Lowball Rural Defense.

• Author: Romero, Maybell

ABSTRACT

Focus on the deleterious effects of the privatization of functions in both the criminal adjudicative system and criminal legal system has increased on both the scholarship and policymaking fronts. Much of this attention lately has been directed toward privatized police forces, privatized prisons, and even privatized prosecutors. As important as the examination of privatization and outsourcing in these arenas is, the role of the privatized public defender--especially in rural America, with about 90% of the country's landmass and more than 20% of its population--gets lost in the shuffle. This Article centers these public defenders, especially in the rural context, and the specific ethical conundrums that arise when local governments such as counties and cities decide to privatize their public defense services through the use of competitive bidding. By opening with a comparison of two comparable criminal cases with very different results of the accused, the Article spotlights what happens when public defense is privatized. The Article then discusses the specific perverse incentives that rural public defenders face and the burdens they consequently bear when their services are procured by way of competitive bid--not with the intention of arguing that such services should never be bid out, but rather that any jurisdiction using such a system should be fully cognizant of the risks it incurs when choosing to do so. The Article then applies, for the first time, the concept of "noble cause corruption "--which was previously used to explain and to some extent excuse police malfeasance--to a new context to explain the consequences of some of the choices rural public defenders make while working under contract systems, presumably for the good of their clients.

TABLE OF CONTENTS I. INTRODUCTION II. OUTSOURCING PUBLIC DEFENDER SERVICES A. A Brief History Of Public Defense 1. Pre-Gideon Public Defense 2. The Post-Gideon Landscape B. Spatial Inequities C. Outsourcing and RFPs 1. Privatization in the Criminal Defense Context 2. Competitive Bidding and Government Procurement Mechanics D. "Rurality" [hazily] Defined and the Rural Lens E. Indigent Defense Duties and Standards 1. ABA Defense Function Standards 2. The ABA's Ten Principles of a Public Defense Delivery System III. PERVERSE INCENTIVES AND LOWBALL DEFENSE A. Samples of Indigent Defense RFPs 1. Mukilteo, Washington 2. Maple Valley, Washington 3. Shoshone County, Idaho 4. Winder, Georgia 5. White Pine County, Nevada 6. Cache County, Utah B. Self-Dealing C. Challenges in Professional Formation D. Noble Cause Corruption 1. Noble Cause Corruption in Law Enforcement 2. Noble Cause Corruption Among Rural Public Defenders. CONCLUSION INTRODUCTION

In the summer of 1973 two attorneys, Frank Armani and Frank Beige, were appointed by a judge in upstate New York--Onondaga County--to represent Robert Garrow, (1) a Syracuse man accused of murdering an eighteen-year-old college student camping in the Adirondacks. (2) While preparing for trial, Armani and Beige learned that their client, Garrow, killed other teenagers as well. (3) Garrow revealed to the attorneys the places in the Adirondacks he hid the bodies of Alicia Hauck and Susan Petz. With this information, Armani and Beige traveled to the location described by Garrow.

Armani and Beige took the unusual step--for defense attorneys, anyhow--of personally investigating the veracity of their client's claims regarding their client's guilt. (4) In an interview with Radiolab, Frank Armani described finding Susan Petz's body in an old mine's air shaft:

Here we are in our Sunday suits, and here we go trudging through the forest, looking for the cave. We spent a lot of hours looking around [a]nd then ... We found this air vent.... And then Beige held my feet and let me down in there.... I could see her sneak. A blue shoe.... I said to myself, "The son of a bitch did it." [Then he yelled,] "Get me out of here. Pull me back up." (5) Armani and Beige found Alicia Hauck's body in the place Garrow described shortly thereafter; neither of them contacted the police with these details even though searches for both young women were still ongoing. (6) When asked whether he had knowledge of one of the young women's whereabouts by her father, Armani said that he did not, refusing to divulge the information shared with him by his client in confidence. (7) Rather, when the opportunity presented itself, Armani attempted to use this information to strike a plea deal with the prosecutor: in exchange for a promise not to pursue the death penalty against Garrow, Armani offered information that could be used to locate the bodies of the missing young women. (8)

