Public Defender Research Articles

Access to justice in prisons or the limitations of prison defense

This article sought to understand the adequacy of criminal defense services within prisons. By analyzing secondary data and interviews, it describes the justiciable problems and legal needs, the lines of action, and the obstacles that the adult prison population encounters. The results show that the experience and needs that arise in prison surpass the institutional capabilities of the chilean Public Defender’s Office. Therefore, a new institutional framework must be created to meet the justice claims of prisoners.

Defending against social media: structural disadvantages of social media in criminal court for public defenders and defendants of low socioeconomic status

ABSTRACT Secondary data collection practices are often opaque to platform users and researchers but known to shape individuals’ life chances in significant and unequal ways. In this paper, we articulate a clear relationship between invisible, unwanted data collection and its adverse, downstream consequences for marginalized groups by examining instances in the criminal justice field where social media data function as criminal evidence. We show how social media, as a now common form of courtroom evidence, may structurally work against public defense attorneys and defendants with low socioeconomic status (SES). Drawing on casework interviews with public defenders in New York City, we illustrate the mechanisms by which low-SES criminal defendants are at a disadvantage through overbroad search warrants, asymmetrical cooperation, and prejudicial evidence. We discuss the lessons and implications of our case study for platform privacy and governance research and for the courts.

Public Defenders in a Homicide Division: The Courtroom Workgroup, Plea Bargaining, Career Motivations, Views on the Causes of Crime, Perceptions of Prosecutors’ Views of Crime, and Dealing with Occupational Stress in Their Daily Lives

This study examines the courtroom workgroup, focusing on the plea-bargaining process for public defenders and their relationships with prosecutors in their courtroom workgroup. Using grounded theory method, this research examines semi-structured interviews of public defenders (N = 6) in the homicide division of a large East Coast American city. Qualitative analysis of the interviews reveals themes of disconnect in this jurisdiction’s courtroom workgroup. Public defenders of this jurisdiction perceive a stark contrast between their views on the causes of crime when compared to their perception of prosecutor’s views. Results further show that there is limited constructive communication between the defense and prosecuting attorneys in this courtroom workgroup. Interviews also revealed that the public defenders mostly saw structural societal issues as the causes of crime, whereas their perception of prosecutor’s views on crime was starkly different. A symbolic interactionist perspective of these results suggests that workgroup disconnect between the public defenders and prosecutors of this jurisdiction inhibits the plea bargain process, thus enhancing occupational stress and frustrations for the public defenders, who dealt with that stress in many unique ways in each of their personal lives.

The Problematic Structure of Indigent Defense Delivery

The national conversation about criminal justice reform largely ignores the critical need for structural reforms in the provision of indigent defense. In most parts of the country, decisions about how to structure the provision of indigent defense are made at the local level, resulting in a fragmented patchwork of different indigent defense delivery systems. In most counties, if an indigent criminal defendant gets representation at all, it comes from assigned counsel or flat-fee contract lawyers rather than public defenders. In those assigned-counsel and flat-fee contract systems, the lawyers representing indigent defendants have financial incentives to get rid of assigned criminal cases as quickly as possible. Those incentives fuel mass incarceration because the lawyers put less time into each case than their public defender counterparts and achieve poorer outcomes for their clients. Moreover, empirical research shows that assigned-counsel and flat-fee contract systems are economically more costly to the public fisc than public defender systems. This Article collects data from across the country to show how prevalent assigned- counsel and contract systems remain, explains why arguments in favor of substantial reliance on the private bar to provide for indigent defense are outdated, argues that more states need to move toward state-structured public defender models, and outlines how it is politically possible for stakeholders to get there.

The Public Defender Movement in the Age of Mass Incarceration: Georgia’s Experience

Focusing on the efforts of the Southern Center for Human Rights, this article offers a grassroots history of the creation of the first statewide public defender in the State of Georgia in 2003. Whereas federal court litigation to improve indigent defense failed to achieve lasting reform, a shift in tactics toward “rebellious localism,” characterized by state court lawsuits against county and city officials, succeeded in prodding lawmakers to create a new framework for delivering legal services to indigent defendants. This model of legal change was effective in documenting structural flaws and creating momentum for reform. Yet other conditions—such as front-end criminal law policies and funding decisions—continued to shape the actual quality of representation received by poor people.

