A long, dreary corridor of black-marbled linoleum serves as a makeshift waiting room for defendants scheduled to be tried at the Spalding County Courthouse in Griffin, Georgia, 40 miles south of Atlanta. More than 50 men and women, mostly black, stand along a pale yellow wall or sit on a dark oak bench, waiting to talk to a heavyset lawyer with a silver beard, a handlebar mustache, and square wire-rimmed glasses, who suddenly pokes his head from a doorway, a cigarette dangling from his lips. "Lashawn Reid, front and center," he barks, and a young woman charged with burglary rises from the bench. She enters a tiny office guarded by an armed sheriff, where attorney Johnny B. Mostiler--his hands sparkling with six gold, diamond, and onyx rings, his wrists with three gold bracelets--pulls a utility drawer from an aluminum desk and crushes his cigarette into a pile of butts in the paper clip tray.
For the past 10 years, the gruff-talking, chain-smoking Mostiler was Spalding County's only public defender, which meant that if you were poor and accused of a serious crime, sooner or later you'd probably be sitting down with him. Most of his clients didn't get to sit with him for very long, however, because with as many as 900 felony cases a year, Mostiler was a very, very busy man. The 53-year-old attorney, who died of a massive heart attack on April 1, was perhaps the archetype of what many public defenders refer to as "meet 'em, greet 'em, and plead 'em" lawyers: attorneys who dispense with huge numbers of cases in a minimal amount of time.
At the time of his death, Mostiler--who spent only 60 percent of his time handling the county's business and the rest on his private clients--was processing more than seven times the number of indigent cases the American Bar Association (ABA) believes is manageable. In concrete terms, that meant he was turning over one case every 100 minutes, less time than a private attorney might devote to a simple traffic violation. Lashawn Reid's fate was settled in less than five minutes. She agreed to plead guilty and is serving three years in prison.
Johnny Mostiler never conformed to the stereotype of the public defender--the ragged, sleep-deprived idealist, toiling away on behalf of the downtrodden for a few dollars a year. Decked out in his flashy jewelry and a black cowboy hat, he arrived at the Spalding Courthouse in a mustard green 1972 Cadillac El Dorado convertible; he easily took home well over $100,000 a year. But for thousands of poor people, the Johnny Mostilers of the world may represent the future face of indigent defense in America.
Mostiler was one of a growing breed of what are known as "contract attorneys." Though unknown until the early 1980s, contract attorneys now increasingly represent a legal way for budget-conscious county commissioners to control costs while fulfilling the Supreme Court's mandate under Gideon v. Wainwright (1963) to provide an attorney to anyone accused of a crime who is too poor to hire one. Rates of arrest, indictment, and incarceration have doubled in the past decade due to the war on drugs, increased police and prosecutorial budgets, and tougher sentencing laws. More indictments have meant more bills for defense attorneys, costs traditionally borne by states and counties that have rarely shown much enthusiasm for spending taxpayer money to defend those they want to lock up.
Enter the contract attorney. In 1990 Mostiler convinced Spalding County's commissioners that they were wasting money paying as many as 20 court-appointed attorneys $50 an hour to handle indigent cases without knowing exactly how many hours those attorneys would bill during any given year. Mostiler proposed instead that the commissioners pay him a flat fee to handle all of the county's indigent cases, regardless of the number. That way the county would have to deal with only one lawyer, and it would know its final bill at the start of the fiscal year rather than at the end. "The pay wasn't great, but it was steady and regular," Mostiler explained when I first met him last summer. "That's why I took it on. And I thought I could save the county some money." Mostiler estimated that in a decade as Spalding's public defender, he saved the county more than $1 million.
Spalding County's commissioners clearly like the system Mostiler devised. But what about Mostiler's clients? Is the average indigent defendant's Sixth Amendment right to counsel better served by Mostiler, who was paid an average of $189 per case, than by the court-appointed attorney who made $325 per case 10 years ago? More to the point, can any attorney look after a county's fiscal interests and also seek justice for the 900 men and women the state is trying to put away?
