Arbitrary and Capricious: Kirsten Anderberg watch

Link: Arbitrary and Capricious: Kirsten Anderberg watch.

Skelley comments about Kirsten Anderberg's argument that because PDs are overworked and underpaid, the PDs should go on strike. I agree that in general, PDs are overworked and underpaid. I think that the situation is better in Alaska than other places, but the current political regime has made no effort to disguise its dissatisfaction with iindigent defense.

Skelley hits the nail on the head about doing your job even with too many clients. One of these days I will continue my 'Bush Practice' series and detail some of the high caseloads bush attorneys in particular experience. I know that at times, I lost my temper with clients when I was more frustrated at the sheer volume of the cases. Of course, having to explain for the 17th time why a defendant's brother will not be a good third party because he has a record longer than the Alaska Peninsula can be frustrating as well.

All the same, I am not sure that I agree with Ms. Anderberg's solution, which is to abandon the clients altogether. I think a better solution would be if PDs across the country determined that they were going to try each and every case. Ignoring the practical difficulties, I recognize the ethical difficulties because attorneys should be focusing on each client individually rather than all of their clients. It may be better, then, for a particular client to plead rather than to go to trial. Nonetheless, it is apparent that trials are really the only ethical leverage we have.

In Alaska, rule 45 of the criminal procedure rules mandates a strict 120 day calendar for speedy trial issues. Certain time is excluded, such as when the defense requests a continuance, motions are filed, a competency evaluation is requested, etc. Otherwise, on the 121st day of rule 45 time, the case is dismissed with prejudice. Not all states have an explicit rule, of course, but even without such a rule, the criminal justice system simply could not function if PDs started taking even 10% of their cases to trial. In states with a strict calendar rule, like Alaska, many, many cases would be dismissed on statutory speedy trial issues. In other states, attorneys could accomplish the same thing through constitutional speedy trial motion work. Either way, if PDs dramatically increased the number of trials, I think we would find 1) the results are in large part similar to the pleas we've been offered; 2) the system would be forced to respond to improve the situation; and 3) clients would be happier.

Let me elaborate on point #3. Yes, trials would diminish an attorney's availability for client communication. However, clients want attorneys who will 'fight' for them. One of the primary areas of disagreement between defense attorneys and clients is the perception of trial risk. Attorneys generally see risks that clients do not (or will not) recognize. PDs also have crushing caseloads and hear the siren song that a trial is wasted effort because a client's only going to get mandatory minimums anyway, so its in the client's (and lawyer's) interest to plead. When the discussion comes up and an attorney says the plea bargain looks pretty good, clients can get pissed. Under my proposed solution, the PD just starts with the presumption of going to trial. The client knows that the attorney is in trial, so the client knows the attorney is the kind to fight. Hence, some difficulty in reaching the attorney is overlooked because the client thinks that the attorney is a fighter.

This is a gross generalization and is not true for every case. Nonetheless, I see this principle among the attorneys I know. Attorneys who go to trial more can be harder to reach. But their clients are generally happier and the DAs make better offers. So, recognizing the problem inherent in PD systems, I would urge just the opposite of Ms. Anderburg: don't quit, but fight. Take every case to trial. I think that it would take only a few months of judicial chaos before the legislature and/or the courts crafted a solution that improved the lives and working conditions of PDs.

Comments

[blonde justice]

Right on. And well said.