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July 25, 2013

On-line petition for law professors to "Save Federal Defenders Services"

Professor Fredrick Vars via this post at PrawfsBlawg has started this valuable on-line petition:

Petition: Save Federal Defender Services

Sequestration imperils the constitutional right of criminal defendants to adequate legal representation.  About 90% of federal criminal defendants require court-appointed counsel. In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs.  It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.

Funding for prosecutors is apparently headed in the opposite direction. The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court.   This radical imbalance threatens the fundamental right to counsel.

Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services.  Just add a comment with your name, institutional affiliation (if applicable), and city of residence.

I have added my name to this effort, and a helpful reader sent me a link to this informative fact-sheet providing background for why everyone concerning with a fair and effective (including cost-effective) criminal justice system ought also join in.

Related posts on the criminal justice impacts of sequestration:

July 25, 2013 at 11:21 AM | Permalink

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"The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court."

Could someone please remind me who's running the Senate and its committees?

"This radical imbalance threatens the fundamental right to counsel."

No it doesn't -- not if private lawyers show a little more citizenship and a little less attention to the bottom line. Can't more of them volunteer to take more cases pro bono? This used to be considered an honored calling in the legal profession.

"Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services. Just add a comment with your name, institutional affiliation (if applicable), and city of residence."

Doesn't SL&P constantly take the position that the country needs to be tighten its belt by spending less, not more, on the criminal justice system? Oh, wait, it's not that exactly. It's that we need to spend less on keeping dangerous people off the streets, but more to go into the pockets of, uh, lawyers -- who just happen to be a significant part of the site's leadership.

Lan' sakes alive!

Still, I want to be fair about it. In truth and in fact, we should be spending more on BOTH keeping predators off the street, AND on public defenders, who are mostly overworked and underpaid. We need to spend less on the real budget busters, the welfare state entitlements (and sooner or later we're going to, as every mature person realizes).

Posted by: Bill Otis | Jul 25, 2013 2:00:46 PM

It is quite curious that during this anniversary of the Gideon opinion that the lackluster Congress, by failing to act, has taken the first steps to eviscerate the constitutional right to the effective assistance of counsel. The comment suggesting more pro bono work is naive and risks the return to a system where unqualified lawyers would be conscripted into providing legal services they are not qualified to provide, making the provision of the effective assistance of counsel nothing more than the spin of a roulette wheel.

I am a defense attorney, a former Assistant Federal Public Defender, and proud of a system of justice, while not perfect, has - at least in the past - given federal criminal defendants the constitutionally mandated opportunity to be represented by competent, qualified defense counsel. As was recently stated by Senior District Court Judge Richard Kopf in the Eastern District of Arkansas, "Congress has every reason to be ashamed of itself." The Federal Defender Services budget is a tiny slice of the entire federal budget. Congress must act now and restore full funding for Federal Defender Services.

Posted by: Michael G. Martin | Jul 25, 2013 3:34:09 PM

otis, please do me a favor, take a walk seaside walk and stand over a Hawaiian blowhole

Posted by: mahalo | Jul 25, 2013 5:19:18 PM

Aloha mahalo,

I'd be happy to do you a favor, if you'd provide a good reason I should. In the meantime, maybe you could volunteer for some pro bono work. Money isn't everything, you know!

Posted by: Bill Otis | Jul 25, 2013 5:42:24 PM

Bill, do you think that prosecutors should work for free, too? Did you?

Posted by: HGD | Jul 25, 2013 6:33:25 PM

Michael G. Martin --

"It is quite curious that during this anniversary of the Gideon opinion that the lackluster Congress, by failing to act, has taken the first steps to eviscerate the constitutional right to the effective assistance of counsel."

Neither Gideon nor any other case requires any specific level of taxpayer money that must be given over to defense lawyers, and the amount of such money we've spent in the last 25 years for indigent defense dwarfs the amount of money spent in the first 25 years after Gideon.

"The comment suggesting more pro bono work is naive and risks the return to a system where unqualified lawyers would be conscripted into providing legal services they are not qualified to provide..."

First, my comment suggested that lawyers VOLUNTEER for pro bono work, not that they be conscripted. Second, while I personally have found AFPD's to be quite good, the broader truth is that the more talented and sought-after lawyers wind up in rich firms doing corporate law. It would improve, not diminish, the quality of indigent representation to have some of these Harvard, Yale and Stanford grads pitch in.

"As was recently stated by Senior District Court Judge Richard Kopf in the Eastern District of Arkansas, 'Congress has every reason to be ashamed of itself.'"

I agree, although perhaps not for the reasons Judge Kopf (who's from Nebraska, not Arkansas) has in mind.

