How Much Does a Public Defender Need to Know About a Client?

As a recent New Jersey ruling shows, the justice system still doesn't grasp the importance of fair counsel.
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Associated Press

Earlier this month, the New Jersey Supreme Court issued a ruling in a case that didn't generate much publicity in the Garden State or anywhere else. It was just another opinion, about another indigent criminal defendant whose case was processed through a justice system that was relentlessly more concerned with efficiency than with justice. Sadly, it's not big news today when our nation's judges permit a person's fair trial rights to be violated in a way that both shocks the conscience and violates the Constitution.

In State v. Terrence Miller, four justices of the state supreme court—over a lone dissent—affirmed the conviction of a man indicted on drug charges who met his lawyer for the first time for a few minutes in a stairwell at the courthouse on the morning of trial. The lawyer had not tried a criminal case in seven years and had been appointed to Miller's case only four days before trial. He never spoke to any witnesses, or to Miller's former attorney, or to investigators in the public defender's office. He didn't know what his client would say on the witness stand.

Twice, the defense attorney asked the trial judge for a continuance so that he could adequately prepare for trial. Twice, the trial judge refused the request even though there were other cases he could have tried during that time. He had his docket schedule to worry about, the judge said, and the case was not complex. The judge was frustrated, court records revealed, with the "higher ups" in the public defenders office. He thought they were trying to play him. Lost in the middle of this turf war was Miller. He bore the brunt of the judge's frustration.

To their credit, prosecutors did not oppose the adjournment, but of course they did not complain when it was denied by the judge. The trial proceeded. Miller never had a chance to present his best defense, whatever it was, and was quickly convicted. All of this, the state supreme court declared, satisfied the defendant's constitutional right to counsel first expressed in Gideon v. Wainwright. Miller, the court said, got a fair trial. His trial judge, the justices concluded, should have delayed the trial but did not "abuse his discretion" when he didn't.

Words v. Deeds

If you spend any time at all at the Justice Department’s website you’ll notice that the Obama Administration has been quite vocal in recognizing that the constitutional right to counsel plays in our justice systems. Over and over again, Department officials at the highest levels have issued proclamations praising the United States Supreme Court’s landmark decision in Gideon v. Wainwright while candidly acknowledging the gulf that exists today between the promise of that ruling and the practical effect of it for millions of Americans.

And, when posting to their own website isn’t enough, Justice Department officials have sought to spread the gospel through mainstream media. Attorney General Eric Holder himself, in an op-ed piece published in August in The Washington Post, said he joined “with those judges, public defenders, legal scholars and countless other criminal justice professionals who have urged Congress to restore these resources, to provide needed funding for the federal public defender program and to fulfill the fundamental promise of our criminal justice system.”

And, when writing op-eds isn’t enough, the feds have filed court papers asserting that there is a federal interest “in ensuring that all jurisdictions—federal, state, and local—are fulfilling their obligation under the Constitution to provide effective assistance of counsel to individuals facing criminal charges who cannot afford an attorney.” All of these words, pleas, and earnest remonstrations, are far more than what the Bush Administration lawyers did when confronted with the same problems during their tenure. But they are not nearly enough.

When it comes to indigent defense,the Obama Administration gets an “A” for candor and an "F" for results. The feds know there is a terrible problem. And they know how to solve the problem. But they won't spend,  or push Congress to spend, what it would take to do it. This year, for example, the Justice Department proudly announced it would give $1.8 million in grants to “improve access to criminal legal services and strengthen indigent defense across the nation.” This is not remotely enough. Funding for legal aid and criminal defense "should be a priority," Justice Sonia Sotomayor said Tuesday. She's right.

No One Stood Up For Miller

So much went wrong in the case of Terrence Miller that it's hard to know where to begin. No one involved in the process acted to protect his constitutional rights. Here's how Justice Barry T. Albin, the lone dissenter, described the relationship between lawyer and client: "[T]he two never discussed the upcoming motion to suppress or trial. They did not converse about a defense, trial strategy, or whether witnesses should be called or subpoenaed. The attorney did not prepare his client for testimony he might give on the stand."

Meanwhile, the trial judge, who has since retired, also abdicated his responsibility to protect Miller's fair trial rights. He twice refused to reschedule the trial because he was, to use Justice Albin's characterization, "frustrated by trial delays and intent on making a point that the Public Defender's Office could not usurp his calendar."  And the public defenders also later acknowledged blame. "We agree that our office should have appeased the trial judge" by making a more formal request for a continuance, Dale Jones, a public defender in Mercer County (who was not Miller's trial attorney) told me last week.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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