Indigent Defense Standards Help Defense Attorneys to Provide Effective Assistance -- Mike's Story

Excerpt adapted from: David Carroll and Scott Wallace, Implementation and Impact of Indigent Defense Standards (December 2003), Award No. 1999-IJ-CX-0049, National Institute of Justice, Office of Justice Programs, United States Department of Justice.

One spring night in 2001, an unidentified caller dialed 911 and hung up before words were exchanged.  The police were routinely dispatched to the apartment where the call originated.  They were greeted at the door by Mike (not his real name).  Mike appeared nervous, having used methamphetamines an hour earlier.  The police asked permission to enter to ensure that no actual emergency was in progress, and Mike consented.  The officers saw drugs in plain view.  Mike and an acquaintance Mary (not her real name) who was also present were arrested and charged with felonies.

To anyone familiar with the criminal justice system in the United States, cases like Mike's are commonplace.  They frequently pass through the system with little thought or attention by defenders or anyone else.  But Mike was fortunate, and so was the community in which he lived.  Mike lived in Eugene, Oregon; a place with standards for how attorneys provide representation to the poor.  And that lucky circumstance made the crucial difference that helped Mike get his life back on track.

Unlike many other jurisdictions, Oregon has standards to ensure that defense representation is provided to people of limited means in a manner that is both cost-efficient and meets certain thresholds for quality.  Oregon's indigent defense standards are enforced through contracts with individual attorneys, private bar consortiums, or non-profit public defender agencies to represent individual clients.  These are not "flat-fee" contracts that simply specify a flat fee for a fixed number of cases.  Instead, the contracts require attorneys to meet specific conditions, based on the state's standards, all designed to ensure that low-income defendants receive quality representation and a reasonably fair day in court.  For example, they set experience levels required for attorneys to handle criminal matters of varying complexity and severity, they set requirements for ongoing legal training, and they set limits on the number of cases an attorney can take in a year.

In Mike's case, the Oregon standards were embodied in the team of qualified attorneys, investigators and legal assistants of the Public Defender Services of Lane County.  One of those standards required attorneys to intervene early in their clients' cases.  Section 7.1.4.1-2 of the public defender office's contract required attorneys to conduct initial interviews with in-custody clients within 24 hours of appointment, or 72 hours for out-of-custody defendants if possible.  It was during this initial interview that Mike's trained public defender, Ilisa Rooke-Ley, learned he was a developmentally delayed 38-year old man.  An investigator on his team discovered that Mike had been under the supervision of either Senior & Disabled Services or Oregon Independent Living for all of his adult life.  A legal assistant was dispatched to interview Mike's social workers.  She learned that the social workers had found Mary (the other person arrested that night) and an associate of hers named Tom to be at the root of Mike's recent problems.  Since becoming "friends" with Mary and Tom, Mike had begun showing signs of drug use, and a suspicious number of television sets and VCRs had been appearing at his apartment.  The social workers had tried to keep Mary and Tom away from Mike, to the point of having the pair arrested for trespassing at his apartment, but that had only served to make Mike distrustful of the social workers and their assistance.

To public defender Rooke-Ley, Mike was "kind and lovable;" a trusting person who could be easily swayed by people purporting to be his friends.  From their investigation, the public defense team concluded: "Tom and Mary used Mike's affable nature and mental challenges to make him an unsuspecting cover for their crimes.  They befriended him, drugged him and used his apartment to hide items they stole."  The public defender interviewed Mike again, this time accompanied by a social worker, to explain to him the importance of ending all illicit drug use and of staying away from Tom and Mary.  As his trust in his public defense team grew, Mike acknowledged that to stay clean he needed to stop seeing Mary and Tom, since they were the only people who ever gave him drugs.

With those promises, Mike's public defender went to the prosecutor handling the case.  Mike's public defender knew that Lane County's drug court was not an option for Mike because of his limited ability to undergo the rigorous treatment requirements and schedule.  After explaining Mike's disabilities and her view of the facts of the case, she requested that the prosecutor speak with Mike's social workers to verify the information.  Through negotiations, the public defender and the District Attorney agreed that Mike was a candidate for the District Attorney's Deferred Adjudication Program.  In Lane County, appropriate defendants are offered the chance to have their cases dismissed if they successfully complete conditions set out by the District Attorney.  In this case, the state agreed to defer adjudication for one year on a count of possession of a controlled substance, if Mike agreed to abstain from all drug use, submit himself to random drug testing and, perhaps most importantly, stay away from Mary and Tom.

Oregon's implementation of indigent defense standards has positively improved Mike's life.  More than two years into the program, he is living a clean and productive life.  He moved into a semi-foster care program and is a volunteer for Adult and Senior Services.  He calls his friends at the public defender office regularly to report on his progress.  He has not seen Tom or Mary.  He has not tested positive for drugs.

The standards have also improved the greater Lane County community.  Early diversion of people like Mike out of the criminal justice system eases congestion of court dockets, decreasing the inefficient use of time by judges, district attorneys, public defenders, bailiffs, clerks and other court officers and staff.  With defendants like Mike moved out of the system, correctional resources are more precisely targeted toward people who pose a real threat to public safety or are a flight risk.  And fair and commonsense outcomes, as in Mike's case, increase community acceptance of the criminal justice system and the integrity of its judgments.

Had Mike been arrested elsewhere in the United States, the result might not have satisfied all of these different interests. In Louisiana in 2001, he may have been detained in jail for weeks or months before an attorney was appointed to his case.  In parts of New York, Mike might have been assigned an attorney with 1,600 other clients annually, in which case he would have met his lawyer for the first time on the day of his preliminary hearing and had his case continued several times, wasting both adjudicative and correctional resources.  In Alabama and many other states, he may have pled guilty to misdemeanor charges in exchange for time served, without counsel ever having been assigned or consulted, and without understanding the impact a criminal record would have on his employment, housing, eligibility for health or income-support benefits, or immigration status -- all issues that may involve future court actions at public expense.  In other jurisdictions, Mike may have been assigned to a real estate attorney and been found guilty and imprisoned on felony charges simply because his attorney had no experience looking beneath the surface of a case such as Mike's.  In any of these jurisdictions, Mike may have left dependents behind to move on to welfare rolls or may have been the subject of a petition to terminate his parental rights.  His case may have been overturned on appeal for ineffective assistance of counsel and remanded to the lower courts for a new trial.  Assuredly, in many jurisdictions Mike would not have been represented by a defense team who would identify the root cause of the problem, connect him with the resources to help him resolve those root causes, and aid him in becoming a helpful and law-abiding member of the community.

In Mike's case, success started with the standards, but it also required a skilled and dedicated public defense team, an understanding district attorney's office, and a court system that treated Mike with dignity and respect.  The standards made it possible for that public defense team to provide more prompt representation, comprehensively examining and addressing not only the legal charges against Mike, but also the challenges of his life which led to the charges and which, if unaddressed, would have made recidivism likely.  By requiring that public defense attorneys carry only reasonable caseloads, meet basic levels of qualifications, have ongoing legal education, and meet with clients early, Oregon's standards allow indigent defense practitioners in Lane County to be coequal partners in an effective adjudicative system that respects and carries out defendants' constitutional right to the effective assistance of counsel.

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Publication Date: 2010