Indefensible: public defenders are too overloaded to protect the rights of the accused.

• Author: Conrad, Clay S.

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The Sixth Amendment guarantees criminal defendants the right to counsel, but that does not mean all defendants receive good representation. Too often, their defense is not even minimally adequate.

Public defenders are lawyers who work for the court system representing indigent defendants instead of maintaining their own practices. Some are passionate civil libertarians who choose to represent the destitute, damned, and despised. Some simply prefer a regular paycheck to the vicissitudes of private practice. Contrary to their reputation, many are great lawyers. But even great public defenders can find it difficult to do great work in every case.

Public defenders are often forced to take on caseloads heavier than any lawyer can competently or ethically handle. According to a 2005 report commissioned by the Missouri Bar, caseload, more than any other factor, determines which public defender offices do good work and which do not. No lawyer, no matter how skilled, can do a competent job on 200 felony cases a year. In some public defender offices, the caseload is more than twice that.

Overloaded defenders are forced to triage, exchanging quick pleas in some cases for the ability to fight in others. They have to decide which cases will benefit from extra attention and which will not. Cases are "pied out" without time to conduct a real investigation, interview witnesses, or even determine whether there are grounds to challenge the police version of the facts.

Some clients, of course, are just guilty. They are caught on videotape; they confessed; their crimes are established by DNA, fingerprints, or the testimony of a victim who can describe something unique about them. Their crimes are unsympathetic, so there's little hope for jury nullification. Those cases can and should be settled with a plea agreement that gives the defendant the best result that can be negotiated.

But it is not always easy to know which cases are the hopeless ones if all you do is read the offense report and spend a few minutes talking to the defendant and the prosecutor. Without putting in the time required to investigate the facts, the law, and the witnesses, it is unethical to recommend that a client accept a plea bargain. Maybe the offer represents the best possible result, but maybe the client is completely innocent and just too frightened to disagree.

Public defenders are often strapped for resources. Investigators, experts, computer animations, and...