

  • 13:56:30

    NNAMDIJonathan?

  • 13:56:32

    RAPPINGWell, I know we're running short on time. I will say this quickly. The young lawyers I'm working with are heroic and they are breaking that mold every day. But the image exists, and I would just recommend to listeners a wonderful movie that is coming out called "Gideon's Army," which is going to air on HBO in July, and I believe it's going to be screened at Georgetown Law Center this Friday night. But it follows three lawyers who come through our program, and features our work, but really gives you an example that I think breaks that image -- undermines that image of the public defender as not caring or something less than passionate.

  • 13:57:06

    NNAMDIAnd that movie is also going to be aired on HBO is it not?

  • 13:57:09

    RAPPINGIt is. I believe July 1, early July.

  • 13:57:11

    NNAMDIJuly 1, "Gideon's Army" on...

  • 13:57:14

    RAPPING"Gideon's Army."

  • 13:57:15

    NNAMDI...on HBO. I'm afraid that's about all the time we have at this point. Karen Houppert is a journalist and a lecturer at Morgan State University in Baltimore. She's the author of the book "Chasing Gideon: The Elusive Quest for Poor People's Justice." Karen Houppert, thank you for joining us.

  • 13:57:30

    HOUPPERTThanks for having me.

  • 13:57:31

    NNAMDIA.J. Kramer is federal public defender for the District of Columbia. Thank you for joining us.

  • 13:57:36

    KRAMERThank you so much.

  • 13:57:37

    NNAMDIAnd Jonathan Rapping is president and founder of Gideon's Promise. He's a professor at Atlanta's John Marshall Law School, former staff attorney and training director with the D.C. Public Defender Service. We miss you. Come back, John.

  • 13:57:49

    RAPPINGPleasure. Thank you, Kojo.

  • 13:57:50

    NNAMDIThank you very much for joining us. "The Kojo Nnamdi Show" is produced by Brendan Sweeney, Michael Martinez, Ingalisa Schrobsdorff, Tayla Burney, Kathy Goldgeier, Elizabeth Weinstein, Stephannie Stokes, and with Brendan Sweeney as our managing producer. Our engineer is Tobey Schreiner. Natalie Yuravlivker is on the phones. Thank you all for listening. I'm Kojo Nnamdi.

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