CASE REFUSAL: A RIGHT FOR THE PUBLIC DEFENDER BUT NOT A REMEDY FOR THE DEFENDANT.

• Author: Gross, John P.

INTRODUCTION

Various arguments have been made to explain why public defenders continue to handle excessive caseloads: a lack of independence, organizational culture, or ethical blindness among them. All of these arguments are based on the idea that a public defender elects to labor under an excessive caseload either because they do not see it as excessive or because they realize it is but believe a refusal will lead to adverse consequences for themselves. In this essay, I argue that the decision to maintain an excessive caseload may not always be attributable to self-interest on the part of the public defender, but can be motivated by a concern for the welfare of prospective clients. The possibility that case refusal will result in prospective clients receiving no representation, the poor quality of alternative counsel, and the lack of any meaningful remedy for defendants who are denied representation creates a situation where representation by a public defender with an excessive caseload can be seen as the defendant's best option.

1. PUBLIC DEFENDERS REFUSING TO TAKE NEW CASES

   In January 2016, the New Orleans Public Defender's Office made the decision to refuse to handle certain serious felony charges due to their already excessive caseloads. (1) Indigent defendants who were denied representation by the Public Defender's Office were left without counsel and were relegated to a waitlist for legal representation. (2) That prompted a federal lawsuit by the American Civil Liberties Union (ACLU). The complaint filed by the ACLU alleges that defendants denied representation "have no access to an attorney for critical pretrial functions that would ordinarily be performed by defense counsel, such as conducting a preliminary examination to challenge their arrests and bail conditions; investigating the allegations; filing motions to preserve potentially exculpatory evidence; or negotiating with the prosecution." (3)

   The inability of the New Orleans Public Defender's Office to provide adequate representation due to excessive caseloads is not a new development. Almost a quarter century ago, the Supreme Court of Louisiana found that caseloads were so excessive that they created a rebuttable presumption that indigent defendants in New Orleans were receiving ineffective assistance of counsel. (4) In addition to New Orleans, public defenders in Nashville, Tennessee, (5) and Hobbs, New Mexico, (6) have recently begun refusing new cases because of excessive caseloads. Over the last few years, there has been litigation in Missouri (7) and Florida (8) over the right of public defenders to refuse new cases. Due to the chronic underfunding of indigent defense delivery systems, as well as the position of the American Bar Association (ABA) regarding the ethical duty of public defenders to avoid excessive caseloads, it is surprising that more public defenders across the country are not refusing to take new cases.

2. THE AMERICAN BAR ASSOCIATION'S POSITION ON CASE REFUSAL

   The chronic underfunding of our nation's indigent defense system has been well documented. (9) The ABA's response to this ongoing crisis has been to encourage public defenders to refuse new cases when their workload becomes excessive. Just over a decade ago, the ABA Committee on Ethics and Professional Responsibility published a formal ethics opinion that made case refusal an ethical obligation for public defenders. (10) Noting that public defenders operate within systems "created to provide representation for a virtually unlimited number of indigent criminal defendants," (11) the opinion makes it clear that public defenders "have an ethical obligation to control their workloads so that every matter they undertake will be handled competently and diligently." (12) If a public defender "believes that her workload is such that she is unable to meet the basic ethical obligations required of her in the representation of a client [and] ... if representation has not yet begun, she must decline the representation." (13)

   In 2009, in order to provide additional guidance to public defenders considering case refusal, the ABA Standing Committee on Legal Aid and Indigent Defendants published the "Eight Guidelines of Public Defense Related to Excessive Workloads." (14) Two years later, with the support of the Standing Committee on Legal Aid and Indigent Defendants, "Securing Reasonable Caseloads: Ethics and Law in Public Defense" was published. (15) This treatise emphasizes the ethical duty of public defenders to avoid excessive caseloads, discusses the detrimental effects they have on the quality of representation, and suggests strategies for avoiding them and for designing indigent defense delivery systems where caseloads can be controlled. (16) The ABA is not alone in its emphasis on the need to control public defender caseloads; one scholar described a public defender's ethical duty to avoid excessive caseloads as the "Eleventh Commandment." (17)

3. WHY DON'T MORE PUBLIC DEFENDERS REFUSE CASES?

   With the well-documented crisis in indigent defense and clear guidelines from the ABA on case refusal as a means to combat excessive caseloads, case refusal by public defenders should be a common occurrence. A recent report estimated that Louisiana's indigent defense system only has the capacity to handle twenty-one percent of the annual workload, and that it would take an additional 1406 full-time-equivalent public defenders to provide reasonably effective assistance of counsel to defendants. (18) Based on those estimates, one would expect to see case refusal in almost every parish, or county, in Louisiana. Yet case refusal remains the exception and not the norm for public defenders.

   1. Lack of Independence

      One reason case refusal may not occur is that many public defender offices lack independence, meaning that a refusal to accept cases could result in the termination or discipline of the lawyers involved. (19) One example of this recently occurred in Luzerne County, Pennsylvania, where the Chief Public Defender's efforts to control caseloads led to his termination. (20) Another example is New Mexico's Chief Public Defender who was held in contempt for his office's refusal to accept new cases. (21)

   2. Organizational Culture

      Organizational culture and, in particular, a lack of leadership have also been identified as factors that perpetuate the acceptance of excessive caseloads. (22) A recently filed complaint by the ACLU details how internal policies in the Fresno County Public Defender's Office have created an environment where individual attorneys feel as though they are not permitted to refuse cases. (23) The complaint identifies an internal policy that prohibits attorneys from withdrawing from an existing case and prohibits them from refusing cases unless they obtain approval from the head of the office. (24) While the complaint describes the office as being in a "state of crisis" since 2008, (25) there appears to be only a single instance of widespread case refusal in 2010. However, that refusal did not occur because of a concern over the adequacy of the representation provided but because the public defenders could not physically staff all the courtrooms. (26)

   3. Ethical Blindness

      Another argument advanced to explain why case refusal does not occur more often is that public defenders suffer from a form of "ethical blindness." (27) This theory posits that while public defenders "may believe that they are engaged in representation that serves the best interests of their clients," existing research on "the automatic preference for self-interest suggests that ... [public defenders] may often fail to perceive the many ways in which their conduct does not comport with their professional duties." (28) Because chronic underfunding creates a "self-interested motivation to resolve cases quickly," public defenders can be tricked "into believing that they are serving as effective advocates, even when they are not." (29)

      A recent interview with public defenders from Colorado's Ninth Judicial District offers a window into the thought process that can lead to ethical blindness. (30) The head of the Public Defender's Office "brushes off the insane workload as just part of the territory," and claims that "public defenders are the best lawyers in court" "[b]ecause of the sheer amount of time they spend in the courtroom," which enables them to become familiar with the arguments that will work in front of certain judges, and because of their relationship with the district attorneys. (31) Excessive caseloads are not just normalized; they are seen as advantageous since they give public defenders more experience than other attorneys.

   4. Identification with Heroic Ideals

      An often-overlooked factor in the acceptance of excessive caseloads is how public defenders see themselves. Professor Charles Ogletree identified two factors, empathy and heroism, that motivated him when he worked as a public defender. (32) In response to Professor Ogletree, Professor Abbe smith, also a former public defender, suggested that public defenders needed to maintain "a sense of outrage about the inequality, injustice, and the routine abuse of power by those in a...