Comparison of Progressive Defender with Foltzian Model

From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book

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This Note compares the Progressive model of the public defender with the Foltzian model. I discuss this comparison in greater detail with more citations in Babcock, Inventing the Public Defender, at 1274-80. See also, On-line Note, Progressivism, Suffrage, and Public Defense.


Progressivism and Public Defense

Though as noted previously, Foltz took credit for the first public defender office established in Los Angeles in 1913, it was seen mainly as an outgrowth of the Progressive movement which had found root early in California. SMITH, JUSTICE (the first history of public defense described it as a Progressive reform, though he credited Foltz with “reviv[ing]” the idea in 1896 and used some of her arguments in its favor) at 116 & n.1; 109 n.6, 110 n.4, 110-111 & n.1

Founded on the belief that efficient government programs could solve most human problems, Progressivism fit well with the idea of public defense, and one movement rose with the other. For the best explanation of the Progressive approach toward criminal justice reform, See Thomas A. Green, Freedom and Criminal Responsibility in the Age of Pound: An Essay on Criminal Justice, 93 MICH. L. REV. 1915, 1968-69 (1995) [hereinafter Green, Age of Pound] describing the focus of the Progressives as more directed towards inefficiency than injustice. A dark picture of the Progressive defender as mainly about saving money and cutting down on the extension of constitutional rights to non-white immigrants emerges in GREGG BARAK, IN DEFENSE OF WHOM? A CRITIQUE OF CRIMINAL JUSTICE REFORM (1980).

The public defender movement took off from the early success of the Los Angeles office. After 1914, SMITH, JUSTICE, supra described “a flood of articles” committees, studies, and “a large number of bills” in the “state legislatures” that advocated for the public defender. Smith, at 116. An annotated bibliography published in 1924 had 110 entries on the public defender, almost all in the 1914-1924 decade. A. Mabel Barrow, Public Defender: A Bibliography, 14 J. AM. INST. CRIM. L. & CRIMINOLOGY 556, 556 (1924).

Barrow lists two bibliographic references, four books, nineteen general articles, seventy-one favorable articles, and fourteen opposition articles. All of them (with the exception of Foltz’s articles) were published after 1909. Id. Barrow fails to mention Reginald Heber Smith, or other writings on the Legal Aid movement because she did not understand that a number of these societies did public defense in addition to civil legal aid. See Smith & Bradway, at 57 (1926). See On-Line Note: Comparison of Progressive Defender with Foltzian Model, infra, which explains more about the historical relation between legal aid and public defense.

The Progressive and the Foltzian Defenders

From the articles in the bibliography and the Smith study supra, the Progressive public defender emerges, and shows himself different in important ways from the figure that Clara Foltz first imagined. Instead of an equal adversary representing everyone, the Progressive defender would focus on the indigent accused. He would be an officer of the court protecting the innocent and pleading the guilty.

Even when he went to trial, the Progressive defender would present the evidence in a balanced and fair way—his interest not solely that of the client, but of truth and justice, which entitled him to the same respect accorded the prosecutor. As a leading Progressive proponent put it: the public defender would not “pervert justice by trying to acquit a guilty defendant as is frequently done by private counsel.” Mayer C. Goldman, Public Defenders for the Poor in Criminal Cases, 26 Va. L. Rev. 275, 280 (1939-1940), explaining that public defenders would encourage respect for justice and cooperation between both sides would be enhanced.

To these Progressive thinkers, public defense was less a solution in itself to the need for indigent defense than a segment of a more generalized reform of the entire system. They would focus on the criminal rather than the crime, on treatment rather than punishment, on cooperation rather than on adversary presentation. See Maurice Parmelee, Public Defense in Criminal Trials, 1 J. Am. Inst. Crim. L. & Criminology 735 (May 1910-Mar. 1911) (arguing that criminal law must balance social and individual rights putting the poor on “equal footing”); Maurice Parmelee, New System of Criminal Procedure, 4 J. Am. Inst. Crim. L. & Criminology 359 (May 1913-Mar. 1914) (arguing for various reforms including procedure simplification, eradication of the grand jury indictment, and deletion of the presumption of innocence).

