Karen houppert. She is our guest on after words and interviewed by jenna green of the International Law journal. Host it is a pleasure to meet you. I really enjoyed your book, chasing gideon. I thought that we could start at the beginning. Who was the somewhat unlikely figure who made such an impact on history Clarence Earl gideon was an itinerary cap. Guest he broke into a pool hall and accused of stealing some change from the jukebox, a couple of beers come a couple of bottles of wine and arrested and brought to court there in florida. He approached the judge on the day of the trial and said that i am not ready to go to trial. And he said that i am looking for an attorney and he said that i am entitled to an attorney, the constitution guarantees my right to an attorney and the judge said, no, it does not. You have to try yourself. And the judge coaxed him through the trial. Very kindly. But he lost and he was a fairly complicated law, going to court is very complicated and selecting a jury is complicated and he kind of bumbled along and lost his case and was sent to prison. From prison he can grow in pencil a sort of semi literate letter to the u. S. Supreme court and he said that i would like an attorney if i am violet and shannon supposedly committed a crime in this country. The Supreme Court had been waiting for a case like this to come along. They had accepted his case and in some ways it was interesting. So then he had this very highpowered dc lawyer at the time. And that was really to gideons benefit. They were really interested in this case and they were going to help gideon out in some ways by giving him this very powerful attorney. Host i thought it was ironic that it was almost the first and last time that the defendant really had any advantage over the state of florida. In the book, the lawyer that is representing the state of florida was very young, inexperienced, had never argued a case before the Supreme Court and was not even working at the state Attorney Generals Office were the latter part of. For that case. He was really, you know, flying by the seat of his pants. So he made his arguments and they didnt even think to shut down his questions and he was extremely flustered. You know, he has been very forthright and frank about that in the years since. And it was really a radical shift. Anyone who was accused of a crime was entitled to a attorney host they seem to give some consideration to the cost . Guest ultimately they were worried about this and they decided that this was a constitutional right. And we are going to have to find a way to absorb this cost. They basically gave this mandate, but they did not fund it. But they did not say how states would go about feminists. And what that meant was that every state in the country now sort of has a different mismatched set up system. You may have a very good public defender if you are in the city of new york. But if you drive two hours north, you may have a lousy system and have a far greater chance of being convicted of a crime. So it has never worked out very well. Host i was struck that you quoted this oral argument, it was very different now than when he decided. Now there are about 2. 3 million people. So what is happening . What is happening in these last 50 years . What has happened as there has been a flood of arrests and clients coming through the system thanks to the war on drugs, which had sent lots of people to the courts. Due to those changes and while we were arresting people for and how we are holding them, it has created this flood of people in the numbers of people needing public defenders has just skyrocketed. Host he wrote that there are all kinds of problems with the patchwork system of defense in the United States. But by far the most critical caseload of this took place pretty really dig into this by telling the story of two cases. So what happened to the case involving the 18yearold first. Guest this little individual had just turned 18 and you just got his first car. He was actually on the way to cash his paycheck. An elderly gentleman pulled in front of sean and he hit the car. About nine days later he died. He had a public defender in spokane, washington who really went to bat. So she was carrying about 101 cases compared to the prosecutor was working opposite her who had 36 cases. So she was really pushed to take this case to trial before she was ready. She had done several trials in the last two months and said that i need a little bit more time. The judge says that should go ahead. You know, this was like a friday. She had to go to court on monday. She decided to refuse and take a stand and say that that would be an assistance of counsel. Im not prepared for a trial. Due to the crunch of money in their office and limited ability to call in this, she was like, i need more time. The judge threatened to hold her in contempt of court. Ultimately she was given a few more weeks to prepare for the trial. The elderly man at have been hospitalized and operated on for a hernia, which is a preexisting condition. His own doctor had known about this for a long time and declined to operate because he was afraid to operate because he thought he would get an infection and die. So ultimately, he was on very innocent by the jury. The two years were spent with the fear that he was going to go to jail. Here this skinny little kid is trying to lift weights. You know, prepare for the prison life and even now he cant can have a drivers license and it has been many years down the road. So it really had an impact on his life. But he was found innocent because his public defender took a stand. In my book chasing gideon in that same area in washington state, a public defender made a different choice about his client. This is about a 12yearold boy, accused of sexually molesting a 5yearold. The 12yearold denied it. The 12yearold would not meet his eyes and he cried. Therefore who doesnt cry, right . When you are stopped by the cops for speeding. I mean, i would almost cried. So his case, he got a public defender that had 460 other cases at the same time. And the public defender did not call any witnesses. They didnt hire an investigator. They didnt file any motions except advised the kid to plead guilty