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Star defense attorney Preston Burton was appointed yesterday to defend “D.C. madam” Deborah Jeane Palfrey in federal court. (Palfrey, who has lost most of her assets to government seizure, had recently fired the public defender assigned to her case.) Burton has defended Enron executives and other high-profile clients like Monica Lewinsky, Aldrich Ames, and Robert Hanssen. How did he end up doing legal aid?
The judge asked him. “Indigent” defendants in a federal court—i.e., those who can’t afford their own lawyers—get free representation from that district’s federal public defender’s office. (Given her notoriety, Palfrey had been assigned the services of the D.C.-office top dog, A.J. Kramer.) If the public defender can’t participate in the case for some reason—a conflict with the defendant, for example, was the case between Palfrey and Kramer—the judge can ask a private lawyer to step in.
In general, these sub-ins are selected from a panel of volunteers. Not everyone can serve on a panel; interested attorneys must first go through an application process to earn their spot. Once the judge appoints a private lawyer to a case, the government pays a modest fee of $92 per hour, with a maximum of several thousand dollars for the whole trial. At these rates, the panels don’t always attract the best in the business. A court might decide that a noteworthy defendant like Palfrey wouldn’t get a fair shake without a high-powered attorney on her team. In “exceptional circumstances,” the judge can select a lawyer who doesn’t appear on the panel rolls.
State proceedings sometimes work a bit differently. Most major cities have public defender offices, with assigned private counsel as a backup in case of conflict. But some cities—like Washington, D.C.—give the majority of their cases to private lawyers. Other jurisdictions set up “contract attorney programs,” in which bar associations, law firms, or nonprofit corporations establish permanent contracts to provide legal services.
Poor defendants haven’t always had the right to a court-appointed lawyer. The Constitution’s Sixth Amendment promises that in all criminal prosecutions, the accused shall “have the Assistance of Counsel for his defense.” This applied to anyone who was being tried in federal court, but the indigents in state court didn’t have much protection until the middle of the 20th century. (Those who couldn’t afford a lawyer had to rely on charity from the private sector, or they faced their charges alone.) The first public defender’s office opened in Los Angeles in 1914, but the Supreme Court didn’t extend the federal right to the state courts until 1932. Even then, it applied only to capital cases. The court decided to include defendants in all felony cases in 1963 and all cases involving possible prison terms in 1972.
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