Wisconsin Lawyer
Vol. 81, No. 5, May 2008

Guest Editorial

Defending Public Defenders

by Hon. William C. Griesbach

As almost everyone seems to agree, the recent state supreme court race between incumbent Justice Louis Butler and Burnett County Circuit Judge Michael Gableman was one of the nastiest in Wisconsin political history. Each side blames the other candidate as the worse offender, but even more so, they blame the so-called special interest groups behind the scenes that supported them. It is not my purpose to wade into that dispute, other than to note that the increasingly bitter campaigns for the state supreme court seem to be a reflection of the role that the Wisconsin Supreme Court, like the U.S. Supreme Court on the national level, has come to play on many of the major issues of the day; and of the closely divided make-up of the court's current membership along ideological lines.

The replacement of a justice on one side of the ideological divide with someone from the other side can significantly alter the direction of the court on the most controversial issues it faces. Given the role that the supreme courts, both of Wisconsin and the United States, play as the final arbiters of some of the most important issues of the day, it is not surprising to see the kinds of battles over these seats that we have witnessed over the last decade. Attacks on U.S. Supreme Court nominees have been going on even longer. Unless one side or the other becomes clearly dominant, it is hard to see how things will be much different the next time a "crucial seat" on the Wisconsin Supreme Court comes up for election.

The Hon. William C. Griesbach, Marquette 1979, served as law clerk to the Hon. Bruce F. Beilfuss during the 1979-80 Wisconsin Supreme Court term and as a staff attorney for the U.S. Court of Appeals for the Seventh Circuit from 1980-82. He entered private practice with Liebmann, Conway, Olejniczak & Jerry S.C., Green Bay, and focused on civil litigation until 1987, when he joined the Brown County District Attorney's office as an assistant district attorney. Gov. Tommy Thompson appointed him to the state bench in October 1995; he was elected to a full term in 1996 and reelected in 2002. In January 2002, President George W. Bush nominated him to become the first U.S. District Judge to be seated permanently in Green Bay, and he was confirmed by the U.S. Senate.

But as I said, my purpose is not to address this seemingly intractable problem. Instead, I would like to say something about an essential part of the legal profession that seems to have been the target in some of the most unfair attacks on Justice Butler in the recent campaign. I would like to talk about the role of the public defender. As someone who has been involved with criminal cases for more than 20 years, first as a prosecutor and for the last 12 as a judge, I have come to appreciate more and more the crucial role these hard-working men and women perform in our system of justice.

In this country, we have an adversary system of justice. What that means is that each side in the dispute is represented by someone who advocates for that side. In a criminal case, the prosecutor brings the charge on behalf of the government and presents the evidence and argument that, in the prosecutor's view, establish the defendant's guilt. The defense attorney advocates for his or her client by, when appropriate, challenging the evidence offered by the government, introducing the evidence that supports the defense, and arguing on behalf of the client. It is from this clash between the two adversaries that the truth is expected to emerge so that the neutral fact-finder, in most cases a jury, will be able to determine whether the individual accused is guilty or not guilty of the crime with which he or she is charged. That's how it is intended to work in a trial.

Of course, most cases do not go to trial, and so most of the advocacy takes place first in the plea negotiations with the prosecutor and then, if a plea is entered, at sentencing before the court. The defense attorney often represents his or her client not by trying to avoid a conviction, but by ensuring that the charge fits the crime the defendant actually committed and then bringing to the court's attention any facts in mitigation that should be considered in determining a just sentence. The key point to understand, however, is that the system only works if both sides are effectively presented. If only the evidence and argument of the prosecution are effectively presented, that clash from which the truth must emerge never occurs. An innocent person could be convicted. But even if the defendant is in fact guilty, no one can have confidence in the outcome if the defendant is not effectively represented.

Public defenders, and defense attorneys in general, play the essential role of ensuring that persons accused of committing crimes are adequately represented in court, as both the Wisconsin and United States constitutions require. Public defenders perform this service for people who cannot afford to hire their own attorneys. They represent their clients zealously as the Code of Attorneys Professional Responsibility requires, regardless of the crime charged or the evidence against the defendant. One frequently hears the lament: "How can the attorney defend someone he knows is guilty?" The simple answer, of course, is that the attorney doesn't know the client is guilty, at least not of the crime charged. In some, perhaps even most, cases the attorney may, if he or she asks himself the question, believe the client is guilty since the attorney has access to the government's evidence. But the attorney doesn't know the client is guilty based on his or her own personal knowledge. If he or she did, the attorney would be a witness and would be unable to represent the defendant in any event.

