Wisconsin
Lawyer
Vol. 81, No. 5, May
2008
Guest Editorial
Defending Public Defenders
Some of the most unfair attacks on
Justice Butler in the recent supreme court campaign targeted his former
role as a public defender, with the message
being that an attorney who serves as a public defender might be unfit to
serve as a justice on the Wisconsin Supreme Court. This message is both
false and dangerous to our system of justice.
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