The lack of qualitative studies and empirical research in indigent defense has been well documented. Studies in determining trends, frequency in occurrence and answers to questions like who the customer is, Is it the defendant? Is it the prosecution, or the judges? Or is it the taxpayers, the U.S. Constitution, society? The substance of the qualitative data we have to draw on comes from emotions, and the perceptions of the defense professionals which are included in the data, attorneys, paralegals, investigators, and other support staff. In order to understand where the problem exists and how to address and fix, the public defense program across the country, reliable qualitative data could be the single most important piece to the puzzle. Study that includes what the impacts of multiple variables are such as, time, resources, education, experience, expertise, and specialty training, have on stakeholders and the adversarial justice system is needed.
Public defenders, private attorney’s, and contract attorneys across the country are attempting to fulfill their responsibility to provide indigent defendants with quality defense and due process, on nominal pay, with few resources, and limited support staff, (which include investigators), available to them to fulfill their duty. This has been well documented and is a well-known issue in the field, one that occupies public defender administrators all over the country. The lack of qualitative data from the field, is indicative of one of the issues with IDP programs nationwide and demands further study. Specifically, with respect to the reluctance to collect accurate, reliable, reflective data, for fear of identifying the lack of experience, expertise, education, and professional training which may exist, that may contribute to the failure to provide an adequate public defense.
Without reliable data and study, accountability tends to point to the lack of funds and resources rather than the possible failure of specific processes, and management of IDP programs across the country. One of the issues that prevent accurate qualitative data from the indigent defense field, is the unwillingness to expose attorney clients relationships, under the auspices of protecting an attorney-client privilege. In Moore,Yaroshefsky, & Davies (2018), they point out that allowing researchers to observe the actual interaction between the attorney and indigent clients in real-time is one of the most valuable ways to collect the data in the field. Allowing observation interviews could significantly increase and add validity to the future study.
In the 2015 Report to the Texas Indigent Defense Commission, study conducted by the Public Policy Research Institute Texas A&M they cited lack of funding for investigative experts and other support services, poor compensation, for public defenders and private lawyers, insufficient lawyer training, and poor oversight and supervision of defense providers as the main issues affecting the Defender Services Program in Texas. This is consistent with public defender offices across the country with few exceptions. Defenders complain of perception of experience, and education, where the defendant may question the attorney’s education, experience, or expertise, and may not believe the attorney is actually qualified to handle their case. They reported not being able to get defendants to listen to their advice, and trust them to defend them adequately. Some of the other issues that were determined from this particular study indicated that most often a defendant will not talk to his or her public defender until the preliminary hearing. In most cases it is brief, and most often results in a plea agreement from the onset, leaving the defendants feeling that they have not contributed to the defense of their case by not being given the opportunity to properly explore and investigate the facts of the case.
The Supreme Court of the United States has acknowledged that communication is a critical component of the right to counsel, yet recent studies, like these document the disparity between the amount, timing, and quality of communication between people who face criminal charges and the attorneys who are assigned to represent them. Lack of ability to consult your attorney, or properly investigate the prosecutor case against you, coupled with the lopsided advantage that the prosecution has in time, resources, and money leave defendants feeling detached and removed from the process. This leaves us to determine how effective our IDP programs are across the country, and what we can do to make the process work as intended. Reliable , accurate, current data is where we should begin.