Panel Discussion on Systemic Challenges and Strategies for Reform to the Public Defender System


RICHARD WILSON: Hopefully, illustrations of funding inequities will get people started on a fuller examination of the problems of indigents’ defense. In response to Professor Mirsky’s suggestion that there is no empirical data in these kinds of suits to support our hypothesis, these suits are rare. There are very few of them and we’ve suggested reasons why there are all kinds of systemic disincentives to pursue them. There is some necessity for lawyers to recognize that it isn’t their responsibility alone to bear the burdens of the system – the judiciary, other branches of government, and the public bear that responsibility as well. The one suit which I drew on heavily in the article was Wallace v. Kern. The New York district court decision was incredibly broad and very far reaching in terms of what it attempted to resolve through a class action section 1983 civil rights claim. It imposed for the first time a number of cases over which it is inappropriate for lawyers to handle felonies. That case was overturned on appeal but only on grounds that the Legal Aid Society is a private entity which does not act under color of state law. I suggest that most public defender offices do act under color of state law and similar suits with judges who are equally visionary could do an awful lot for the quality of defense services by imposing realistic limitations.

AUDIENCE COMMENT: My name is Vince Aprile. With all due respect Professor Mirsky, why do you feel that the law schools are the place to make this change in the standard in level of competence of criminal defense attorneys?

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