Posted by: Bill Otis | Jul 25, 2013 6:44:09 PM

HGD --

"Bill, do you think that prosecutors should work for free, too? Did you?"

I was an AUSA. AUSA's are forbidden to have any client other than the United States (too much risk of a conflict of interest somewhere down the line). Their salaries are set by federal law (the Federal Schedule, in particular), over which they have no control.

But if you want to carry the torch for greed in the legal profession, and reject the idea of pro bono work, please say so explicitly.

Do you?

Posted by: Bill Otis | Jul 25, 2013 6:50:04 PM

I am a law professor and former public defender. Good luck!

Posted by: Marjorie Cohn | Jul 25, 2013 7:19:41 PM

Honest to goodness, the way some people just play their (not assigned) roles here without fail.

Based on my 24 years of experience exclusively in federal sentencing in one of the three busiest districts in the country, the LAST kind of lawyer I would want defending me would be an ivy league corporate one doing it pro bono. Even the indigent panel attorneys in my district are mediocre at best. I shudder to think of what someone who can't constantly keep abreast of every nuance of every guideline amendment and appellate development would bring to the table. At least the federal defenders can specialize the way the U.S. Attorneys can. Since competent counsel is a constitutional right, it doesn't seem like such a controversial notion that there ought be enough funds allocated to ensure that everyone who needs one can have one, without relying on the inherently unreliable whims of charitable effort.

Posted by: USPO | Jul 25, 2013 7:45:39 PM

There's a simple way to test Bill's suggestion. Once he returns to Virginia, he can call a federal judge of his choice and tell her that he'd like to volunteer to represent an indigent criminal defendant in just one case. Given Bill's background and experience, that shouldn't be too difficult. When the case is concluded, he can report back to the readers of this blog and tell us either that he's more convinced than ever that he had the right solution, or that he's now got a different perspective.

Posted by: arfarf | Jul 25, 2013 8:45:24 PM

arfarf --

"There's a simple way to test Bill's suggestion. Once he returns to Virginia, he can call a federal judge of his choice and tell her that he'd like to volunteer to represent an indigent criminal defendant in just one case."

If I wanted to assist criminals, I wouldn't need your encouragement to do it. I would have done it years ago, when I was offered three times what I made as an AUSA to join the Dark Side. The answer was no thanks, then and now.

Nor, while we're at it, is there much chance a criminal would want or accept my representation, since my idea of being a good lawyer (and a good person, while we're at it) is to advise people to tell the truth, all of it, and quit with the whining and excuse-making.

I don't believe this is the advice criminal defendants are looking for, at any price.

Posted by: Bill Otis | Jul 25, 2013 9:10:27 PM

USPO --

"Since competent counsel is a constitutional right, it doesn't seem like such a controversial notion that there ought be enough funds allocated to ensure that everyone who needs one can have one..."

Which is why I endorsed higher pay for AFPD'S.

"...without relying on the inherently unreliable whims of charitable effort."

Do you oppose pro bono work? The judges certainly don't, as I would expect you to know with your amount of experience.

As to Harvard, Yale and Stanford grads being a bunch of dopes, well, everyone is entitled to his opinion.

Posted by: Bill Otis | Jul 25, 2013 10:15:12 PM

The situation really is incredibly dire, with the potential elimination of roughly half of the staff of federal defender's offices nationwide, due to the 23% cut, the need to pay severance, annual leave and unemployment for laid off employees, and the fact that 80% of defender budgets,, the only part that really can be cut, is payroll. Eviscerating institutional defenders will leave the federal courts dismal places for prosecutors, judges, defendants and the cause of justice generally. I keep shaking my head and thinking that this can't really be happening. I can only hope that Congress, or the judicial conference, or both, swerve before we actually hit the wall.

Posted by: decencyevolves | Jul 25, 2013 10:19:31 PM

In rent seeking, a group lobbies for tax money and returns nothing of value back. So a road is profit seeking, not rent seeking. As is police protection.

Public defenders are pure rent seeking. They actually are not just worth nothing, but are harmful to all parties, except the lawyer hierarchy.

Posted by: Supremacy Claus | Jul 26, 2013 2:32:52 AM

One of the most ignorant things I've read on this blog -- ever -- had to be that it would improve the representation of criminal defendant to have them be represented by lawyers doing corporate law for rich firms.

The best criminal defense attorneys in the country are -- wait for it -- doing criminal defense work. They can be found in FPD offices and CJA panels around the country. It is simply preposterous to believe a firm's corporate attorney would do anywhere near as good of a job as those lawyers. It's ignorant.

