In Defense of the Defense
How the trials making the news overshadow what's happening in the criminal legal system every day
While walking in the woods this morning, I realized that there is a theme interwoven throughout the criminal cases I have been explaining in this newsletter (e.g., Cosby, Chauvin, the McMichaels, Rittenhouse, Kelly, etc.). They have each (1) gone to trial and (2) involved private criminal defense attorneys. These two factors alone make them anomalies in the criminal legal system. As such, I think it is important to explain the broader context in which these cases are situated because, frankly, it’s astonishing.
VERY FEW cases actually go to trial
First, “[a]bout 94 percent of felony convictions at the state level and about 97 percent at the federal level are the result of plea bargains.”Therefore, Cosby, Rittenhouse, Chauvin, and the McMichaels are in the 6% and Kelly is in the 3% of all felony cases.
Additionally, “13 million misdemeanors are filed each year in the U.S,”making up around 80% of all criminal charges. Despite that huge number, researchers estimate that only 1% of misdemeanors go to trial. One percent!
Many of us were raised with the idea that we seek justice by “having our day in court.” In reality, however, the majority of criminal defendants only get their half hour in court as they plead guilty before a judge based on an agreed upon plea bargain. What’s more, many of the people who accept the plea deal are innocent of the charges against them. (Check out the resources below).
I will go into more depth about plea bargains in future editions, but suffice it to say, they are the criminal legal system, accounting for around 95% of all case dispositions. As you can see, the trials discussed in this newsletter so far are remarkable for reasons far beyond the people and issues involved—they are the 5-ish percent!
Access to defense counsel
In each of the cases I have written about, the men accused of crimes had an attorney to represent them. They had the capacity, through their own means or through online fundraising, to hire and pay for their private criminal defense attorneys.
For example, millions of dollars were raised to fund Kyle Rittenhouse’s bond and legal defense.Of utmost importance, this meant Rittenhouse was able to bail out of jail and actively assist in his own defense—something 550,000 other people could not do.
Not only could Rittenhouse compensate his lawyers handsomely, but his lawyers were able to pay a consultant to help them run two mock trials ahead of the real trial, hiring faux jurors, judges, and opposing counsel to determine their tactic at trial.Through this process, they learned that it would be more effective to have Rittenhouse testify than not. Additionally, the legal team was also able to do extensive investigation, interviewing witnesses, gathering video footage, and much more.
However, “[t]wo-thirds detained in jails report annual incomes under $12,000 prior to arrest.”For frame of reference, “people go to jail 10.6 million times each year.” While this isn’t an individual count, it does give you a sense of the sheer number of people we are talking about here.
Unsurprisingly, then, “about four out of five [Americans charged with a crime] rely on public defenders and other court-appointed lawyers.”These are the attorneys who work for the city, county, or state to represent those who are charged with a crime but cannot afford to hire their own private attorney. (More on public defenders in the resources section).
“So what?,” you ask. The private attorneys hired by the aforementioned individuals have control over how many cases they accept at a time. They have access to significant resources because their clients can afford a great deal, as evidenced in the Rittenhouse case. They can clear their schedules to devote more or less time to cases.
In contrast, public defenders, in most places, are required to take any and every case appointed, unless there is a conflict of interest. These offices are chronically underfunded and understaffed by governments.Every penny must be accounted for, so hiring outside investigators, experts, etc. is not always allowed or possible.
The National Legal Aid and Defender Association drafted the “National Advisory Commission on Criminal Justice Standards and Goals, The Defense (Black Letter),” which states:
The caseload of a public defender office should not exceed the following: felonies per attorney per year: not more than 150; misdemeanors (excluding traffic) per attorney per year: not more than 400; juvenile court cases per attorney per year: not more than 200; Mental Health Act cases per attorney per year: not more than 200; and appeals per attorney per year: not more than 25.
In reality, public defenders are sometimes handling 174 felonies at one time or 1,265 misdemeanors in a year. When I left my public defender job, I had well over 200 active misdemeanor cases.
Just pause for a moment and think about the intricacies of the trials I have explained over the last few months. While certainly not every case is so complicated, many are. Then, look at the numbers outlined above and ask yourself if it is possible for the most brilliant, competent, capable, tenacious, and compassionate attorney to handle that many cases with the depth required. The answer is no.
Let me be clear: Public defenders work their asses off, seeking to attend to every client and case with great care. They deserve hero status, in my humble opinion. But they fighting against impossible odds—too many clients, too many cases, too little time, too few resources, and too little understanding or care from the criminal punishment system and our society for both clients and public defenders.
