Federal Criminal Defense: Representing Indigent Clients

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From LawHub, this is I Am The Law. A podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Debby Merritt interviews a federal public defender who shares how she builds trust with her clients and the challenges she faces in dealing with prosecutors.

Debby Merritt:

Let's start by talking about the overall role of public defense. What are public defenders and why do we even have them?

Candace Hom:

Public defenders are lawyers for those who are accused of crimes, we have them because I guess it goes back to Gideon v. Wainright, I would say. Where the Supreme Court ruled that every person who is charged with a serious crime deserves and has the right to counsel under the Sixth Amendment. So we are part of the system of justice.

Debby Merritt:

So we're talking about a federal constitutional right to counsel and if somebody can't afford their own counsel, then the government has to provide it for them. So who's paying for this?

Candace Hom:

The Federal Public Defender's Office is under the judiciary. So we do get funded by Congress and we are separate and apart from the US Attorney's Office, the prosecutors in federal cases, they're under the executive branch.

Debby Merritt:

Tell me now, Candace, about the different types of work in your office. Do attorneys specialize in different things?

Candace Hom:

In my office, the attorneys do not specialize in different things. We acquire cases on our duty days in which we cover the court. So anytime a new client or defendant is brought into court on a charge, we are there to be appointed by the court to meet with our clients for the first time and to hopefully deal with bail issues or try to get our clients out on pretrial release rather than having them go into detention.

Debby Merritt:

So what are the range of charges that you might be faced with on a typical day?

Candace Hom:

It varies. We've had cases usually felon in possession of a weapon, illegal reentry. We have drug distribution cases. I've had wire fraud, child pornography, bank fraud. So it runs the gamut really.

Debby Merritt:

But one thing for people to realize is that in the federal system, we don't have as many murders and rapes and assaults as we do on the state level.

Candace Hom:

That's true. The state is where you will find cases like murder and assault because each state has its own laws about those types of crimes. Federally, you will not see that unless something happened on a federal property or to a federal officer, you might see a case like that in court.

Debby Merritt:

So the federal cases are ones that have some connection with interstate commerce. We see these drug dealing cases. We see wire fraud, as you said, child pornography, things that tend to cross state lines. So the first time you meet your clients, they're in the courthouse and they're being considered for bail. Is that correct? That's the first step that you take with them?

Candace Hom:

Well, normally I will inform the client of what the charges are. During the court proceeding, however, the court will certainly address whether that person should be released on pretrial release.

Debby Merritt:

And how do you make your argument about bail? Do you have time to talk with your client about points to make or do you make fairly generic arguments?

Candace Hom:

We have a very limited time to speak to our clients. We try to obtain the most salient information about the person's resources, family, friends, family who are willing to come forward on his or her behalf as a co-signer of a bond, meaning they sign a bond, but no money is put up upfront. Also, whether anyone has property that could be posted and whether anyone could be a third party custodian, meaning that person would allow my client to live with him or her for the pendency of the case.

Debby Merritt:

That's a big decision for defendants, right? If you don't get out on bail, you end up staying in jail while you're presumed innocent.

Candace Hom:

It definitely is. The judge will consider a couple of factors in making that decision. One is whether my client is a danger to the community, and secondly, whether my client is a flight risk.

Debby Merritt:

So the bail decision is made and then your client is either released or perhaps has to go back to a cell. About how many clients do you pick up on any duty day?

Candace Hom:

It really varies. I think the most I've had is about, I would say around eight and I had as few as none in one day. And I think it really depends on the US attorney's office and what they're focusing on at the moment. I think that there's an ebb and flow to the quantity of cases I see. And it will usually depend on the type of cases that they're focusing on. For example, if some cases require complicated investigations, it may take longer for them to bring those cases to court. But if they make drug arrests or gun arrests, those will pop in into court any day.

Debby Merritt:

Tell us a little bit about how you've establish a relationship with your clients. These are people facing a really bad time, federal charges. They may still be in jail awaiting trial, don't trust the system very much, I'm guessing. How do you establish rapport with your clients?

Candace Hom:

It is a very difficult aspect of the job. Fortunately, in my experience, I have been able to establish a rapport with my clients. Part of it is following through, whether it's calling family members or inquiring with the prosecutor about certain issues and getting back to my clients in a timely manner. That really helps in building up some trust and respect between myself and the client. I can think of some examples where the clients are in the jail and they have no idea what's going on with their cases. So I certainly think that trying to inform them of what's going on and making sure they understand the process is really important in building up that relationship.

Debby Merritt:

As I told you, I've done some criminal defense work and there've definitely been times when my client has not been honest with me. What do you do when a client doesn't want to be forthcoming when you know that they're not telling you the whole story?

Candace Hom:

It's a tough situation to be in, and I think one avenue I've explored is bringing in another attorney or bringing in my investigator to really assist me in trying to lay out my client's options, the different avenues he or she could take. Or emphasizing with my client the importance of being honest with me because I'm really the one who's trying to help him and in most cases, I'm the only one who can help him.