Posted by: Parker | Jul 26, 2013 10:27:24 AM

I get it Supremacy Clause. You are implacably hostile to Gideon v. Wainwright. To quote A Man for All Seasons:

“Thomas More: ...And when the last law was down, and the Devil turned around on you--where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down...d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.”

― Robert Bolt, A Man for All Seasons

Posted by: decencyevolves | Jul 26, 2013 11:10:06 AM

The federal system doesn't give the poor enough time to find a free atty. Much less they most likely don't know how to find one.

Federal Public defenders are necessary, as they keep up with the latest
in changes.. Lets face it, federal sentences are so bad that if you miss an enhancement, ( what a nice phrase for lengthening the sentence )
you could be buried... (on this blog has his picture) How about with the fellow from Tennesse that got nailed as an ACCA cause they found some shotgun shells in a dresser he moved for a neighbor....How about limiting the search to his buglar tools that they were looking for and digging thru everything is inadmissable. (maybe) It wan't in open view, so there warrent maybe was exceeded, depends on how it was written...Thats the kind of thing that can just bury a defendent...Actually we should be cutting the DOJ budget by at least 25% this yr and 10% each yr there after until they are down to 40% of their current staff...Leave the PDF office staffed as is, till it gets caught up...My .02 worth...

We are supposed to be reforming, but when you increase the DOJ budget and slash the PDF budget, thats not reforming...Its just cut throat..

Oh well, I guess I've solved enough of our problems for today..

Posted by: MidWest Guy | Jul 26, 2013 11:50:03 AM

Decency.

1. The defender serves as messenger and advocate for the plea offer, in agency for the prosecution.

2.The defender is never zealous, assuming the guilt of the client.

3. The win record after trial is the sme as that of the pro se criminal defendant.

Posted by: Supremacy Claus | Jul 26, 2013 12:21:43 PM

Bill -

I always appreciate your candor. But I wasn’t suggesting that you should take a criminal defense case because you want to, or because the defendant would want you for his lawyer. I suggested it because you (correctly) described this kind of pro bono representation as an attribute of “citizenship” and an expression of the "honored calling in the legal profession.” Those are the reasons you gave when you suggested that private lawyers at big firms should volunteer to take these cases.

Your background and experience make you far more qualified to represent an indigent criminal defendant than the private lawyers at most white-shoe firms. And I think you are sufficiently ethical that if you agreed to take a case, you would grit your teeth and abide by the requirement that a lawyer represent his client zealously within the bounds of the law. But if you still don’t want to take a case, so be it.

Posted by: arfarf | Jul 26, 2013 1:45:39 PM

So the Sixth Amendment will be okay as long as we can rely on a legion of gentleman attorneys dabbling pro bono. Yeah, that'll work out.

Posted by: Michael Drake | Jul 26, 2013 2:07:33 PM

This could be solved if we slashed the criminal code by 1/3 t0 1/2. Take law enforcement authority away from regulatory agencies. This would deminish the need for Prosecutors and public defenders. This would speak to a smaller more responsible government as well as freedom and civil liberties. Of course law enforcement, prosecutors, and prison guards would need some retraining.

Posted by: beth | Jul 26, 2013 3:23:48 PM

Beth. Very good analysis. I do not want to damage your reputation by praising you any more.

Posted by: Supremacy Claus | Jul 26, 2013 4:07:25 PM

arfarf --

"Your background and experience make you far more qualified to represent an indigent criminal defendant than the private lawyers at most white-shoe firms."

Perhaps, but I don't have anything like their resources. I get a student research assistant, if that, not a gaggle of associates who want to crank it out to show me they REALLY ought to make partner.

"And I think you are sufficiently ethical that if you agreed to take a case, you would grit your teeth and abide by the requirement that a lawyer represent his client zealously within the bounds of the law."

I hope I'm sufficiently ethical that I wouldn't engage in a shake-and-jive to hornswoggle the jury into bringing back an undeserved acquittal, thus emboldening the criminal and endangering the public.

Many good people and excellent lawyers -- indeed a majority of practitioners -- have a different view of it, and criminals can find pro bono representation with them. For my own part, I will continue to provide legal advice, for free, to the good guys, as I have in the past. The bad guys can find plenty of adroit lawyers by looking elsewhere.

Finally, I want to say a word about the cheap personalization of this thread. Whether pro bono representation, a longtime and accepted practice, is or is not a good idea has nothing to do with me. But when I suggest it, what happens is (1) we discover that Harvard, Yale and Stanford grads have suddenly become dunces who couldn't handle a DUI, and (2) the question is diverted into what I HAVE DONE, which has zero to do with the issue.

