Years ago, I came across a study trying to parse out why certain doctors had such fewer complications in performing gallbladder removals than others. Did it correlate to their training, their pay grade, or perhaps their hospital reputation? The closest correlation was actually based on frequency. If your doc has removed two or three thousand gallbladders in the last year, you are looking at a better likely outcome than if that number is two or three. Practice makes perfect, as the old saying goes.
So how does this relate to the legal field? A certain number of defendants seem to believe that by price alone, private defense attorneys are bound to do a better job than a public defender would. Even if the private attorney they happen to hire is not familiar with that court, or doesn’t do many of that particular type of case. Or sends out rookies without supervision to handle their work.
Public defenders are assigned, sometimes for years at a time, to a single court, doing the same kind of cases day in and day out. They get to know the staff, the judges, the procedures and forms, and how things work in that microcosm, while gaining a deep knowledge of the relevant law. What they lose in pay, they gain in a shared sense of purpose and shared knowledge. They watch for patterns and work together to file briefs that will affect policy for years to come. Public defenders are not in competition with each other, so they share briefs and legal theories, shadow each other, act as co-counsel, and have a great deal of teamwork as part of their day. As busy as they may be, they are truly masters of their craft.
Since new defendants make up the majority of our cases, very few of them have any knowledge of this. They tend to hold to the common perception that you get what you pay for. So when they are told that they can get a “free lawyer” or they can go hire someone, it can create a certain amount of fear and panic. Let’s take a look at what happened to one fairly typical first-time offender when he scraped it together to hire someone. First of all, the immigrants I work with tend to hire whoever advertises the most, because they don’t typically know anyone who knows any lawyers. And they often end up seeing a younger associate from that firm rather than the figurehead, at least from what I have seen.
Here is a true-life example. One spouse was pushed by another who pushed back, during an argument. Because “any offensive touching” is fourth degree assault in my area, there does not have to be any injury. There are great policy reasons for that which I will not get into here. Back to this thread, the police arrested one of spouses after the shoving match. The victim now wants to lift the no-contact order, and does not plan to show up at trial. The defendant has hired a name-brand lawyer and the person who shows up is a new associate from that office.
The private lawyer tells the defendant that a trial is completely random, like a roll of the dice, so the defendant should not go to trial. The public defender, in contrast, tells others in this situation that if the victim does not appear, it is extremely likely that the case will be dismissed, because the prosecutor will likely not be able to prove the case beyond a reasonable doubt without the main witness. That is standard policy on non-injury cases in this particular court. But the private attorney doesn’t know this. So he misses the chance to have an actual dismissal, and just discounts trial out of hand.
The private lawyer tells this defendant that he can try to get the victim to lift the no-contact order. He doesn’t mention that this a new criminal law violation. The public defender, in contrast, typically explains that the defendant should absolutely not contact the victim either directly or indirectly, but that the defense investigator is allowed to interview the victim and ask if the victim intends to cooperate with prosecution, and defense will be notified if there is a motion to lift the no-contact order. They also routinely clarify that violating a no-contact order is a crime with serious ramifications.
The private attorney tells the defendant that if he signs a Stipulated Order for Continuance, he is admitting guilt. These forms are sometimes confused with Suspended Sentences, which constitute an admission of guilt and will show up on your record as a conviction. The public defender would explain that the Stipulated Order of Continuance will show on his record as “charged and pending”, but there will be no conviction unless the defendant fails to meet all the requirements, including following the no-contact order. He is not admitting guilt, but allowing the court to read the police report and determine his guilt only if he fails to meet the conditions to get treatment, pay fines, and stay out of trouble.
The private attorneys tells this defendant they have to attach the police report to the Stipulated Order for Continuance, but that will be okay, because they can “write something better in the form, like it was just an offensive touching” instead of a push or shove, so it will “look better to immigration”. As to deportation or exclusion, he says he doesn’t know, but he doesn’t think it will be a problem, and it’s probably okay. This, in spite of the fact that there is specific case law ruling that a criminal defense attorney has an obligation to confer with his client about potential immigration consequences before allowing any kind of a plea.
The public defenders have produced some very specific immigration-safe language to use in conjunction with Stipulated Orders for Continuance, and they make sure that the police report is not attached to the order. It is kept separately, where it will not be part of the record or easily accessible to immigration. They actually routinely cross out a portion of the printed form, and use an addendum to create more protective language.
Further, public defenders have a set-up by which they interview their defendants on immigration issues, send that report to an immigration consultant, and provide them with some educated counseling on what the immigration consequences of various pleas would be, so they can make an informed decision on their criminal case. They also let people know that they should not apply for any new status while on probation. They refer them on to an immigration project as needed. Most importantly, they encourage their defendants to follow the law, get their needed treatment, and respect the no-contact order, because the consequences will include both criminal and immigration fall-out.
Whatever anyone says, we interpreters render it faithfully into the target language. We express no opinion; we correct no one. And so we are called upon to give a vastly wide variety of legal advice in response to extremely similar sets of facts. And we must treat each case the same – doing our best to convey the message and meaning of what the individuals are saying, even if we may think they are wrong. Sometime I remind myself I am like the postal carrier, in that I am not responsible for the content of the message – just the delivery. Yet certain packages are a true pleasure to carry, while others are heavily burdensome.
The jury may be out among the general public as to whether you get what you pay for in hiring a private attorney for criminal defense, but my general views are as stated above, because I have experienced similar situations so many times. And while I have certainly had the pleasure (mixed with pain when justice is not done according to my lights) of interpreting for top notch private attorneys, if I ever get arrested and qualify, there are quite a few public defenders into whose hands I would put my freedom before I would feel the need to hire someone privately.