Resurrecting Gideon: The public defender corps gets radical

Resurrecting Gideon: The public defender corps gets radical

Kevin Tully has seen plenty in his 25 years as a public defender, both from clients and from the young attorneys he manages as head of the Mecklenburg County office.

From the film GIDEON'S ARMY: Public Defender Travis Williams Photo Credit: courtesy HBO
From the film GIDEON’S ARMY: Public Defender Travis Williams
Photo Credit: courtesy HBO

But nothing quite matches the time recently when three of his junior public defenders—fresh out of a training session at the Southern Public Defender Training Center—told him that the office wasn’t doing its job. Using PowerPoint as back-up, they nervously preached about how public defender offices around the country had become complicit in a criminal justice system more concerned with efficiently processing defendants than with any respect for their individual rights.

“There’s not a lot of business cultures where the new people can sit the boss down and say, ‘we’re not doing it right, we’re not meeting the mission of this office,'” he said.

But they were right, Tully admitted.

“We’re treating the criminal justice system as if it’s some kind of a business model,” he said. “We’re trying to process X number of widgets through in an orderly and timely fashion. And there are pressures that are very subtle, but some are not—like when you’ve got a judge telling you that you’ve got to move a case today. It takes a lot, especially for a young lawyer to tell a judge, ‘No, this isn’t just a case number, this is Mr. John Smith, he has rights, and we’re not prepared to go forward today for good reason.'”

Tully’s people are part of a new wave of public defenders coming of age just as the U.S. Supreme Court’s decision guaranteeing poor people the right to counsel, Gideon v. Wainwright, turns 50.

They are burdened with caseloads numbering in the hundreds, grossly underpaid and laden with student loan debt and, in many circles, overlooked and unappreciated as the fine lawyers they’re becoming.

Yet they are undaunted. They are more committed than ever to the mission of Gideon and hell-bent on waking those in the criminal justice system who’ve been slumbering under the blanket of efficiency to the injustices they are fostering.

They’ve been radicalized, Tully said.

“Many of them want to commit their life to this work; they see the meaning in the work itself, not in what’s in it for them in terms of a stepping stone. They have tremendous options to make money, and they’re choosing to do this, and the sacrifices they’re making financially are really astounding. Many of them are working second or third jobs. They do that for the privilege of being public defenders.”

Gideon’s War

Clip of “Gideon’s Amry” courtesy HBO. “Gideon’s Army” will debut on HBO in 2013.

In her new film “Gideon’s Army,” which will open this year’s Full Frame Documentary Festival in Durham on April 4 and air publicly on HBO this summer, lawyer-turned-filmmaker Dawn Porter follows the day-to-day challenges of three young public defenders working in the Deep South. (See our interview with Porter here).

Those attorneys face staggering caseloads, often involving defendants too poor to make bond and stuck in jail for months awaiting trial. The demands of the system to move cases along, coupled with the devastating collateral consequences of a client’s criminal conviction, bear down on them on a daily basis, professionally and personally.

And guilty pleas, merited or not, are routinely accepted as the quickest dispensation of justice. “The reality is 90 or 95 percent of the people who are charged with something plead guilty, [not because they are but] because the system is designed to force them to plead guilty and it punishes their failure to comply,” public defender Brett Willis said in the film.

That’s happening here in North Carolina too. Wake County holds a “Free the People” day, said Tom Maher, executive director of the Office of Indigent Services, the administrative agency that oversees public defenders and private assigned counsel, when they bring people who face minor charges but haven’t been able to make bond to court and allow them to go home, sentenced to time served, if they plead guilty.

“In essence you’re trading a guilty plea to get out of jail,” Maher said. “The pressure to admit guilt is pretty high. These are relatively minor nonviolent offenses, and it’s done to clear out the jails, and I do think the prosecutors in good faith think that they’re trying to help these folks. But the reality is if you can get out by pleading guilty, you should be able to get out by saying ‘I’m innocent, and I’ll come back for a trial.’ And if you’re picking up your first misdemeanor—it sounds benign—but that’s a criminal conviction and there are a huge number of consequences.”

It’s enough to desensitize even the loftiest of public defenders. But thanks to training offered at the Southern Public Defender Training Center, now called “Gideon’s Promise,” the young defenders in the film and those in Tully’s office are recharged.

The center is the brainchild of Jonathan Rapping, a veteran public defender and professor at John Marshall Law School in Atlanta who, after time spent training younger attorneys in defender offices across the South, grew convinced that his charges were facing systems numb to the constitutional underpinnings of indigent defense.

“Most public defenders appear before judges who expect them to help process cases rather than fight for their clients,” Rapping wrote in a recent call-to-arms.

On the day that Gideon turned 50, Rapping laid bare his plea for an awakening to a criminal justice system crumbling under its own weight:

Two decades after Gideon the Supreme Court in Strickland v. Washington created a new standard for indigent defense: “incompetent yet constitutionally adequate.”

The results are devastating. America has five percent of the world population and 25 percent of its prison population. More than 2.2 million people are incarcerated. Innocent people are wrongly convicted. Poor people sit in jail unable to post bond. Families are torn apart and communities crippled.

Eighty percent of people accused of crimes in the country rely on public defenders. They fight daily to uphold our nation’s most cherished values. Yet, while the federal government invests roughly a half a billion dollars a year to support overall criminal justice efforts at the state and local levels, most of that money goes to policing, prosecuting and incarceration, and less than one percent supports the defense function necessary to ensure a fair system.

Through his programs, which start with law students and extend to career defenders, Rapping challenges his charges to challenge the status quo, hoping to reignite the spark that led them to the indigent defense work initially.

