Indigent Defense and the Private Bar Rate Debate

The Wisconsin State Public Defender (SPD) currently pays $40 per hour to private bar attorneys who represent indigent citizens accused of crimes.  This rate has been unchanged for decades, and lawyers are lobbying for an increase.  However, aside from horrible timing—this latest plea for more money coincides with Wisconsin’s $2.5 billion budget deficit—some of the arguments in support of the rate increase aren’t terribly persuasive, and should be abandoned.  But more significantly, the fact that lawyers have to make these arguments in the first place is merely a symptom of a larger problem: We live in a culture that misunderstands and undervalues our Constitutional rights.

But first, let’s review and grade a few of the more popular arguments:

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Criminal Court: Guilty by the Preponderance of the Evidence?

One of our fundamental beliefs is that before a jury may convict a person of a crime, it must be satisfied of guilt beyond a reasonable doubt.  However, upon even minimal scrutiny, this belief starts to crumble.  For example, Wisconsin criminal jury instruction number 140 concludes with the following two sentences: “While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt.  You are to search for the truth.”

This instruction is problematic for several reasons.  First, it invites — in fact, instructs — the jury to disregard the evidence and instead speculate on, or “search for,” what it believes to be “the truth.”  This capitalizes on the human tendency to think we can know things without evidence.  How often have you heard someone say, for example, “I know it, I just can’t prove it”?  The jury instruction only emboldens that kind of sloppy thinking, and at the worst possible time with much at stake.

Second, this concept of truth-seeking is actually misplaced.

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The New Miranda Warning

I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  The Miranda warning fails to answer these and many other questions.

 Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

 In response to all of this chaos, I’ve drafted a new and improved Miranda warning.

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