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July 15, 2023 Public Defense

Do Prosecutors Have a Voice in Public Defense?

Mark Pickett

In a legal system built on adversarialism, ex parte communications are typically forbidden. Every law student quickly learns that for the legal system to work fairly, nearly every assertion and argument needs an opportunity to be challenged by the other side, with limited exception. One of those critically important exceptions, however, relates to funding requests for indigent clients. The U.S. Supreme Court established in Ake v. Oklahoma, 470 U.S. 68 (1985), that indigent defendants have the right to court-appointed experts in certain circumstances. Since then, many states have established rules that allow indigent defense attorneys to request funding for experts and other necessary expenses in an ex parte hearing. Other states have removed the courts from the process almost entirely, and funding requests are instead submitted to a dedicated indigent defense office. While the ABA has many rules that forbid ex parte communications, the ABA Criminal Justice Standards on the Defense Function provides that funding requests related to case investigation “should be made ex parte.”

The rationale for allowing ex parte communication in these circumstances is simple: not only does it protect client confidentiality, but a prosecutor has little legitimate interest in blocking a defendant from putting on a competent defense. After all, a prosecutor has no say in what lawyers, experts, investigators, and other services a wealthy defendant might hire. In a society that values equal treatment under the law, there is no reason that a prosecutor should be able to object to a poor defendant obtaining those same services. Questions of relevance, admissibility, and reliability are obviously another matter, but the defense service itself is not a partisan issue.

Despite this principle, however, many prosecutors around the country have recently spoken out against public defense funding. This opposition has come at a time when public defense faces a crisis. Many public defense systems are underfunded, and defenders face large workloads and low salaries. James Barron, An Exodus from the City’s Public Defense Offices, N.Y. Times (June 9, 2022). In most places, public defenders are paid significantly lower salaries than their prosecutor counterparts. Matt Perez, Low Pay a Deterrent to Would-Be Public Defenders, Law360 (Oct. 17, 2021). And funding for public defense often trails far behind funding for prosecution offices. Brendon Woods, Prosecutors Have Nearly $1 Billion More Than Public Defenders. That’s Not a Fair Fight, S.F. Chron. (Oct. 30, 2022). To make matters worse, some prosecutors have implied or stated outright that funding defense counsel would make it harder for them to prosecute cases, a claim that undermines public trust that prosecutors are pursuing justice, rather than chasing easy wins against overworked defense counsel.

In Orange County, California, for instance, the Public Defender Office received a $4 million state grant to develop a program to represent people who were convicted of homicide at a young age in resentencing and parole hearings. The grant was provided in response to changes to California’s criminal law that provided an avenue of relief for such people, and it was accepted unanimously by the Orange County Board of Supervisors. The need for this funding appears obvious: A change in California law created a specific need for additional defender resources, which the state provides. Orange County District Attorney Todd Spitzer lobbied the Supervisors to reject the funding, however, arguing it would harm his office and create more work for his prosecutors. In response, Orange County Public Defender Martin Schwarz pointed out that the District Attorney’s Office already receives significantly more money than the Public Defender, and county supervisors themselves noted that, as a state grant, this additional funding would not threaten prosecution funding. But Spitzer was undeterred, linking the funds to what he alleged were Governor Gavin Newsom’s commitment to closing prisons. He also mentioned the prior compassionate release of a terminally ill man who was convicted of murdering three people in 1980, although his release did not appear to be related to the grant funding. Brandon Pho & Noah Biesiada, Orange County District Attorney Objects to Public Defender Grant Funds, Voice of OC (Mar. 1, 2023).