he just said plead guilty, the parents were like, well, its going to be labeled as a six sex offender for thf his life. But it didnt. It stayed on his record for his life. So the kid is rushed into court, he pleads guilty and then the parents found out that he would be required to have someone shot of him in school every day. He would be tested for hiv or other diseases and that he would be required to go to counseling therapy groups where he had to confess his guilt regularly. So i really kind of a show that kind of Public Defense that you can get. One of the differences is what the 12yearold, his public defender work under a system that is called a flat fee contract rates and he got 162,000 to represent all poor people who came through the courts in that county. In any expense that they had, someone who was an expert, all of them would have to come out of this. Host there is no incentive at all. Guest keep the docket moving. Host the quote was that people are dressed up like lawyers and their standing next to a client, but they are not really advocating it. That seemed to be really what happened with this poor young boy. It was an appeal to the washington Supreme Court and has led to some fairly significant reforms. Im wondering if you have any friends sense first maybe you could talk about what this entails. Do you have any sense of its making a difference . It is too soon to tell, one of the most interesting things that washington did on the heels of that is to make the lawyers themselves, the public defenders, when they go into court prior to each case, they have to sign something that says they have no more than 150 cases. They, themselves, they have the control as opposed to other states that have tried it a little bit and they have recommended a maximum of 150 felony cases. But often they give it to the chief public defender to say whether the employees are meeting these mandates. But the control is really what the public defenders. But the hope is they key to the case will double that the public defenders can actually do their jobs. Host what happens when they exceed the caseload . Will this go to the state to drop the cases . That is the question that hasnt really happened yet. But it happened in other places, like it has happened in new orleans where there have been so many cuts to the public Defenders Office, people are sitting in jail for months and months. One young man had been in jail for 16 months. Host is this clarence jones. Guest yes. Host i found it sort of shocking there was a sort of forgot about. Guest it is shocking. What is interesting about the situation in louisiana and why just write about it is that there is a budget crisis. And this is something being experienced all across the country in the last five years. But with shrinking budgets, you know, one of the places is the public Defenders Office. So in new orleans what happened was they were forced to lay off one third of the lawyers. So one whole division, conflicts vision. It means if there are two people arrested for robbing a 7eleven, one gets the public Defenders Office, but because they could be accusing each other, you need a separate lawyer. So when no new orleans they had a separate division and they completely got rid of that and the budget cuts. So anyone who came in with multiple arrests like that, they had no attorneys. So they were just sitting in jail for months and months and judges were making please. They were scrambling, threatening to let people out of jail without a trial because this was such a clear violation of their rights. It was a fiasco fischer. Host in the same chapter that you called the perfect storm, he told the story of an individual that spent 27 years in jail for a murder he commit. I just found it appalling at how little his public defenders seemed to do to represent him. They didnt call any witnesses, they did not present a scenario for the murder. They didnt go to the scene of the crime and indeed did not realize that the eyewitness was a schizophrenic. Did you talk to the lawyer or do you have any sense of what happened and was that a typical kind of defense . I did not talk to that lawyer. But i did look at lots of court documents. That lawyer was also a judge in louisiana in new orleans and very friendly with the judge that he was trying before. This whole case did not call witnesses. They had no opening argument, no closing argument. The murder trial had two defendants and it began and ended in under two hours. If you look at the transcripts and judge based on the time to read this. Greg was sent to prison for 20 years, and he kept saying that he didnt do it and he kept trying to appeal from jail. He tried to educate himself and get access to police records. And he finally got a lawyer to take up his case. They discovered that all of his appeals were going before a judge, the same judge that was actually one of the prosecutors who is basically asked to weigh in on his own prosecutorial misconduct. So of course greg never got his appeals and never really got into court. He was finally freed thanks to the work of the Innocence Project. Host my understanding is that he had tried one of his initial grounds. It sort of illustrates how hard it is successfully gives a phrase that shouldnt be effective to have this . Guest will complicate that is better basically says its not enough to prove that your lawyer was ineffective and that you also have to prove that the lawyer was so ineffective that the case wouldve gone the other way. The challenges of doing that, witnesses have disappeared or forgotten things that evidence doesnt exist anymore. Buildings have been burned down, lightning has changed. Its very hard to prove the case wouldve gone a different way without having a trial on the case. So its almost impossible to get this rolling. Host i wonder what should the role responsibility of the judge being these proceedings. Sometimes you talk about certain cronyism in instances where the judges are the ones that control the appointment. A kind of problems that create . When the judges are pointing the public defenders is that the job of the public defender is the reliance of their approval. They are judged on their efficiency often. How much do they get