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<strong>The quality of legal representation for the indigent accused of crimes</strong>

January 16, 2012 1:04 p.m.


Stephen B. Bright, President, Southern Center for Human Rights

Related Story: The Quality Of A Legal Defense: Does It Matter If You're Rich Or Poor?


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: I'm Maureen Cavanaugh. It's Monday, January 16th. Our top story on Midday Edition, as we acknowledge the greater achievements of the civil rights movement, we also recognize that it didn't change everything. One of the areas least affected by the movement is the criminal justice system. Stephen Bright is president and CEO for the southern center for human rights. Welcome to the show.

BRIGHT: Thank you so much for having me.

CAVANAUGH: Why do you think the civil rights movement has had little effect on the criminal justice system?

BRIGHT: Well, because I think in large part, who runs the criminal justice system, I of course work in the deep south, and I see lots of change there. John Lewis who was almost beaten to death for trying to cross the bridge in south Alabama is of course my Congressman now. So there's been great progress since doctor king's time. But you go to the courthouse, and it looks like nothing has change. The judge is white, 95% of the prosecutors in this country are white, the head prosecutor. And even in communities with fairly substantial African American populations, a lot of times, the entire jury will be white. And we know that race affects the criminal justice system from whether somebody is stopped or not, much more likely to be stopped if you're a person of color, whether you're abused during the stop, whether you're arrested, how high your bail is set is going to vary, and how severe the punishment. At everyone stage of the process, race figures pretty dramatically into it. And that's why I say the civil rights movement has really not had much effect on the criminal justice system

CAVANAUGH: You're going to be speaking specifically about how it is to try to find some real defense if you are poor or indiggent. What are their options for legal representation?

BRIGHT: Well, it's one of the great problems, I think, that you'd be of the same government that's try to convict and imprison the person is also responsible for providing legal representation. And very often, particularly at the funding level, there's not a great incentive to provide a lot of money for people accused of crimes. Robert Kennedy said, the poor person accused of a crime has no lobby. And one may get a public defender who's struggling with a huge case load. In 24 counties in California, a person might get a contract lawyer who has been awarded the defense of poor people accused of crimes by giving the lowest bid, and often it's so little that the lawyers have almost no time to spend with their clients. And so we believe in the United States in equal justice under law, the eye that's over the Supreme Court building, and the idea this it shouldn't make any difference whether you're poor or wealthy in terms of the kind of justice you get, but it makes all the difference in the world.

CAVANAUGH: In popular culture, we all know, it is sometimes said that helps to have the best defense money can buy. But what specifically is the advantage of having money and resources when it comes to a good legal defense?

BRIGHT: You look at any person of means that's charged with a crime, and usually they will hire some leading criminal defense lawyer. That lawyer will not have three hundred other cases, they'll have only very few, they will have other lawyers associated and working on the case as well as paralegals, investigators will be able to retain expert witnesses if there are any issues that require analysis by an expert, whereas the poor person accused of a crime may have a Public Defender, who as I said may be juggling 300 cases or may have a contract lawyer whose only way of making money is to spend as little time as possible on each case in order to handle a high volume of cases for what the lawyer is being paid. So that's the difference. And unfortunately, a lot of poor people are not really represented. They're processed through the system. One lawyer in California said that 70% of his cases were resolved at the very first hearing, where the person met the lawyer and the judge for the first time, and in those cases he spent about 30 seconds explaining the plea bargain to the client, he pled guilty, and that was the end of it. That's not representing people. That's processing people. That's sort of like a fast food restaurant. It's not justice.

CAVANAUGH: And again, if indeed a case goes to trial, and the prosecution has evidence that can be challenged by the defense. Does a Public Defender have any resources to find an expert or to get some scientific information that would challenge that kind of evidence?

BRIGHT: Well, the answer is sometimes yes, and sometimes no. Of course there's great representation within California and throughout the country. Many places, the answer to that question is undoubtedly no. And most places, the answer is sometimes. It depends on when for example -- Colorado has a well-funded state Public Defender program, comprehensive program that covers the whole state of Colorado and all the different counties within it. And there there are resources to consult with an expert. But in Alabama there's no system at all. It's just basically appointing lawyers to handle cases and paying them very little. California is by county as well. So you may have a very good Public Defender office in San Jose, but you may have one of these contract lawyers in some of these other counties. And so again, their quality of representation and the resources available to mount a defense changes from state to state, and even from county to county within a state.

CAVANAUGH: Let's talk about those resources. When the government, federal, or local government puts money into the legals is, does most of it go toward prosecuting cases?

BRIGHT: Overwhelmingly, yes. In one of those cases in California, the contractor, the low-bid contractor's budget was 27% of the prosecution's budget. And that's in terms of the state funding. One of the other factors is that the federal government gives all kinds of grants to prosecutors and police departments for various things. Drug traffic force, domestic violence, putting more police on the streets. And I'm not saying that any of these are not worthy projects. But when the money only goes to the prosecution, if there's a new drug task force made up of federal and state law enforcement agencies, it's going to arrest a lot of people. And all of those people who are arrested are going to need a lawyer. If there's no funding coming from the federal government to the defense side, to the Public Defender's Office, then the prosecution is going to have a huge advantage because it's going to be well-staffed through this federal funding, in terms of law enforcement officers, in terms of the state crime laboratory, the ability to go to the FBI or some other federal law enforcement agents is needed on the other side. There are just not going to be those resources.