More importantly, a public defender understands that for our system of justice to work, he or she must not usurp the function of the jury and decide the question of the client's guilt. Unless and until the client enters a plea of guilty, the attorney must maintain the same presumption of innocence for the client that the law affords all persons accused of a crime. Absent a plea of guilty, that presumption continues unless and until the government convinces a jury of 12 citizens of the defendant's guilt beyond a reasonable doubt. Only if the defense attorney properly performs his or her role and zealously represents the client can the jury reach a verdict and a judge impose a sentence in which we can have confidence. The role of a defense attorney in a criminal case is thus no less important for our system of justice than that of the prosecutor, the judge, or even the jury. All participants must perform their role properly for the system to work and for us to have good reason to believe that the outcome is just.

What is unique about the defense attorney's role in the process, however, is that it is generally unappreciated by everyone except by the client, and often, even the client is angry if he or she is convicted, claiming it was the attorney's fault. That lack of appreciation was apparent in the recent campaign. The message that could be taken from some of the ads was that an attorney who serves as a public defender might be unfit to serve as a justice of the Wisconsin Supreme Court or perhaps even as a lower court judge. In my view, this is both false and dangerous to our system of justice. It is false because it conflates the role played by an attorney defending a client in a criminal case with the attorney's views about the importance of effective prosecution of those guilty of crimes and the need for just sentences that provide protection for the public. The fact that an attorney has spent part of his or her career defending people who are accused of crimes and cannot afford to hire an attorney on their own tells us nothing about the attorney's views on these matters. Judges who are former defense attorneys can be tougher in sentencing than judges who are former prosecutors.

What we do know about someone who has devoted a significant part of his life to working as a public defender is that he has been willing to use his time and talent, his knowledge and experience, to provide those who are not only destitute, but often hopeless as well, with the counsel and advice they need and the representation they must have if our system of justice is to function as it is intended. And many have been willing to do so for less pay than they could earn in other areas of practice. The willingness of our public defenders, and the private attorneys who accept public defender appointments, to undertake this essential but unpopular role to ensure that we have a system of justice that not only works, but has the confidence of the rest of us, suggests that they have precisely the kind of independence and integrity that we should want in our judges, and a trust and confidence in the adversary system that is necessary as well. Their work also reflects the concern for the individual, regardless of circumstances, that is a cornerstone of our legal tradition.

The suggestion that these attorneys are, by virtue of having served as public defenders, unqualified to serve in the judiciary is therefore, in my view, false. But beyond that, it is also dangerous to our system of justice. It is dangerous because it denigrates an essential part of the legal profession and may deter competent attorneys from serving as public defenders or accepting appointments from that office. Given the difficulty and thankless nature of the job, we are fortunate to have the hardworking and competent attorneys who now work in the state and federal public defender offices. Most judges will tell you that public defenders are among the finest attorneys who appear before them. It is already difficult, especially with the relatively low hourly rate of pay offered by the government, to convince members of the private bar to accept public defender appointments. The suggestion that by taking on such work an attorney is proving himself or herself unfit for the judiciary or some other office will only make it more difficult to attract the caliber of attorneys that are needed to perform this essential service. It also deprives the judiciary of qualified members who bring with them the insight and experience that come from defending the accused.

In the book To Kill A Mockingbird, Atticus Finch, an attorney in a southern town in early 20th century America, is appointed to represent a black man falsely accused of raping a white woman. Amid all the bitter attacks on Finch from the white majority, one of the neighbor ladies tries to comfort Finch's children after the all-white jury finds his client guilty. "I just want to tell you," she says, "that there are some men in this world who were born to do our unpleasant jobs for us. Your father's one of them." Whether "born to do them" or simply willing to do them because of a strong commitment to justice, we should not look down on those attorneys who are willing to do what to many may seem an unpleasant job. We should recognize them for what they are - members of an honorable profession.

Wisconsin Lawyer