Public defender offices are in crisis

updated 8:59 p.m. ET June 3, 2009

NEW YORK - It wasn't the brightest decision she'd ever made. She admits that. But if she'd had enough money to hire a lawyer she might not have lost six months of her life.

Kimberly Hurrell-Harring, a certified nursing assistant and mother of two, had driven 7 1/2 hours to visit her husband and then secreted a small amount of marijuana in her private parts. He'd pleaded with her on the phone to bring it, saying he needed to get high in this awful place.

He was calling from a maximum-security prison, and someone must have been listening because when she walked into the Great Meadows Correctional Facility in upstate New York, guards immediately yanked her to the side.

They told her things would go easier if she handed over the dope without a fuss. She did, and things immediately got worse.

With a swiftness that made her head spin, she was handcuffed and hauled to jail. At her arraignment, there was no public defender available. Standing alone, she was charged with one felony count of bringing dangerous contraband into a prison.

And so she tumbled headlong into the Alice-in-Wonderland chaos of court-appointed lawyers, where even those lawyers say there is little time for clients. There are simply too many and not enough hours in the day.

"If you can't afford an attorney, and you fall into the criminal justice system, you are really, really screwed," said Demetrius Thomas of the New York American Civil Liberties Union.

Especially now. The spiraling recession and overwhelmed public defenders, some of whom have rebelled by filing lawsuits to reduce caseloads, pose one of the greatest challenges to the system since the U.S. Supreme Court in 1963 overturned the petty larceny and breaking-and-entering convictions of Clarence Gideon, a poor Florida man tried without a lawyer. In a landmark, unanimous ruling, justices said state courts must provide attorneys to every criminal defendant unable to afford counsel.

'Like he had no time for me'
After her arraignment, Hurrell-Harring went back to jail because she couldn't afford bail, either. Three weeks passed before a public defender appeared, and she says she spent a total of 15 to 20 minutes with him before her sentencing hearing.

He told her not to fight the district attorney's recommended punishment — six months behind bars and five years of probation. It was the best she could hope for, he said. But she had no criminal record. Surely, she begged, couldn't possession of less than an ounce of pot, a misdemeanor under other circumstances, be bargained down to probation?

"It was like he had no time for me," she says now, still unemployed 17 months after her release because she lost her nursing license when she became a convicted felon. "He told me to plead guilty."

The accused, their lawyers and even prosecutors agree that courts increasingly neglect their constitutional duties. In a series of congressional hearings, the latest scheduled for this week, Congress members are struggling to grasp the enormity of the crisis. But the options are far from clear, particularly when virtually every state and local government is crying poor.

Meanwhile, defendants suffer.

Can't afford one
In Georgia, a man accused of murder spent eight months without a lawyer because the state's public defender office couldn't afford one. In Washington, an appeals court awarded $3 million to a man falsely accused of child molestation who was jailed for seven months because his public defender failed to investigate the case.

There are open lawsuits in at least seven states — including populous New York, Florida and Michigan — where overburdened defenders claim those presumed innocent until proven guilty are routinely denied their right to an attorney. Their suggested remedies: capping the number of cases assigned to them and completely overhauling state systems.

In April, the bipartisan, nonprofit Constitution Project released a phone-book-sized report titled "Justice Denied," a national review of court-appointed lawyers. The five-year analysis, the most comprehensive look at indigent defense in decades, said many states fail terribly in their constitutional duty to provide lawyers for the poor.

"Sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon (Supreme Court) decision," said the report signed by former Vice President Walter F. Mondale and former FBI Director William S. Sessions. "The call for reform has never been more urgent," the study said.

In May, a major reform battle was lost by court-appointed lawyers in Florida's Miami-Dade County. An appellate court harshly rebuked and reversed a lower court ruling that allowed the public defenders' office to refuse certain felony cases because it faced funding cuts and crushing workloads. Under the initial ruling, attorneys would have been brought in from a smaller state office and from private firms, which would have increased costs.

'Wrong then ... Wrong today'
Reform advocates said the decision was history repeating itself.

"In the 1960s, the state of Florida believed Clarence Earl Gideon could get a fair trial without the guiding hand of counsel," said David Carroll, research director for the National Legal Aid and Defender Association. "Today, the assumption is that a poor defendant in Florida can get equal justice. They were wrong then and are wrong today."

But even in the best of times, public defenders say a quick plea bargain is sometimes as good as it gets. Court-appointed lawyers often have only seconds to whisper with clients they've just met — before standing while a judge sets bail.

Their days are spent like emergency room doctors performing triage. The worst cases get the most attention, the lesser cases wait the longest. Pleas are shuffled like prescriptions — take this, it's a good deal. Plead guilty, settle for time served. No, going to trial won't prove you innocent, it will get you convicted.

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