In this edition, I highlight the ways in which the cases I have explained thus far are truly anomalous from the ways in which our criminal legal system works day in and day out. Cosby, Chauvin, Kelly, the McMichaels, and Rittenhouse—they are the exceptions in just about every way because of their own resources and the resources they could provide their private attorneys.
Millions of others are caught up in this dragnet of a system without access to counsel able to pull out all the stops, including taking the case to trial. Lives and liberties are lost because of these disparities.
I will discuss many of the topics discussed today in future editions, but to get you started, below are some resources about plea bargains, misdemeanors, and public defenders. Take a look!
As ever, thank you for reading!
For more on plea bargains, check out these resources:
Emily Yoffe, “Innocence Is Irrelevant,” The Atlantic (Sept. 2017)
Somil Trivedi, “Coercive Plea Bargaining Has Poisoned the Criminal Justice System. It’s Time to Suck the Venom Out,” ACLU (Jan. 13, 2020)
Justice In America, Episode 2: The 94% - Plea deals
Resources on Misdemeanors
“'Punishment Without Crime' Highlights The Injustice Of America's Misdemeanor System,” Alexandra Natapoff on Fresh Air
Center for Community Change, “The Relationship between Poverty & Mass Incarceration How mass incarceration contributes to poverty in the United States”
Jonathan Capehart, “How the justice system criminalizes the poor — and funds itself in the process,” Washington Post
Resources about Public Defense
“Understanding Gideon’s impact, Part 1: right to counsel services” and “Understanding Gideon’s impact, Part 2: the birth of the public defender movement” by the Sixth Amendment Center
Richard A. Oppel, Jr. and Jugal K. Patel, “One Lawyer, 194 Felony Cases, and No Time,” The New York Times
Connie Hassett-Walker, “Poor criminal defendants need better legal counsel to achieve a just society,” Washington Post
Christopher Zoukis, “Indigent Defense in America: An Affront to Justice,” Criminal Legal News
Bryan Furst, “A Fair Fight Achieving Indigent Defense Resource Parity,” The Brennan Center for Justice (Oct. 6, 2020)
Malia Brink, “Across the Country Public Defenders Take Critical Steps to End Excessive Caseloads,” American Bar Association
“The Truth About Trials,” The Marshall Project, available at: https://www.themarshallproject.org/2020/11/04/the-truth-about-trials. Check out Pew Research Center’s work, too: John Gramlich, “Only 2% of federal criminal defendants go to trial, and most who do are found guilty,” available at: https://www.pewresearch.org/fact-tank/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/.
Alexandra Natapoff on Fresh Air, available at:https://www.npr.org/2019/01/02/681606995/punishment-without-crime-argues-that-americas-misdemeanor-system-targets-the-poo
“America’s Massive Misdemeanor System Deepens Inequality,” Equal Justice Initiative, available at: https://eji.org/news/americas-massive-misdemeanor-system-deepens-inequality/
Sandra G. Mayson and Megan T. Stevenson, "Misdemeanors By the Numbers,” Boston College Law Review, Vol. 61 Iss. 3 (March 2020), available at: https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3851&context=bclr.
Deneen Smith, “Kyle Rittenhouse defense objects to efforts to get donor identities as state looks to bar donors from jury,” Kenosha News (Oct. 28, 2021), available at: https://www.kenoshanews.com/news/local/crime-and-courts/kyle-rittenhouse-defense-objects-to-efforts-to-get-donor-identities-as-state-looks-to-bar/article_cf9eeb72-46f1-5af0-954a-04f1505b06f9.html
Erik Larson and Ethan Bronner, “Rittenhouse’s Winning Strategy Rested on Tear-Filled Testimony,” Bloomberg (Nov. 19, 2021), available at: https://www.bloomberg.com/news/articles/2021-11-19/rittenhouse-s-winning-strategy-rested-on-tear-filled-testimony; Julian Mark, “A consultant helped select the jury that acquitted O.J. Simpson. She has been working for the Rittenhouse defense.,” Washington Post (Nov. 16, 2021), available at: https://www.washingtonpost.com/nation/2021/11/16/jo-ellan-dimitrius-kyle-rittenhouse-defense/
Center for Community Change, “The Relationship between Poverty & Mass Incarceration How mass incarceration contributes to poverty in the United States,” available at: https://www.masslegalservices.org/system/files/library/The_Relationship_between_Poverty_and_Mass_Incarceration.pdf
“The Truth About Trials: On the Defensive,” The Marshall Project, available at: https://www.themarshallproject.org/2020/11/04/the-truth-about-trials
See the resources about public defenders above.