One of those who says it can't be done is Michael Mears of the Georgia Indigent Defense Council, a state agency charged with improving the criminal-justice system for the state's poorest citizens. Mears, whose office subsidized Mostiler's contract and assisted him on complex death pen-alty cases, considered Mostiler a competent attorney, but doesn't think anyone can do justice to 900 felonies a year. "It is absolutely mind-boggling that he could juggle that number of cases," Mears said in an interview last fall, arguing that an attorney handling 900 felonies a year would have to choose which cases to focus on and which to neglect. "There are only so many hours in the day. I don't care what the case is; a defendant is entitled to sit down with his attorney and go over the case and discuss his options."
The National Association of Criminal Defense Lawyers, which represents some 10,000 criminal lawyers, has condemned the use of fixed-price contracts. It says they're designed "to process the maximum number of defendants at the lowest cost, without regard to truth, justice or innocence." A new report by the U.S. Justice Department's Bureau of Justice Assistance (BJA) says contract systems can work if case loads are limited and competent attorneys are hired with support staff, such as investigators. But the report says the worst of the contract systems "place cost containment before quality," rely heavily on unqualified lawyers, fail to employ investigators and expert witnesses, and "create incentives to plead cases out early rather than go to trial."
No one seems to have a clear idea how many low-bid contract attorneys are practicing in the United States. The ABA has reported that at least half the states make some use of them. But Nancy Gist, director of BJA, which dispenses nearly $2 billion a year in grants to state and local criminal-justice agencies (of which less than .5 percent end up in indigent defense), says the contractors are only one manifestation of a "crisis" in indigent defense.
Gist estimates that "hundreds of thousands" of indigents nationwide receive ineffective legal counsel each year, whether they are represented by contractors, lawyers appointed by judges, or full-time public defender offices that may simply be underfunded and understaffed. "A gross injustice is being done every day across this country with respect to the rights of criminal indigent defendants," says Gist. "It would be fair to say that the level of quality representation provided indigent defendants is uneven and frequently abysmal."
Gist's boss, Attorney General Janet Reno, has wrung her hands over the problem, noting that defenders are the worst-financed portion of the justice system (indigent defense gets about 2 percent of combined state and federal criminaljustice expenditures) and that the widespread reliance on bargain-basement lawyers will "inevitably erode the community's sense of justice." She and the head of the Justice Department's criminal division, James K. Robinson, have both talked about a "comprehensive plan" for improving indigent defense nationwide. But it turns out to be little more than an inoffensive collection of educational and hortatory measures designed to encourage states and localities to do what many have steadfastly refused to do since the Sixth Amendment was adopted in 1791: empower it.
Chief Justice William H. Rehnquist, meanwhile, has made the case that federally funded public defenders should be better paid, arguing that the absurdly low hourly rate "is seriously hampering the ability of judges to recruit attorneys to provide effective representation." But if finding competent lawyers is a problem at the federal level, where fees average $53 an hour, one can only imagine what kind of attorneys are working in state courts, where attorneys are commonly paid between $30 and $40 an hour. In one Montana county, a contractor earned $18 an hour.
With 900 felony cases a year assigned just to Mostiler--who worked with one half-time associate--one might think the Spalding County Courthouse would be a cyclone of trial activity. In fact, the court operates at a fairly leisurely pace, setting aside only six weeks each year for its entire felony docket. Although Mostiler had 150 cases set for trial during a two-week court session last summer, nearly every one was disposed of through a plea bargain. Sitting in his courthouse cubicle, smoking one Tourney cigarette after another, the blue-eyed, dimple-cheeked lawyer described the process matter-of-factly. "We'll enter pleas all week, at a rate of about 10 to 12 every 45 minutes," he said, noting that a large number of pleas were entered at the last minute because "defendants don't get the fear of God in them 'til a trial is coming up."