As it happens, I have, as noted, given free legal advice, as if this were anyone's business, which it is not, particularly those who won't even identify themselves. But it's revealing that, in order to get more money for themselves (which, in this instance, I've said twice now that I support), PD's and those allied with them are so ready to launch personal -- and, more to the point, utterly irrelevant -- barbs at me.

This entry started off with a report that a Senate committee had proposed funding cutbacks. Am I running the Senate? Well, no. Who is?

Take your problems to the people who caused them, not the ones looking for solutions.

Posted by: Bill Otis | Jul 26, 2013 4:25:48 PM

Thank you SC

Posted by: beth | Jul 26, 2013 4:26:28 PM

Michael Drake --

"So the Sixth Amendment will be okay as long as we can rely on a legion of gentleman attorneys dabbling pro bono. Yeah, that'll work out."

There's an interesting question lurking beneath the snark: The question is how the acquittal/dismissal rate for defendants represented by the FPD for CDCA stacks up against the acquittal/dismissal rate for defendants in the same jurisdiction represented by pro bono attorneys.

Do you know? Could you find out? Are you willing to bet that the two differ by more than a whit?

Posted by: Bill Otis | Jul 26, 2013 4:36:45 PM

beth --

SC is a gentleman, avoids partisanship and knows a lot of interesting stuff. What does him in is his penchant to veer off into, shall we say, views of life and the law that are, uh, not widely shared.

On the merits, I agree that we should take law enforcement authority away from regulatory agencies. I also agree that we should largely do away with non mens rea crimes.

As for those who will need re-training, I'll pitch in pro bono.

Posted by: Bill Otis | Jul 26, 2013 5:13:17 PM

I think a good way to start would be to setup matching funds. Whatever prosecution spends. Defense gets. That way both sides start out even. By that i would also include whatever costs were used in the investigation by law enforcment.

Since obvioiusly defense would need to do it's own investigation.

Posted by: rodsmith | Jul 26, 2013 6:05:27 PM

"The question is how the acquittal/dismissal rate for defendants represented by the FPD for CDCA stacks up against the acquittal/dismissal rate for defendants in the same jurisdiction represented by pro bono attorneys."

That's definitely a question. Here are some better ones:

  1. Why do pro bono attorneys select the particular cases they do?
  2. Do the resource commitments of firms and solos currently offering pro bono defense, in those rare cases that they do decide to take on, scale?
  3. Even if the resources are were there, do the aspirations of these potential stewards of the Sixth Amendment extend to defending just any ol' bank fraud, §1326, or child pornography case that comes down the pike?
  4. How might the fact that public defenders do not get to cherry pick their own cases affect any comparative analysis of verdict and sentencing (let's not forget sentencing!) outcomes between these two groups?
And so on.

Posted by: Michael Drake | Jul 26, 2013 8:47:05 PM

'...I wouldn't engage in a shake-and-jive to hornswoggle the jury into bringing back an undeserved acquittal...'

so much for presumed innocence until proven guilt...

Posted by: Jon | Jul 26, 2013 9:25:19 PM

Pro bono representation isn't an adequate substitute for the institutional experience, knowledge and organization of federal defender offices. Federal district court judges, who see this work day to day,,express greater satisfaction in the performance of institutional defenders, as a group, than they do of private panel counsel, and defenders provide services at less cost, on a case to case basis, than do private counsel. As for supremacy clause' s observations, anyone who has worked as a judicial employee, as I have, or as a prosecutor, can attest to the nightmare that most pro se criminal defendants provide for the judicial system. The commenters on this thread need to get real. Cuts of a third to a half of federal defender staff is a catastrophe for the federal courts and the cause of justice, any way you slice it.

Posted by: decencyevolves | Jul 26, 2013 9:27:56 PM

Michael Drake --

Your original point was this: "So the Sixth Amendment will be okay as long as we can rely on a legion of gentleman attorneys dabbling pro bono. Yeah, that'll work out."

A normal person would take your sarcasm as a claim that defendants are going to do worse with snobbish fops of "gentlemen attorneys dabbling pro bono" than they will with the FPD's. But the claim is a factual one. All I asked was to see the facts supporting your assertion.

I hoped that you would produce them. You haven't, so I will ask again. How does the acquittal/dismissal rate for defendants represented by the FPD for CDCA stack up against the acquittal/dismissal rate for defendants in the same jurisdiction represented by pro bono attorneys?

When we know that, then, sure, your other questions about the reasons pro bono attorneys do better (if they do) are perfectly legitimate. But we need to know the basics first. Even if one assumes that pro bono attorneys do better, and do better for reasons going to resources and case selection, that would hardly show that they are nothing but dilettantes fecklessly "dabbling" in criminal cases and soiling the Sixth Amendment. If anything, it would tend to support the opposite conclusion.

