Tuesday, April 8, 2014

Macro Approach and the SAPD

Anonymous wrote:

Im inclined to think there's a disconnect between the SAPD and the local PD offices. SAPD have very little, if no, actual client contact and I think they tend to view their appeals more globally, i.e., is this case going to make bad law..or can this case be used along with others to steer the Court of Appeals towards overturning "State v. Shit Case"....I think the individual can get lost in that.

Whereas the trial level practitioner focuses on that client and their issue..

That is, of course, basically what the SAPD (Idaho State Appellate Public Defender) has said it is doing.

I would accept this explanation, but I really want to just think they are lazy.  The folks at the SAPD never struck me as bad people.  It's hard to accept that they simply don't consider themselves to work by the same ethical constraints as the rest of us, that they think of themselves as outside that system.  Remember:

As a representative of clients, a lawyer performs various 
functions. As advisor, a lawyer provides a client with an informed 
understanding of the client's legal rights and obligations and explains 
their practical implications. As advocate, a lawyer zealously asserts 
the client's position under the rules of the adversary system. As 
negotiator, a lawyer seeks a result advantageous to the client but 
consistent with requirements of honest dealings with others. As an 
evaluator, a lawyer acts by examining a client's legal affairs and 
reporting about them to the client or to others. 

No where in there does it say a lawyer is a crusader for some random cause called "overturn state v. shit case."  Is there such a thing as non-client centered advocacy for lawyers? Not in Idaho.  Hopefully not anywhere.  And sure as shit if you ARE going to go on a cause streak, you better not be harming your client in the process.

There are (though I can't recall where you find them) special rules for public defenders requiring them to fight anything they can raise in good faith largely because we are seen as "the government," we're civil servants, and the danger is there that we will simply become what so many people say we are- meet 'em and plead 'em warm bodies.  Closest thing I could find to what I'm referring to is this bit from the North Carolina Office of Indigent Defense Services:

3. “Work Hard FOR Your Client” 
APD’s MUST Work Hard 
 -Hard work is the only thing that can attempt to “level the playing field” 
 -A lawyer must be diligent and zealously represent his or her Client (Rule 1.3) 
 -The duty to use the law to “the fullest benefit to the Client’s cause” 
(Rule 3.1, Note 1) 
 -In order to pursue a matter, all you need is a good faith basis that includes 
“a good faith argument for a …modification or reversal of existing law” 
 (Rule 3.1) 
It is All About the Client 
 -APD cannot have a “lawyer’s ego” (it is NOT about “you”) 
 -Always ask colleagues or other lawyers for opinions or help 
-Never base decisions on personal motives 
 -Client’s interest is primary (over offending judges or bureaucratic office rules)

For the SAPD to decide they are going to see their clients on some macro scale that allows them to blow off claims they can make in good faith... that's pretty horrifying.  Private counsel would never ever do that.  Why should the poor find themselves with attorneys who don't care about them as individuals?  Who don't zealously pursue their defense?

No.  That's just way too much bad mojo.  I won't accuse them of that.  Not yet anyway.


  1. I think there's just an inherent "appellate" problem in Idaho.

    So the standard is "client asks to appeal equals YOU MUST FILE APPEAL" and "should have known client would want to appeal equals YOU MUST FILE APPEAL".

    If you're a misdemeanor practitioner, you have to do all the appeals your self on top of your case load. Under the second standard above, any time you argue a MTS and lose, or argue to dismiss and lose, or argue probation and client gets locked up...you 'should' know they would want to appeal. Why wouldn't they? It doesn't cost them any money. Very few misdemeanor practitioners file those appeals. I would say NONE file all the ones they are ethically obligated to file under the caselaw.

    If you're a felony practitioner, you can file a Notice of Appeal on every flipping case and ethically cover your ass but then also get to run off to the safe haven of not having to do your own appeals.

    Then the SAPD gets all of those. If every felony PD in the state is filing appeals every time their client requests it, or when they should have known their client would want to appeal, the system is just going to spill. The SAPD doesn't have enough people.

  2. I agree that the system in Idaho is broken.

    I disagree that you have to file an appeal unless your client asks for it. I don't know how the "should have known" would occur- you have to tell your client they have a right to appeal in Idaho, and they tell you if they want to. You have to remember that only a vanishingly small number of cases don't end in a plea. I'm a pretty litigious guy, but I wouldn't say that I've felt oppressed by the many appeals I've done.

    As for what the SAPD's caseload looks like, I don't know. I'm sure it is pretty intimidating. But since they file a brief in all of them, and they have to at least insert some factual background and some argument in those briefs, they're putting some time and effort into all of them. I wouldn't be as upset if they simply declined to have oral argument in all the cases they don't have much hope for. But to simply not pursue claims doesn't work.

    The fact is, if you're a public defender, you don't get to just bow to your caseload and become a public pretender. You can quit. You can tell your county commissioners that you simply won't accept anymore cases. But you can't just phone it in.

    There may come a day when Gideon is overruled by constitutional amendment or SCOTUS, largely because the concept is deemed "unworkable" by citizens unconcerned with the accused and hoping for lower taxes. In the meantime, we are attorneys, and no amount of abuse we get from the world (and lord knows we get a lot) allows us to ignore our obligations to our clients to zealously defend them.

  3. There's a case...State v. Pecor..I think that talks about when you "should have known" to file an appeal. The standard exists so that you can't insulate yourself from having to appeal by failing to communicate with your client after the case is over. I.E. your client gets clobbered, you dont talk to them after the sentencing or take their calls...you can't do that and then hide behind "he never told me to appeal"