Crime & Federalism

Criminal defense lawyers often decry the blue wall of silence.  Why don't police officers speak out about corruption?  Yet criminal defense lawyers defend the indefensible public defense system.

There isn't a criminal defense lawyer reading this post who would, if charged with a crime, choose to be thrust into the public defense system rather than hire counsel.  Sure, you know a guy in the office you'd entrust with your case if he had the time to spend on your case.  

You'd go into the public defender's office if - unlike poor people - you could choose your lawyer, and demand that he not treat you like another piece of meat on the assembly line.  Which means, in reality, you do not trust the public defender system.

There are several weak defenses of the public defense system.  These arguments sound very much like the arguments police make when defending the blue wall of silence.

"I know some great public defenders."  Sure.  Some are very talented.  Many are hacks.  The talented public defenders do not weed out the hacks.  Thus, an indigent client who walks into a public defender's office is playing the lottery - Shirley Jackson style, as the stakes are his life.

Aren't public defenders who allow incompetent colleagues to take on clients the Burkean men who allow evil to flourish by doing nothing?  If we were talking about police rather than public defenders, you know how you'd answer, don't you?

"They are overworked, and their caseloads are too high."  Why don't you demand that public defenders go on strike?  Bring the system to a halt.  That's what you demand of police: Speak out, even if it means risking your job.  Well, why don't you demand that public defenders risk their jobs to improve the system?

The general defense of public defender is to ignore the individuals, while attacking the system.  Yet when criticizing police misconduct, criminal defense lawyers attack both the system and the individuals who are part of the system.  After all, change is possible only when those on the front line take bold action.

Why would you demand that a police officer risk his pension for the greater good, while not demanding that public defenders take the same risks?  These questions matter, as people suffer because of lazy fools like public defender Patrick E. Barber.

In this New York Times article, we learn about Mr. Barber - a go-along-get-along public defender.  He tells his clients to plead guilty, and throw themselves on the mercy of prosecutors.  He doesn't file motions, because that might tick off the prosecutor.  

When a lawyer offered a novel-but-compelling argument that would help one of Mr. Barber's clients, Mr. Barber:

did not ask for a copy of the briefs. “There wasn’t any enthusiasm,” Mr. O’Connor said. Asked about this in the recent interview, Mr. Barber said had not wanted to bring up anything that could make prosecutors ask for a longer sentence.

Patrick Barber is a public pretender.  Yet you can bet that most criminal defense lawyers will rally to his defense.  Instead of laying blame where it belongs - right on Barber's shoulders - we'll hear numerous critiques about the system.  Barber was overworked.  The next day those same lawyers will attack individual police officers, and cognitive dissonance will ensure that their critiques are unironic and totally non-self-aware.

Incidentally, Barber was recently disbarred.  He had a history of professional malfeasance:

We have heard respondent in mitigation and determine that in order to protect the public, deter similar misconduct and preserve the reputation of the bar, he should be disbarred. In reaching this determination, we again note the very serious nature of respondent's fraudulent conduct which strikes at the heart of the administration of justice (see e.g. Matter of Reich, 32 AD3d 1106 [2006]). Respondent's misconduct is aggravated by his disciplinary history which includes two letters of admonition and a letter of caution issued by petitioner, and demonstrates a pattern of misconduct involving neglect of client matters and misleading and deceiving clients.

Why was Barber allowed to represent clients?  Why didn't anyone in the public defender's office step in, and demand that he lose his job?  Why didn't a public defender at least warn the public about Barber?