A New Kind of Academic MLP: Addressing Clients' Criminal Legal Needs to Promote Health Justice and Reduce Mass Incarceration.

This article describes a new type of medical-legal partnership (MLP) that targets the health and justice concerns of people enmeshed in the U.S criminal justice system: a partnership between clinicians who care for people with criminal system involvement and public defenders. This partnership offers an opportunity to not only improve patient health outcomes but also to facilitate less punitive court dispositions, such as jointly advocating for community-based rehabilitation andtreatment rather than incarceration.

Giving the Fourth Amendment Meaning: Creating an Adversarial Warrant Proceeding to Protect From Unreasonable Searches and Seizures

For at least the past 40 years, police and prosecutors have had free reign in conducting illegal searches and seizures nominally barred by the Fourth Amendment. The breadth of exceptions to the warrant requirement, the lax interpretation of probable cause, and especially the “good faith” doctrine announced in U.S. v. Leon have led to severe violations of privacy rights, trauma to those wrongly searched or seized, and a court system overburdened by police misconduct cases. Most scholars analyzing the issue agree that the rights guaranteed by the Fourth Amendment—to be free from unreasonable search and seizure—have been severely eroded or even eviscerated by the Supreme Court. Some suggest that in order to revitalize the Fourth Amendment, the United States should make it easier to secure civil damages after Fourth Amendment rights have been violated. Others have argued that the United States must guarantee stronger ex ante protections to uphold fundamental privacy rights before they are violated. This Note argues that, while warrant requirements do need to be more stringent to safeguard Fourth Amendment rights, warrant requirements cannot on their own sufficiently protect such a sacred right. This Note proposes the adoption of adversarial warrant proceedings, designed to ensure police and prosecutors meet their probable cause burden and to ensure that any lies or sloppy investigative work are rooted out from a warrant application before a warrant is granted. False searches and arrests can be deeply traumatizing and have excruciating and long-term impacts. For the Fourth Amendment to have any meaningful affect, the People must have an advocate—a Warrants Counsel— fighting for their right to be free from unreasonable searches before that right is violated. The Roberts Court’s destruction of the Fourth Amendment leaves little reason to expect protection from unreasonable search and seizure through litigation. Instead, Congress must create the Warrants Counsel program legislatively. Congress should look to the major success of the Federal Defenders program as a blueprint for zealous advocacy and protection of rights. A Warrants Counsel, like a public defender, would be a government paid attorney, present to argue against probable cause before a magistrate whenever police or prosecutors seek a warrant. Like the Sixth Amendment before the public defender system, the Fourth Amendment desperately needs some structure to give its language meaning; the Warrants Counsel system would counterbalance over-powered police and prosecutors in favor of the People.

Five Faces of the Public Defender

Five Faces of the Public Defender

Alone in the Lone Star State: How a Lack of Centralized Public Defender Offices Fails Rural Indigent Defendants

The criminal justice system is stacked against indigent defendants. The disadvantages indigent defendants face are exacerbated when mixed with the unique qualities of rural America. For instance, rural court-assigned attorneys are often picked through ad hoc systems by the very judges these attorneys must appear in front of, creating a judicial conflict of interest. The financial realities of rural public defense work often force counsel to manage a private practice while also balancing court-appointed cases. To the extent integral resources like investigators or experts are present in rural spaces, they are seldom used. This Note highlights the way Texas organizes its public defense system as an example of how the unique properties of rural America interact with our criminal justice system to create substandard representation. As a solution, this Note proposes that rural counties should pool together resources to create centralized, regional public defender offices that serve multiple counties. Centralized offices, rather than private attorneys selected by judges to represent indigent defendants on an ad hoc basis, would sever judicial conflicts of interest; they would allow defenders to focus on their indigent clients rather than be forced to manage a separate practice; and they would have the ability to retain in-house services like investigators. Because establishing these centralized offices requires increased state funding and political will, this Note concludes by analyzing impact litigation lawsuits in several states that successfully improved rural public defense.

