Inventing the public defender.

• Author: Babcock, Barbara Allen

ABSTRACT

Clara Foltz, one of the first women lawyers in the United States, was also the first person to propose a public defender and to launch a movement based on the radical idea that the state should provide a defense for those it accuses. The idea was formed from Foltz's experiences as a jury lawyer facing unfair prosecutors and from her involvement with reform movements such as suffrage and populism. She marshaled creative constitutional arguments and a rights-based presumption of innocence in support of her conception.

Foltz's public defender was a capable jury lawyer, the equal of the public prosecutor in resources and respect. As actually enacted in the Progressive Era twenty years after she first proposed it, the public defender was less concerned with individual advocacy than with generalized fair process. The history of the public defender reveals that this tension between the models of partisan advocate and responsible public official was present at the creation and probably inherent in the office itself.

INTRODUCTION

The great case of Gideon v. Wainwright (1) in 1963 required every criminal court in the country to provide free counsel to the indigent accused. (2) Though in some jurisdictions lawyers do this work pro bono by court appointment, in most places, the government pays for the representation. Genetically, these state-paid attorneys who regularly represent poor people charged with crime are called public defenders.

Since Gideon, public defense has become an integral and essential part of the vast decentralized criminal justice bureaucracy. Yet the institution remains controversial, even as to its essential features. To many, it is anomalous, if not odious, that the government should pay for the defense of those it accuses. Certainly, it is not an idea many legislatures have been willing to fund adequately over the long run.

Every decade or so, often on the anniversary of Gideon, studies and articles lament the broken promise of that case. (3) The most recent and elaborate of these reports, based on extensive hearings about an array of indigent defense delivery systems, concludes that many thousands of people are convicted every year "either with no lawyer at all, or with a lawyer who does not have the time, resources, or in some cases, the inclination to provide effective representation." (4) Following on earlier studies, the report warns of an unacceptable risk of wrongful conviction and erosion of the integrity of the criminal justice system. (5)

In one respect, however, this latest report is hopeful. It shows that though the problems of public defense are deep and their solution costly, they are not ineradicable. (6) Unlike, say, eliminating poverty or inequality, providing good lawyers for poor people accused of crime is something that we can do: if we have the political resolve.

Our collective failure of will arises at least partly from a profound disagreement over the nature and purposes of public defense. If mapped on a continuum, the disagreement would have at one end those equal rights advocates who would give the poor defendant the same level of capable defense he could obtain if he had means. At the other end are the due process proponents--those who would protect the factually innocent and assure generalized fairness to all. Along the continuum are positions placing varying weights on such factors as the defender's duty to the community at large, and to the court as its officer.

The distance between the two ends of this continuum is observable in the disputes over funding and caseloads for defenders, but it emerges most clearly in court opinions on ineffective assistance of counsel. The case of Ronald Rompilla, (7) decided in 2005, is a good example. Rompilla's lawyers--public defenders in an overworked office failed to obtain readily available files containing leads to the defendant's horrendous childhood, evidence of severe alcoholism and other mental illness. (8) Nothing of this history was presented to the jury in mitigation of the death penalty. (9) Five Justices found the representation inadequate. (10)

To those dissenting, the situation appeared entirely different. (11) First, Rompilla was clearly guilty and second the "committed criminal defense attorneys" (12) had investigated the case, interviewed the family and the defendant at length, and employed three mental health experts who did not produce anything helpful to the accused. No more process was due in the view of the dissenting justices. (13) Moreover, since obviously the decision would "not increase the resources committed to capital defense," its requirement of further investigation would "divert resources from other tasks" and possibly "diminish the quality of [overall] representation." (14)

Rompilla is recent and revealingly stark in its oppositions, but the same divergence can be found in most cases dealing with ineffective assistance of counsel. Perhaps the tension between equal rights advocates and due process proponents is inherent in making individual defense of the poor a public function and in the nature of the public defender institution particularly. This is the issue I aim to explore through the little-known history of public defense.

