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Should you stick with the public defender? 

by David Cmelik

In Iowa, the State Public Defender is the largest firm dedicated solely to criminal defense (a fact one of its former chiefs used to take great pride in repeatedly mentioning). They do nothing else but criminal law in their duty location with great familiarity with the process and the personalities. And now, given budgetary constraints, a criminal defendant will be hard pressed to find private-pay attorneys with the kind of high profile trial experience that exists in the state public defender’s office. Private attorneys are simply not often appointed to represent defendants in high stakes, high profile felonies. In Iowa, regulations in place designed to save taxpayer dollars are funneling those cases to in-house public defender offices and their overflow offices.  On the one hand, this creates attorneys with great experience; on the other, it creates workloads that are widely known to be greater than their private sector counterparts. Moreover, if a suspect and his or her family can afford to hire an attorney, they will choose the defense lawyer. That’s not true when the Court appoints an attorney. If the defendant doesn’t “click” personally with their court appointed counsel, right or wrong, the defendant may feel that the relationship imperils the progress of the case. This perception can become reality as the relationship sours– but courts are reticent to replace court appointed attorneys just because the defendant might not like the luck of the draw. It’s a right to have a lawyer; the hitch is that the Court chooses who it’s going to be. Because the law is about people and a defendant’s case is about that person, it is important for a defendant to be able to communicate effectively with their attorney. Part of that communication equation is the coequal relationship between the accused and their lawyer. If a defendant feels his lawyer is talking down to him or dismissing his concerns– even if they are just plain too busy– he might spend his entire case thinking about how to eject the public defender and miss key facts, strategies, and theories central to his criminal defense. This is not the best time for a criminal defendant to be distracted– even if it is more perception than reality.  A person in that situation may find that the only way to obtain the representation he or she seeks is to hire the right attorney. If a defendant and family can afford it, they should do so. I believe this is a moral imperative; others cannot afford to hire an attorney and the state public defender system is for them.  But a person who decides to hire their own attorney will free up scarce resources for the truly poor. Second, by going up the road to a new, “paid for” lawyer, the client can focus on what is truly important, the criminal defense, instead of a personality conflict that may fester from the lack of decision making authority in who the court-appointed counsel will be. A criminal defendant is entitled to a fair trial, to due process, and to the effective assistance of counsel. If a court decides that all of these requirements have been met, a defendant’s personal choice is secondary.

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