The prosecutor in the case was irate. (9) Later, the larger community around Syracuse was, as well, when it came out during Garrow's trial that Armani and Beige were aware of the locations of the bodies but had not informed anyone. (10) Both attorneys faced the scorn and disdain of their local legal communities, while also facing disciplinary action by their state bar. Beige was indicted for failing to report the location of a body. (11) Both lawyers' respective families faced harassment and left town out of fear for their safety. (12) Both attorneys over time, however, became renowned among lawyers and scholars studying professional responsibility in the United States, particularly for their devoted representation of a less than sympathetic--if outright infamous--client, along with their dogged adherence to not disclosing confidential and privileged information. Over the years, their ordeal representing Garrow became an important case in the professional responsibility canon--it came to be known as "The Buried Bodies Case." (13)

Nearly fifty years later, an attorney in Cache County, Utah, was faced with representing a client in a very similar situation. A five-year-old girl, Lizzy Shelley, went missing. (14) By the fifth day of her absence, residents of Cache County mounted searches for her throughout the Cache Valley in "backyards, fields and ditches ...," (15) Suspicion began to rise against her uncle, Alexander Whipple. The local prosecutorial agency, the Cache County Attorney's Office, filed charges against Whipple related to Lizzy's disappearance. Less than two hours later, her body was found less than a mile away from her home. Police acted on information secured from Whipple himself by Whipple's attorney, Shannon Demler. As Demler explained: "I think at some point in time it just needed to stop--the waste of resources and everything needed to stop." (16)

Demler shared this information only two hours after his client was charged and after he was appointed. Demler explained he rapidly concluded that "[Whipple] was never getting out of prison.... It was obvious with what happened he was going to spend his life in prison, but I think anybody wants to preserve their life, and I think he wanted to preserve his." (17) Demler also expressed how he felt when his client revealed where Lizzy's body was: "At that point in time, there were two people in the world that knew where the body was. Me and him--and that gives you a weird feeling." (18) In an interview for a newspaper article, Demler justified moving quickly not only as being for the good of his client, but also for the good of "the family and the community." (19) For his part in convincing his client to divulge the location of Lizzy's body, Demler was lauded in Utah and in his community. Fie was even pronounced "Resident of the Year" by his local newspaper. (20) Members of the public left positive reviews for him and his law office on different websites, in praise of the service he had rendered to the community by revealing the information he received from his client.

Demler's handling of his client's case stands in sharp contrast to the representation afforded to Robert Garrow by Beige and Armani. Rather than keeping his client's confidences, Demler orchestrated a quick deal within two hours of his client getting charged. Rather than taking the time to seriously consider possible defenses for his client, such as insanity or lack of competence, Demler resolved the case by revealing the location of Lizzy's body. In doing so, he quickly built a reputation for himself as an outstanding community member and generated great local press.

Demler was appointed to represent Whipple as a public defender. As any student of criminal procedure would know, the Sixth Amendment right to counsel was extended to the states in 1963 under Gideon v. Wainwright. (21) While propounding standards for the effective assistance of counsel under Strickland v. Washington (22) and its progeny, the Supreme Court has never mandated a specific structure for public defender's offices and agencies. While the overriding public understanding of a public defender's office is one that envisions a group of attorneys paid for by the state who are appointed, full-time, to provide services to poor defendants, there are varying ways of delivering public defender services in the United States that have been understudied and undertheorized. This Article examines a particular form of procuring public defender services--the contract as secured through a competitive bid, which is how Demler was hired. Beyond holding the competitive bidding system up to greater scrutiny, this Article also applies a concept from the literature on policing known as "noble cause corruption" and examines how it may undermine rural public defense.

2. OUTSOURCING PUBLIC DEFENDER SERVICES

   1. A Brief History Of Public Defense

      In Gideon v. Wainwright, the Supreme Court held that all criminal defendants, including the indigent, are entitled to counsel to represent them in their criminal cases. Gideon therefore became the origin of the American public defender, a "vast decentralized criminal justice bureaucracy." (23) While Gideon established the need for public defender's offices to provide criminal...