But in order either to verify or debunk your claim about the supposedly amateurish results of pro bono representation, we need to know what the results are. I will ask again that you provide them. It was, after all, your claim.

Posted by: Bill Otis | Jul 26, 2013 9:45:38 PM

"You haven't, so I will ask again."

A normal person would have understood my questions as pointing up the problem with yours. So let me spell it out: Without answers to my question, the answer to yours has no statistical significance. (Feel free, then, to assume the answer is as you suggested it was. I myself have no idea.)

And just to be clear: I don't think that the relatively few firms and solos that currently provide pro bono services are dabblers by and large. My point (again, aimed at a normal person — sorry about that) was that because of the scale involved, the only hope of covering a significant shortfall in government-funded defense representation would be for dabblers to come out in droves.

Posted by: Michael Drake | Jul 26, 2013 10:13:18 PM

Jon --

"so much for presumed innocence until proven guilt..."

Those who want to become defense lawyers will be a lot better off if they quit presuming and start finding out. Lawyers aren't juries. Did you miss that?

I do not wish to become a defense lawyer, but I can still take note of the almost universally recognized fact that the huge majority of criminal defendants are guilty. If you want to wear blinders, fine. I won't.

Posted by: Bill Otis | Jul 26, 2013 10:15:27 PM

decencyevolves --

"Pro bono representation isn't an adequate substitute for the institutional experience, knowledge and organization of federal defender offices."

That's why I recommended pro bono as a supplement, not a substitute.

It's just amazing how pro bono lawyers, who were once considered public-spirited citizens, have devolved into effete, know-nothing dabblers who don't hold a candle to the Highnesses in the Public Defender's Office.

I'll be sure to bow down next time.

Posted by: Bill Otis | Jul 26, 2013 10:24:51 PM

Michael Drake --

So you refuse to produce any statistics to answer either your questions or mine. Instead, you are content to rely on assertion. Fine with me.

After the refusal, there's your statement that I'm not a "normal person."

I should probably just let it go as what I've come to expect when I try to have a conversation with you, but I will ask just one more question: The death penalty is supported by two-to-one. I am among the two. You are among the one. For the Boston Marathon bomber, who killed a little boy among other people, it's supported by 70 to 27. I am among the 70. You are among the 27. Could you tell me who's more "normal?"

Posted by: Bill Otis | Jul 26, 2013 10:35:19 PM

Bill--There are some fabulous pro bono counsel. That's not the point of the original post. Professor Berman expressed concern over a very real crisis in federal criminal representation occasioned by the sequester. That may not interest you, but for those of us dealing with this on a day to day basis, it's a matter of grave concern.

Posted by: decencyevolves | Jul 26, 2013 11:05:17 PM

decencyevolves --

"There are some fabulous pro bono counsel."

Correct, but you need to address that, not to me, but to those on this thread who think they're a bunch of dabbling know-nothings.

"Professor Berman expressed concern over a very real crisis in federal criminal representation occasioned by the sequester. That may not interest you, but for those of us dealing with this on a day to day basis, it's a matter of grave concern."

Except that I said, in the very first comment on this string, "... we should be spending more on BOTH keeping predators off the street, AND on public defenders, who are mostly overworked and underpaid."

P.S. Do you agree with Michael Drake that I'm not a "normal person?"

Posted by: Bill Otis | Jul 26, 2013 11:18:50 PM

"Could you tell me who's more 'normal?'"

Most internet commentators routinely engage in equivocations just like that one. So yes, you are definitely the more "normal." (And yes, you are more "normal" in your opinion about the death penalty too. If you could get the "ought" you want from that sort of "is," you'd be in business.) Night night.

Posted by: Michael Drake | Jul 26, 2013 11:33:36 PM

Bill--your premise was that Professor Berman was incorrect, that in fact while he said, "'This radical imbalance [between US Attorney and Federal Defender funding] threatens the fundamental right to counsel.' No it doesn't -- not if private lawyers show a little more citizenship and a little less attention to the bottom line. Can't more of them volunteer to take more cases pro bono? This used to be considered an honored calling in the legal profession."

Michael Drake responded repeatedly and at length to raise questions about whether volunteer representation was, or could be, anywhere adequate to fill the gap. in his view, "because of the scale involved, the only hope of covering a significant shortfall in government-funded defense representation would be for dabblers to come out in droves." As someone who worries about trying to put Humpty Dumpty back together again after the situation falls apart, I don't find the notion of pro bono counsel picking up the slack very comforting. I see no reason to think it will happen or that it really is very feasible given the scale involved. It sounds like that is Michael Drake's point. Isn't that basically correct?

