Defining Defenders. Who are we public defenders? Generally public defenders nationally are characterized by being:

• still somewhat idealistic;

• distrustful of authority, if not anti-authoritarian;

• apolitical, leaning toward anarchism;

• comfortable with chaos;

• iconoclastic;

• loners not joiners.

Defender Skills. What types of skills have we learned from our experience? There are many skills but predominantly we excel at:

• analytical and critical thinking;

• finding the opponent's weakness and exploiting it;

• revealing sloppy and inadequate investigation & preparation by police;

• discovering things not done by law enforcement is fully investigating the case;

• using guerilla warfare tactics to fight the prosecution;

• stealth in investigation;

• deception and misdirection in strategy and tactics;

• commando raid type examination to undermining credibility of witnesses;

• sabotaging and derailing;

• obfuscating of the truth, when necessary.

Reasons for These Skills? Why are these the primary litigation skills we learn as public defenders? Because our role is:

• reactive, not proactive;

• analysis and critical thinking, not synthesis;

• preventing, denying, and rationalizing.

We are not trained in working with others. We are not problem solvers.

In the win-lose game of the adversarial model of dispute resolution, we win when the prosecutor does not score. We need the lawyer for the people to fail for us to win. This is a difficult and precarious position because of the public perception that we are obstructionist and are willing to do whatever is necessary to get the client off even if guilty, and sometimes even if the fair administration of the rule of law is undermined.

When crime is high, which it is, and the fear of crime is high, which it is, we are not likely to be viewed by the public as the mythic heros of our culture.

Now more than ever, we need be careful not to confuse the celebrity status of the OJ defense team with our expectations about our status as hero or villain.

Just because our culture seems to be having some difficulty lately distinguishing between the two, is no reason that we should become delusional about how we are commonly perceived or develop unrealistic expectations.

We do not represent people like OJ. We represent falsely accused, innocent, poor people. In addition, we represent:

• the despised, desperate, and dispossessed;

• the dropouts, discards, and degenerates;

• people who lie, steal, and cheat whenever it serves their purpose;

• the losers who cannot successfully compete in a competitive, materialistic society;

• outlaws - people who intentionally violate the law and have chosen to live outside the social contract that defines acceptable conduct.

We have regular and intimate contact with the worst elements of our culture. Does this accumulated interaction have any effect on who we are or who we become?

One of the maxim's used by Stephen Covey and others is: "Sow a thought, reap an action, sow an action, reap a habit, sow a habit, reap a character, sow a character, reap a destiny." There is a connection between attitudes, behavior, and character. That is why our work is dangerous and precarious.

In the criminal justice culture, all we need to do is to look at what happens to some undercover police when they go undercover too long. They have to assimilate and emulate the system, values, and behavior of outlaws in order to be congruent enough to be accepted and trusted. Most undercover police have a fairly value system of right and wrong. They who the good guys and bad guys are.

Yet, as we know, one of the dangers of under-cover work is that sometimes undercover police crossover to the dark side. We are no more immune from the effects of overexposure to unhealthy and dysfunctional people than anyone else.

In fact, we are even more vulnerable than most professionals because, like undercover police, our success is often highly dependent upon our relationship with our clients. We need them to trust us and have confidence in us.

And, some of us, sometimes, even want and need them to like us. If this need becomes tied to self-esteem or self-worth, we are on a steep and slippery slope with little hope of stopping before we bottom out.

How we define success is sometimes defined through the eyes of our clients. This warps our judgment. For example, we recently had an acquittal by a jury of a serial rapist with more than 20 victims. We celebrated this victory and praised the public defender for a job well done. Unspoken, either through practiced repression or social discomfort, was the concern that now free he would do it again.

We have become masters of rationalization and denial. If you don't think so, just listen to how we explain what it is that we do and watch how good we have gotten reframing facts so that we can find a theory of the case that we can believe it enough that we can tell it to the jury with conviction.

What other wonderful models of human behavior are we exposed to daily? We deal with sanctimonious, self-righteous, and vindictive prosecutors who lack empathy for the failed human condition. We are confronted with politically ambitious prosecutors who measure success by the notches in their desk for the people they have killed. We plead our cases to judges, some of who:

• are not knowledgeable about the law or facts;

• are uncaring, unfeeling, and mean spirited;

• are arbitrary and capricious lazy, indifferent, and detached from the world in which our clients live;

• make rulings on constitutional issues with one finger to the wind and one eye focused on the tomorrow's front page news coverage;

• tolerate lying police and prosecutors who abuse their power, and;

• care more about moving the docket than doing justice.

How does all this exposure affect us? Well, sometimes we feel really good about what we do. And, sometimes we feel:

• disliked, despised, and distrusted;

• unappreciated;

• alone and isolated;

• weary and beleaguered;

• frustrated and angry;

• defeated and discouraged;

• demoralized, and depressed.

