Warm bodies won't do: Defendants deserve lawyers fully prepared to defend them

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A defendant charged with a crime comes to court, but his lawyer does not. Can the judge order another lawyer -- even a lawyer from the same office -- to handle the case on the spot? No.

This happened in Pittsburgh this month. A man charged with driving with a suspended license appeared in court before Pittsburgh District Judge Jim Motznik without his attorney from the public defender's office. Judge Motznik demanded that two other public defender lawyers, both assigned multiple felony cases in another courtroom, immediately represent the defendant.

Both lawyers refused; according to press reports, Judge Motznik "angrily confronted" the lawyers and "demanded" that they represent the defendant. Still the lawyers refused. Judge Motznik responded by dismissing the case.

No one wants to see someone who has been charged with a crime simply walk away because the system broke down. And the press reports don't tell us whether Judge Motznik could have just waited. (The defendant's lawyer showed up 20 minutes later and had called his office to say he was running behind. No one from the office alerted Judge Motznik.)

But one thing is clear: The public defender lawyers who refused Judge Motznik's orders were correct. Demanding that a lawyer represent someone on the spot in a criminal matter shows a profound misunderstanding of the law, the legal profession and the seriousness of criminal charges.

Defendants in almost all criminal cases receive representation by a lawyer because the U.S. Constitution's Sixth Amendment guarantees the assistance of counsel, even for those who cannot afford to pay. The framers of the Constitution understood that appearing in criminal court without a lawyer risks miscarriages of justice.

To have the assistance of counsel requires more than a warm body in a suit next to the defendant. The legal profession's rules of ethics require that lawyers prepare their cases. Attorneys must be familiar with the law and facts in the case.

The lawyers in the matter before Judge Motznik had never seen so much as a piece of paper about the case, and had never even met the defendant. If the lawyers had gone along with Judge Motznik's request and things had gone badly, the defendant would have had every right to file a complaint with the Pennsylvania Bar .

Those lawyers who refused had other clients that day facing serious charges, and they had the obligation to give all of their time and energy to those clients. Any hastily assigned matter that took the lawyers away from those duties would have risked shortchanging those other clients -- another possible violation of professional ethics.

Some will inevitably say, "This was a minor traffic case. Any lawyer could have stepped in and handled it easily."

While a driving under a suspended license case is not terribly complicated -- and I speak from experience, having handled hundreds of such cases as a junior lawyer -- the stakes are still high. In Pennsylvania, a conviction for driving while suspended can result in a jail sentence.

At the least, a defendant convicted of this crime would get an even longer license suspension, which can impact everything that may require driving: the ability to hold a job, see a doctor or visit family, for example. These kinds of serious consequences for even minor convictions explain why the U.S. Supreme Court has said that the assistance of a lawyer in misdemeanor cases is every bit as important as it is in felony cases.

Providing lawyers for people charged with crimes at the expense of the public will never get anyone elected to office. But the right to the assistance of counsel is one of the things that shows the genius of our founders. It isn't about providing charity; it's about insuring that we have a fair justice system for all, no matter how much money a person may have.

The least we can do to honor that vision is to make sure that when people have to answer charges in criminal court, the lawyer standing next to them might really make a difference.

David A. Harris is distinguished faculty scholar and associate dean for research at the University of Pittsburgh School of Law, where he teaches courses in criminal law and procedure and evidence ( daharris@pitt.edu ).


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