Debby Merritt:

Candace, tell us a little bit about plea bargaining.

Candace Hom:

In that process, we have discussions with the prosecutor about different ways that our clients can plead out to a certain charge. We try to present to the prosecutor's mitigating circumstances for our clients. They will consider it, but often they will inform us that those issues are best left to the judge to decide at sentencing ultimately. So what we end up getting normally is a plea agreement that really allows both parties to argue what they want.

Debby Merritt:

And that argument would be to the judge?

Candace Hom:

Yes.

Debby Merritt:

So the plea agreement says each party will present their arguments to the judge within these parameters.

Candace Hom:

So it is unlike the state, I would say, because in the state system, often the parties can come to some agreement regarding a particular number of months or years. That would be the defendant's sentence. We do not have that in the federal system as much. I would say I've had that happen once in my career here, where we have come to an agreement for a certain sentence to be imposed by the judge, and all parties have to agree and the judge even has to agree. But that was a very, very special circumstance, and I would say it's very rare.

Debby Merritt:

What about arguments over the admissibility of evidence? Does that come up during plea bargaining? Where you say to the prosecutor, you know that evidence you've got, it really violated the Fourth Amendment so let's come to a plea here.

Candace Hom:

There are instances in which we have brought that to the prosecutor's attention. I would say that most of the time when that happens, we are not given a more beneficial plea, but instead we're compelled to file pretrial motions like motions to suppress prior to trial or even prior to pleading out. So often it does not unfortunately, compel the government to give us a better plea, but instead we move for a motion to suppress.

Debby Merritt:

So that really goes back then to the formal trial process. You're making that formal motion to suppress, and the prosecutor will argue why it was constitutional and then the judge will decide.

Candace Hom:

Exactly. And it often involves some sort of evidentiary hearing where people give testimony. For example, police officers who were at the scene of the arrest or who conducted searches and the circumstances of those searches and arrests.

Debby Merritt:

So you'll be in court even when you're not going to trial.

Candace Hom:

Yes. That certainly requires us to be in court litigating those issues. And sometimes they lead to trial, but sometimes they also lead to my client's pleading out.

Debby Merritt:

We just talked about how most cases are settled by plea bargains, but some do go to trial. About how many times a year would you go to trial, do you think?

Candace Hom:

It is not something that happens every year for me. I would say I've been to trial a handful of times. I would say half a dozen times, and I've been here '03, but as a legal research and writing attorney and 2006, 2007, as a trial attorney,

Debby Merritt:

What I've seen working on the state level, that usually means that you're being quite successful as a defense attorney because there's no point in going to trial that often leads to a more severe sentence for the defendant, I found.

Candace Hom:

That's true. And there is, I think, a couple of reasons why most of our clients plead guilty. One is, of course, that the investigations that are conducted by the US Attorney's Office are pretty solid by the time they bring the charges in court. And secondly, clients get incentives to plead guilty. There is a reduction in his or her calculation and that effect what range of [inaudible 00:14:33] or she ultimately faces before the judge.

Debby Merritt:

It's also part of your work is lawyering. I would think that it's hard for anybody to say yes to a prison sentence. So as a defense lawyer, you must have some tough conversations where you sit down with a client and say, "Look, this is what happens if we go to trial. This is what happens if you plead."

Candace Hom:

Right. That is a very difficult conversation to have with a client. And sometimes our clients are very... They're very smart. They understand what's going on or perhaps they've been through this before. Other times it will take other actions to help our clients understand what the case is about and what the repercussions are. And one example is that we will have something called show and tell meetings with the prosecutor's office in which the prosecutors themselves present to my client the evidence against him or her and the evidence that they anticipate they would present at trial so that our clients can see for himself or herself what a trial would look like. And that's often something that's a useful tool in helping our clients realize what's at stake here.

Debby Merritt:

I can imagine it would be. I've seen even with misdemeanor shoplifting clients, they may claim that they're innocent, but then there's that surveillance videotape. It's hard to deny what's on the tape.

Candace Hom:

Right. And at those show and tell meetings, prosecutors will show videotape, play audio tapes with my client's voice on it. So these are very compelling pieces of evidence.

Debby Merritt:

It must be pretty tough to negotiate with a prosecutor. The state holds so many cards in a criminal case. What can you possibly say to get the prosecutor to look more leniently on a client?

Candace Hom:

It is difficult to approach prosecutors in terms of plea bargaining. I think that one of the biggest concerns that of course my clients are confronted with is the amount of time they're facing. Fortunately for me, I think, in New Jersey, the district of New Jersey, they do not wield the most powerful charge in front of my clients unless they show signs that they will eventually go to trial. So I think initially that the prosecutor's office in my district is pretty even-handed. I believe I've seen the statistic of approximately 95% end up pleading guilty.