Indigent defense in North Carolina

Like the estimated 15,000 public defenders across the country, the lot of a public defender in North Carolina is the same: overworked and underpaid.

The state has 16 public defender offices, mostly in more populous areas like Mecklenburg and Forsyth counties.

A new defender starts out with a salary in the low $40 thousands (that varies by office) and juggles a caseload of perhaps hundreds of misdemeanors, 150 or so felonies, or some combination of those, according to IDS director Maher.

In Tully’s office in Charlotte, which handles all of Mecklenburg County, there are 62 lawyers who work in specialized units divided between misdemeanors and felonies. Those in the misdemeanor unit handle up to 250 clients at a time, Tully said, but that number drops as the complexity of the case or the seriousness of the charge increases. Those handling felony drug or property crimes could have as many as 150 to 200 clients at a time; the crimes against person and habitual offenders teams, about 50; and the homicide team, eight to ten.

Public defenders in North Carolina differ from those in other states, though, in that they share their burden with private attorneys who sign up to take cases that the local defenders can’t handle, perhaps because of a conflict or because an office reaches its maximum workload.

Statewide, private lawyers are handling about two-thirds of the indigent defense work, leaving one-third to salaried public defenders, according to Maher.

“It’s sort of a built-in safety valve,” he said. “But I would add that defenders feel tremendous pressure to not farm out cases unless they absolutely have to, because while they’re not required to take every case, they understand the budget reality. In North Carolina, IDS is underfunded and if they farm out cases that they could have handled, that costs money that IDS does not have. ”

It’s also a safety valve under increased pressure, Maher added, since the legislature reduced the hourly rate private counsel can charge and has underfunded annual appropriations, leaving these attorneys unpaid for months at a time.

“For us in some ways the private assigned counsel issues are more pressing, because they handle two thirds of the work, and in many counties they provide all the representation,” he said. “And they’ve got their own overhead to cover and don’t get a steady paycheck, so they’ve faced the double whammy of significantly reduced rates over the last couple of years and not getting paid on time. At some point that just becomes unacceptable. And the clients are the ones who suffer, because the lawyers are going to feel pressure to cut corners and get cases resolved by pleas, when they really should go to trial.”

Opening eyes to the problem

Tully credits Rapping’s program for helping light a fire under young public defenders and for exposing a weakened indigent defense system, but adds that he and others in North Carolina have likewise been working to address similar concerns here.

“Rap’s program fit real well with the change in culture that we’re trying to bring about here,” he said. At its core, that change calls for becoming more client-centered, something he first realized was necessary years ago when he was handling felony drug cases in his office.

“I was visiting with a judge in chambers before night court,” Tully said. “And he opened the door, looked out at the audience and said, ‘Tully, take a look at the courtroom and tell me what you see.’ I looked, and the entire audience—probably a hundred people—was black. And then he said to me, ‘These damn drug laws are doing more to disenfranchise an entire generation than Jim Crow ever dreamed of doing.'”

Those laws, and a media-fostered perception that labels drugs and crime as African- American issues, demand that public defenders guard against becoming blind to the needs of the client, he added.

To that end, his office has undertaken new training and practices, more holistic in nature and designed to view the world from their clients’ eyes.

“We’ve had guest speakers come in to teach us who our clients were; we had to learn about what it’s like to live in poverty,” he said. “Why don’t clients show up for appointments? It’s not that they don’t care; it’s just that they live in crisis day-to-day.”

The office has also reached out to the community—mental health providers, drug and alcohol addiction providers, veterans’ benefits agencies, immigration advisers—for help in trying to break that cycle.

Tully also gives a tip-of-the-hat to his counterpart, James Williams, the chief public defender for Chatham and Orange counties, who has undertaken efforts to increase awareness of racial discrimination in the criminal justice system and to teach attorneys how to recognize and litigate such issues.

“About two or three years ago, I was trying a murder case involving a young African American male, in his early 20s, charged with a homicide involving a handgun,” Williams said. “When I went in to pick a jury, the pool had three, maybe four African-Americans out of a hundred people, and that really got my attention. Given all the media attention and the face of crime in America—when they think about crime in America they think about a young black male with a gun—I had some concern, with a jury that didn’t really reflect a fair cross-section of the community, whether my client was going to receive a fair trial.”

Williams has since lobbied for changes to make juries more reflective of the community and is in the process of completing a manual on race litigation for attorneys, which should help them identify such issues in time to make a difference in cases.

Recruiting the corps

Public defender work is hard enough, with clients facing life-changing and often devastating consequences to which the legal system is often insensitive.

Add to that the personal financial burdens the defenders themselves often shoulder and it would be easy to understand that new recruits are hard to find.

Surprisingly, though, interest in public defender work has not waned, according to Tully. But he worries that at some point the financial burden becomes unbearable.

“When I speak to students who are contemplating a life in a public defender office, the first I tell them is to have a very honest conversation with themselves about what they need out of a career including finances,” Tully said. “And I say that without judgment—some people need more than others, and that’s okay. I have friends who need a 5,000 square-foot house on the lake. I don’t need that, but I don’t view myself more somehow morally superior than them, it’s just my needs are less.”

It’s not just the low pay, though, that can be demoralizing. In his office, many who came in making $40 thousand with the understanding that they would be reviewed on an annual basis and receive merit and cost-of-living raises have been stuck in a salary freeze for four years.

These are graduates from elite law schools who could be making lots elsewhere, he added. And many of them are carrying student loan debt approaching $200,000.

“We’re talking about Gideon and looking back and looking forward to where things ought to be,” he said. “In my travels to law schools, I’m blown away by the talent of the people who want to do this type of work, so the future is very bright. But it won’t be sustainable if we don’t find a way to help them financially.”

About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.