Process mapping: A case study in the contract sector of the Public Defender's office in the state of Amazonas

Process mapping: A case study in the contract sector of the Public Defender's office in the state of Amazonas

რელიგიური საკითხები ქართულ მედიაში რაოდენობრივი კვლევის ანალიზი

Religious conflicts attract special interest of the media. A journalist’s responsibility is vital in the process of covering religious crises in order to present to the audience balanced, objective, stereotype-free facts and provide the user with a media product prepared at a professional level, without distortion and/or misinterpretation of facts, and also avoid formation of stereotypical views and attitudes. It should be taken into account that the information spread by the media should not lead to deepening of the conflict among religious groups. Recently, the Georgian media often covers religious issues, because the number of religious conflicts in the country has increased fairly. Relationship between religious organizations and the state is a particularly important area of interest both in the world and in Georgia, and a country where these relationships are regulated is even considered ideal. According to the annual report of the Public Defender of Georgia, Georgia is unfortunately not considered to be among such ideal countries. According to the report, facts of intolerance on religious basis in Georgia are quite often recorded, and what should be surprising, that media organizations often incite to the situation more than state officials. How are religious events covered in Georgian media? In this regard, a systematic and in-depth research on the coverage of religious issues in the media has not yet been conducted. The presented research is an attempt to improve the above-mentioned condition, and naturally, like all first attempts, it may have some imperfections. Within the framework of the research, the public opinion regarding the coverage of religious issues in the Georgian media is analyzed for the first time. The presented report provides an opportunity to see a comprehensive picture of the current situation in the Georgian media regarding the coverage of religious issues. I hope that the presented findings will be a significant part of discussions and with their help it will be possible to start a dialogue between the interested parties in order to improve condition of the Georgian media in terms of reporting on religious issues.

Legal Process Automation as a Tool for Access to Justice: A Proposal to Restructure First Contact Interviews in the Federal Institute of Public Defenders

This article argues that digitalization (which includes legal process automation) is a tool for bridging the gap of access to justice and improving operational performance through features that are scalable, standardized, asynchronous and accessible. Firstly, the article provides an introduction to digital justice and technology use in legal services, including subsections about the countries that are leading the way in digital justice. This article also develops an implementation proposal, using Mexico and the first-contact interview of the Federal Institute of Public Defenders (FIPD) as a possible example of legal process automation. Thus, the third section offers background information on access to justice in Mexico and the FIPD, as well as some ideas on the complexities of a first contact interview, and what elements should be taken into account when automating this process (software, databases, plain language and design). The final section presents the interview prototype through which the principles and ideas discussed in the previous sections are put into practice, ultimately demonstrating the feasibility of the proposal.

Perceptions about Court-Appointed and Privately-Retained Attorney Representation: (How) Do They Differ?

Since Gideon v. Wainwright (1963), discussions about and research on the dichotomy between court-appointed and privately-retained attorneys have been pervasive, most frequently casting court-appointed attorneys in a negative light (e.g., work for the “state,” overworked and under-resourced) relative to their privately-retained counterparts (e.g., work for the “client,” autonomous and self-sufficient). In our survey, we re-visit these perceptions and include an exploratory experimental test in which we varied attorney resumes by attorney type. Consistent with prior research, participants had more positive attitudes of privately-retained attorneys and believed that they were more likely to generate favorable case outcomes than court-appointed attorneys. These attitudes were informed by participants’ perceptions about the attorneys’ resource amounts (caseload considerations, time, and energy), questions of adversarial allegiance, and sentiments of respect and altruism. In the experimental test, there were no differences in attorney ratings between participants “represented” by a public defender and those “represented” by a private defense attorney; rather, it was when asked to compare types of attorneys did these attitudes diverge. Overall, these results suggest that negative attitudes of court-appointed attorneys are somewhat engrained; however, there is now an increasing awareness of the systemic constraints that court-appointed attorneys face, as well as an appreciation for the work they do for indigent and under-served populations and society.

