UNGLAMOROUS JOBS Liberalism and the Public Defender System in Colorado 1965-1978 HIST 4839 Fall 2013 Department of History University of Colorado at DenverThe office of the public defender is curious facet of the criminal justice system. Iti a foil of the district attorney's office, designed to be as independent as possible from the judiciary. ‘The public defender exclusively serves poor clients at no charge. The defender does not necessarily serve to prove the clients innocence though, only to guarantee an indigent client has “a fair shake in the courts.” Amid the divisive politics and social upheaval of the tumultuous 1960s, public defender offices were quietly being established across the county. In accordance with Constitutional law, public defender offices would attend every step of the criminal justice process. The public defender would not merely be an attorney, crusading for equal justice; the defender would be a public officer who would lead an agency, form policies, and help to improve the criminal justice system. Colorado had two major public defender systems. First was the Denver Public Defender Program which was created in 1965 and worked successfully until it was transformed into the statewide system in 1969. ‘The state public defender system was the second significant system. Though it received similar interest from the media and the judiciary, it suffered through its first eight years, culminating in the firing of three top officers. Though leadership was integral to the success of the public defender systems, it also became the focal point for determining the success of the public defenders’ offices, drawing attention away from structural problems in the criminal justice system that hindered the office. This paper will explore early issues that public defenders faced in Colorado and how administrative inefficiency and leadership problems hindered liberalism from effectively confronting the criminal justice system. » Rocky Mountain News, “This Defender has an Unglamorous Job,” March 7, 1965, 27.Studies on public defender systems are absent from histories on the 1960s and the 1970s, Studies have been written, however, on the liberal reform agenda that dominated politics during the creation of many public defender offices. The most important values of liberalism were promotion of social equality while still working within existing systems. Michael Flamm’s Law and Order: Street Crime, Civil Unrest and the Crisis of Liberalism in the 1960s studies the politics of law and order in the 1960s, Flamm argues that liberalism failed to address the issue of law and order because it could not demonstrate that civil disobedience and lawful protests were fundamentally different than riots and willful illegal actions.? Nicolas Leman focuses on liberal attempts to deal with poverty in urban areas in the chapter “Washington” from his book The Promised Land: The Great Black Migration and How it Changed America. Both John F. Kennedy and Lyndon Johnson attempted to use liberalism’s technocratic method to support civil liberties and social equality. Liberals believed that social equality could be achieved through programs managed by professionals and educated elites who lived in a “clean, precise world of numbers and orderly concepts.”? Liberals used a similar technocratic approach to establish public defender systems. A technocratic approach seemed naturally favorable, since attorneys and judges are typically highly educated professionals. Liberalism’s confrontation with the criminal justice was similar to their attempts to solve the issues of crime and poverty. Liberals trusted that expertise and professionalism would solve the problems inherent in the criminal justice system while they shied away from radical reforms. ® Michael W. Flamm. Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s. (New York: Columbia University Press, 2005), 3-4. 2 Nicolas Lemann. The Promised Land: The Great Black Migration and how it Changed America. (New York: Vintage Books, 1991), 129,Origin of the Public Defender System Virtually every Public Defender System traces its origin to the U.S. Supreme Court's landmark case, Gideon v. Wainwright (1963). The concept of a public defender system actually originated at the in the late nineteenth century. Barbara Allen Babcock wrote on the career of Clara Foltz, a lawyer from California, Among the highlights of Folt2’s career was the proposal of a public defender system at the 1893 World's Columbian Exposition in Chicago. Foltz passionately presented the public defender as a warrior who would fight against injustice. Foltz laid out the core concepts of the public defender system, such as free representation of indigents. Progressive thinkers became interested in the concept, and Foltz inspired a wave of publishing on the subject in the early twentieth century. The progressive intellectual enthusiasm resulted in the establishment of a number of systems around the country, most notably in Los Angeles and Chicago.* Though many Progressive advocates argued that the system successfully defended indigent clients, after the 1920s lawmakers made no more attempts to institutionalize a system for offering legal defense to indigents.s The public defender idea was not, however, lost. The philosophy of the public defender system would linger in the minds of liberals, equal rights advocates, and judicial scholars well into the 1960s. ‘The Supreme Court of the United States declared that the provision of counsel was a constitutional right for all accused of crime in Gideon v. Wainwright. The highest court eliminated any questions about whether a state would have to provide counsel. The “Barbara Babcock Allen, “Inventing the Public Defender.” American Criminal Law Review 43, 4 (Fall 2006); 1269, *YSTOR has a wealth of publications about public defender systems from the fitst three decades ofthe twentieth century. © Barbara Babcock Allen, “Inventing the Public Defender.” American