When a person is facing criminal charges in Dallas, the Supreme Court of the United States held in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963) that the Sixth Amendment requires the appointment of counsel in all criminal prosecutions. Many people in these situations are going to have the criminal defense option of choosing between a public defender and a private practice attorney.

An econometric study of felony cases filed in Denver, Colorado, in 2002, showed that public defenders achieved poorer outcomes than their privately retained counterparts as measured by the actual sentences defendants received. However, the study suggested that the traditional explanation for the difference of underfunding resulting in overburdened public defenders might not tell the whole story.

The authors discovered a large segment of what they called “marginally indigent” defendants who appeared capable of hiring private counsel if the charges against them were sufficiently serious. Such results suggested that at least one explanation for poor public defender outcomes could be that public defender clients, by choice, tended to have less defensible cases.

When marginally indigent defendants can find the money to hire private counsel when the charges are sufficiently serious, perhaps they could also find the money if they are innocent or believe they have a strong case. There are several major differences between being represented by a public defender and a private attorney.

Understanding the Differences

Public defenders are lawyers who are appointed to represent people who otherwise cannot reasonably afford to hire their own attorneys to defend themselves at trial. Public defenders are usually employed by or under contract with the county, state, or federal government.

The Texas Indigent Defense Commission (TIDC) funds, oversees, and improves public defense throughout the State of Texas. TIDC is tasked with funding, overseeing, and improving public defense in each of Texas’s 254 counties.

The Dallas County Public Defender’s Office has been providing legal representation to people who cannot afford private attorneys since 1983 and is the largest public defender office in Texas. The office has felony, misdemeanor, juvenile, Texas Child Protective Services (DFPS or CPS), family, mental health, DNA, appellate, and capital murder defense attorneys assigned to 36 courts in four different buildings.

When people are considering the differences between having a public defender for a criminal case and hiring a private lawyer, there are three major areas to consider:

  • Choice — When you hire a private lawyer, you are obviously free to choose whichever attorney you like. When you are assigned a public defender, you may retain the ability to fire the public defender but you might not have the option to replace them. A person gets far more freedom in selecting a private lawyer because they will be able to sit down with attorneys and ask them questions to see if they are the right fit for the case, while a public defender is largely assigned without any input from their client.
  • Communication — It is well-known that public defenders are enormously overworked, having to take on far more cases than are reasonable. The effect of carrying these enormous caseloads is that public defenders are often in court all day and have little time left to communicate with their clients. This often means that many people who have public defenders do not get to talk to their lawyers until the days of their cases. Contrast this with a private attorney who is free to dictate the caseload they will carry. In most cases, the private lawyer can respond almost immediately to any question a client might have. Certain lawyers may also provide private cell phone numbers to contact them after business hours.
  • Results — Public defenders may have better relationships with prosecutors because they see them so often, but they can also be more likely to recommend accepting plea bargains that are not especially beneficial for their clients. Public defenders will be much less likely to see cases all the way through trial and will want to close each one of their cases as soon as possible. When you hire a private lawyer, their reputation depends on your case outcome. For this reason, a private attorney will be much more likely to take your case to trial when you believe that you are innocent or the criminal charges are especially weak.

Public defenders can certainly be lawyers who are familiar with a wide range of cases because of their past work, and they also have better relationships with prosecutors that allows for plea bargains. The major drawback to public defender is that they may not see a conviction as being as important as you believe it is.

A private practice attorney is going to have far more time to investigate a criminal case to determine other applicable defenses. They can also utilize far more resources than their public defender counterparts, possibly using expert witnesses, laboratories, or private investigators.

Professor William Stuntz wrote in an article in the Yale Law Journal, “The Uneasy Relationship between Criminal Procedure and Criminal Justice,” that the question of public defender effectiveness should be approached not in isolation, but as one piece of the larger system of criminal justice. He suggested that because of the interdependence of overburdened prosecutors and overburdened public defenders, the whole mechanism of criminal procedure could be having the unintended consequence of disadvantaging indigent defendants because their public defenders cannot afford to litigate time-consuming pre-trial motions as frequently as private counsel.

Stuntz suggested that all the parts of the criminal justice system enjoy a rough kind of equilibrium so that increased demands placed on the system at one point will be compensated for at other points. For example, as the Warren Court started to constitutionalize various aspects of criminal procedure, state legislatures responded by tightening the appropriations for court-appointed counsel.

The aforementioned study tested Stuntz’s hypothesis by examining sentence outcomes in every felony case filed in Denver, Colorado, in 2002. There were 5,224

felony cases filed in Denver in 2002 and the authors were able to examine outcome data for 3,777 cases.

The authors used regression analyses to measure the effect that the type of defense lawyer has on sentence outcomes and on the number of procedural motions filed. Regression analysis enabled us to separate the effects of many different factors on their measures of these two variables, and thus to measure the impact of the type of defense lawyer, while controlling for other factors that may affect case outcomes.

The authors controlled for the seriousness of the charges against the defendant, whether the case went to trial, and the number of counts filed against the defendant. They also performed regressions with different combinations of controls to ensure that our results were not sensitive to the variables included in the regressions.

Denver public defenders achieved worse sentence outcomes for their clients than private defense counsel, just as Stuntz predicted, but not for the reason Stuntz suggested. This means the results were not because private counsel filed more procedural motions.

Instead, the authors found that public defenders filed marginally more motions than private counsel. They also discovered that there is a surprisingly large segment of defendants who tended to use the public defender when the charges against them were not serious, but managed to retain private counsel when they faced serious charges.

The authors call these defendants “marginally indigent.” Their existence arguably skews the effectiveness results against public defenders because if private counsel on average handle more serious cases than public defenders, private counsel has more room to be “effective” in the sentences they achieve.

The authors re-calibrated the data controlling for the seriousness of the felony, but the results remained the same: public defenders still achieved worse outcomes than private counsel. These results suggested a non-traditional explanation for reduced public defender effectiveness: perhaps some public defender clients have been self-selected for guilt.

If a person is a marginally-indigent defendant, and they know not only that they are guilty but also that there is a very high probability that they will be convicted, it is not unreasonable to imagine that they will be less inclined to scrape together the money for private counsel than if, for example, they know they are wrongly accused. Thus, public defenders’ lower effectiveness may simply reflect the fact that, on average, they represent defendants with worse cases.

Find A Dallas County Defense Attorney | Law Offices of Richard C. McConathy

If you or your loved one are seeking legal representation in a criminal defense matter, you should be absolutely certain to consider hiring a private lawyer before you rely on a public defender. Contact the Law Offices of Richard C. McConathy today to speak with us about your case and let us tell you what we might be able to do for you.

Our firm handles all kinds of criminal cases in Texas, including driving while intoxicated (DWI) arrests, traffic offenses, drug and narcotics crimes, marijuana offenses, theft offenses, property crimes, violent crimes, sexual offenses, family violence and domestic violence, firearm and weapon crimes, juvenile crimes, and white collar crimes. We can answer all of your legal questions when you call (972) 233-5700 or contact us online to receive a free consultation.