The Judicial Lynching – Part III – The Public Defender System

Up until 1963, the law as enunciated by the Supreme Court was clear: in a criminal case, the “appointment of counsel is not a fundamental right, essential to a fair trial.” Betts v. Brady, 316 U.S. 455, 472 (1942). However, a short 20 years later, the Supreme Court abandoned that position in the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963)(picture of Gideon to right). Gideon was charged with breaking into a bar and stealing money and beer. He argued at his arraignment that he could not adequately defend himself, and that a system that puts an uneducated man against a trained attorney is fundamentally unfair. Representing himself all the way to the Supreme Court, Gideon prevailed and the legal landscape of the U.S. was never the same. Holding that Betts was “an anachronism when handed down, and that it should now be overruled,” by fiat, the Supreme Court imposed upon the states and federal government the obligation to provide criminal counsel for all indigent defendants. Accordingly, the legal community reacted by self-servingly determining that the public should bear the entire cost of this obligation and thus avoided the distasteful, and unprofitable, obligation that the legal community had to ensure that justice is available to all. Although there are over 1.2 million lawyers in the U.S., and 40,000 new lawyers graduate and begin to practice law every year, the portion that regularly practices criminal law is small—some 50,000 according the National Association of Criminal Defense Lawyers

The Criminal Justice Act was enacted by Congress to give a structure to administering the right of indigent defendants to legal counsel, as required by the Sixth Amendment and Gideon. In truth, this noble goal was co-opted to make the government-paid criminal defense bar weak and dependent upon the largess of the very judges that a zealous criminal defense attorney must challenge. 

Indeed, the Act provides that: For representation of a defendant before the U.S. magistrate judge or the district court, or both, the compensation to be paid to an attorney shall not exceed $7,000 for each attorney in a case in which one or more felonies are charged. The lowest quote that Jeane received to represent her from noted criminal attorney Greg Denaro was $150,000. Clearly, the Criminal Justice Act created “justice” only in its title.

Having been made indigent by the seizure of all her assets, Jean was forced to turn to the Office of the Federal Public Defender for the District of District of Columbia in October 2006 to seek help. The first question Public Defenders ask is the financial status of an applicant to determine if they qualify under the indigency guidelines.  Jeane filled out the affidavit of financial status stating that she had no assets, as they were all seized. Like most people in a panic, Jeane lied to the Public Defender in stating that all her assets were seized. In fact, Jeane had (a) $70,000 in Germany she had wire-transferred a few weeks earlier, (b) a condominium in Orlando, Florida, with $50,000 of equity, and (c) $50,000 in cash, hidden in a cookie jar on top of her refrigerator, that the cracker-jack federal agents had overlooked when they searched Jeane’s house. Jeane’s affidavit was submitted to the court, which ruled that she qualified and, A.J. Kramer, the head of the Public Defender’s office, was appointed to represent her.  I would subsequently correct her misrepresentation saving her from the fate of Martha Stewart.

Clearly, by seizing her assets and denying her a hearing on the propriety of that seizure, the government had condemned Jeane to pauper status and thus relegated her to a second-tier criminal defense. The realization of this fundamental unfairness was yet another blow to Jeane’s psyche which served to further deepen her despair at the gulf between the promise and the reality of the criminal justice system.