Criminal Law Review 43,4 (Fall 2006): 1267-1277.mandate to provide defense counsel for all accused was a vague decree. Gideon did not require the creation of public defender offices. Defense counsel was already required to be provided to indigents in capital cases? In Colorado, like most states, an assigned counsel system was used, but it was expensive and could not only be applied. Additionally, the need for assigned counsel was expected to skyrocket in light of Gideon. To liberal thinkers in Denver, the concept of a dedicated public defender’s office was not altogether revelatory. The Denver Commission of Community Relations, a committee created in 1955 for the purpose of promoting racial harmony in Denver, requested suggestions from the Denver Bar Association in 1955 regarding public defender systems. Denver University law students also represented indigent clients in the district court at this time for no fee to the court. The Commission on Community Relations intended on investigating racial discrimination in the Denver judicial system. Though the Commission could not conclusively find legal mistreatment because of discrimination, the commission endorsed a public defender system since many indigent defendants were members of the black or Hispanic communities.° The Commission's endorsement was decidedly liberal, hoping to root major discrimination out of the courts and ensure legal equality to Denver's minorities. A Denver Post author echoed the words of James Fresques's farewell speech to Denver City Council, “Denver has grown to such a size that a public defender system was necessary.’? Early advocates of public defender systems focused on Denver's size and 7 This mandate was from Powell v. Alabama (1932). Leading up to the Gideon decision, constitutional scholars debated whether or the Powell ruling was applicable to all accused or the ruling should be interpreted in the most narrow sense and apply to only to cepital cases. ® Civil Liberties Subcommittee Report, June 6, 1955, Denver Coramission on Community Relations, Box 1 Folder 7, WH903, Western History Collection, The Denver Public Library. 5. ° The Denver Post, "Denver must have a public defender,” May 24, 1951, 67.ethnic diversity, but there was little concern for the whole impoverished population until the 1960s. Many states sprung into action to find an effective solution to the need for indigent legal defense. The Colorado State Legislature passed a bill that allowed the creation of public defender’s offices around the state on April 18, 1963.19 The bill permitted the establishment of public defender offices in counties of Colorado, but it did not mandate the creation of offices. The bill required that all indigents have access to defense counsel. The counsel could be appointed counsel, nonprofit legal aids, or any other legal representation to which the indigent might have access. The bill also did not make any recommendations to the administration of the office. It required that the public defender be “licensed to practice law” in Colorado.” The governing bodies that would go on to create the office would be responsible for organizing the office, choosing the public defender, providing compensation, and designating the required personnel.!t There were few guidelines set out by the state legislature, but many municipalities set to work in the following two years to establish the offices, The Infancy of Public Defender Systems in Colorado, 1951-1965 A public defender system may not have been a novel idea, but there was no precedent for how the office should be administered. Many organizations only represented indigents in certain capacities such as civil court, and pro bono lawyers were few and far between. Some believed that the office should be administered in the same way as district attorney's office. If the public defender’s office was organized in a structure akin toa district attorney's office, the position would be elected. Municipalities in Colorado had no 19§ 21.1 CRS. 1963, "Colorado Defender Act,” April 18, 1963. 41'§21.1 CRS. 1963, “Colorado Defender Act” April 18, 1963, 2clear direction to stride, and proponents of the measure demanded the immediate institutionalization of public defenders. “City Council has no excuse to dragging its feet now,” wrote Robert L. Chase, just days after the legislature passed the Colorado Defender ‘Act.!2 Chase feared that city council might lag to establish an office, and by 1965 only two judicial districts in Colorado had created public defender offices, As public defender offices slowly began appearing in 1965, effective administration and enthusiastic leadership became the central focus for press coverage. Adams County was the first county to establish an office. A Rocky Mountain News writer published an article on Adams County Public Defender John L. Kane, bluntly titled “This Public Defender has an Unglamorous Job.” Dispelling myths that Kane might “make a dramatic appearance in Adams County court with a missing witness to win his case and thwart the DA,” the author instead described the public defender’s job as a combination of “a chaplain, negotiator and expediter.” The term “unglamorous” was an apt description. Kane and later public defenders spent most of their time visiting their clients in jail, fling paperwork, and investigating cases. Very little time was spent in court. Kane was chosen for the position because he had a “reputation for defending the underdog jealous guarding of his clients civil rights.” This did not mean he was not a pragmatic man about the criminal justice system. Kane freely admitted that he had was not “hesitatant in advising [his clients), ‘IF you aren’t innocent and you don't have a good excuse there is no sense in wasting the time ofthe court.” Kane did not have a glamorous job, but his position was important. Kane had the “responsibility to make the public defender’s office a success and economically feasible.... What he makes of his office will determine the future of similar offices in other ® Rocky Mountain News, May 8, 1963, 67.judicial districts.” This journalist, like many journalists during the first decade of the public defender system, defined success and economic feasibility as “cutting down on court costs, court time, dead time sitting in jail and other county costs.” 