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Retaining Public Defenders As Opposed to Private Attorneys

Interviewer: What about the debate when someone says to you, “Well, maybe I should just go for a public defender or a court-appointed attorney”?

Sam Sachs: There’s a lie about public defenders. When I was a young public defender, I met with someone in a holding cell that was charged with a crime, and the person said to me, “Are you the public defender or are you a real attorney?” I always get a chuckle out of that. I found it funny and insulting at the same time. A public defender is a real attorney, but it’s simply a matter of how much time they can devote to your case.

If you’re going to use the public defender in Municipal Court or in the early stages in State Court, the public defender doesn’t get involved with the merits of your case until after you’ve been in court, after it’s been assigned to a prosecutor, and then finally you get a chance to speak to a the public defender who will handle your case. I like to get ahead of these cases when I defend them. I want to start a dialogue with the prosecutor as soon as I can. I don’t want to wait until I’ve been before the judge one time to start seeing what they have to say or to find out what the evidence is.

Public Defenders are saddled with Heavy Caseloads

Public defenders, by and large, are well-meaning, competent people. They generally do a good job. However, they have a tremendous overload of cases and they have to move them. When I’m working on someone’s case, then that’s the only case in my mind. That’s it, and public defenders don’t have that luxury, so I really don’t want to say anything bad about their intentions, and certainly their earnings are not what they could do in the private sector, and of course, some are great and some are not great, but you have to understand what you’re getting.

You’re paying a relatively small fee or no fee. They’re supported by public funds and they only have so much time to devote to each case. That’s it. You’ve got to take that into consideration. “Well, I know the state’s got me cold because I did it.” “You did it” has got nothing to do with whether the state’s got you cold or not. Go back to the beginning of our conversation. I don’t care what you did. It’s about what the state can prove.

Police Never Interview People to Try and Exonerate Them

Lots of times I’ve helped people to avoid being charged with crimes when they call me as soon as they’re suspects. I tell them what they shouldn’t do and I tell them what they shouldn’t discuss with other people, and I tell them not to speak to the police. Police never interview people to try and exonerate them. They only interview people to try and convict them.

The point is, that when you get a public defender, you never get to speak to them until after you’re charged or indicted, whereas if you call a private attorney, I’ve headed off prosecutions by simply saying, “Don’t say anything.” Then the police don’t have enough evidence to go ahead. Here’s what I would counsel you to do: you have a Fifth Amendment right not to incriminate yourself. Use it. Police are very good at getting people to talk. One of the most valuable books I ever read was about police interview techniques. They know how to get you to say things and they know how to seduce it out of you. They’re good at it. That’s part of their job. If you’re going to use a public defender, you don’t get to speak to an attorney until all that’s over, so that’s the biggest impediment.

You Cannot Get a Public Defender of Your Choosing

Interviewer: You don’t get to pick who you get if you get a public defender, right?

Sam Sachs: Exactly, and police say stuff like, “We can do this the easy way or the hard way. If you’re straight up with us and tell us what you did, we’ll tell the judge you’re a good guy.” Okay, so you go to jail for 10 years with the judge knowing you’re a good guy. What does that mean? Or they’ll say, “You know what? If you cooperate with us and tell us what happened, we’ll ask the judge for a low bail.” Right. You’re still going to jail. What difference does it make?

That’s what they do. The book that I read back in law school about police interrogation techniques taught me a tremendous amount of how they condition defendants. Most crimes are solved with confessions and people say, “Well, I was taught to be honest and tell the truth and I told the truth.” My answer is, “Yeah, that’s what I call a confession.” You have the right to remain silent. When they call me, I say, “Don’t say anything.” You can’t call a public defender before you’ve been indicted or charged and in court, so they lose the benefit of that counsel which may avoid them ever being prosecuted.

Public Defenders are Reserved for the People that Cannot Afford a Private Attorney

Interviewer: How hard is it to even qualify for one? Aren’t they just for truly indigent people?

Sam Sachs: Yes, they look at your assets. They look at your income. The judges have some leeway for lesser crimes. In municipal courts, they’re pretty stringent about it. For more serious things, they look at the broader picture. Attorney representation in serious cases is expensive, but still, it’s a crime to perjure yourself when you make financial disclosure, and if you tell the truth, you may not qualify, so now you’ve waited until after you’ve been charged, maybe after you’ve been indicted. Now you’re going to court and you’re first asking for a lawyer, who then gets refused, and two-thirds of the case against you is already water under the bridge. Not a smart system.

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