Clara Foltz, lawyer and suffragist, inaugurated the public defender movement with a speech at the Chicago World's Fair in 1893. (15) In the course of researching her biography, I uncovered a great deal about the original intentions and founding aspirations of public defense. Presenting those ideas is my purpose here, rather than telling the heroic story of Foltz in her time and setting, though there will be some of that too.

Part I of this article is an overview of the history of public defense--from Foltz's original conception through its first enactment as a Progressive Era reform. (16) It examines the differences between Foltz's defender and the Progressive-era model and shows how the debate over public defense in the early part of the twentieth-century laid the groundwork for Gideon, as well as commencing the continuum with its opposite extremes.

Part II depicts the main forces that shaped Foltz's original conception of the public defender. Most influential was her unique experience as a woman lawyer confronting overzealous prosecutors. Foltz's public defender was born as an oppositional figure to check and correct the district attorney. In a case she tried and appealed, Foltz established an important precedent regarding the prosecutor's duty of fairness and her experience on a shadow jury in another case led her to make an impressive study of the case law on trial misconduct.

Part III describes a second major influence on Foltz's formulation of the public defender: feminism and other associated reforms. Of special note in this section are the Nationalist movement and its proposed public defender model, as well as Foltz's first presentation of the idea on a nationwide platform at the Women's National Liberal Union in 1890.

Part IV analyzes the Constitutional arguments that Foltz devised to support the public defender campaign.

I conclude that both equal rights idealism and due process pragmatism inspired the conception and the enactment of the public defender, and that the conditions which fueled its invention still exist today. Foltz's vision, the Progressives' plans, and Gideon's promise all remain unfulfilled.

1. AN OVERVIEW OF THE ORIGINS OF PUBLIC DEFENSE

   No one should have to "buy justice in a land that boasts that justice is free."

   --Clara Foltz, 189717

   The first published proposal for a Public Defender was the text of Clara Foltz's speech at the Congress of Jurisprudence and Law Reform in 1893. (18) One of the great public meetings held in conjunction with the Chicago World's Fair, (19) the Law Reform Congress had many stars. James Bradley Thayer delivered perhaps the most famous of all works of American Constitutional law scholarship, (20) and other presentations included such notable scholars as Judge Thomas Cooley, John Henry Wigmore and David Dudley Field. (21)

   Clara Shortridge Foltz was neither a judge nor an academic--no woman lawyer was. But she had fifteen years of experience in the criminal courts of the West. In phrases drawn from jury arguments, briefs and speeches, Foltz vividly pictured the breakdown of the criminal justice system. First the desperate defendant, reduced "to a savage state," one of self-defense, must pay for counsel, though the cost "may ruin his business, impoverish his family and make his wife and children objects of charity." (22) On the other hand, if he "announces himself a pauper," the court will appoint counsel for him. (23) But these are not capable lawyers: "they have no money to spend in an investigation of the case, and come to trial wholly unequipped either in ability, skill or preparation to cope with the man hired by the State...." (24)

   Foltz brought forth her solution. "For every public prosecutor there should be a public defender chosen in the same way and paid out of the same fund." (25) She described the public defender as a powerful, resourceful figure to counter and correct the prosecutor, to balance the presentation of the evidence, and to make the proceedings orderly and just. (26) Her defender would engage the law's presumption of innocence on a deep level, making no distinction between the factually and presumably innocent. (27) He would investigate every case for favorable evidence, would summon witnesses, seek expert testimony, and prepare to cross-examine. (28)

   Public defense would not be a professional charity, or a training ground for inexperienced attorneys, or a low visibility plea mill run by shysters and incompetents. Instead, the public defender would hold an honored position, even more important than the prosecutor because he would be protecting the innocent. (29) Just as the prosecutor made no distinctions based on wealth, so Foltz's defender would speak for all who sought his...