13 John Kane was not single- handedly guiding the future of the public defender in Colorado, but he was the first public defender to wade through the tremendous expectations for the office. The Office that Tom Currigan and Edward Sherman Built, 1965-1969 Mayor Tom Currigan initiated the plans to establish a public defender’ office for the City and County of Denver in 1965 two years after the Colorado Legislature authorized the institution of local public defender offices. Tom Currigan was mayor of Denver from 1963 to 1968. Like most liberal politicians, he favored technocratic approaches and top-down control of problems. Currigan pushed City Council to approve the public defender program, making himself a central figure in the development of the office. Currigan’s proposal would select the Denver public defender by mayoral appointment. The Denver Bar Association (DBA) endorsed a public defender system and wrote a proposal for the admi tration of the system. The DBA proposed to make the defender office an independent city agency, which would exempt the public defender’s salary from being adjusted by the merit-based Career Service System. Currigan agreed that the defender should not be under Career Service, but insisted that the deputy attorneys and office staff be placed under the system.# Currigan’s proposal was approved by city council, and by mid-November the city was hard at work to prepare the office for commencement of operations on January 1, 1966. ® Rocky Mountain News, "This Defender has an Unglamorous Job,” March 7, 1965, 26. 1 The Denver Post, "Denver Bar Association endorses public defender system,” March 28, 1965, 34 and The Denver Post, September 23, 1965.Both Currigan and Max Zall, Denver's City Attorney, campaigned for a high rate of pay in order to attract the best-qualified attorney's to the position. A writer for the Denver Post approved of this strategy, noting that the office would require “full-time duties,” unlike other government attorneys, who often operated private practices in addition to their roles in district attorney offices. Currigan and Zall were successful, winning an annual salary ranging between $15,384 and 19,176 for the public defender, $13,767 and 17,273 for the deputy defender, and $11,004 and 13,764 for four assistant defender positions. In comparison, Currigan’s annual salary was $14,000 and Zall’s only $12,000. Currigan and Zall lobbied for competitive salaries to ensure that the defender’s office provided indigents with constitutionally mandated “first-class legal representation.”!S Currigan and Zall’s saw professionalism and expertise as the most important traits for the position, and kept salaries high to attract qualified attorneys who also were willing to take on the many difficult duties of the public defender office. The effort to ensure the public defender was well paid was a cornerstone of the technocratic strategy liberals took to provide equal justice, Currigan and most others believed the public defender’s office would be successful in eliminating injustice in the courts. A few problems the office would face were already clearly identified. “District Attorney Bert Keating has eighteen attorneys on his staff,” a city council member noted, “six would not be enough.”16 John Kane had worked with only two others in his office when he was interviewed in 1965, but it was likely that Denver would have more criminals in need to representation.*” The court dockets were already backed 25 The Denver Post, "Budget for public defender passed,” November 17, 1965, 8 4 The Denver Post, "Budget for public defender passed,” November 17, 1965, 8. Rocky Mountain News, "This Defender has an Unglamorous Job.” March 7, 1965, 26,up, and unless the public defender office was staffed well and operated very effectively, it would be difficult to quickly clear the docket. Currigan did not seem to be shaken by fears that the office would fail. Currigan was dedicated to implementing a defender system in Denver, and every step in the creation of the office was carefully planned. Knowing that leadership would play a key role in the success of the Denver public defender program, Currigan took the selection process of public defender very seriously. He created a Denver Public Defender Committee to assist him in creating a list of highly skilled candidates. Civil liberty organizations, activists, the DBA, and judges lobbied for specific candidates to influence the shape the office would take. Currigan answered many letters recommending candidates for the position, Different organizations did not necessarily share Currigan’s vision of highly qualified candidate. The American Gl. Forum of Colorado wrote Currigan, protesting the lack of any committee members with “Spanish surnames,” since the Hispanic community made up a large portion of Denver's poor.i# Rudolph “Corky” Gonzales of Los Voluntarios recommended James Carrigan, who Gonzalez believed would best represent Denver's multiethnic indigent population.”