Sometimes we question whether our participation simply legitimizes an unjust, racist, sexist, and classist criminal justice system. Sometimes we feel like we are pawns in a meaningless game where the outcome is predetermined and we are powerless to change it. Sometimes we feel like we are assembly line workers greasing the wheels of the machinery of justice that grinds up and disposes people who are easy to marginalize, dehumanize, and demonize.

So, considering who we are and what we experience, one might be justified in asking why inter-dependence should be a goal for criminal defense attorneys and public defenders who relish their independence.

Doesn't working cooperatively in the interest of our client compromise our ethical and legal purpose and the need for us to be fiercely independent? The answer is an unequivocal "no."

We need to practice interdependence for our:

• selves;

• criminal justice system colleagues;

• citizens;

• fellow human beings on this planet;

• and most importantly for our clients.

For the sake of our clients, we need to guard against developing a bunker or siege mentality that isolates, depresses, and impairs our effectiveness as lawyers or people. Clients need us to practice being proactive rather than reactive. Practiceing problem solving in collaboration with others, especially our adversaries, is eseential for competent, effective, quality representation of our clients.

Our clients need us to players in the system and involved in changing it. Clients cannot afford our not being invited to the policy-making table.

Our colleagues need to hear our unique insights and perspectives. We need to help puncture each others self-perpetuated myths in a constructive manner.

Our citizens need a more effective, efficient, and fair criminal justice system that they can have confidence in assuring fair process and reliable results.

In addition, whether we deserve to be or not, we are a model for many developing countries who look to us a model and seek to emulate our justice system.

When we talk about interdependence, it helps to look at this process of dependence ---> independence ---> interdependence in terms of human growth and development.

Being dependent on someone who is not healthy can result in two types imbalances:

• complacent, lacking in motivation, lazy, overindulged, and lacking the ability or desire to achieve independence;

• stifled, held back, resentful, angry, rebellious, revolutionary.

We see the manifestations of this process in human behavior in the defender community. For example, in my state, public defenders are hired and fired by judges before whom they practice. This creates a very unhealthy situation of professional and econimic dependence. While the vast majority of judges are not tyrants that intentionally and consciously abuse their power by telling the lawyers what to do, the employment relationship can produce a chilling effect which impairs zealous advocacy. It can also be more insidious and slowly corrupt and undermine the role that a defense lawyer needs to play.

We all know lawyers who have gotten too comfortable and are afraid to rock the boat. Defense lawyers need to be independent. Anything less is bound to impair their effectiveness just as the failure of an adolescent or young adult to develop independence will impair the growth and development as a happy, healthy and effective adult. But fierce independence is not enough in today's world.

The adversarial system will change because it is inefficient, and the public will continue to lose confidence in its fairness and reliability.

The criminal justice system will evolve with public defenders doing more problem solving processes that have a win-win potential. Mediation and ADR will have as big or bigger impact on the criminal justice system that it has had on the civil side.

There will be more alternative sentences driven by the increasingly prohibitive costs of widescale incarceration.

Clients, our customers, will demand, more and more, cooperatively arrived at resolutions that are based in the community that are not limited to punishment but advance treatment.

• Victim's rights: notification, compensation from state, restitution from offender;

• victim/offender reconciliation programs (VORP);

• jail overcrowding;

• bail reform;

• sentencing alternatives;

• community corrections.

Social Problems:

- high school drop-out rates

- teenage pregnancy rate

- drugs

- guns

- minority employment

- after school activities for children with parents who work

Volunteer:

- Big Brothers/Big Sisters

- Literacy

- Tutoring

The future will come whether defenders change or remain the same. We can be a part of creating a future criminal justice process that recognized the values, needs and interests of our clients. Or, we can stand put as the world advances around us but we risk damage to our clients and perceived or actual irrelevance. Our clients need us to be at the table.

Larry Landis has been the Executive Director of the Indiana Public Defender Council since 1980. He received his J.D. from the Indiana University School of

Law in 1973 and his B.S. from Indiana University in 1969. Larry served as Chairman of the ABA Criminal Justice Section, Defense Services Committee (1988-90, 1995-97); Chairman, NLADA's Defender Trainers Section (1979-81, 1983, 1985); Member of NACDL since 1976; member of the Indiana Bar Association; Chairman of the Indianapolis Bar Association Legislation Committee (1994); Distinguished Fellow of the Indianapolis Bar Foundation; Secretary of the Board of Director of the Indiana Association of Criminal Defense Lawyers (1980-87, 1990-97); Board of Directors of the Indianapolis Legal Aid Society (1984-1990); Board of Directors of the Indiana Civil Liberties Union (1976-83). Larry is the 1996 recipient of the NLADA Reginald Heber Smith Award and the recipient of the Indiana State Bar Association, Criminal Justice Section's 1996 Criminal Justice Service Award.