through the docket, how quickly, so they are going to want a public defender that goes along and gets along, that does their bidding. That is a challenge. One public defender was assigned to a courtroom in the same judge. They were always arguing before the same judge. The problem with that is that they were then trading clients in a way. Like, okay, my private client, you know, taking this to trial, i will persuade this individual to have a trial. And so it really made for a very corrupt system down there. Host the other thing that struck me was i have heard stories. And im sure that you have heard about lawyers as well. And i think about a federal judge in San Francisco that sanction over several thousand dollars and that judge made it very clear. And i think the lawyers, if a High Standard is expected of them, but sometimes they will rise to the occasion. I just wonder how much more the judges could do to help improve the system. Guest i think there are some judges out there that are very proactive. Go back to the new orleans situation. Even when all of these defendants were being held pretrial, they started calling in prominent local lawyers, publishers of the newspapers, appointing them to this and they said that you have to do something, and im going to have to let them go because this is not a speedy trial. So there are some judges were who are very active to try to make the system work. You know, thats a good thing that draws attention to the crisis. It didnt solve the problem in new orleans, but it certainly drew some attention and got people focused on this. Host my sense from how you describe this. But im wondering what you see as the best or the worst that there is or the jurisdictions in terms of providing defense. Are there good models out there . And which ones tend to create the worst systems . There are good models out there. The federal defender system is pretty good. They are generally viewed as a much better funded. They have access to the experts and investigators. They are adequately staffed, caseloads are manageable. The public defender system is definitely considered the creme de la creme. That has a more holistic approach. And then there are pockets of other places like bronx defenders and etc. , where different places across the country they are trying a more holistic approach where it is not just a lawyer. It is a lawyer that is first of all going to stay with the client from the very beginning all the way to the end of their case. They have the same history social workers on staff and one of the things that they are trying to do is that this person has a problem with a drug addiction problem while hes waiting. Lets not make him sit in jail. Lets get him into a Drug Rehab Program and really try to address some of the problems that are bringing that person and coordinate first place. So that is a really interesting approach that is being tried. There is some resistance from public defenders when someone comes in and tries to shift that culture change. I think i can be challenging. That part of that is because they are being asked to make these changes and do this holistic approach without the backup they need. The money to hire this. They end up having to do the social work. But there are really great models out there. They know how to fix this problem. But there just seems to be a lack of political will to do it. Host especially now, it is not always realistic. But what other things can be done . Guest one is money so that the caseloads can become more manageable. Also there are larger organizational problems that we just talked about, a judge appointed a public defender. The third element is the culture of public Defenders Offices in general and rethinking what that job means and what solving these problems mean. One of these things is money. But the other two are not. The other thing that i think is interesting about the money question is as budgets get tight , people that are arrested are not considered the deserving poor. And when you put them on a scale next to whether you can adequately fund is for children, they are going to lose. And that requires some rethinking about what is at stake here. Host i think you make the point very strongly. Therefore our criminal Justice System to work. It needs to be evenly matched. Kind of like a game of tennis. You are most likely to get the result of the truth when each side is making a strong argument. I did find it dispiriting when you are writing about the public defenders asking the state Supreme Court for relief from these cases. In some way then against them. But we think that they should does have to soldier on. And im wondering where prosecutors have come down. Ive talked to some people who have said that they think some prosecutors like the system. Because when they are overworked and underfunded, it makes it easier for prosecutors to win their cases. You know, where they stand on these issues . I think that that seems to be the prevalent attitude for sure. When you get to playing this game of trial checkin. If you only have five trials coming up this year, you can more aggressively pursue this compared to a public defender thats drowning under these cases. There are some prosecutors out there that recognize and are outspoken about the fact the system is not fair and say that this makes my job harder. If they are constantly delaying things, they want to have the trial and get through and see justice done. So there are people out there that recognize that both sides have to function and be equally matched. To believe that they could all do their jobs better if that were the case. So there is some Movement Among district attorneys and prosecutors to see this change. Host eric holder has been very supportive. Guest he has been a champion of this, which is so great. And speaking out in this topic license to prosecutors to similarly speak out in their jurisdictions. Host can you give examples and ways in which prosecutors have greater resources and public defenders . Guest yes, the most obvious one is caseload. When i talked about it in washington state, the prosecutor has 36 cases in the public defender has 100 and one. But also it is more subtle than that. They also have access to the Police Resou