? Mayor Currigan named Edward H. Sherman as the Public Defender of Denver, a well-regarded choice by the Denver Bar Association, who desired a well-educated defense lawyer above all else Sherman fit the public defender agenda perfectly. He was well qualified for the position “by experience, temperament and personal idealism.” Sherman was “interested in human rights through civil liberties... {L]ectured at \ Letter from Joseph Herrera to Mayor Currigan, November 10, 1965, Thomas G. Currigan Papers, Box 17, Folder 11, WH929, Western History Collection, The Denver Public Library. + Letter from Rudolph Gonzales to Mayor Currigan, December 15, 1965, Thomas G. Currigan Papers, Box 17, Folder 11, WH929, Western History Collection, The Denver Public Library,the D.U. law school... and has had extensive experience in criminal law.’21 Sherman's expertise and enthusiasm made him an ideal choice for the public defender position. Sherman believed the office was going that the position was “a great opportunity to set up the office in a manner that will protect the poor and indigent, regardless of their race, color, or creed."22 Sherman sought to establish a philosophy for the program based on the civil liberties and founded on the Constitution for the Denver public defender program. There had never been an institution like the public defender’s office in Denver. Sherman said of the design of the office: “There were no traditions nor guidelines, no local experiences or precedence [sic] to guide us.” The lack of model systems to imitate forced Sherman to establish the foundations of the office. Sherman believed that all problems the office encountered were administrative and could be solved with administrative methods. First, he set the standards of the office to conform to the standards of the American Bar Association. This simple policy was representative of the common goal to ensure that public defender offices provided competent legal services to indigent clients, and dismiss fears that the system might lend itself to inadequate and incompetent legal representation. By following high legal standards, the public defender would be an exemplary model for other defender systems. Second, Sherman's endeavor to establish a philosophy struggled to solve an ethical problem inherent to public defender systems: how can one simultaneously represent an accused criminal while fulfilling an obligation to the people of the city? This question posed an ideological problem, but was evaded by Sherman. "In essence,” he wrote, 21 The Denver Post, “Edward H. Sherman- Public Defender.” December 19, 1965, 3. * Announcement of Edward H, Sherman's Appointment, December 17, 1965, Thomas G. Currigan Papers, Box 17, Folder 11, WH929, Western History Collection, The Denver Public Library. 10“our function is to represent an indigent accused of crime, to grant him a fair and impartial trial, to protect his rights with skill and learning and undivided loyalty and dedication, at Jeast equivalent to that of our better qualified defense attorneys.” Sherman did not say that it was the public defender’s duty to win a case, but he did believe that his duty to clients was to bring them effective representation at every point during the criminal justice process. ‘The Denver public defender office started on unsteady footing, but Sherman and his deputies managed to endure the early trials of the office. The office had taken over 250 felonies by April 1, 1966, Sherman wanted to represent indigents in county court and juvenile court, but the congested docket forced him to “give priorities to felonies.”2+ The office outlined assurance of a speedy trial as one its most important goals, citing it as a constitutional right. The District Court docket was so clogged that some defendants had been awaiting trial in jail for over four months. Attempting to reduce wait periods in November 1966, Sherman filed motions in to dismiss charges for thirteen men who had been in county jail for months.*5 The district attorney's office, irritated by Sherman's motions, fired back by giving two public defender clients trial dates just ten days after charges were filed. David Manter, an assistant public defender, accused the DA's office of “trying to punish his clients by rushing them to trial.”26 The press had previously viewed the public defender as a foil to the district attorney; they were adversaries in the courtroom but worked towards the dispensation of justice. This confrontation over trial ® Denver Public Defender's Office Annual Report for 1966, Thomas G, Currigan Papers, Box 17, Folder 11, ‘WH929, Western History Collection, The Denver Public Library. 5. 2 Denver Public Defender’s Office Annual Report for 1966, Thomas G. Currigan Papers, Box 17, Folder 11, 'WH929, Western History Collection, The Denver Public Library. 4, 25 The Denver Post, “Too Slow, Too Fast; Trial Dispute Simmers.” November 27, 1966. 28 Rocky Mountain News, “DA Backlash ‘Stings’ Defender.” November 25, 1966, 1 uldates revealed mounting pressures in the public defender’s office to raise morale among its incarcerated clients and a much grander goal of improving the criminal justice system, ‘The Denver public defender’s office unglamorously survived its first year of operations, but Public Defender Sherman was eager to set ambitious goals for the next three years. Ina letter to Currigan in April 1966, Sherman was extremely optimistic about the future of the office.®”, Sherman credited Currigan immensely, calling him “the true father of the public defender program” and “a pillar of strength."28 Currigan unfailingly supported the office, even going as far as arranging public defender meetings with indigents that contacted the mayor's office. Sherman called the public defender program an “experiment” that suffered “all the pangs of a newly born child."2° These familial metaphors reflect the belief that the public defender program was maturing, and that the problems it had struggled with would be fixed. The program's first year had not been perfect, but it had been financially successful. The City and County of Denver had spent roughly $20,000 fewer dollars in 1966 on indigent representation than when appointed counsel was common. “Of equal importance,” reported a Denver Post writer, “is that it’s now evident indigents receive better representation under the public defender system,"29 This experiment may have just grown out of infancy, but Sherman was prepared to accept, cases from the county and juvenile courts. 