Criminal Justice: A Dearth of Defenders

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To a television viewer sated with Perry Mason, Sam Benedict, Defenders and assorted colleagues, the supply of first-rate criminal lawyers may appear plentiful enough. But outside the range of the TV camera, the breed is in danger of dying out. Such noble concepts as "right to counsel, fair trial, and due process" will become meaningless, warned New York State Chief Judge Charles S. Desmond last week, unless more lawyers are willing to represent criminal defendants. Addressing Boston University's graduating law class, he called on law schools to stop pointing students "at the two admired goals of Wall Street law practice and clerkships to appellate judges." He urged that the schools instead expand their criminal courses and Legal Aid activities to give "students at least a smell of real criminal court work."

Judge Desmond's complaint is buttressed by some compelling testimony. In the current Atlantic, Chief Judge J. Edward Lumbard of the U.S. Court of Appeals in New York writes that in his busy jurisdiction bail bondsmen steer paying defendants to "a lawyer who will kick back to them a substantial part of the fee." Often this "lazy and incompetent" court hanger-on falsely claims that he can "fix someone" for a higher fee. Since he "seldom knows any law or reads any cases," his arguments in court are "so transparently hollow that it is not easy for most juries to sympathize with his client."

Actually, things can be better for the 60% of criminal defendants—up to 75% in New York City—who cannot afford a lawyer. In many cities, the indigent can rely on a growing public-defender system or on agencies like New York City's pioneering Legal Aid Society. Yet the city, paying less than half the society's costs, puts up only $250,000 a year v. $4,400,000 for the district attorney staffs that prosecute most of the society's clients. Indigents often fare even worse elsewhere, says

Lumbard. "The judge usually picks out some lawyer who happens to be in the courtroom," typically a novice just admitted to practice. "After a few minutes of conference, the defendant is advised to plead guilty, and he feels he has no choice but to do so. Everyone who participates in these proceedings knows that this is a farce."

To remedy the situation, Judge Lumbard would require criminal-trial training for admission to the bar. And he would try to keep lawyers interested in criminal cases by allowing them occasionally to prosecute as well as to defend—a long-admired practice that has helped keep many outstanding British barristers active in criminal law.