Recommendations — Lack of Support Services 1. Misdemeanor defenders should have access to legal research tools, investigative re- sources, and expert witnesses. The ABA Criminal Justice Standards, Providing Defense Services, provide that investigation, expert witness, and other necessary services should be available for defenders:
“Many times I don’t have time to reflect on what advice to give clients”
— A Tennessee public defender who reported handling approximately 3,000 misdemeanor cases a year.
The legal representation plan should pro- vide for investigatory, expert, and other services necessary to quality legal repre- sentation. These should include not only those services and facilities needed for an effective defense at trial but also those that are required for effective defense par- ticipation in every phase of the process. 192
pervisor accompanies them and there is no training before they begin. On their first day, they will talk to clients, ne- gotiate plea deals, appear before a judge and, frequently, advise clients to plead guilty. Former Miami-Dade Chief Defender Bennett Brummer ex- plained that his office is forced to hire attorneys straight from law school with no trial and very little other experience “be- cause we can’t pay a competitive salary … so we need to train them.” That training is what Brummer described as “the farm system.” Defenders start at the “little league” misde- meanor court before moving up to felony cases. 193 One Washington attorney wrote that one of the greatest challenges is the “learning curve.” The attorney added, “I am a recent graduate and have been a misdemeanor attor- ney for 6 months. There’s a lot one needs to know to effec- tively counsel a client and to effectively advocate for them. I feel that both the load itself and the fact that a lot of the learning is concurrent with its practice is challenging and very time intensive.” Another defender observed, “Often misdemeanors is how attorneys start their public defense practice and law school does not do a good job at teaching the actual practice or mechanics of law. I even took a public defense clinic where I represented someone during my third year in district court and there was a lot that was unfamiliar to me.” Lack of Training Appropriate training is critical to practice, regardless of level. Misdemeanor practice, like felony practice, involves trials. To be effective, lawyers must understand, among other things, how to conduct a direct examination and a cross-examination of a witness, how to navigate the rules of evidence, how to give an opening and closing argument, and how to authenticate evidence. Attorneys representing clients in driving while intoxicated cases need to understand the forensic evidence, such as how breath tests work, to be able to assess whether there is an appropriate challenge to the test, and how to bring it. And, in any number of crimes, defenders need to understand police identification proce- dures and the science behind eyewitness identification in
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To comply with this standard, every defender should have access to legal research services, investigators, and experts. If the defender has to pay for these services out of his or her own pocket or contract amount, it creates a conflict of in- terest between lawyer and client. The lawyer may be moti- vated not to use investigators or experts to preserve funds for himself, even when the case warrants the use of outside services. To prevent this conflict of interest, the costs of these services should not be borne by the defender. For con- tract defenders and appointed counsel, the administrators of the program should have a separate fund to pay for services. 2. Social workers or other mental health sup- port services should work in tandem with defenders to screen clients for mental health issues. Given the extraordinary number of defendants with mental health issues, all defenders should receive training to assist them in spotting possible mental health issues in their clients and have access to social workers, counselors or psychologists, specific to the defense, to evaluate clients whenever appropriate. Like other expert services, the costs of these consultations should not be borne by the defender. Identifying mental health issues in defendants early may help combat recidivism by identifying, and, ideally, ob- taining treatment for, underlying causes of criminal behav- ior. Defenders should not have to rely on government social workers to develop release or dispositional alternatives for their clients.
Inexperienced Counsel In Misdemeanor Courts
Many public defenders start in misdemeanor courts after being hired right out of law school. They are handed a stack of case files and told their courtroom assignment. No su-
Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
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