2 Letter from Edward H. Sherman to Mayor Currigan, April 21, 1966, Thomas G, Currigan Papers, Box 17, Folder 11, WH929, Western History Collection, The Denver Public Library. 28 Letter from Edward H. Sherman to Mayor Currigan. February 7, 1967, Thomas G. Currigan Papers, Box 17, Folder 11, WH929, Western History Collection, The Denver Public Library. 2 Denver Public Defender's Office Annual Report for 1966, January 3, 1967, 3. 3>*Public Defencler Plan Called Money-saver." Denver Post, February 12, 1967, 44. 31 The Denver Post, “New Role for Public Defender.” April 3, 1967, 16, and The Denver Post, ‘City Public Defender Will Expand.” March 28, 1967, 2. 12Sherman led his public defender’s office on a crusade of equality and justice, Sherman attacked police lineups in 1968 with a lawsuit. He accused the Denver Police Department of conducting illegal police lineups by not allowing public defenders or other lawyers to attend the lineup. Sherman filed the lawsuit to stop unlawful lineups, but also asked that the hearing be expedited “because the police would like to know what they can do” to work with the parameters of the law. The lawsuit against DPD demonstrated Sherman’s consciousness in defense of indigent rights but also his pursuit to improve the justice system. The lawsuit also reinforced Sherman’s insistence that problems inherent in the criminal justice system were solvable through administrative reforms. Although Sherman was confident about the abilities of the public defender system, he did realize that criminal justice system possessed problems that could not easily be solved. In a presentation at the 1968 Rocky Mountain National Institute on Community Relations and Administration of Justice, Sherman strayed from discussing the role of the public defender. Instead, he delivered a radical condemnation of several facets of the criminal justice system. Sherman scathingly referred to the bail system as “unconscionable and barbaric.”*3 He noted that incarceration periods before trials, though waiting periods had been improved from an average of ten to eleven months to an average of three months, were cruel.3# Sherman's condemnation of the criminal justice system was not without hope, but it was radical. “I believe that many of our institutions have been failures,” he stated bluntly. “It isn’t enough merely to say that we should improve our law enforcement ® The Denver Post, “Defender asks police lineup rights,” November 15, 1968, 19, and Rocky Mountain News, “Police lineups attacked in defender’s suit,” Nov. 16, 1968, 40C. » “Transcript of Proceedings from Third Annual Rocky Mountain Institute on Community Relations and the ‘Administration of Justice.” November 14-16, 1968, 78 Transcript of Proceedings from Third Annual Rocky Mountain Institute on Community Relations and the Administration of Justice.” November 14-16, 1968, 79. 1Bmachinery. I contend, and I say this very dogmatically, that we will never have law and order unless we have what people accept as justice... The answer is more just and equitable provisions to right these wrongs.”35 Sherman concluded his speech by noting that the public defender’s office was constantly working to eliminate injustice, but without a common definition of justice by law enforcement, there could be no social harmony.36 Sherman's speech is notable because it did not endorse typical technocratic approaches to criminal justice like better training of police officers. Instead, it grappled with inequalities that the public defender system could not fix. Takeover by the State of Colorado and Rollie Roger’s Office, 1969-1978 Since public defender programs had been economical in the previous five years, the state of Colorado moved to takeover the local offices that dotted Colorado's landscape and create a centralized state defender office in 1969 as part of the Judicial Reform Act of 1969 (§ 21.1 CRS. 1969). The state defender’s office received marked independence in the judicial branch and was allowed to govern its own policies and submit a budget. The legislature allowed the state public defender to make personnel decisions in the office and “establish such regional offices as he deems necessary.” The legislature believed that top- down control would standardize the quality of indigent representation and also save money. The law also repealed the Colorado Defender Act of 1963 and dissolved all other extant offices when it went into effect 3? The Denver Public Defender’s Office, a four-year experiment, ended on January 1, 1970. ** Transcript of Proceedings from Third Annual Rocky Mountain Institute on Community Relations and the ‘Administration of Justice.” Novernber 14-16, 1968, 75. °*“Transcript of Proceedings from Third Annual Rocky Mountain Institute on Community Relations and the Aduninistration of Justice.” November 14-16, 1968, 81 ¥ §21.1 CRS. 1969 and Rocky Mountain News, “State Public Defender System Nears Reality." June 29, 1969, 27. 14The Colorado Supreme Court selected Rollie R. Rogers to head the state public defender’s office. Rogers, a practicing attorney since 1951, had “established a reputation [as an excellent attorney] in criminal defense,” quickly vowed to meet wishes of having the system ready to operate by October 1. Colorado law required the public defender to bea full-time position because the legislature wanted the public defender to dedicate his full expertise to the office.#* Rogers sacrificed his private practice to take the $20,000 a year position. The Supreme Court voiced confidence in the new public defender system, claiming that Colorado was at the “forefront of the fifty states in this general field of public defenders."3 Rogers devoted a month to setting up the office and affirming the policies laid out by the Supreme Court, as Colorado waited to glimpse the public defender system that “other states would look to.”