If you cannot afford an attorney…

‘The Defender,’ by Edward W. Madeira Jr. and Michael D. Schaffer

5 minute read
A chronicle of the best public defender office in the country. (Image courtesy of Temple University Press.)
A chronicle of the best public defender office in the country. (Image courtesy of Temple University Press.)

Though the US Constitution provides the right to legal counsel, it doesn’t specify how to pay. For years, impoverished people walked into court defenseless, dependent on charity or luck. In 1928, that was the fate of an estimated 68 percent of Philadelphia defendants.

Francis Fisher Kane thought the justice system should do better, and in 1934 founded the Voluntary Defender Association to help indigent defendants. While it wasn’t the first such effort, the organization would become a model for public defense. Authors Edward W. Madeira Jr. and Michael D. Schaffer recount its history in The Defender: The Battle to Protect the Rights of the Accused in Philadelphia.

Making justice more just

Chief Defender Herman I. Pollock, who led the Defender from 1946 to 1968, described the situation before the office existed: “The accused were left to represent themselves as best they could. If an indigent defendant did ask for an attorney or the judge decided [one was needed] counsel would be appointed on the spot from lawyers in the courtroom and the trial would proceed, without any chance for the lawyer to prepare.”

Over the next 90 years, the Defender would look beyond the courtroom to prevention, diversion, and rehabilitation. It would become watchdog and advocate, holding law enforcement and prisons accountable. It would challenge existing law, making the justice system more just.

Formally known as the Defender Association of Philadelphia, the office has grown from two lawyers to about 300, and represents 70 percent of those arrested in Philadelphia. In 2016, it handled 47,000 new criminal and 16,000 juvenile cases.

Welcome to the office

Combing through archival materials, Madeira and Schaffer trace the Defender’s development from tiny charity to publically funded firm of lawyers, investigators, and social workers. They tell the story of people working through mountainous caseloads, with limited budgets and modest salaries, adapting to changing case law and societal conditions.

The authors put readers in the office, describing the interplay among staff and the atmosphere set by various chief defenders. They reveal a surprisingly collegial relationship between defenders and prosecutors, due in no small part to the fact that many attorneys have filled both roles. They show how the evolution of public defense enhanced protections for all defendants, regardless of wealth.

Madeira, a lawyer for more than 60 years who died in 2020, had a long association with the Defender, initially as a volunteer, then as a board member from 1958 to 2016. Schaffer, who holds a Ph.D. in American history, is an author and former Philadelphia Inquirer reporter and editor.

From promise to guarantee

The overturned conviction of a Florida man who’d represented himself on a burglary charge would change everything. In Gideon v. Wainwright (1963), the Supreme Court ruled that any felony defendant was entitled to a lawyer, even at the state level, and subsequent decisions would extend that to any charge that might result in jail time. As higher courts strengthened defendants’ rights, the Defender’s caseload exploded.

In 1967, the Supreme Court found that juveniles charged with delinquency had the right to counsel, additionally increasing public defenders’ work. Beginning in 1969, the Defender took on clients in the Juvenile Division of Family Court.

Training ground for trial attorneys

Though all public defenders are now full-time staff, early on the Defender relied significantly on volunteer lawyers. The experience would benefit both the office and the temporary staffers.

Most lawyers lent to the office by private firms were new to practice, learning their craft through observation and hands-on experience. “They progressed from prison interviews to courtroom appearances … working their way through a pile of eight to 10 files the night before as they tried to figure out which cases to try and which to recommend the client plead.”

In-house training and continuing legal education would be emphasized at the Defender. Pollock was known for critiquing new lawyers’ courtroom work. Louis N. Natali Jr., first assistant defender from 1976 to 1983, established courtroom training so effective that it was cited by the National Legal Aid and Defender Association, in 1987 when it named the Defender the best public defender office in the United States.

Undeterred by Lynne Abraham: Ellen T. Greenlee spent her entire career at the Defender, leading it from 1990-2015. (Photo by Peter Tobia.)
Undeterred by Lynne Abraham: Ellen T. Greenlee spent her entire career at the Defender, leading it from 1990-2015. (Photo by Peter Tobia.)

Specter, Abraham, and Krasner

Former volunteers and the many law students who have interned at the Defender comprise a supportive alumni network, particularly among Philadelphia prosecutors. According to Frank DiSimone, who shifted from defense to prosecution, “Because of the Defender’s office, because of the abilities I was able to hone … listening to people and being able to judge people and size them up … I was able to become a lawyer, a trial lawyer. A lot of my success in the DA’s office came about because of my Defender’s office experience.”

Former US Senator and Philadelphia DA Arlen Specter said a 1958 stint with the Defender inspired him to pursue public service. Current Philadelphia DA Larry Krasner was a full-time public defender before his 2017 election, and recruited former colleagues for the prosecutor’s office.

Philadelphia prosecutors and public defenders have generally had a good working relationship, with the exception of the two decades when Lynne Abraham, a stern law-and-order advocate, was DA. Her term coincided with the 1990-2015 tenure of Chief Defender Ellen T. Greenlee, who spent her entire 41-year legal career at the Defender.

“It’s reform time”

The authors say Abraham viewed the Defender “more as an annoyance than a partner,” but Greenlee was not deterred. She represented defendants charged with murder, and under her leadership, the Defender “embraced alternative sentencing to keep Defender clients out of jail … intensified its efforts to track police misconduct and challenge convictions … [and] pioneered the representation of juveniles.”

Many of the office’s 21st-century challenges are not new: societal inequities that contribute to crime, prison overcrowding, huge caseloads, and funding, including the elusive goal of pay parity for public defenders with prosecutorial counterparts. “Right now is our time,” current Chief Defender Keir Bradford-Grey said in 2017. “It’s reform time, and you need the Defender’s vantage point and expertise more than ever.”

Image description: The cover of the book The Defender: The Battle to Protect the Rights of the Accused in Philadelphia, by Edward W. Madeira Jr. and Michael D. Schaffer. The title text is in white and red. The cover image shows a shadow silhouette of a person against a tall stone wall, framed by shadow like a doorway.

Image description: A black-and-white photo of Ellen T. Greenlee, a white woman who appears to be in her 60s. She is smiling and has short hair, and wears a blazer over a dark shirt.

What, When, Where

The Defender: The Battle to Protect the Rights of the Accused in Philadelphia. By Edward W. Madeira Jr. and Michael D. Schaffer. Philadelphia: Temple University Press, November 20, 2020. 256 pages, hardcover; $35.00. Get it from Temple University Press.

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