Foltz's Arguments for Public Defense
From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book
This Note includes much of the same material covered in Babcock, Inventing. It is readily available on-line at the WLH Website. The article details the movements, cases, treatises, and life events that influenced Foltz’s conception. These notes repeat much of what the article contains, though it also supplements it in places.
The three main sources for Foltz’s arguments are her World’s Fair speech, 48 ALB. L.J. 248 (1893); Duties of District Attorneys in Criminal Prosecutions, [hereafter Duties] 18 CRIM. L. MAG. & REP. 415 (1896) [hereafter Duties]; and Public Defenders, 31 AM. L. REV. 393 (1897) [hereafter Public Defenders].
Foltz’s idea that prosecutorial excess necessitated a public defender was original at the time, and she cited no authorities for it. A modern history, JOHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL (2003), supports Foltz’s argument, though it does not mention her. Originally, Langbein explains, trials did not involve lawyers for either side but when prosecutors were introduced, their unfair behavior ultimately made defense counsel necessary, which in turn resulted in the adversarial system of deciding criminal cases.
Langbein shows that defense counsels were first introduced in highly politicized treason trials, where the absence of an advocate for the defense was easily seen as unfair. Foltz detailed specific bad prosecutorial practices: the custom in some states of paying prosecutors by the conviction, for instance. She also denigrated the very common system of joining “hired counsel” in the prosecution, “counsel in no sense representing the majesty of a great State, but rather the malice of a great prosecuting witness whose pride and vanity urge him to pay for a conviction.” Foltz, World’s Fair Speech. She dropped this point from her law review articles, perhaps because she had continued the hired counsel practice in her statute. See Online Note: Comparison of Public Defender Statutes.
Foltz blamed the prosecutor for police perjury: He “brings to his aid a detective and police force ever too ready to forge a missing link in the legitimate testimony.” Foltz, Public Defenders, at 396. For authority, Foltz drew first on her own “experience and observation.” She had seen, for instance, a new policeman admit on cross-examination that he was “instructed… to color his testimony.” Other sources she named were a judge, a criminal lawyer, and a court stenographer who “said he never knew a case where a pertinent fact was missing, but what it could be supplied at the last moment by the police.”
Foltz’s detailing of prosecutorial misconduct in Duties is so extensive, and the language so much like a brief that it seems she might have been collecting authorities for an appeal. She referred to “the remarkable conduct of counsel in the recent trial of Mrs. Fleming,” as an example of flawed prosecution. Foltz, Duties, at 415. This was a case examined in Chapter Five in which Foltz was the spokesperson for a shadow jury and attacked prosecutorial misconduct. The verdict was returned on June 24, 1896. Foltz’s critique of the prosecutor’s conduct was published in Some Interesting Opinions, N.Y. WORLD, June 28, 1896, at 23 (quoting Foltz at length).
People v. Wells
As described at length in Chapter Seven, Foltz was writing an appeal in the case of People v. Wells when she received the World’s Fair invitation. In that brief she relied on an earlier case, People v. Lee Chuck, 78 Cal. 317 (1889), in which the defendant was accused of murder. The prosecutor deliberately inserted inadmissible evidence in an offer of proof made in front of the jury. Even with “due allowance for the desire of every lawyer to win his case,” the California Supreme Court found that the district attorney had “fallen below the standard of fairness and impartiality.” Id. at 320-21. Despite the Court’s admonition in Lee Chuck, the San Francisco district attorney employed the same tactic in Wells, this time slipping inadmissible material into a question on cross-examination.
To Foltz’s invocation of Lee Chuck, the prosecutor taunted: “[t]he Court may stand, like Jupiter Tonans, with the lightening of rebuke flashing from their uplifted hands till weary of the task without any apparent change in the deportment of prosecuting officers.” Respondent’s Brief, People v. Wells, 100 Cal. 459 (1893) (on file with the California State Archives). He was challenging the court to reverse a conviction on the grounds of this kind of prosecutorial tactics. (In Lee Chuck, the actual reversal was on other grounds). Wells did just that, following Foltz’s argument that the prosecutorial misconduct had poisoned the entire process and reversal was the only remedy.
