The Public Defender in a Criminal Case

Public defenders are paid by the government, but they work for you.

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Most criminal defendants are legally indigent and can't afford to pay for an attorney. On the other hand, the state can't legally prosecute indigents unless it provides them with an attorney. To satisfy this requirement, many states have set up public defender offices. Typically, each local office has a chief public defender (who may be either elected or appointed) and a number of assistant public defenders ("P.D.s"). P.D.s are fully licensed lawyers whose sole job is to represent indigent defendants in criminal cases. Because they typically appear in the same courts on a daily basis, P.D.s can gain a lot of experience in a short period of time.

The P.D. Fights for You

The P.D. is paid by the government -- the same entity that includes the judge, prosecutor, police, and court personnel. As a result, defendants sometimes fear that a P.D. will be in the same camp, loyalty-wise, and won't be "on my side." Or, because P.D.s work so closely with the judges and prosecutors, clients think they will pull punches in order to stay friendly with the group.

Rarely are such fears justified. The fact that the P.D. gets a check from the same source as the prosecutor and judge doesn't mean that the P.D. needs to curry favor with them, because neither the judge nor the prosecutor makes hiring decisions about that lawyer. As for wanting to be personally liked, a good P.D. can maintain cordial relationships with judges and prosecutors while vigorously representing his clients’ interests. Besides,  most private attorneys—not just P.D.s—have regular contacts with judges and prosecutors.

How Many P.D.s Will Represent Me?

Some P.D. offices assign the same P.D. to a defendant’s case from beginning to end (in legal lingo, this is known as "vertical representation"). In other P.D. offices, the P.D.s are specialized. One P.D. may handle arraignments, another settlement con­ferences, another trials, and so forth ("horizontal representation"). With horizontal representation, a single defendant may be represented by a number of P.D.s as a case moves from beginning to end.

This approach can sometimes result in defendants feeling lost in the shuffle, especially if there isn’t close communication between the different P.D.s as the case moves from one phase to the next. In a good P.D. office, each attorney makes clear and thorough notes in the client's file every time an attorney deals with the case or appears in court on behalf of the client. The next attorney to handle the case studies the file in order to be up to speed on how the case is progressing.

One advantage of horizontal representation is that the more serious the step, the more senior (and experienced) the attorney who handles it. For example, relatively new lawyers might be assigned to do bail motions and arraignments, but senior attorneys will take trials and sentencing hearings. That way, every defendant gets the advantage of experienced representation.

Choosing Your P.D. -- Not

In communities served by public defender offices, a judge simply appoints the public defender’s office to represent indigent defendants. The individual P.D. who actually provides the representation is normally the P.D. who happens to be assigned to the courtroom in which a defendant’s case is heard. Or, in large cities especially whose offices practice horizontal representation, the client gets the services of the P.D. who is assigned to each stage of the case (arraignment, bail, preliminary hearings, motions, trials, and so on).

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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