first two weeks of the program occur shortly after they enter the office. The training is intensive, interactive, and limited to only 20 participants per session. In the first week of training, the attorneys become familiar with all aspects of misdemeanor practice by working through 32 common scenarios in district court. Each attorney re- searches and analyzes the legal issues, and then partici- pates in mock events based on the scenarios, including client and witness interviews, bond hearings, negotiations sessions with the prosecutor, and motion arguments. The second week is a trial skills institute, and the third week covers a variety of relevant substantive and procedural law topics. Additionally, the department holds several other training events every year, including several on mis- demeanor practice. A number of these trainings are held through a distance learning module, which permits replay of the training at a later date for defenders who could not attend or for defenders who wish to watch a portion of the training again. 196 In Massachusetts, the Committee on Public Counsel Serv- ices hosts a variety of training events monthly, including certification events, which an attorney must complete be- fore being qualified to serve as appointed counsel. 197 Sim- ilarly, the Public Defender Service in the District of Columbia provides training not only for its own staff attor- neys, but also for assigned counsel. 198 2. Public defenders and assigned counsel in misdemeanor court should be actively su- pervised by experienced trial attorneys. It is inevitable that defender programs will continue to uti- lize relatively inexperienced attorneys in misdemeanor courts. For this reason, it is essential for misdemeanor de- fenders to have active supervision. Where possible, new at- torneys should be partnered with experienced trial attorneys in the same courtroom to provide ongoing supervision. To achieve this, experienced attorneys should rotate back through misdemeanor practice. Such rotations not only serve to provide junior attorneys with supervision, but may also benefit senior attorneys by combating burnout. In court appointed counsel and contract programs, defend- ers should be regularly subject to review by an experienced panel of defense attorneys who observe the defender in court, review any complaints filed, and review defender files. In New York’s First Department, a comprehensive application is reviewed by a member of a Central Screening Committee before the attorney can join the assigned counsel list. 199 The screening committee also investigates client complaints, and conducts recertification reviews. 200 Lack of Standards Performance standards serve to guide a defense attorney through every step of litigating a criminal case. For exam- ple, national performance standards address preparing and conducting the initial client interview, preparing for ar-
raignment, conducting investigations, obtaining discovery, filing pretrial motions, negotiating with the prosecutor, preparing for trial, conducting voir dire , making opening statements, confronting the prosecution’s case, presenting the defense case, making closing statements, drafting jury instructions, and preparing post-trial motions. 201 While each step need not be undertaken in every case, the standards set out what steps should be considered by the defense attorney, how the attorney should evaluate whether the step is necessary, and, if the attorney decides the step is necessary, how the attorney should proceed. As one set of state standards notes, “These standards are intended to serve as a guide for attorney performance in criminal cases at the trial, appellate, and post-conviction level, and con- tain a set of considerations and recommendations to assist counsel in providing competent representation for criminal defendants.” 202 Enacting performance standards establishes an expectation about the thought process that will be used to evaluate the case of each accused defendant. They also serve to synthe- size the ethical obligations with the actual practice of pub- lic defense, and provide support for defenders when they seek continuances or caseload reductions in order to ensure that all clients receive adequate representation. The absence of standards too often has the opposite effect of confirming that there should be no expectations with re- gard to services. The lack of standards can lead to excessive caseloads, inadequate compensation, and ineffective repre- sentation. Nearly 70 percent of the survey respondents said that there was no limit on caseload by standards in their jurisdiction. Moreover, some of the respondents who noted an applicable standard referred not to a standard in their jurisdiction, but to the National Advisory Commission Criminal Justice Stan- dards and Goals or NLADA recommendations. Sixty-three percent said there was no limit by internal office policy. Recommendations — Lack of Standards 1. Jurisdictions should adopt practice stan- dards applicable to all attorneys represent- ing indigent defendants. As noted above, standards establish an expectation that cer- tain steps are considered with regard to every criminal case. In so doing, they assure defendants, as well as the govern- mental bodies that fund the indigent defense system, that each criminal case is evaluated appropriately, based upon its particular facts and circumstances.
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A number of jurisdictions have adopted performance stan- dards:
The Washington Defender Association has compre- hensive Standards for Public Defense Services, most
Problems
The Terrible Toll of America’s Broken Misdemeanor Courts
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