Harriette Bailey Conn: Public Servant and Political Pioneer

Harriette Bailey Conn (1922–1981) was a political pioneer and a remarkable community leader as a woman of color in the mid-twentieth century. At a time when few women of color attended college, she not only graduated with a bachelor's degree but later returned to be the first woman of color to graduate from the Indiana University-Indianapolis (now McKinney) School of Law. She completed her law degree the year after giving birth to her seventh child. In her relatively short political career, she served as a deputy prosecuting attorney, state legislator, assistant city attorney, and, ultimately, state public defender. Through her work in less than three decades in government, Conn worked tirelessly to improve the conditions and circumstances within her community. This article examines her life and legacy as a political pioneer within Indianapolis and Indiana.

The right to the assistance of the defense counsel in the light of the European Court of Human Rights case law

The article analyzes the standard of the accused’s right to enjoy professional legal assistance as developed in the case law of the European Court of Human Rights. Its purpose is to illustrate the Court’s broad understanding of this right, which is supported not only by its essential substantive components but also in its connection to the principle of a fair trial. It highlights the subjective and objective scopes of the accused’s right to the assistance of the defense counsel as well as the question of the waiver of this right, the prerequisites for appointment of the public defender, and the criteria for the implementation of the guarantee standard arising from this right. In the conclusion, the author presents several reflections resulting from the juxtaposition of the “conventional” standard of the right to the assistance of the defense counsel with its implementation in the Polish legal order.

Body Cameras and Adjudication: Views of Prosecutors and Public Defenders

The jury serves as an important reference point for criminal case processing, despite the fact that the majority of cases are disposed of by pleas or dismissals. This research examines the downstream impact of BWC footage on the adjudication process with a particular emphasis on the management of uncertainty. Research involved interviews with prosecutors and defense attorneys in urban counties in California, New York, and Texas. The results indicate that both defense and prosecution anticipate BWC changing approaches to cases and how cases may be negotiated to an outcome. They also report that jurors expect BWC footage, and that it functions as a means to establish case facts and the credibility of police, the defendant and witnesses. Policy implications regarding the introduction of BWC and future directions for research are discussed.

The helpless defense: Notes on the role of Brazilian public defenders in sentence enforcement proceedings

The helpless defense: Notes on the role of Brazilian public defenders in sentence enforcement proceedings

LESSONS FROM SOUTH AFRICA FOR THE DELIVERY OF LEGAL AID IN SMALL AND DEVELOPING COMMONWEALTH COUNTRIES

The South African legal aid scheme experience is a useful model for small and developing countries because it has tried numerous models of delivery and operates on a modest per capita annual expenditure. In most Commonwealth countries judicare, supplemented by pro bono work, is the most common form of delivery of legal aid services. The South African scheme illustrates how a combination of public defenders, including intern public defenders, and judicare can be used to operate justice centres that deliver a full range of legal aid services. It also shows how cooperative agreements between the Legal Aid Board and university law clinics,public interest law firms and paralegals can be used to supplement legal aid services, particularly in civil matters.

Between the legal technique and the social question: the plural commitments of public defenders in Argentina  

Between the legal technique and the social question: the plural commitments of public defenders in Argentina  

Public defenders versus private attorneys: A comparison of criminal case disposition outcomes by type of counsel in Mexico

Recent research on the effectiveness of public defenders vis-à-vis private attorneys in criminal cases has not exhaustively analyzed trial avoiding mechanisms and other pretrial outcomes and expanded beyond the United States. This article addresses these gaps using a novel data set from the Mexican criminal justice system, where trial avoiding mechanisms have been recently introduced. We show that both private and public defenders avoid trials, but at different costs. Cases with private attorneys are more likely to end in dismissals, especially via alternative procedures (dispute resolution mechanisms and diversion), while cases with public defenders are more likely to end in convictions through abbreviated procedures (guilty pleas). Resource constraints and their membership to the courtroom workgroup might incentivize or pressure public defenders to cooperate with the prosecution to secure a guilty plea, thus facilitating the conviction of defendants in administrative procedures that lack the full due process protections of trials.