Debby Merritt:

So a lot of what a defense lawyer like you is doing is working with the prosecutor to come up with a plea bargain that's acceptable to both the prosecutor and to the defendant.

Candace Hom:

Sometimes I have clients who have come from the state system and they believe that we can come up with a particular number. And in the federal system it is a lot different from the state because in the federal system, there is no number that we're coming to an agreement on and that may be a common misperception about cases in federal court.

Debby Merritt:

You're leaving that number to the judge. So you may agree that you're going to plead to this one charge and the other charge will be dropped, but then the judge is going to decide what the sentence is. It seems like that can be more important than almost anything else.

Candace Hom:

Yes. In a typical case, given that approximately 95% plead out versus going to trial, the biggest court proceeding that we're preparing for is the sentencing. We have to make sure that our arguments are set forth, that we've done the investigation and research that's needed, especially if it comes to any legal arguments that relate to the client's guideline range, meaning the range of months that he or she ultimately faces. And also we have to make sure that we've done investigation into any relevant issues in that person's life. Mental health issues, physical issues, the fact that perhaps maybe my client has never had any criminal history. They all are very important factors that we need to present to the judge so that the judge can sentence our clients fairly.

Debby Merritt:

So it's a combination of both legal and factual research that you're doing on these sentencing arguments.

Candace Hom:

Absolutely.

Debby Merritt:

Which do you like doing more, the facts or the law?

Candace Hom:

I think that I started out being more comfortable with the law because I was a legal research and writing specialist when I first joined the office, and I was a law clerk prior to that, so I was very focused on researching and understanding what the case law says. So I was very comfortable with that. Now, I guess it's been about 12, 13 years later since I joined the office. I am more intrigued and I feel that it's very important, perhaps even more important to present the facts of my client's case.

Debby Merritt:

You mentioned the writing and research specialist. What is that position?

Candace Hom:

The attorney is writing appeal briefs to the third circuit or complicated motions and sentencing memos that are needed by my office. So when I first started here, that's what I began doing.

Debby Merritt:

And then you moved into a trial position? I take it.

Candace Hom:

I applied for the assistant federal public defender position when one of the other defenders in my office left to become a judge, and then I've been doing that ever since.

Debby Merritt:

Is that a common path to go from the writing position to the trial position, or do some people stay as writing specialists?

Candace Hom:

It will depend, I think, on how the writing specialist feels about the AFPD position because it does involve a lot of work in the courtroom, meeting with clients in the jails, meeting with family members, talking with the prosecutor. So if someone in the research writing specialist position is up for the task, he or she can certainly move up. And I would say it happens around maybe 50% in my office. Some have chosen to stay in the legal research and writing position because he or she is more comfortable in front of the computer.

Debby Merritt:

What about turnover in general in your office? You mentioned that somebody left to become a judge. That's a pretty prestigious step up. Is there much turnover otherwise?

Candace Hom:

I would say there's very little turnover other than that. Many of the colleagues that I have here have been here for years, some for over 20 years, and I think a handful perhaps who have gone into private practice. But I think the reason that there is little turnover is that there is a lot of satisfaction that's gained from doing this type of job. And there is some sense of stability in this type of job, notwithstanding the furloughs a couple of years ago but I do think that people are very happy and satisfied with the work that they do here.

Debby Merritt:

Do you know about what the starting salary is for a federal public defender?

Candace Hom:

I think it would be somewhere between 70,000 and 100,000 depending on one's previous experience.

Debby Merritt:

Right, because the federal public defender might not come right out of law school. In fact, I would guess probably doesn't come right out of law school.

Candace Hom:

I think most of my colleagues here started their careers at other state public defender offices, even prosecutor's offices before joining the office here.

Debby Merritt:

And just to clarify, the federal public defenders are paid under the general government lawyer pay scale. So public defenders get the same sort of salary levels as somebody in the US Attorney's Office or other government agencies. So we are not going to penalize anybody for being a public defender. Candace, there's been a lot of public discussion about losses of funding for public defenders. Certainly on the state level, there have even been some issues on the federal level. There were that furloughs a few years ago that affected the public defender's office. Do you think we're spending enough as a country to provide resources for indigents in the criminal justice system?

Candace Hom:

I certainly think that the criminal justice system is something that people have to devote more resources for. I think that the public defenders especially are needed to make that system work. As far as I see it, yes, we do have a problem in this country, certainly on the state level at times within the federal level too. So I think people need to focus on the fact that in order for us to represent clients under the Constitution effectively, that we've got to devote more resources to the public defender system and to making sure that that system is working effectively for the clients who are usually the ones who need it most.

Debby Merritt:

And people need to understand that this is not money we spend in order to protect guilty people or to get them special favors. It's money we spend to have a fair system for everybody.

Candace Hom:

Exactly. It is to ensure that we have a fair process that everyone who goes through the system, his or her rights are protected.

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