CAVANAUGH: Stephen, people in law enforcement will tell you that the overwhelming number of those charged with a crime are guilty. So is this really a significant problem when that happens in the courtroom as you described earlier, and a client pleads to an offense and the whole thing is taken care of without a trial, and it's -- as you described, it's almost like fat food justice. Is this a significant problem, and if so, why?

BRIGHT: Well, it is for two reasons. One thing that we know now from the DNA exonerations is that a lot of people who are convicted in the Courts are not guilty. DNA is only available in about 10% of the cases, but we've seen a lot of people exonerated, including people sentenced to people. There's no reason to think the same number of mistakes have been made in the other 90% of cases. But there are a whole lot of other things that are important about people receiving a lawyer. Give you an example of a woman in New York who was arrested first time in her life, didn't have a lawyer, nobody to argue for bail. Her husband was on dialysis and counted on her to take him to treatment twice a week, she was not able to reach anybody, she wasn't able to get her bail reduced, and her husband died. Later she was released on her personal promise to come back, and ultimately the charges were dismissed. She needed a lawyer at the bail hearing, at the very first appearance to get her out on her personal promise to come back. She was no threat of flight, she was a first-time accusee, not a first-offender because she didn't break the law. And yet the punishment conflicted on her was that she lost her husband because she couldn't take care of him. And one of the things that I see a great deal in the legal system are people who lose their jobs, lose their homes because they're arrested and they're locked up for two or three weeks, and then they finally are released on bail, but by then, they've lost their home and their job and so forth, and the charges may ultimately be dismissed. The other factor is sentencing. Even the people who plead guilty, our system is supposed to be an individual system of justice, that we sentence people based on who they are, not just the crime they committed. But is this a person who's mental retarded, is this a person who suffers from a major mental illness, is this somebody who had done L if their life up until now and this is an aberration, or is this a career criminal? If the larceny don't spend but 30 seconds with they client, then they have no yes who they're representing, and again, sentencing is the most critical part of a criminal case. It may be a sort sentencing as opposed to a long sentence, it may be life imprisonment as opposed to the death penalty. So even for guilty people, if we want the Courts to do a good job sorting out how to deal with those people who are convicted, people need to receive good legal representation because the judges can't do their job without it, they can't sentence a person intelligently if nay don't know anything about that person.

CAVANAUGH: And this used to be a saying in prisons that you were either doing black time or white time. Do African Americans generally serve longer sentences?

BRIGHT: Well, yes, and one very dramatic illustration that was reported not long ago in the Atlanta journal constitution was that for people coming up in court the first time, whether they were put on probation or sent to prison, your chances were twice as likely to be sent to prison if you're African American than if you're white. And I think the reason for that is that when these white judges as virtually all the judges except in Atlanta and savan are in Georgia, when they see a young white guy in front of them, they think this is a kid I can work with, this is somebody who can make it. When they see a young African American, same age, same crime, but they see that earring, they don't hike the way maybe that person is dressed, and they see a thug. And it's really -- they're unconscious of the they're not conscious of the racial stereotype that's coming into play. Some of them are. But many of them are not. But they just view those people differently, and that's the great value of diversity. Diversity on jury, diversity among judging. And we don't have that in the criminal justice system.

CAVANAUGH: And it shows the great impact of having a lawyer there also to adequately defend you in all stages of the proceeding.

BRIGHT: Absolutely.

CAVANAUGH: I wonder, Stephen, you stalked about -- you pointed to Colorado as having a fairly good model for a Public Defender system. When can be -- can we learn from a place like Colorado who's doing a fairly good job?

BRIGHT: Well, I think there's several ones. One is structure. Having a Public Defender system, not just leaving it up to each county, and having a Public Defender, I should say, is not only a fairly good way of providing legal representation because the lawyers are trained, and they're supervised to make sure they're doing a good job, but it's also the most cost-effective way. You hire lawyers for a fairly modest salary, and they devote all of their time to representing people. So there has to be structure, there has to be training, there has to be independence so that the Public Defenders are you know, acting in the best interests of their clients and are not serving the best wishes of the judges or whatever. They have to be serving their clients. Will then of course critical that we've been talking about is resources. There have to be adequate resources so that that system can employ enough Public Defenders, investigators that they can handle reasonable case loads and give each person the representation that he or she is entitled to under the constitution. I should say, this is not just something that's a good idea. This is something that the Supreme Court has said is constitutionally required. And yet we're not doing it. We're violating the constitution you will the time.

CAVANAUGH: I want to tell our listeners that you can hear more from Stephen Bright. He will be in San Diego this weekend. The public is invited to his lecture on improving the legal defense system. That's taking place at UC San Diego this Wednesday at 6:00 PM. Thank you so much for speaking with us.

BRIGHT: Thank you for having me.