“Even a guilty guy is entitled to a fair trial.” For public defenders like Hennepin County's David Cohoes, that is the bottom line.
In day-to-day practice, of course, it’s not always that noble. Public defenders don’t always get a lot of respect. Critics on one side think they’re actually in cahoots with police and prosecutors. Others say they’re soft on crime, or accuse them of representing the scum of the earth.
Some call them “public pretenders” and question whether they’re even real lawyers. (They are – they’ve got law degrees, pass the bar exam, and jump through all the hoops other attorneys do.)
But public defenders put up with less-than-ideal conditions because they believe deeply in their role: defending the Constitution. “My role is to make sure everybody gets a fair shot, that the system is fair, that everybody’s rights are respected,” says Ramsey County’s Edith Brown.
“The whole Bill of Rights – no arrest or search and seizure without probable cause, protection of people’s privacy, right to a fair trial, you can’t be forced to incriminate yourself, no excessive bail, due process – all of those things, we protect those every day,” Cohoes says.
Public defenders typically represent those who don’t have money, who don’t have power, who are mentally ill, homeless, or on the margins. In doing that, Cohoes says, public defenders actually are protecting everybody’s rights.
Public defenders exist because of a 1963 U.S. Supreme Court ruling, Gideon vs. Wainwright. That ruling says the Sixth Amendment requires state and federal governments to provide free legal counsel to defendants in criminal cases if they cannot afford their own attorney.
“Poor folks, in particular, often get second-class citizenship,” Cohoes says. “They should at least get first-class representation.”
Time is at a premium
Achieving that, however, is a nonstop challenge, especially in times of declining public resources. In Ramsey, for example, there used to be three public defenders for each judge in misdemeanor court, where Brown practices. Now there’s only one. “Because of the caseload, and because defendants are being passed from one attorney to another, you only spend a little bit of time with them. So it’s really difficult,” she says.
Cohoes, who handles felonies, says public defenders have to be realistic about how much they can accomplish – and to stop “trying to do too many things for too many people with not enough time.... The kinds of cases I have, the stakes are very high. Somebody may go to prison for the rest of their life, or 20 years or something, and it’s a lot of responsibility.” That makes managing caseload “both an art and a science,” he says.
Hennepin uses an approach called “vertical representation.” That, in theory, means Cohoes works with the same defendants from start to finish, from arraignment to sentencing.
Trying to reach agreement
Ramsey County handles workload in a different way. Brown doesn’t get her cases until after arraignment, which means she typically doesn’t meet her clients until they show up in court for their pretrial hearing. She has to quickly read police reports, case reports from other attorneys, interview her clients and, in a short time, get them to trust her enough to agree on how to plead their case. That is not always easy.
Sometimes, family members get in the way, Cohoes says. Some defendants simply won’t listen. Some have an incomplete sense of what the law is. “Things like self-defense – trying to explain to people that the law of self-defense on the street and the law of self-defense in the courtroom are different,” he says.
But the client is not the only one who has to agree on a plea deal. So do the judge and prosecutor. Judges often have their own preferences, Brown says, and in Ramsey County, they also have a history of being less flexible.
Public defenders say that, especially in felony cases, they typically have far more discretion in their jobs than prosecutors do.
“I can run my cases the way I want to,” Brown says. “Nobody’s second-guessing me about how things should be handled.”
Prosecutors don’t always have that autonomy. “By and large, I have a great deal of respect for them,” Cohoes says. “I think most of them are very good lawyers. But many of them, especially the newer ones, feel that their supervisors will not approve their decisions. There is a whole chain of command they need to get approval from before they can offer a plea bargain or agree to a reduction or whatever.”
Adding a touch of humanity
Often, the public defenders say, they fight for an alternative to prison because they believe drug treatment, alcohol treatment, mental health treatment, or some other option is the best way to keep defendants from re-offending.
“I’m just trying to get the best offer I can for them, make sure that the sentence is fair when you look at it in terms of what the behavior was,” Brown says. “That’s the ultimate goal.”
“I don’t consider myself a social worker, but I do care about what happens to clients,” Cohoes says, “about getting an outcome for someone that they’re satisfied with, that either gets them out of trouble or gets them the help that they need, or sets them on the right path in life.”