While Mostiler worked out plea agreements in his smoke-filled cubicle one morning, I sat a few feet away in the third-floor courtroom of Johnnie L. Caldwell, a steely-eyed and indefatigably humorless judge who dispensed justice to some of Mostiler's diverse clientele: men and women accused of everything from aggravated assault to dog fighting, armed robbery, child molestation, kidnapping, sodomy, distribution of pornography, stalking, and possession of any number of controlled substances. At one point in the proceedings, no less than 16 defendants, all dressed in dark green prison garb, some with legs shackled, were lined up beneath Caldwell's dais. All had agreed to plead guilty. The ruddy-faced judge admonished them to respond loudly, then asked if they agreed to waive their rights to a jury trial, to remain silent, and to subpoena witnesses (all did), after which he read out their sentences and called for the next batch of criminals.
Mostiler's first courtroom appearance during the two-week summer session involved Melishia Renee Gosha, a doe-eyed 15 year old with a tight ponytail, who showed up in court without a single family member or friend to support her. One year earlier, Gosha had allegedly fired two .38 caliber bullets into the back of her great-aunt's head after an argument over use of the family car. Gosha's "day in court" lasted all of 10 minutes, from the prosecution's summary of her offense, to her waiver of her right to a trial by jury and guilty plea, to Judge Paschal A. English's sentence: life in prison. Another attorney might have contested Gosha's being tried as an adult for an offense committed when she was 14, or might have taken the case to trial, hoping that a psychologist or some other expert witness might convince jurors that mitigating factors--mental illness, a deprived childhood, or possible abuse by her guardian, for example--warranted a more lenient sentence.
But Mostiler stood by the guilty plea, insisting that Gosha had no viable defense and got the best deal possible under the circumstances. He said the plea spared the defendant and the victim's family a lot of trauma, and that District Attorney Bill McBroom agreed to drop a gun possession charge that could have gotten Gosha an additional 15 years and thereby delayed the date she would be eligible for parole.
In his chambers, Judge English, who tries cases in four Georgia counties, acknowledged that an attorney with greater resources for expert witnesses or investigators might have been able to create a bleak enough picture of Gosha's home life to have gotten her a better deal than life, but he adamantly defended Mostiler. "I've seen high-profile lawyers come through here at $25,000 and $50,000 per client who do half the job of Johnny Mostiler. I don't think anyone gives better representation than Mr. Mostiler." What English didn't say was that attorneys like Mostiler also provide judges like him with an invaluable service: They keep court dockets clear and on budget by holding trials, hearings, and procedural delays to an absolute minimum.
The "Efficiency" of the Contract System
Contract lawyers and those who rely on a heavy load of court assignments for their livelihoods are notorious for their aversion to trials, which are both costly and time-consuming. As case loads increase, studies show, so do guilty pleas because lawyers have no time or interest in researching cases, holding hearings, or filing motions. William Wheeler, the low-bid contractor in McDuffie County, Georgia, entered 262 guilty pleas for his clients between 1993 and 1995, trying only 14 cases and filing only seven motions. Eduardo Falla, the chief contract attorney in Flathead County, Montana, didn't present a single case to a jury between 1994 and 1999, and filed no motions to suppress evidence or have cases dismissed. In California, contract lawyer Jack Suter testified last year in a civil action brought by a former member of his firm that although his office handles well over 1,000 felonies each year, he hadn't tried more than one case since 1996. A single attorney handled all of the firm's misdemeanors--more than 3,500 a year--nearly nine times the cap of 400 cases recommended by the ABA. Contract lawyers in Jones County, Mississippi, themselves became so disgusted with the system that they filed suit, urging a court to find that they were providing ineffective counsel.
Rod Uphoff--who runs a legal clinic at the University of Oklahoma, in a state that relies almost entirely on low-bid contractors--cited one attorney who handled several hundred felonies and several hundred misdemeanors on a part-time basis for $20,000. "He said he went down to court every Thursday and would take care of 14 or 15 cases every week. He said, 'We're very efficient.'" Uphoff believes such "efficiencies" lead to innocent people serving time. As a defendant, says Uphoff, "I'm forced to plead guilty because my lawyer is saying, 'If you don't plead, you're likely to go to prison for five to 10 years, and they're offering you six months.' So the client says, 'I'll take the six months because I don't want to run the risk of a much more serious penalty.' I can tell you, from my experience, that's what is happening under the contract system."