#” Rogers's first duty was to hire forty attorneys to staff the system, but he also found a need to replace clerks and office managers who were exiting the closing Denver public defender office. The state takeover prompted a major personnel shift in the Denver office, including the resignation of Sherman, who left a legacy the press considered monumental. The Denver Post wrote that Sherman had a “pioneer’s zeal” invested not only in the success of his office, but also the future of the public defender system. “Sherman's tenure has been characterized by effective representation of the poor in the community, which is the main purpose of the office. But it was also marked by a unique compassion for the people being represented, a reflection, we are convinced of the attitude of the defender himself,” a Post * §21.1 CRS, 1969 and Rocky Mountain News, “State Public Defender System Nears Reality.” June 29, 1969, 28. ® The Denver Post, "First public defender for state appointed,” August 22, 1969, 21B, “© The Denver Post, "First public defender for state appointed,” August 22, 1969, 218 and “Colorado defender assumes new duties,” October 1, 1969, 3. 15author reflected. Sherman was a passionate man towards his clients, stating that one of Denver's “greatest problems has been the lack of empathy on the part of the public for people who become emmeshed in crime.”#? Although Sherman reflected on his success as public defender in newspapers, his closing statements in the 1969 Annual Report were somewhat more ominous. “We will have to wait to see just how Denver will fair under the State Public Defender System,” he wrote, "If the State System does not maintain the high degree of service to the courts and public, all our four years of effort will have been in vain."#3 In addition to Sherman’s departure, three other employees left due to impending salary cuts, including an office manager, who where dissatisfied with Rogers's promise for eventual “increased pay as the system progresses.” This caused “serious secretarial problems,” forcing Assistant Public Defender David Manter to file handwritten motions because there were not enough personnel to type documents. Loss of staff ftom the Denver public defender office was not preventable in the case of Sherman, but if the state defender office had been able to retain the clerical staff it would have smoothed the transition from a city experiment to a state agency. The loss of experienced staff members was common over the next year, causing an array of staffing issues for the state office, It reflected dissatisfaction with the administration and direction from within office. Office infighting and feuds between assistant defenders and State Public Defender Rogers caused a turnover of experienced ‘41 The Denver Post, “A True Public Defender.” April 24, 1969, 208, The Denver Post, "Public Defender Eyes Record.” May 11, 1969, 37. * Denver Public Defender's Office Annual Report for 1969, January 3, 1969, William McNichols Papers, Box 7, Folder 4, WH1015, Western History Collection, The Denver Public Library. The Denver Post, "Public Defender Staff Leaving in Advance of State Takeover,” November 13, 1969, 37. 16lawyers as well as embarrassing the office in the press, Manter, who had been promoted to head of the Denver regional office, tendered his resignation after Rogers had fired an assistant defender, Keith Watson, during trial. Manter charged that Rogers's conduct “operated at the detriment of [the] client.” The deputy public defender also noted an attitude of fear, and said the state public defender's philosophy of the was not to “rock the boat.” Manter’s expression “rock the boat” referred to his personal belief that the attorneys of the office were not permitted to protest against problems in the office or in the courts. Manter also claimed that public defenders were not permitted “to state for the record that they are unprepared for trial.”#5 Two days later, Truman Coles resigned in his position, Coles told newspapers it was his belief that Rogers was “insensitive” to the needs the Denver regional office and was “more concerned with closing cases, particularly with plea bargaining, than with allowing sufficient staff to evaluate and prepare cases honestly. Coles's and Manter’s criticisms of Rogers’ office demonstrated a growing contempt for the public defender system from within the office. ‘The state public defender office was not only administratively mismanaged, but was also underfunded and financially disorganized. ‘The Model Cities Program had provided $140,000 to the Denver regional office to hire sixteen new employees for the year 1970.7 ‘The defender’s caseload continued to grow, and by July 1971, the state office was again in need of additional funds. Federal funds, however, had dried up. The Denver office requested $89,000 to hire ten additional employees and renew the salaries for six ‘employees from the Model City funding. The office was denied this funding because of the “8 The Denver Post, “Public Defender Resigns in Dispute," November 5, 1971, 2. “4 The Denver Post, “Second Public Defender in Two Days Quits,” November 7, 1971, 33. * Budget for the Expansion of the Denver Regional Public Defender Office 1970, Denver Model City Program Records, Box 280, WH1222, Western History Collection, The Denver Public Library. 17“state's financial squeeze.”** The state takeover forced conformity to state accounting standards. In 1974, the Office of the State Auditor published its first biannual report of the State Public Defender, reporting that office's record keeping was inconsistent, noting “each regional office used different financial information form for determination of indigency."