In Guam, public defense funding has been subjected to more bombastic complaints. The U.S. territory, like many states, is facing a public defender shortfall. Fewer and fewer qualified lawyers are part of the indigent appointment roster, in part due to low hourly rates. As of February 2023, only five attorneys on the entire island were accepting such appointments. The problem reflects a general shortage of lawyers in recent years. Guam Public Defender Services Corporation Director Stephen Hattori has stated that Guam will be facing an “emergency in criminal defense” within a few years due to these issues. Joe Taitano II, Guam Bar, Court, Public Defender Teaming up to Address Defense Attorney Shortage, Pac. Daily News (Feb. 16, 2023),

To address the shortage, a member of the Guam Legislature introduced a bill to give public defenders a raise that would bring their salaries more in line with those of prosecutors. The ABA has long supported resource parity between prosecutors and public defenders, including salary and benefit parity. ABA Ten Principles of a Public Defense Delivery System, principle 8 (Feb. 2002). This ensures that both sides of the criminal legal system can recruit and retain attorneys on the same playing field, and it is also a simple matter of fairness. In response to the proposal, Guam’s top prosecutor, Attorney General Douglas Moylan, was apoplectic. In a letter to the Legislature filled with words written in all capital letters, he stated, “The solution [to Guam’s attorney shortage] is NOT increasing pay for defense attorneys to match the recent incentive given to ONLY PROSECUTORS by your predecessors.” Moylan then proceeded to describe a grim picture of a Guam ruined by a modest public defender pay increase. As a result of the bill, he claimed, the “number of Violent & Non-Violent Crimes will increase, as will the numbers of murders, robberies, rapes, home invasions, thefts and cases of government corruption.” Prosecutors would flee his office, he claimed, and “[t]he already broken criminal justice system will fall to its knees, and we law-abiding citizens will be the ones to further suffer.” In one particularly colorful passage, he wrote, “If you are a criminal, or want to protect criminals, [this bill] is an excellent way to promote crime on Guam. We can become the ‘Crime Capitol [sic] of the Pacific,’ and destroy our ‘cash cow’ that tourism brings by tourists believing we are a safe Island.” Shane Tenorio Healy, “Excellent Way to Promote Crime”: AG Opposes Public Defender Raises, Guam Daily Post (Feb. 10, 2023). Moylan’s prediction that a pay adjustment for public defenders will lead to some sort of Mad Max–like scenario on Guam seems unlikely, to say the least.

Elsewhere, prosecutors have questioned whether there is even a public defense crisis to begin with. In Oregon, for instance, a senior Portland prosecutor, Norm Frink, wrote an op-ed calling Oregon’s public defender shortage “hype.” In the column, he claimed that public defenders are “demanding the legislature hand over more money to them forever.” In making his case, Frink cited an ABA report from over a decade ago indicating that Oregon’s public defense spending is higher than in many other states. Norm Frink, My View: Public Defender Shortage Is Hype, Portland Trib. (Jan. 30, 2023). Yet he ignored the ABA’s comprehensive analysis of Oregon’s public defense system, published in 2022, that found that Oregon has only 31 percent of the public defenders it needs to effectively represent clients. The Oregon Project: An Analysis of the Oregon Public Defense System and Attorney Workloads Standards (Jan. 2022).

While statements like these may not violate legal ethics rules, the negative effect they have on public trust in the criminal legal system cannot overstated. Prosecutors may be the attorneys on one side of a criminal case, but they are also public servants, and many hold elected office. Many of the people they serve could find themselves accused of a crime, and anyone who has worked on either side of the criminal legal system for long knows that a criminal defendant in one case could be the victim in another. When prosecutors advocate for an uneven playing field, they are telling the public that they need an unfair advantage to win. To a potential criminal defendant, this signals that they should expect to be convicted not because of the strength of the state’s case, but because their attorney was outgunned. For the victims of crime, it signals that the state’s ability to obtain a conviction is largely dependent on whether the defendant can afford to hire private counsel. Regardless of what side of the criminal legal system you find yourself on, this is a system no one should want.

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Mark Pickett

ABA’s Chief Counsel on Indigent Defense

Mark Pickett is the ABA’s Chief Counsel on Indigent Defense. He previously represented indigent clients facing the death penalty in state post-conviction and federal habeas corpus proceedings in North Carolina.