Example of Progressive-Type Representation

One example of progressive-type representation from Los Angeles was a murder case in which insanity was the only possible defense. Letter from J.D. Fredericks, District Attorney, Los Angeles, to Thomas J. McManus, Esq., Secretary of the Committee on Criminal Procedure of the N.Y. County Lawyers Association, in The Office of the Public Defender in Los Angeles, 5 J. AM. INST. CRIM. L.& CRIMINOLOGY 441, 442 (May 1914-Mar. 1915) (discussing the case of Frank Walden). Instead of employing competing psychiatrists (“alienists” as they were called), the prosecutor and defender joined in requesting the court to choose three experts who would be equally available to both sides. Foltz’s defender would be at least troubled by the possibility that this arrangement could effectively destroy any jury defense (if all three found the client sane). For other specific examples of the approach of the Progressive defender as compared to the Foltzian model, see Babcock, Inventing at nn. 56-62.

The Foltzian Model

Foltz’s model, by contrast, was a capable jury lawyer more likely to go to trial with a client who had a good defense, even if he was factually guilty. The Progressive model reflected the view among many legal elites, especially Roscoe Pound, who thought juries and the lawyers who played upon them were part of the problem with the criminal justice system. See Green, Age of Pound, at 1968-69 (describing Pound’s opposition to adversarial advocacy); Michael McConville & Chester L. Mirsky, Understanding Defense of the Poor in State Courts: the Sociological Context of Nonadversarial Advocacy, 10 STUD. L. POL. & SOC'Y 217, 223-24 (1990) (describing the progressives’ position against adversarial advocacy); Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, Address at the Twenty-Ninth Annual Meeting of the American Bar Association, in REPORT OF THE TWENTY-NINTH ANNUAL MEETING OF THE AMERICAN BAR ASSOCIATION 4-5 (1906) AVAILABLE AT HTTP://WWW.LAW.DE.EDU/STERLING/CONTENT/ALH/POUND.PDF (DECRYING THE “SPORTING THEORY” OF JUSTICE).

As noted in the text, the early reports of the Los Angeles office reveal its difference from Foltz’s original vision, as well as its successes that inspired imitation. Just as Foltz had predicted when she introduced her bill some twenty years earlier, the public defender almost immediately eradicated “the shyster and swindling riffraff” of the legal profession, which were Foltz’s words when her bill was introduced in the New York legislature. The Public Defender Bill, BROOKLYN DAILY EAGLE, Jan. 23, 1897, at 7. Other systemic evils Foltz had described in her speeches and writings were also decreased: conviction of the innocent, guilty pleas by the confused, neglect by court appointees, and unfair and vindictive prosecution. Walton J. Wood, supra, note 53, at 592-597 (discussing the advantages of having a public defender, both for the defendants and for the rest of the public).

Cost of the Public Defender

To Foltz’s arguments that the introduction of capable defense counsel would reform the system, the Progressives added a strong pitch that it would also save money. Cost-effectiveness was a talking point for the Progressive defender in a way impossible for Foltz to claim, though she did say there would be some cost-savings from the public defender’s single calendar and criminal expertise. Foltz, Public Defenders, at 401. But her full-service defender for all who asked was expensive.

On the expense of her proposal, which had been an issue from the first, Foltz typically responded with a little lesson in economics. “Money is not cost; it is only a measure of it. Cost is the draft of time and force and energy made upon a people. War would be a fearful cost though every solider served free and every garment, cartridge and ration was a compulsory contribution.” She added: “Time, energy and effort,—these are the elements of cost because they are the prime factors of wealth. The defense of the accused under a public defender law would require no more time or effort than is now consumed.” Foltz, Public Defenders, at 401-02.

Competing Visions in New York: Mayer Goldman’s Public Defender and the Legal Aid Societies

For a more detailed account of the New York experience with further explanatory citations, see Babcock, Inventing at nn.66-86.

The different visions—individual advocate versus Progressive public servant—drove much of the debate about defenders during the 1920s, when it was a hot topic. Nowhere did the arguments on each side play out more plainly than in New York. On the Progressive defender side was Mayer Goldman, who wrote the first book explicitly on Public Defenders and devoted his career to the subject. MAYER C. GOLDMAN, THE PUBLIC DEFENDER, A NECESSARY FACTOR IN THE ADMINISTRATION OF JUSTICE (1917) [hereinafter GOLDMAN, THE PUBLIC DEFENDER]. Goldman published numerous articles and lobbied for a public defender repeatedly in the New York legislature. The book’s preface describes his campaign and the opponents in general terms. Id. at vii-ix. See also Obituary for Mayer C. Goldman, N.Y. TIMES, Nov. 25, 1939, at 21.

