I posted earlier about the fact that the San Jose Mercury News has written a long series about the criminal justice system in Santa Clara County. I really am excited about what an incredibe and comprehensive study they did. They really spared no one in their criticism of errors that take place there.
For this post, I want to focus on the errors that they find by criminal defense lawyers. One of the series was called The High Cost of Bad Defense that recounts the litany of errors of different lawyers who failed their clients, resulting in convictions that shouldn't have been, sentences longer than they should have been, and money stolen from clients who knew no better when they hired lawyers to help their family members. The story also talks about heroic lawyers who fought hard for their clients despite long odds and helped to exonerate the wrongly convicted, and did other things for their clients.
What I found most telling was how well Public Defenders came off in the study. The study didn't specifically look to see who did a better job, but in general, the only glaring error that they discussed by a public defender was when a PD didn't investigate some witnesses juvenile criminal backgrounds because she hadn't researched the area of law in question because she was too busy. I'm not going to excuse that, obviously lawyers shouldn't do that. That being said, I don't know a lawyer that hasn't made mistakes about what they could and should do in preparation of a case.
What was more telling was the manner in which so many other errors took place when private lawyers did minimal work, forced people into plea deals that they shouldn't have taken because they didn't want to spend too much time or couldn't collect enough money, or otherwise dumped the case because they were either bad lawyers or lazy ones.
Now, this isn't a private lawyer slam-fest. Make no mistake, if I get into trouble, I get a private lawyer, in large part because I'm not eligible for a public defender. But also, I would want that personal attention and handholding that money can buy and that PDs don't necessarily give a client (mostly because they don't have to - they're working on the case, that's enough). There are a lot of very good private lawyers out there. However, there are even more really bad ones, people who cannot measure up in the slightest to your typical public defender. They try, I give some of them credit, however, they can never match the training, experience and supervision that a public defender has. There are enough bad lawyers out there that people should be scared when they get private lawyers for their case if they don't know anything about the lawyer.
I have often marveled at the notion that people will hire just about any private lawyer out there so as to avoid a PD, due mostly to the stigma of PDs. That is stupid. I have seen very good PDs subbed out of cases for crappy private lawyers because people thought that if they spent something, then they must be getting something in return.
The reality is, there is no check on bad lawyers like there is on bad PDs. If a PD is really bad, there is a good chance that something will be done about it by his supervisors. If there is a really bad private lawyer, no one will do anything about it except the appeals courts, and as this study shows, they will do anything, no matter how dishonest, to uphold a conviction. If it means not slamming an obviously terrible defense lawyer, that's no problem on their part. Judges often prefer terrible lawyers because they are easier to deal with than real brawlers, lawyers who really fight for their clients. DAs certainly prefer that.
The real dilemna is, since most private lawyers are not as good as most PDs, how do you find a private lawyer who is really good? This is the cruel irony, the more you know about the inside of the system, the less likely you are to be able to afford a really good lawyer. Think about it, the people who know the inside of the system best (outside of those who work in the system) are defendants and their families. The more they get busted, the greater their body of knowledge. It also means the less they are able to afford higher priced representation. Word of mouth plays such a large part. A crappy lawyer can have a minor success in court, but if others in court see it, then they will go and ask for his card and try to hire him. Word spreads, sometimes based on real exploits, sometimes because you succeed without really having to do anything (such as a case getting dismissed because the prosecution is unable to proceed due to an unavailable witness - the defense lawyer did nothing to deserve that).
I did a trial for a very serious late last year with a really bad co-counsel. It really mattered, too. The co-Defendant should really have been pointing the finger at my client - I was certainly pointing it at him. One of my best weapons was the fact that co-counsel was so bad, I knew that he wasn't going to be able to effectively advocate on his client's behalf and blame my client. I knew that I would have a free ride in that case. I did, and I won the trial. The co-Defendant was convicted of all counts, and will now spend the rest of his life in prison (he really was guilty, mind you, and it was right that my client was acquitted, but a better lawyer may have done a better job of sowing reasonable doubt, or getting a conviction on a lesser crime, or something of the sort). The cruel irony is that the co-defendant fired his public defender, someone who had once trained me and was a pretty good lawyer, in order to get this lawyer, who was the worst lawyer I have ever seen in trial. That cost him thousands of dollars, and his life.
How does someone find out who a good lawyer is? That's really tough, and the fact that it is so tough is the reason why so many bad lawyers are hired all of the time.
This is why PDs acquitted themselves so well in the Santa Clara study. In follow up comments and Q&A with the writer of the story, he talks about how good he generally found PDs to be. I have certainly seen that. I would say that the average person in my office is better than about 90% of the private lawyers out there. They may not give the client the same personal attention that a private lawyer will, but they will do a very good job.
And you can't beat the price.