Posted by: decencyevolves | Jul 26, 2013 11:33:44 PM

Decencyevolves --

First off, to have some interest group -- any interest group -- shouting that the sky will fall if it doesn't get X more dollars is absolutely routine in Washington. DOJ does it (almost every year), the FPD's are doing it, and (to be honest) I helped do it when I was Counselor at the DEA. It's the way the appropriations game gets played. But the sky never seems to fall, and it won't this time either. After a period of agonized grousing, the funds will get partly or wholly restored.

Second, why are you (and Michael Drake) having such a hard time taking yes for an answer? I said I support increased funding for FPD's. This has been my position for years, not just now.

Third, the FPD's could do something to help themselves rather than claim it's always somebody else's fault. For example, they could quit with these multitudinous scattershot, throw-it-against-the-wall filings and stick with stuff that actually might win the case rather than just delay it.

Fourth, it was only late this evening that Michael raised the point you say he made "repeatedly and at length." Before then, there was little hint he was talking about future pro bono representation. To the contrary, he certainly seemed to be talking about past and, in particular, present pro bono's (see Michael Drake | Jul 26, 2013 8:47:05 PM), which he acidly criticized as being nothing but a bunch of country club know-nothings practicing effete snobbery. (I glad you corrected him on that point).

Fifth, you are mistaken in asserting that Doug said, "This radical imbalance [between US Attorney and Federal Defender funding] threatens the fundamental right to counsel." That is what THE PETITION says. Doug, who is pretty sophisticated in the ways Washington works, used less florid language.

I repeat: Money is tight and will probably get tighter before a deal is reached, but sky is not falling.

Posted by: Bill Otis | Jul 27, 2013 12:59:46 AM

The standard view is that it takes 10,000 hours to become good at something. If a pro bono attorney reaches that time experience, no doubt he will be a good match for the full time professional prosecutor.

That being said, this is a disgrace, that a pro se criminal defendant with 0 hours training or experience gets the same verdict rates as the Public Defender.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=901610

That is rent seeking at its finest, take tax dollars, return nothing of value.

Posted by: Supremacy Claus | Jul 27, 2013 1:03:44 AM

SC --

"The standard view is that it takes 10,000 hours to become good at something."

Whose "standard view" is that? And do you think that might vary depending on what the "something" is?

"That being said, this is a disgrace, that a pro se criminal defendant with 0 hours training or experience gets the same verdict rates as the Public Defender."

I have not read the paper you cite with this, but assuming its conclusions are what you say, it validates a point I've been making a long time: Lawyers have fat egos and constantly overestimate their value. The basic thing that wins cases is EVIDENCE (or, as we saw in the recent Trayvon Martin case, the prosecution's lack of same).

Posted by: Bill Otis | Jul 27, 2013 1:27:39 AM

Bill: The 10,000 Hours Rule was popularized by the best selling book, The Outliers, about experts and successful people. It is based on studies by this person.

http://en.wikipedia.org/wiki/Anders_Ericsson

You can try to reconstruct your own growth as an expert appellate litigator. When did you start cruising smoothly? And what you did at work likely was never covered in any course at law school. The rule is pretty good. If you work 2000 hours a year, you will reach proficiency in 5 years. If you work 4000 hours a years, in 2.5 years. If ObamaCare prevents any work week longer than 25 hours, that devastates and delays the acquisition of proficiency.

Posted by: Supremacy Claus | Jul 27, 2013 7:53:31 AM

LOL this is a good one bill!


"Third, the FPD's could do something to help themselves rather than claim it's always somebody else's fault. For example, they could quit with these multitudinous scattershot, throw-it-against-the-wall filings"

Of course you do realize that the defense is just following in the steps of our glorious injustice department

as for this!

"I do not wish to become a defense lawyer, but I can still take note of the almost universally recognized fact that the huge majority of criminal defendants are guilty. If you want to wear blinders, fine. I won't. "

I take it you have missed the book about "three felonies a day!"

Pretty much EVERYONE in american is in fact "guilty" if the govt just wants to dig enough.

Posted by: rodsmith | Jul 27, 2013 8:08:24 AM

The arrogance of the legal academy. No one in power cares a wit what we think . It is the equivalent of a collective Bill Otis.

Posted by: Steve Prof | Jul 27, 2013 12:58:22 PM

The hiersrchy will use concepts from papers when suitable. An example is the idea of unconscionability, procedural and subststantive.