Even if they don't press innocent clients to plead guilty, one of the nation's leading criminal-defense experts, Professor Richard Klein of Touro College's Law Center, suggests that a client familiar with the reputation of an attorney such as Mostiler might feel compelled to plead rather than go to trial. "If I'm a defendant, and I'm offered a plea, and I know my lawyer hasn't done any work on my case because I know he's got 899 other cases, what am I going to do? I'd be a fool to go to trial with a lawyer who's not going to do any work, regardless of my guilt or innocence or the strength of the DA's case."
Mostiler told me he never forced a client to accept a plea bargain and that his clients always made the final decision whether or not to go to trial. At the same time, he said, he typically tried no more than seven cases a year, while his associate Rosamund Braunrot said she probably tried another eight or nine. Together, that's less than 2 percent of the firm's case load. Nevertheless, even Mostiler's harshest critics acknowledged that he could be a formidable advocate in front of a jury.
District Attorney McBroom complained bitterly about the amount of money Mostiler was paid, but had nothing but praise for the defender's oratorical and trial skills. Last September I saw Mostiler convince a jury to spare the life of Areguss Clark, who brutally shot and killed his fiancée's father in the Spalding hospital emergency room where he also shot his fiancée in the head, rendering her a barely conscious quadriplegic. Clark got life without parole. In 1998 Mostiler pulled another rabbit from his hat when he won a life sentence for Wendell White, who was videotaped by police as he murdered a former lover's six-month-old son by smashing his head to the ground. In a business where success can mean keeping your client out of Georgia's electric chair, these were impressive victories.
Imprisoning the Innocent
Over a Styrofoam tray of deep-fried chicken gizzards from the Big Chic restaurant, Mostiler defended his law practice one sunny afternoon, explaining how he'd deliberately created his unconventional persona when he'd set up shop in Griffin, fresh out of the University of Georgia School of Law, because it was a very competitive environment and he needed to stand out. "I'm known as the guy who defends all the criminals," he said, acknowledging that he wasn't the most popular man in town. Labeling himself "the last Democrat in Spalding County," he said he was one of the few people there who didn't own a firearm--"I just don't believe in it." He called Supreme Court Justice Thurgood Marshall one of his heroes and argued that Ronald Reagan "gutted" the public defender program. Mostiler had little patience for critics of his law practice.
"I'm proud to say I'm an indigent defender," he told me. "I feel a great responsibility in my job, not just for my client, but for everybody's rights." Mostiler said he fought hard on behalf of all those he represented. "You won't find anyone in Spalding County who'll say I'm a bad lawyer or that I don't represent people well. I couldn't maintain a substantial civil practice if people thought I was a bad lawyer."
Though he acknowledged that he'd had 40 complaints filed against him alleging inadequate counsel, he said all of them were thrown out. His brow furrowed, Mostiler dismissed suggestions that he'd taken on too many cases, arguing that most of them "deal with repeat offenders" who have no justiciable issues, and that his full-time investigator, a paralegal, and attorney Braunrot helped him work out the prodigious number of plea agreements. As for his own contacts with clients, Mostiler said he personally interviewed "10 to 12 clients a day at the jail." The lawyer visitation log at the Spalding County Jail suggested a somewhat different picture, however. It showed that during the nine-month period from January 5 to September 20, 1999, Mostiler paid only 26 visits to the jail, about three per month. During the same period, his private investigator made 43 visits, and Braunrot visited the jail 20 times.
One former client, Johnel Edward Taylor, complained that the first time he spoke with Mostiler was the day before his trial in December 1998. Taylor was sentenced to life in prison for a murder he says he didn't commit. He has since filed an appeal alleging ineffective assistance of counsel.
hether or not Taylor has a legitimate claim (Mostiler told me only that Taylor's case was "one I shouldn't have lost"), there is mounting evidence, much of it provided by new DNA testing, that a sizeable number of innocent people have been convicted and incarcerated. Since 1976, 87 innocent people have been discovered on death row alone, and a 1996 Justice Department report suggested that the actual number of innocents in U.S. prisons facing lesser sentences is many times greater. That report found that in one sample of 8,000 primary suspects, 2,000 had their cases thrown out on the basis of DNA evidence. The report also concluded that one of the major reasons for wrongful convictions is attorney error and incompetence. Needless to say, the likelihood of making a case for an innocent defendant declines precipitously if the lawyer has no time to work on it and has no one investigating the state's evidence.