® ‘The defender’s office also did not check any of the financial information of clients once forms were submitted. "In our examination,” the auditor criticized, “We noted no cases where the information on the financial information forms was investigated 5 The state's, economic trouble changed the way liberals viewed the public defender's office. Liberals became more concerned with ensuring that non-indigents were not receiving free or discounted legal expenses at the state’s expense, rather than protecting individual rights. The record keeping would improve and, by 1977, the Office of the State Public Defender practiced “generally accepted accounting procedures applied on a consistent basis.”5! The financial record keeping was put in better order in response to the state audits, but the State Public Defender faced increasing problems both internally and in the courts. The placement of the state defender’s office within the judicial department exacerbated many of the problems already faced by the office. Nominally part of the judicial system and considered somewhat independent, the judicial department were able to serious frustrate the public defender's office. In 1977, Rogers requested caseload relief through the use of appointed counsel. The judicial appropriations fund could not support payment of appointed counsel, so the Supreme Court denied his plea.5? Some former public # The Denver Post, “Short budget curbs defender,” July 2, 1971, 3. “© *Report ofthe State Auditor for Fiscal Year 1974," 6. s0Reportofthe State Auditor for Fiscal Year 1974." 7-8. 51*Report ofthe State Auditor for Fiscal Year 1975 and 1976," 1. ® The Denver Post, “Caseloads Threaten Defender System,” August 24,1977, 1, and The Denver Post, "judges reject defender's plea,” August 26, 1977, 3. 18defenders criticized the judicial system for pressuring the defenders not to appeal to federal courts. “I’m sure there are no specific instructions not to go to federal courts, but there is a subtle psychological and intellectual thing. The judicial department okays the budget, and we don't do something we feel is going to make them unhappy,” Manter said 53 ‘The judicial department, in all likelihood, did not exercise this level of control over the public defender’s office, but several other public defender’s also claimed that there was pressure to close cases but not to do the best job defending indigents accused of crime. The liberals who had founded the public defender systems stressed financial feasibility as one of the most important features of public defender systems. Although the public defender program had proved to be economical the late 1960s, insufficient funds began causing the Colorado public defender system to become increasingly expensive to maintain. The state legislature tightened their fists and refused to grant the public defender’s office would be receiving their requested budget. From 1970 to 1971, the budget of the office increased by nearly $600,000.55 Rogers requested $2.1 million in appropriations for the 1973-74 fiscal year. The legislature only granted $1.7 million. The budget for 1973-74 called for an additional twelve attorneys and eleven investigators to be employed. Without receiving enough funds, the office became so overwhelmed with cases that appointed counsel had to be assigned, costing the state $44,000.96 In 1977, an overwhelming caseload threatened to crush the state public defender’s office. Rollie Rogers's warned the Colorado Appeals Courts that the caseload was so © The Denver Post, “Public Defender Resigns in Dispute,” November 5, 1971, 2. & The Denver Post, “Second Public Defender in Two Days Quits,” November 7, 1971, 33, % Rocky Mountain News, “Defender launches jail-check system,” December 5,1971, 6. * Rocky Mountain News, “Public defender shortage will cost taxpayers $44,000,” November 15, 1973, 5,11 19overbearing that his attorneys were on the verge of committing legal malpractice.®” Six years before, Rogers barred public defenders from publicly stating that they were unprepared for trial. Rogers now officially requested the assistance of appointed counsel to help relieve the strain caused by the heavy caseload. The Colorado Supreme Court denied his plea on the grounds that the Judicial Appropriations Fund to pay for private counsel. ‘The public defender’s office had been troubled for eight years, and in January 1978, the Colorado Supreme Court began reviewing Rollie Rogers's record. Seventeen lawyers had resigned from the Denver office, which maintained a staff of twenty-five attorneys, ina year. Former Denver public defenders claimed that the “office uproar hurt clients. "A growing tide of discontent," reported the Denver Post, “over the administration of the Denver public defender’s office peaked when the high court asked Rogers to resign.” Rogers responded by refusing to resign, giving the court an ultimatum: fire him or let him retain the position.“ Press coverage immediately seized Rogers's ultimatum because it asked the Supreme Court, “[WJhere in state government should the public defender system be placed?"*! It was an uncomfortable question for the court, but the high court felt that. action “in the best interest of the system” needed to be taken. The phrase “best interest of the system” indicates that the Supreme Court felt that the office had suffered because of ineffective leadership and poor administration. Instead of examining why the office had a crippling caseload, the court blamed the personnel. The court took action and fired Rogers on February 1. Among several allegations cited from unnamed sources, the court listed use 5 The Denver Post, “Caseloads Threaten Defender System,” August 24,1977, 1 * The Denver Post, “Caseloads Threaten Defender System,” August 24,1977, 1, and The Denver Post, "Iudges reject defender’s plea," August 26, 1977, 3. 5" The Denver Post, “High Court Takes Time Out to Study Rogers,” January 24, 1978, 2, © The Denver Post, “High Court Takes Time Out to Study Rogers,” January 24, 1978, 2 and The Denver Post, “Defender places court in dilemma," January 29, 1978, 2. 1 The Denver Post, “Defender places court in dilemma,” January 29, 1978, 2. 