Public Defenders' Competitive Edge
Public defenders generally don’t enjoy a stellar reputation, and are usually denigrated as the “budget” version of the real deal. But can money really buy you effective representation?
If you are concerned with the disparity of outcome in criminal prosecutions that financial resources can bring, one tantalizing proposal might be to require everyone to be represented by a public defender. But as a public defender myself, I'll say that the gulf in representation quality for the rich and poor is not with the specific lawyers involved, but in the investigative resources you can muster up.
If you were to somehow create this “public defense 4 all” system, the only way to functionally enforce this would be to prevent defendants from following up leads too intensely or pursuing too many of them. That would be quite oppressive.
I’m lucky that the state I practice in is very generous with its public defender system (I'm somewhere in the west coast) and I never felt overworked. This is especially true now that I am in private practice but I only take indigent clients given to me by the local jurisdiction. I get paid by the hour in those cases and so I have a direct incentive to work cases longer.
Putting my money where my mouth is, I've always thought that if I do get charged with a crime, I would go with a public defender either for my state or at the federal level. My primary reason is that public defenders interface with judges and prosecutors every day and know exactly what makes them tick; I know I did. When I was employed by the state as a PD, I often had private attorneys several years my senior ask me for help and feedback in specific courtrooms even when the question was about obvious immigration consequences. That kind of floored me.
I give the same advice to friends who ask me. I always recommend getting a public defender because generally private attorneys are a giant money sink. We almost always gave the same result and the same outcome in nearly all cases with some minor exceptions.
One obvious exception is that we were limited with the amount of investigative resources we could bring to bear. I saw a jury trial where the defendant was accused of driving with a BAC of .12 (or 150% the legal limit). PDs can reliably attack the breath machine when it's close, but this wasn't it. This defendant had a private attorney and he paid for flying in FOUR separate breath machine experts who all happened to be saying exactly the same thing about how unreliable the machines are. He managed to get acquitted, our PD office would have never approved that many experts.
Another area where it makes a difference has to do more with selection effect than anything else. The most consequential court appearances wasn't really the trial, but more the probation review hearings that followed a conviction. Those are the times when people actually went to jail, and did so routinely. I hated hated hated doing the review calendar because my clients were a total mess. The issues would be relatively banal but it was asking the world of them to fix it. One wouldn't have the right paperwork from the rehab facility and his attendance record is so shoddy that we wouldn't be able to ask for another court date to provide the paperwork. That person is going to jail. One has a failed urine test and has the same issues as the prior one except we also don't fund post-disposition independent drug tests. Jail most likely. I felt more like a social worker with these people than anything else, and the circumstances that led them to lean on the public defense system so much also causes their lives to be utter trainwrecks from a very basic standpoint.