I take most issue with Mr. Landis' description of what a public defender is and with his proposal as to what a public defender ought to be in the future. Perhaps my inexperience in the criminal justice system distorts both my view and my understanding, but I will offer you my thoughts in the two categories.

First, I am disturbed by any notion that public defenders engage in "guerilla warfare tactics," "deception," "commando raid type examination[s]," "sabotaging and derailing," or "obfuscating of the truth." If indeed the role of a public defender is to win an acquittal for a client "even if the fair administration of the rule of law is undermined," then I am both disturbed and frightened. I want to state very clearly that such actions by an attorney engaged in civil practice would clearly violate a multitude of the Rules of Professional Conduct and I absolutely deny that there is any exemption from those Rules for those engaged in the criminal practice, whether public defenders or private counsel.

My own perception of a public defender is that he must play an essential role in the system of justice by ensuring that those with the authority to take away a citizen's liberty do their job within the realm of the law. I understand full well "self-righteous...politically ambitious" prosecutors and judges who cannot or will not play an appropriate role in the system; their counterparts are readily identifiable in the civil system. I believe that only if we provide a competent, aggressive defense for citizens ranging from the innocent to those who "lie, steal, and cheat whenever it serves their purpose" will the liberty of all citizens be safe. in appropriate behavior by police, prosecutors and judges can only be curbed if competent representation is available from the bottom of our society to those who can afford the "Dream Team." To me, a public defender both meets that societal goal and his duty to his client if he forces the agents of authority to act appropriately. That accomplishment exists whether his client is convicted or not. Thus, I do not equate a victory by the public defender with acquittal for his client. Public defenders do not necessarily "win" by an acquittal unless that acquittal is secured within the bounds of the law. One will not cause the authoritarian forces to act within the bounds of law by acting outside the law oneself. Thus, a public defender (like every other lawyer) has a duty to act within the rules of conduct placed upon our profession. Those rules do not include the sort of objectionable conduct enumerated above from the Landis article.

Once I arrive at that conclusion as to the appropriate role of a public defender at the current time, it is simple for me to conclude that the Landis proposal for an "interdependent" public defender is inappropriate. I certainly do not think that one must be coopted by the agents of authority in order to be "included at the table." I quite agree that substantial reforms are needed for the criminal justice system including not only new ideas for determination of how to control certain behavior but a comprehensive analysis of what behavior should be controlled. It seems to me that the persons who have shown themselves knowledgeable about the defense of criminal cases will be an important part of that dialogue. Perhaps if Mr. Landis would focus more on appropriate lawyering behavior for defenders at the current time, he would not have to worry about being excluded from the table.

To the extent that Mr. Landis suggests "interdependence" as meaning cooperating with opposing counsel and the judiciary in a professional manner, I believe that already should exist. Serving the best interests of the client and the social goal of policing abuses of power to not require behavior of a sort which precludes professionalism, courtesy and cooperation. Civil attorneys routinely provide zealous representation of clients in a professional, cooperative fashion and I see no reason why public defenders should not do likewise. To the extent, however, that Mr. Landis suggests "interdependence" as actions in which public defenders act with police, prosecutors and judges to decide what is first blush, that seems to me an invitation for the public defender to step outside the role of zealous advocate and into the role of judge and jury. I suppose that any arrangements proposed would always be subject to client approval, but I am not sure that is a meaningful control given what surely is a low level of sophistication on the part of the client. My inclination is that the public defender must not be coopted into the justice system but must provide services in a professional, cooperative manner.

JOHN R. LEATHERS, Attorney at Law

Mr. Leathers is a shareholder in Buchanan Ingersoll Professional Corporation, in charge of the Lexington office of that Pittsburgh based law firm. His practice is primarily commercial litigation, with experience in mineral-related and environmental matters, professional disciplinary matters, professional liability litigation and insurance ratemaking. Mr. Leathers is a 1968 graduate of the Univ. of Texas at El Paso, a 1971 graduate of the Univ. of N.M. School of Law and a 1973 graduate of Columbia Law School. He has served on the faculties of Columbia Law School, Univ. of Houston College of Law, Univ. of Oklahoma College of Law and U.K. College of Law. Mr. Leathers taught in the areas of Civil Procedure, Conflict of Laws and Federal Jurisdiction. He has published more than 20 articles in various legal journals on those topics and has spoken at more than 50 continuing legal education programs on those topics. Mr. Leathers is recognized in Kentucky as an expert on the application of ethical constraints upon lawyers and is a frequent speaker upon that topic. He is a member of the Kentucky Public Advocacy Commission.

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