20of “alcoholic beverages to excess,” unnecessary and frivolous trips at state expense, favoritism, and general inability to “provide effective leadership for the public defender system.’6? Rogers balked at the charges of excessive drinking and misuse of state funds, claiming that he “had never been in a courtroom with liquor on [his] breath” and “the overwhelming majority of trips were not at state expense.” Rogers did not comment about his leadership, instead crediting the low morale of the office to what is “expected when a large group of competitive trial lawyers work side by side.”63 Since trial expertise had been so highly valued as part of the hiring process, the public defender's office had failed to hire attorneys who were committed to the civil liberties the office was created to defend. Rollie Rogers returned to private practice after he was removed from office. The Colorado public defender system was in shambles, and the new leader of the office set to work to rebuild. After Rogers's termination, John Purvis, a private attorney from Boulder, was made acting head of the Office of the State Public Defender, Purvis declared his intention to bring vital changes to the office. Purvis refused to accept a permanent position in the office, intending to return to private practice when a new state public defender was selected. Purvis stated his goal was to “make sure the ‘office works and works well.” Purvis believed the office needed financial and administrative efficiency. Purvis immediately demoted Sherry Seiber, the head of the Denver office, and James Dumas, Roger's top deputy. Though both were considered excellent defense attorneys, Purvis determined their reassignments were best for the system. The Supreme Court had criticized Seiber and Dumas in its allegations against Sherman. Dumas tendered his ‘© The Denver Post, “Court Ousts Rogers as Public Defender,” February 1, 1978, 1. 3 Rocky Mountain News, “Rogers Abandons Fight to Regain Defender’s Job," February 25, 1978, 104. Rocky Mountain News, “Two demoted as defenders office aides,” February 7, 1978, 17 21resignation, and Seiber refused to accept the demotion and was fired. Purvis regretted the loss of each attorney, but was resolved that his actions were taken “to ensure we get that this system is what we all want we all want it to be - the best."65 What was best to Purvis was extending the skill and quality in representing the indigent and applying the same standards to the administration of the office.® Purvis's approached the management of the defender’s office pragmatically, His reorganization was based around his belief that turnover was natural. Purvis said, “The public defender’s office is a place where many law school graduates go to acquire trial experience before setting out in private practice.” He divided the Denver office into teams with lawyers of differing levels of experience? The reorganization proved successful, and by April 1978 the public defender system was recovering from “the uproar of that only a few weeks ago threatened to seriously weaken the state's legal services to the poor accused of committing crimes.” ‘The newfound stability of the office had come at a price. The Colorado public defender system had lost many talented attorneys. The stability was welcome to many, but Purvis stayed cautious. He felt “a sense of optimism, although there's still uncertainty.” “That Justice Escape None” Edward Sherman and Rollie Rogers both struggled with problems inherent to public defender systems. They both encountered increasingly heavy caseloads, administrative problems, high turnover, and uncooperative attitudes both internally and externally. Although they faced similar problems, the outcomes were vastly different. Sherman * Rocky Mountain News, “Iwo demoted as defender’s office aides,” February 7, 1978, 5. + Rocky Mountain News, “Public defender chief believes change Is vital," February 20, 1978, 3,34. & Rocky Mountain News, “Public defender chief believes change Is vital,” February 20, 1978, 34 “* The Denver Post, “Problems tackled by public defender,” April 3, 1978, 13, 22resigned his position amid a sea of appreciation. Roger’s was fired after being accused of incompetence. Liberals chose a technocratic method to the design the system and select its leaders, assuming that expert trial attorneys would fit neatly into the criminal justice machine. When the system became strained under the weight the criminal justice systems many problems, liberals blamed the leaders of the office rather than entertaining more radicai challenges of the criminal justice system. Liberalism failed to adequately confront the problem of unequal justice in the same way they had failed to confront the issues of crime and poverty. Liberalism's commitment to technocratic solutions clashed with its commitment to civil liberties, ultimately weakening the entire liberai reform agenda. The creation of the public defender’s office was a massive undertaking. Liberals took the reigns and attempted to build a system based on expertise, idealism, and practicality amid the massive and complicated criminal justice system. When the public defender programs collapsed under the pressure of huge caseloads and hostile court environments, liberals blamed the men and women who had the unglamorous job of public defenders. 23References Allen, Barbara Babcock. “Inventing the Public Defender.” American Criminal Law Review 43, 4 (Fall 2006): 1267-1375. Barak, Gregory. “In Defense of the Rich: The Emergence of the Public Defender.” Crime and Social Justice 3 (Summer 1975): 2-14. Benjamin, Roger W. and Theodore B. Pedeliski. “The Minnesota Public Defender System and Criminal Law Process: A Comparative Study of Behavior at the Judicial District Level.” Law and Society Review 4, 2 (November 1969): 279-320. Flamm, Michael W. Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s, New York: Columbia University Press, 2005. Lemann, Nicolas. The Promised Land: The Great Black Migration and how it Changed America, New York: Vintage Books, 1991. Yuhas, George. “Statewide Public Defender Organizations: An Appealing Alternative.” ‘Stanford Law Review 29, 1 (November 1976), 157-182. 4