The Presumption of Innocence
Foltz had a number of arguments dealing with the anomaly of a public servant paid to defend a guilty person. She emphasized that “[o]ne-half of those arrested and charged with crime are actually innocent,” citing statistics from New York, Chicago and San Francisco, which she apparently gathered from official reports and her own investigation. Foltz, Public Defenders, at 402-3. She also argued that many who might seem guilty are not actually so.
But her main argument was based on the presumption of innocence, deeply embedded in American criminal procedure, though not spelled out in the Constitution. “Every person is presumed to be innocent and that presumption goes with him through every step of the trial until the verdict is rendered. The law ought to treat him as it presumes him,” Foltz wrote. Id. "A professional lives out the law’s presumption; all clients are innocent until the state meets its burden and the jury returns its verdict."
Foltz drew no distinctions between counsel’s duty to actually defend the innocent and those who had only the presumption to sustain them. Both were the same before the law, and thus the same to the lawyer. At the World’s Fair, she had invoked “[t]he common conscience of men” and “the great heart of the people” to support this point. In Public Defenders, she gave no authority at all, though well-known sources discussed the lawyer’s role in defending the guilty. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (2d ed. 1871) [hereafter COOLEY], had a very usable passage on the subject. First published in 1868, it was "the most widely used American law book” through many editions. PAUL D. CARRINGTON, STEWARDS OF DEMOCRACY: LAW AS A PUBLIC PROFESSION 8 (1999); see also Stephen A. Siegel, Historism in Late Nineteenth-Century Constitutional Thought, 1990 WIS. L. REV. 1431, 1487 (1990).
Even with her limited formal education, Foltz undoubtedly was familiar with Cooley’s great work. Moreover, a treatise on the work of lawyers that deals with the duties of defense was published in San Francisco the year she joined the Bar. EDWARD P. WEEKS, A TREATISE ON ATTORNEYS AND COUNSELORS AT LAW § 110 (1878) [hereafter WEEKS, ON ATTORNEYS]. It was said to be the first treatise on the law of lawyers, and took the passage on the duty of defense lawyers verbatim from COOLEY. We know that Foltz was familiar with WEEKS generally because she cited it for its support of the courts’ authority to appoint lawyers to defend. Public Defenders, at 399 n.1.
In the passage on the duty of the defense lawyer who discovers his client’s guilt, Cooley said that the lawyer must continue his advocacy to assure that “a conviction is not secured contrary to law.” COOLEY (2d ed.), at 361. “But”—and next came the existential question that Cooley did not answer—“how persistent counsel may be in pressing for the acquittal of his client, and to what extent he may be justified in throwing his own personal character as a weight in the scale of justice, are questions of ethics rather than of law.” COOLEY (2d ed.), at 361-62 (emphasis added). Cooley continued, “and if his conviction is secured by means of a perversion of the law, the injury to the cause of public justice will be more serious and lasting in its results than his being allowed to escape altogether.” Id.
On the question he left to ethics, however, Cooley merely laid out the dilemma. “No counsel is justifiable who defends even a just cause with the weapons of fraud and falsehood, and no man on the other hand can excuse himself for accepting the confidence of the accused, and then betraying it by a feeble and heartless defense.” Id. WEEKS, ON ATTORNEYS, § 184, n.1. Though Weeks took this section verbatim from Cooley otherwise, he left out the “heartless defense” sentence, suggesting that Weeks did not agree with it.
Though there was not a huge literature on professional ethics other than Cooley and Weeks, the duties of a defense lawyer toward a guilty client were mooted in some other works that Foltz likely knew. See JAMES RAM, A TREATISE ON FACTS AS SUBJECTS OF INQUIRY BY A JURY (4th ed. 1890); John Downey Works, About Lawyers’ Morals—The Responsibility of Laymen, CENTURY MAG. (Jan. 1888), reprinted in OSCAR T. SHUCK, BENCH AND BAR IN CALIFORNIA, 421(1889) (explaining a lawyer’s duty never to refuse for personal reasons “the cause of the defenseless or oppressed,” even if he knows he is guilty).
On the other side of the issue were frequent exhortations to be honest with the court as its officer, to put duty to society and court above all others. Id. at 420. For further citations to historical sources on both sides, see Norman W. Spaulding, The Myth Of Civic Republicanism: Interrogating the Ideology of Antebellum Legal Ethics, 71 FORDHAM L. REV. 1397 (2003).