Goldman’s defender had twin duties: “to protect the innocent” and to “see that the guilty is fairly punished—not over-punished.” He would not go to trial with a client he thought was guilty. GOLDMAN, THE PUBLIC DEFENDER, at 8, 280. To those who carped that the public defender should represent everyone, Goldman responded that private counsel could refuse to defend the guilty, and prosecutors to charge the innocent, so why should not the public defender have the same option. GOLDMAN, THE PUBLIC DEFENDER, at 66-67. Perhaps because his defender was so different from Foltz’s, Goldman never mentioned her name. Clara Foltz did not speak of him either.

Goldman’s critics were less opposed to the idea of providing counsel for poor people than they were to making the function public and non-adversarial. See, e.g., Henry A. Forster, Reply to Robert Ferrari, On the Public Defender, 6 J. AM. INST. CRIM. L. & CRIMINOLOGY 378, 382 (May 1915-March 1916) (opposing the creation of a public defender office); Fifth Report of the Law Reform Committee of the Association of the Bar of the City of New York, The Necessity and Advisability of Creating the Office of Public Defender 1-3 (1915) [hereinafter Fifth Report] (opposing Goldman’s proposed statute).

Both sides in the New York debate on the competing visions of public defense claimed the Legal Aid Society as its ancestor and model. The Society was a private charity that had started before the Civil War to assist German immigrants. The idea seems to have quickly spread to other cities and all immigrants. KATE HOLLADAY CLAGHORN, THE IMMIGRANT’S DAY IN COURT 479 (1923) noted that in 1916, there were forty-one Legal Aid Societies in thirty-seven cities. Stephen K. Huber, Thou Shalt Not Ration Justice: A History and Bibliography of Legal Aid in America, 44 GEO. WASH. L. REV. 754 (1976).

History of the Legal Aid Society

The history of the legal aid societies and their relation to public defense is best explained in JOHN MACARTHUR MAGUIRE, THE LANCE OF JUSTICE: A SEMI-CENTENNIAL HISTORY OF THE LEGAL AID SOCIETY 1876-1926 269-76 (1928) and in Smith & Bradway, at 57 (1926). See A Special Committee of the Association of the Bar of the City of New York and the National Legal Aid and Defender Association, EQUAL JUSTICE FOR THE ACCUSED 43 (1959) [hereinafter EQUAL JUSTICE FOR THE ACCUSED]; HARRISON TWEED, THE LEGAL AID SOCIETY: NEW YORK CITY 1876-1951 7 (1954); J. P. SCHMITT, HISTORY OF THE LEGAL AID SOCIETY OF NEW YORK: 1876-1912 3 (noting “public-spirited American citizens of German birth” founded the legal aid society in New York in 1876); Arthur V. Briesen, The Legal Aid Society, 1 LEGAL AID REV. 2 (1903) (providing a short history of the New York legal aid society); Smith & Bradway, at 84 (discussing the Voluntary Defenders and the Legal Aid Society).

Legal Aid Society lawyers helped poor immigrants cope with cheating employers, slum landlords and predatory lenders, mostly by negotiation, conciliation and education. They went to court only as a last resort. Mayer Goldman’s public defender would offer this same type of representation, and some reformers thought that Legal Aid societies should just add criminal cases. A few Societies did just that. But the flagship New York office, instead of adding a criminal division, chose to spin off a new independent organization.

The Voluntary Defenders

The Voluntary Defenders were private lawyers who donated their services for adversarial individual representation on the Foltzian model. Goldman’s opponents argued that this was better than his proposed public defender because the poor received the same defense that the wealthy had. Others urged that the Voluntary Defenders were superior because they were private, and that the state should not be in the defense business. Yet others believed it was the non-delegable responsibility of the profession to aid the destitute and oppressed. In the end, the Voluntary Defenders beat out Mayer Goldman’s Public Defender statute in New York.

As noted in the text, Foltz herself did not address the difference between the Progressive model and her original idea of public defense, much less the way the competing visions played out in New York. Twelve public defender offices were founded between 1914 and 1926. Even in jurisdictions where a public defender was not provided, payment for appointed counsel became the rule. By 1942, all but nine states provided such payment through statute or court opinions. Betts v. Brady, 316 U.S. 455, 466, (1942) (Black, J., dissenting from the holding that there was no general due process right to counsel.)

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