When people dismiss their better judgment and find themselves in court, they might choose to hire a pricey attorney as opposed to a public defender.
“The phrase ‘f— it’ has made us a lot of money,” private criminal defense attorney Ousama Rasheed said.
If defendants aren’t wealthy enough for a private attorney, they’ll depend on the public defender system– a system that’s underfunded and overwhelmed with cases.
Public and private counsel offer contrasting experiences
Barry Porter was a public defender for 20 years. His least favorite part of public defending was the high number of cases he had to manage, he said.
“Sometimes when my caseload got over 100, it got so frustrating because I couldn’t remember clients’ names,” he said. “That just made me really uncomfortable.”
“And these are felony matters: people going to prison for a long, long time,” Porter added.
New Mexico’s Public Defender Department will be requesting a $6 million budget increase during the next legislative session. This will be used to hire more attorneys and pay contract lawyers as well.
“Attorneys who are public defenders when they’re first starting out make $50-60,000 [per year],” Porter said. “On the outside they could easily make over $100,000. So they’re real public servants and a group we should we be very grateful for.”
Now, as a private attorney, Porter and his law partner’s starting fee is $8,000-$10,000 per felony case, he said.
People go into public defense because they believe in everyone’s fundamental constitutional rights, Porter said. This is a sentiment echoed by private defense lawyer Ousama Rasheed.
“There’s this idea of innocent until proven guilty in a court of law,” Rasheed said. “From the moment a person is arrested, until the moment the government devotes the time, people, resources, and puts together a perfect case to present against my client, or my client decides to plead guilty to a charge, they are innocent as hell.”
Rasheed has two attorneys working with him at his law firm, and their case load is anywhere between 150-200 at any given time among the three of them, he said.
Every client gets a free consultation and spends one to two hours with an attorney having everything explained to them, whereas in the public defender’s office, clients typically get just a few minutes with their assigned attorneys, Rasheed said.
Private lawyers also can decide which cases they want to take and can build up a reputation in their area of specialization.
“If I decide I want to slow down for awhile, I slow down for awhile,” Rasheed said. “If I want to get pickier about the cases I take, I can get pickier.”
Public defense doesn’t necessarily equal worse outcomes
While people may have the preconception that public defenders get worse outcomes for their cases, some research shows that private versus public counsel has no effect on case results.
Appointed counsel, however, tend to achieve less desirable outcomes compared to public defenders. Appointed counsel consists of private attorneys who are paid by the court to represent defendants.
Even though public and private defense is equally effective, financial constraints are still rampant in the court system.
Money can be a motivating factor for the prosecution and defense, whether that be lawyers in debt from law school or a district attorney’s office that needs more funding as well, said
Joshua Kastenberg, a professor at the University of New Mexico School of Law.
“It’s a system where people look at defense spending as risk-award analysis instead of, ‘am I guilty or innocent,’” Kastenberg said.
There are cases where prosecutors strike plea deals because the cost of going to trial is too expensive, he said.
“Sometimes trials aren’t held to the best of those counsels’ ability because there’s 30, 40, 50, 100 other trials waiting out there,” Kastenberg said.
Working in public defense isn’t always a bad experience, as Porter found.
He loved the camaraderie he experienced as a public defender, and that there are actually resources for public defenders that private attorneys don’t have, he said.
“You have 200 other lawyers who have all kinds of experiences and have created all kinds of motion templates and researched all sorts of areas of law. You have an appellate division… and the availability to hire experts,” Porter said.
Public and private lawyers can’t be grouped into broad categories, because there are different levels of competency in both, as in any other field, both Porter and Rasheed concur.
“A lot of people focus on that private versus public, but remember, that it’s people who need lawyers’ help who are the ones that really matter in the circumstance,” Rasheed said.
Porter says public defense is the most important legal work being done in the country.
“We should be paying public defenders more,” he said. “They’re not protecting criminals. They’re protecting our freedoms of every single citizen on the street. It’s vital that we fund public defense.”