Clara Foltz’s answer to what Cooley deemed an ethical dilemma was to rely on the presumption of innocence, to establish a right for every defendant to be treated that way by his lawyer and the entire criminal justice system until a verdict was rendered. Like her other arguments for public defense, this rights-based presumption of innocence was unusual, if not unique.
Burdening the Right
See Babcock, Inventing, at nn.297-311, and Foltz, World’s Fair Speech, for more on the “burdening the right” argument.
Foltz’s argument was that the right to counsel was “subject to the same rules of interpretation” as all the other Constitutional guarantees, which means that it “ought not to be impaired, nor burdens imposed to its perfect exercise.” She gave many examples of burdening a right, which she said were on a par with requiring the defendant to pay for counsel or go without it:
|to witnesses||fees for service and travel|
|to jury trial||a per diem or courtroom rent|
|to know the charges||a scrivener’s fee|
|a speedy trial||the sheriff’s board bill profits|
|freedom of worship||five dollars a prayer|
|free speech||a dollar a minute|
|freedom from search||ten dollars a week to the police captain|
Aaron Burr. Greene v. Briggs
In her World’s Fair speech Foltz said that burdening a constitutional right in this way was “abhorrent… to the sentiment of justice prevailing in the country.” However, for the article, she found only meager authority for the “fundamental rule that a constitutional right cannot be impaired by burdening it with obligations.” Foltz, Public Defenders, at 398. She relied on a state case, a federal diversity action, and a ruling by John Marshall in the 1807 trial of Aaron Burr. Greene v. Briggs, 10 F. Cas. 1135, (C.C.R.I. 1852) (No. 5746); [Unclear what this information is for] (C.C. Va. 1807) (No. 14692D); Saco v. Wentworth, 37 Me. 165 (Me. 1853); Transcript of Oral Argument, United States v. Burr, 25 F. Cas. 30, at 158-9.
Greene and Saco arose from early state efforts to regulate liquor sales and were sub judice at the same time. Both statutes provided seizure of liquor and forfeiture, with a jury trial only available by posting security and risking a greater penalty. In Saco, a criminal case, the Maine court simply struck down the state statute. Saco, 37 Me. at 165. Greene was a federal civil case in diversity jurisdiction to recover forfeited liquors. Greene, 10 F. Cas. at 1136. The court acknowledged that the case involved “important questions, arising under the constitution and laws of the state,” but found deciding them “a duty, which we should neither seek nor avoid, but perform.” Id. at 1139. The court ultimately struck down the statute. Greene, 10 F. Cas. at 1140.
Both of the state constitutions (Maine and Rhode Island) protected all persons from being deprived of liberty or property “unless by the judgment of his peers, or the law of the land.” Id. at 1139. “Law of the land” was used interchangeably with “due process” prior to the passage of the Fourteenth Amendment. See Greene, 10 F. Cas. at 1140; David M. Gold, The Tradition of Substantive Judicial Review: A Case Study of Continuity in Constitutional Jurisprudence, 52 ME. L. REV. 355 (2000) (reviewing substantive judicial review in Maine from the 1800s to the New Deal); John Marquez Lundin, The Law Of Equality Before Equality Was Law, 49 SYRACUSE L. REV. 1137, 1141, 1174 (1999) (discussing legal history prior to the 14th Amendment and citing Saco).
COOLEY, (1st ed. 1868) at 351 n.2, has a state-by state survey of the wording of due process clauses. The cases struck down statutes conditioning the right to a jury trial on posting a bond and risking an enhanced sentence. Both held that it violated due process (or the law of the land) to “treat the innocent, who are unable to furnish the required security, as if they were guilty and [to] punish them, while still presumed innocent, for their poverty, or want of friends.” Greene, 10 F. Cas. at 1140. Though these pre-war precedents were a little creaky, their mention of the presumption and use of due process made them apt for Foltz.