Posted by: Suptemacy Claus | Jul 27, 2013 2:15:02 PM

rodsmith --

Actually, DOJ is pretty circumspect about the number of its filings. But if it were following the throw-it-up-against-the-wall theory, it should stop, and if defense lawyers are following such an "example," THEY should stop. They're all grown-ups, and have to be responsible for their own actions. "BUT JOHNNY DOES IT!" is fine when you're 7, but no one in the FPD's offices is 7.

The book "Three Felonies a Day" argues that we have too many criminal laws. It takes no issue with my statement that the overwhelming majority of criminal defendants are guilty. I might add that that same overwhelming majority of criminal defendants are arrested for things you and I and almost everyone would recognize as stuff that for a long time has been, and quite certainly should remain, criminal -- murder, rape, robbery, burglary, larceny, theft, hard drug trafficking, etc.

P.S. I have occasionally debated the topic of overcriminalization at law schools here and there. One thing I do is ask if there's anyone in the audience who committed three felonies today, and would he please announce (without giving his name) what specifically they were. Thus far, no one has taken me up.

The reason they haven't is that, Harvey Silvergate to the contrary, normal people in fact do not commit three -- or any -- felonies a day, not even in Obama's overgrown regulatory state.

Posted by: Bill Otis | Jul 27, 2013 2:32:22 PM

LOL and here i thought the reason nobody would answer is they don't realize it. That the criminal code is so massive NOBODY knows what is or isn't legal.

Hell look at the round of current laws everyone is pissed over like obamacare 12,000 pages? jsut who the fuck knows what's in it? and it's hardly the first one like that.

Posted by: rodsmith | Jul 27, 2013 5:43:28 PM

rodsmith --

Oh, come on rod. The way to find out what's in the Obamacare bill is to pass it! Weren't you listening to the wisdom of Speaker Pelosi?

Actually, though, she was onto something. Congress did pass it, we are finding out, and that's the main reason the Dems are going to crash land next year, see http://tv.msnbc.com/2013/07/15/nate-silver-senate-may-tip-for-gop-in-2014/

Posted by: Bill Otis | Jul 27, 2013 7:17:04 PM

The pro se numbers aren't very instructive, for some of the same reasons that make Bill's laissez faire theory of Sixth Amendment regulation so daft. Set aside selection effects, which no one really knows how to control for. Do the same for the effects of mixed representation (e.g., defendant winds up pro se only shortly before termination because he got pissed off at his crap public defender who couldn't get him acquitted—a problem that obviously overlaps with the selection problem). And do the same for sentencing (where I think the evidence for attorney-quality effects is best). You still have the fact that when defendants go pro se, courts accommodate them in ways that they don't when a defendant is represented: They relax procedural requirements, construe pleadings generously, raise issues sua sponte (and so, I hope, do substantially more independent legal research), etc. This is as it should be. The problem (for those who think that the fact of similar base rates of acquittal between pro se and represented defendants would show that we actually don't need representation) again, is that these resource-intensive adjustments simply won't scale.

Posted by: Michael Drake | Jul 28, 2013 1:39:35 AM

Michael: I understand the limitations of the study.

Looking at one case is illuminating.

When Gideon argued pro se, the verdict was guilty. After the Supreme Court decision, he refused the public defender and the ACLU volunteer. He asked for the top criminal litigator in the area. Then the verdict was not guilty.

Problem: he was obviously guilty being found with $23 in quarters, at the time and place of a break-in into a cigarette machine.

1) The original jury was most correct about the evidence. The skill levels of the advocates did not make a difference.

2) Only top practitioners make a difference.

3) Top practitioners can distort and ruin the accuracy of the verdict, and are detrimental to the reputation of the court for accuracy.

Posted by: Supremacy Claus | Jul 28, 2013 8:28:55 AM

Supremacy, I don't think that only top practitioners make a difference; the effects are probably continuous. I do agree that skillful practitioners can distort the accuracy of verdicts, though I wouldn't want to overstate the contribution of this particular problem,* and (obviously) it's a problem on both sides. In any case, the least bad alternative seems to be arrange things so that opposing sides are as evenly matched as possible. And it's far more common that the resources of prosecutors are poorly matched than the other way around.

*For some excellent discussion about factors that undermine the accuracy of verdicts, see Dan Simon's In Doubt.

Posted by: Michael Drake | Jul 28, 2013 10:15:29 AM

Michael: That book reviews flaws in criminal procedure.

If the public defender could just stop being the hand maidens of the prosecution, they would start to add value, and decrease the rent seeking. Say, I become a public defender.

