The Boston Globe ran an editorial State can save on lawyers by hiring more public defenders which is sadly based on a misunderstanding of what court-appointed attorneys and DAs do. First, it is easier to accuse than to disprove a false charge. Ever had to try to disprove a lie or rumor? Same problem – disproving an accusation requires painstaking work. Remember, our system of justice is based on “innocent until proven guilty”.
Second, 35% of court appointments for attorneys do not involve criminal defendants. I know because I am a family law attorney who accepts appointments in juvenile and probate court to represent children and parents in cases involving DCF (formerly, DSS). I do zero criminal defense.
No DAs are involved in the cases I do; those cases don’t cost the DAs a penny. Such cases involving DCF and children in foster care are complex, time consuming, and always require at least four attorneys if everyone is indigent – one for a father, a mother, and a child – and an attorney employed not by a DA’s office but by DCF.
Further, between 1981 and 2005 the rates for court appointed work had not been increased; the increase the DAs are screaming about was in part a rate adjustment. That act also set up mechanisms for decrimnalizing nonviolent crimes such as shoplifting to decrease the number of court appointments. That provision was left to fade away, as was the provision in Chapter 54 dealing with improved indigency verification. Yes, some courts do still seem to have a kind of “don’t ask, don’t tell” attitude at least some of the time towards indigency verification now that the court hiring freeze has dragged on for more than four years.
Further, the DAs neglect to mention that the money their offices are listed as receiving is payroll only – they don’t add in pension costs or health care costs, and the rest of the money spent on their staff and offices in other line items. The DAs also neglect to mention that the $92 million they collectively receive doesn’t include the investigative services they receive from the local and state police, etc. DAs also conveniently failed to mention the forfeiture funds they get from seized property.
Court appointed private contractor attorneys managed by CPCS receive no pensions, cause no unemployment insurance cost to the state, no health care – and pay for every sheet of paper they use themselves. It is like comparing apples (the private court appointed bar) to watermelons (the DAs and their benefits and state supports).
Further, the right to counsel that the Committee for Public Counsel Services must supply is continually being expanded by the Legislature and the Supreme Judicial Court. One example is the legislative enactment of the Uniform Probate Code which created a right to counsel in several categories of cases where there had not been a right to counsel, but did not fund them. Attorneys now must be appointed in all guardianship cases of children and adults to protect the ward’s interests, and at state expense if the ward is indigent.
Another example is the impact of In re Hilary an SJC decision which expanded and created a right to counsel for indigent parents in Child in Need of Services (CHINS) cases.
Of note, neither the Uniform Probate Code nor CHINS cases involve any DA staff attorneys at all.
To me, it looks like under cover of election season and a financial crisis the DAs are out to gut a program that puts up too good a fight when the DAs are seeking convictions.
Maybe we court-appointed attorneys should take the attack on us and what we do for citizens under attack by the government as a compliment. Our work product is too good and the DAs would like to replace us with public defenders who are forced to take at least 500 cases each. The result? Well in some places, over whelmed public defenders with avalanches of cases simply cannot fight back for their clients
The Gideon case began this discussion; the commitment to “innocent until proven guilty” is fundamental to Democracy itself and Samuel Sutter and the other DAs are attacking that right.
Sadly, Susanne Bump has taken their bait I hope if she IS elected auditor, she will also audit each and every county DAs office and determine just what they do with their drug forfeiture funds, and how many of their relatives they hire!
Deborah Sirotkin Butler
Child Welfare and Family Law Attorney aka AmberPaw