United States v. Burr
Her other citation for the abhorrence of American courts toward burdening a was to the transcript of the trial of Aaron Burr for treason. Transcript of Oral Argument at 158-9, United States v. Burr, 25 F. Cas. 30 (1807). Burr subpoenaed a letter written to the President by the key witness against him, and Jefferson claimed executive privilege. Presiding as the trial judge, Justice Marshall held that
[t]he right of an accused person to the process of the court to compel the attendance of witnesses seems to follow, necessarily, from the right to examine those witnesses; and, wherever the right exists, it would be reasonable that it should be accompanied with the means of rendering it effectual.25 F. Cas at 32.
By her citation of the Burr case, Foltz implied that the state must also effectuate the right to counsel by making it full, adequate and free. The appointed counsel system was inadequate partly because it was not free. “The accused is under actual legal obligations to pay for it, and if he ever gets any property the lawyer can enforce the payment for his services,” Foltz wrote. Foltz, World’s Fair Speech, at 249 (adding that there were few actual suits because “the statute of limitations has run against his lawyer’s claim by the time [the client] gets out of prison”).
Carpenter v. County of Dane
Foltz’s legal research and writing on this point of unconstitutional conditions placed on rights was both sophisticated and creative. (Of course it is especially striking given that she was largely self-educated in the law.) Undercutting this point was a venerable case, Carpenter v. Dane, approved by Cooley and adopted in a number of jurisdictions, holding the government responsible for the lawyer’s fee. Carpenter v. County of Dane, 9 Wis. 274, 275 (1859); see COOLEY (1st ed.) at 334, n.1.
Foltz knew the Carpenter case; indeed she cited it and even lifted some of its language. Foltz, Public Defenders, at 400 n.2 (citing Carpenter, 9 Wis. 274 and arguing that it was unfair to the lawyers to commandeer their services without payment). Foltz also picked up some phrases and locutions from Carpenter. Compare e.g., Carpenter, 9 Wis. at 251 (“[S]urely the citizens of a county are vitally more interested in saving an innocent man from unmerited punishment than in the conviction of a guilty one”) with Foltz, World’s Fair Speech, and Foltz, Public Defenders.
The Carpenter case came close to making her point about unconstitutional burdens, holding it “a little like mockery to secure to a pauper these solemn constitutional guaranties for a fair and full trial [and then deny him counsel] who could alone render these guaranties of any real permanent value to him.” Carpenter, 9 Wis. at 251.
[I]s the right to meet the witnesses face to face, and to have compulsory process to compel the attendance of unwilling witnesses, more important, or more valuable to a person in jeopardy of life or liberty, than the privilege of having the benefit of the talents and assistance of counsel in examining the witnesses, or making his defense before the jury?
But Foltz did not mention Carpenter in her section on the inadequacy of appointed counsel—perhaps because paid lawyers would in theory remove the burden on the right and thus undercut her constitutional argument. It would also patch up the appointment system and make radical reform less urgent. By the lights of today’s advocacy and scholarship, the omission of an argument or case that tells against one’s point, would be considered a flaw.
Woman Suffrage and Public Defense
See Babcock, Inventing, at nn.195- 241; On-Line Bibliographic Note: Bellamy Nationalism; Note: Woman Suffrage Sources (Historiography) (for the relationship of suffrage with other reform movements, including public defense).
On the arguments such as Locke’s social contract theory, which Foltz adapted to public defense from suffrage sources, see DORIS WEATHERFORD, A HISTORY OF THE AMERICAN SUFFRAGE MOVEMENT 40 (1998). Locke and the other social contract philosophers like Hobbes and Rousseau, however, did not accord full citizenship to women. See, e.g., SUSAN M. MARILLEY, WOMAN SUFFRAGE AND THE ORIGINS OF LIBERAL FEMINISM IN THE UNITED STATES 1820-1920, at 3 (1996) (discussing Hobbes, Locke, and Rousseau); CAROLE PATEMAN, THE SEXUAL CONTRACT 39-57, 97-99, 168-72 (1988) (exploring the rationale that a sexual contract pre-dates the social contract);THE BLUE BOOK: WOMAN SUFFRAGE, HISTORY, ARGUMENTS AND RESULTS 53-54, 57 (Frances M. Björkman & Annie G. Porritt eds., 1917) (noting that “women’s first care after their enfranchisement was to put through a most extraordinary legislative program” in California, that included a provision of a public defender for indigent defendants).