For Scott Wallace, director of defender services at the National Legal Aid and Defender Association, which represents 13,000 public defenders, the issue is not whether an attorney like Mostiler can win one or two spectacular cases at trial, but whether he has the time and resources to secure equal justice under the Constitution for 900 discrete individuals. Wallace is convinced that none of the clients represented by high-volume contractors can receive truly effective counsel, but he also says the contractors are only part of the problem. "In every courtroom where there's a shyster lawyer who is spending five minutes per felony case, there is a judge who sees it and a prosecutor who sees it, and [they don't] complain. For low-bid contracts to flourish, it requires lawyers who are willing to do bad work solely to earn a living through high volume; it takes local county officials who are willing to turn a blind eye and don't care about the quality of indigent defense, and it takes legislators who appropriate money. Those are the silent co-conspirators in this process." It also requires a citizenry complacent about the denial of due-process rights to a huge segment of the population.
The Supreme Court has only exacerbated the problem by setting a standard of competence for attorneys so ridiculously low that trained circus bears very nearly qualify. As a result, lower courts have found no constitutional violation, even when lawyers have slept through trials or have come to court drunk or high on drugs. And since state bar associations have largely abdicated responsibility for disciplining incompetent lawyers, the indigent defendant who is strapped with a lousy lawyer, more often than not, is simply out of luck. Meanwhile, many state criminal-justice systems view lawyers who try to stand up for their clients as troublemakers who must be weeded out. In several instances, contract attorneys have been fired for protesting that huge case loads have prevented them from effectively representing clients. When one court-appointed attorney, Steven J. Benjamin, told a Virginia judge that the court's fee cap of $840 to defend a murder suspect forced him to choose between his need to make a living and his ethical obligation to represent his client, the judge called in all the attorneys to whom he assigned cases and advised those who held similar views to find another line of work. The complaints ceased. Benjamin went on to prove his client's innocence in a spectacular trial in which he also identified the actual murderer. He no longer accepts court-assigned cases.
Several state courts have ruled that contract and other defender programs were unconstitutional because they had insufficient staff and too many cases, and more legal challenges are no doubt in order. What is really needed, however, is an end to both low-bid contracting and to judicial appointments of indigent defenders--which create unconscionable conflicts between a lawyer's loyalty to his client and his sense of obligation to the judge paying his salary--as well as creation of fully funded, full-time public defenders' offices. Several states have linked the budgets of defense and prosecution offices (in Oklahoma, the defense is guaranteed 75 percent of what the prosecution gets). Such systems may mean that both sides lack sufficient resources, but they at least stand for the principle of equalizing justice.
Legislation introduced recently by Democratic Senator Patrick Leahy of Vermont would put an end to court-appointed attorneys in death penalty cases, provide an incentive for states to increase indigent-defense spending, and establish standards of competence for capital defenders. But it's unlikely many Republicans will go along with such an intrusion on what they view as a sacred state right to continue providing incompetent attorneys to the poor. The Leahy bill is a response to the fact that 87 innocent people have been identified on death rows nationwide as well as to Illinois Governor George Ryan's recent moratorium on executions in his state, where 13 innocents were found on death row. But the death row cases should be viewed as a wake-up call that there is something fundamentally wrong with the operation of the criminal-justice system. If conservatives like George Will and Pat Robertson can now agree that it's unsavory to have states condemning innocent people to death and that something should be done to prevent these travesties in the future, then it should not require a great leap, at least in principle, to convince people that it is also wrong to imprison innocent people for lesser crimes than capital murder and that those people also have a right to competent lawyers. Attorney General Janet Reno has remarked that "if we do not adequately support criminal defense for poor Americans, people will think that you only get justice if you can afford to pay a lawyer." The problem is getting from the principle that the Sixth Amendment is not just for those who can afford it, to an agreement on how to pay for it. ¤