1) I would object to all eyewitness testimony without physical corroboration. I would argue the testimony is never more than a false memory implanted by the police or prosecutor.

2) Demand that all conclusions have a Daubert hearing. It is settled law that Daubert applies to the criminal trial and not just to tort litigation.

3) I would end all sovereign immunities for damages caused to my defendant by the carelessness of the judge, the prosecutor, even the jury. While the work of the court meets criteria for strict liability, that standard would end the court in a short time. Yes, its sole tool is punishment, which hurts people in its ordinary use. I would substitute professional standards of due care to reduce the rate of error of imprisoning innocent people. Sovereign immunity is not granted in other advance judicial systems, such as that of 19th Century Prussia. To deter.

4) I have suggested that psychologists make the policy of the criminal law. It was unanimous among my psychologist friends. They would do a far worse job than the dismal performance of the lawyer, be far more pro-criminal, coddle them more, etc.

If the public defender could start adding more value, your suggestion of equal funding would be validated. Adding more value means, performing at the level of the private litigator, not adopting my suggestions.

Posted by: Supremacy Claus | Jul 28, 2013 11:30:22 AM

Michael Drake --

"The pro se numbers aren't very instructive, for some of the same reasons that make Bill's laissez faire theory of Sixth Amendment regulation so daft."

My "theory of the Sixth Amendment" is this: Defendants are entitled to adequate representation. By and large they get it, most typically from PD's. Nonetheless, PD's are in fact underpaid, at least at the federal level (which is the one I know about). Hence my endorsement, repeated throughout this thread and before, of the idea that they should be paid more, not less.

The way things work in Washington is that there's going to be a compromise in a matter or weeks or months that will partly or fully restore the FPD funding; the present "sky-is-falling" cries are simply SOP for client agencies of the federal government, from Main Justice to the DEA to the FPD's. Everyone yelps that the world will end, but it won't and never has, since a deal is always reached.

What's needed, then, is a temporary and almost surely quite small increase in the number of lawyers willing to pitch in to get the system over the hump until the deal is reached. What that means, in turn, is that some people in the private bar -- those who've moved on from criminal law to more lucrative stuff, former AUSA's who now do civil stuff, retired or semi-retired lawyers who want to get partly back into the fray, etc. -- should volunteer their time.

The courts can handle this easily. The judges, with the help of the FPD supervisors, just make sure that these temporary new (or retread) entrants get the easier, routine cases (which is most of them).

It's just not the earth-shattering crisis that's being portrayed. It's more like a temporary cash flow bottleneck at Senate Appropriations (Harry Reid, are you listening?). Nor is it a "laissez faire" approach to law (although there's already a completely "laissez faire" approach to whether law school grads choose to enter criminal defense, which they can (and in a free country should) be able to do as a product of their own choice (just as I strongly suspect you did)).

But it's not about you, or about me. It's about understanding how the budget game gets played in Washington, where interest groups and agencies often get scared but seldom get hurt.

Posted by: Bill Otis | Jul 29, 2013 3:00:51 PM

the otis blog approach,....blah, blah, blah...blah, blah, blah,...thoughful post....blah, blah, blah...blah, blah, blah...blah, blah, blah...blah, blah, blah.......blah, blah, blah...thoughful post...blah blah blah...blah, blah, blah...blah, blah, blah...blah, blah, blah...blah, blah, blah...thoughtful post...blah, blah, blah...blah, blah, blah...ad finitum...

Posted by: Hap | Jul 29, 2013 6:36:55 PM

Yes bill i remember that comment. My thought at the time that i STILL have is if your retarded enough to vote on a law and you have no clue what it's about or what's in it. Your a traitor to your oath of office. You should be tested on the bill. Fail the test and you should be immedaitley moved to the nearest wall and SHOT!

Posted by: rodsmith | Jul 29, 2013 8:10:06 PM

Hap --

The defense blog approach: Criminals are victims, criminals are victims, criminals are victims, criminals are victims, well maybe they're not COMPLETELY victims, criminals are victims, criminals are victims, criminals are victims, etc.

But they do sometimes spice it up: Prosecutors are Nazis, prosecutors are Nazis, prosecutors are Nazis.....................

Posted by: Bill Otis | Jul 29, 2013 10:57:01 PM

Hap: Did you hold your index fingers in your ears?

All pro-criminal commentators should disclose their economic interest in government make work jobs, or their arguments are in bad faith. The Supremacy is always arguing against personal interest, and out of love for the lawyer profession, the rule of law, and the preservation of the nation. Kill all the criminals, and the Supremacy will be panhandling to survive.

Posted by: Supremacy Claus | Jul 30, 2013 2:24:55 AM

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