<< News Scan | Main | USDoJ Civil Rights Nominee >>

Free Choice of Defense Counsel

My friend Tim Lynch of the libertarian Cato Institute brings to my attention what strikes me as an excellent idea:  Allowing indigent defendants to choose their own counsel, using what amount to "lawyer vouchers."  This would track the idea of allowing poor parents to escape failing public schools through education vouchers.

The story is here.

My experience is that public defenders are, by-and-large, quite good, and at least as energetic, competent and committed as privately-retained counsel.  But we often hear that defendants distrust their public defenders, and view them as just another appendage of The Big, Bad System, and thus never fully trust them no matter how good a job they do.

Better to let them select their own lawyers.  I don't expect them to understand that it's the evidence, not the lawyer, that drives the result, but there's a better chance that this will eventually get understood when, after a few years of free choice, the conviction rate stays exactly what it is now.


In the federal system at least, this is a solution in search of a problem. I worked directly with the federal defenders office for over 20 years. Without equivocation, I can assert that the quality of the representation for indigent defendants from that office far exceeded that of private counsel paid by federal funds from the CJA. Federal defenders were more knowledgable, committed, and efficient.

My issue with representation of "indigent" defendants in the federal system is the number of defendents that "qualify". A five line financial affidavit that is "winked at" by the parties is a bigger problem. Many indigent defendants have sizable assets. They can qualify by representing they are "illiquid."

Interesting idea, but, I think it'd just result in more defense shenanigans. In districts where federal defenders are either in short supply or simply too busy, "denying" a defendant's 1st choice would inevitably result in either trial delay (so as to wait for the chosen attorney to be available) or - if the choice isn't honored - an appellate claim of denial of counsel of choice. Neither scenario is appealing.

The public defenders I know all admitt that their job is to manage cases, not provide a defense. They all agree that their job is to get the best plea deal and move on to the next case.

Leave a comment

Monthly Archives