Dean Strang Proved Me Wrong
Jan. 28, 2016 (Mimesis Law) — The last time I wrote on the Netflix docudrama, “Making a Murderer,” I took the stance nothing good would come of it. Today I proudly eat my slice of humble pie. Dean Strang, Steven Avery’s co-counsel in the trial at the center of the ten-episode show, is using his quasi-celebrity status to address one crucial component advocates for “criminal justice reform” continually ignore. The State regularly outspends defendants, and prevents competent attorneys from taking indigent cases.
State government or federal government carries the cost of defense of most people charged with a crime. Either through funding an institutional public defender system, or paying private lawyers to take court appointments for some reduced compensation.
The reduced compensation rates for private attorneys taking court appointments are embarrassing. A March 2013 report from the National Association of Criminal Defense Lawyers (NACDL) revealed a state by state epidemic of underfunding indigent defense. This was consistent with decades-old complaints from the criminal defense bar. Underfunding indigent defense leads to inadequate compensation for counsel, which in turn leads to inadequate representation for defendants.
It’s easier to ignore the mean old criminal defense attorneys yelling for more money through studies, research, and reports. It gets harder to ignore when an attorney on a national platform explains the issue in clear terms and cogent examples.
My state [Wisconsin] is a pretty stark example. The current rate of pay for someone who takes a court appointment for an indigent client is $40 an hour for in-court time and $25 an hour for travel time.
That has not changed since 1994 and it’s gone up only $5 an hour for in-court time since 1978.
Those fighting for a raise in the minimum wage to $15 per hour would retort attorneys should be grateful for such a princely sum. Strang’s response shows just why those who aren’t fresh out of law school are quite hesitant to take indigent cases.
[In] 1997, I founded a two-lawyer criminal defense firm with a wonderful guy named Mike Fitzgerald here in Milwaukee. Two lawyers, doing nothing but criminal defense, and one secretary. We had offices. Fairly modest. No granite on the countertops and no marble on the floor. The cost to us to walk in, unlock it and turn on the lights–the operating costs spread across a 40-hour week—was $46 an hour. In 1997.
If I take a court appointment at $40 an hour, I am perversely subsidizing the government that’s prosecuting my client to the tune of $5 an hour. Plus I’m working for free. I’m kicking $5 an hour into the kitty to fund the prosecution of my client.
A return on investment of “feeling good” and “saving the world” doesn’t help attorneys who have bills to pay and families to feed, and telling one’s spouse you’re taking a case to promote “access to justice” will likely earn you a spot on the couch that night.
Adding in monetary and hourly caps to indigent defense representation deals a critical, if not death, blow to zealous representation. If a client is reduced to a number and an attorney knows he or she will not be paid for their time, pressure can mount quickly to encourage pleas in cases that don’t need to be pled.
You might say, “The lawyer is being paid by the hour. Why would he want to wrap it up early?
The reason is that most indigent defense systems…also have have a cap on total compensation in a case.
That’s where the incentive comes to plead the case out very quickly. If you hit that cap…You’re working for zero dollars an hour. (emphasis added)
Applying this back to my home state, if I were appointed to represent Steven Avery the maximum amount of money I would get for working a case lasting approximately two years would be $2,500. I would also work for free after a certain point; they feel Avery’s case would only take an attorney fifty-four hours’ time to finish.
The State has no such limitations and will relentlessly exploit that.
If you look at what the state has, it’s got whatever law enforcement resources that are needed…And they can pull in state level resources, resources from neighboring counties. And in an important case, where there’s a potentially long sentence or one that’s gotten a lot of publicity, the federal government will often lend its resources to state governments, and [it’s] lavishly funded by comparison to any state’s criminal justice apparatus.
It’s not just indigent defendants facing this problem. If you have money, the State will break you as they please.
Lets assume, probably safely, that Bill Cosby is a man of considerable means…The State of Pennsylvania will far outspend Bill Cosby. And if it wanted to, the State of Pennsylvania could break Bill Cosby financially.
Let’s just say that analysis of disputed bodily fluids became important [hypothetically]… And let’s say the defense invested money in a defense expert and…testing. If the defense was going to use that at trial they’d have [to] disclose its results…the expert and his or her opinions to the prosecution.
Once the defense made its disclosure, you would assume, in a high profile case, that the State of Pennsylvania would vastly outspend him on rebuttal experts or additional testing to try to rebut whatever the defense expert was going to offer.
[T]he rare really wealthy person who finds himself or herself charged in criminal court…is still no match for the state or federal government.
The Bill Cosby example exposes the long con pulled every day on the average taxpayer who funds “indigent defense,” believes defendants get a fair trial, and thinks our criminal justice system isn’t broken. Even if you are a person with incredible wealth at your disposal, once the State targets you, they will outspend you to achieve a conviction.
If the system won’t work for the wealthy, the average citizen doesn’t have a chance in hell.
Dean Strang potentially faces severe repercussions for exposing this incredibly large crack in the criminal justice system. He apparently knows this, and has decided to use what fame he’s gained to call bullshit on the way “criminal justice reform” is being handled by those who claim it a priority on their respective agendas.
Thank you, Dean, for taking your fifteen minutes of fame and making those who won’t listen to the rest of us pay attention.