1 One national survey of indigent defense services estimated that the national rate of indigency among defendants charged with serious crimes (felony offenses) is 65 percent while the average rate of indigency among defendants charged with misdemeanors is 47 percent. National Legal Aid and Defender Association, The Other Face of Justice: A Report of the National Defender Survey 71 ([Washington, D.C.]: National Legal Aid and Defender Association, 1973) (hereinafter referred to as National Defender Survey).Google Scholar

2 There has been a sharp increase in the use of defender systems in the past two decades. In 1961 defender systems were found in 3 percent of the counties in the United States and served about a quarter of the indigent population. By 1973 they were found in 28 percent of the counties and served about two-thirds of the indigent population. Id. at 13 table 1.Google Scholar

3 In 1973, 72 percent of the counties in the United States provided services to indigent defendants through the assigned counsel system. Assigned counsel serve about one-third of the nation's population. Most of the rural areas and almost half of the urban areas use assigned counsel systems, while less than 10 percent of the metropolitan areas do so. Id. at 13.Google Scholar

4 See, e.g., J. Edward Lumbard, Better Lawyers for Our Criminal Courts, Atlantic Monthly, June 1964, at 86, 86 (“But the crucial question is whether the lawyers now retained to defend criminal cases and those who are accepting assignments to defend indigents are adequate to the task of preparing a reasonably good defense”); Willcox, Bertram F. & Bloustein, Edward J., Account of a Field Study in a Rural Area of the Representation of Indigents Accused of Crime, 59 Colum. L. Rev. 551, 568–69 (1959).Google Scholar

5 Bazelon, David L., The Realities of Gideon and Argersinger, 64 Geo. L.J. 811, 823 (1976). Another observer of legal services similarly has suggested “that assurance of the quality of legal services is also more likely to succeed if its major focus is on systemic failures rather than upon individual competence.”Carlson, Rick J., Measuring the Quality of Legal Services: An Idea Whose Time Has Not Come, 11 Law & Soc'y Rev. 287, 301 (1976).Google Scholar

6 Bazelon, supra note 5, at 823.Google Scholar

7 National Defender Survey, supra note 1, at 44.Google Scholar

8 Id.Google Scholar

9 The most frequently discussed problem of defender services has been excessive caseloads and their implication for plea bargaining. Alschuler, Albert W., The Defense Attorney's Role in Plea Bargaining, 84 Yale L.J. 1179, 1248–55 (1975).Google Scholar

10 Discussions of defender services have often focused on the practice of assigning defenders to one courtroom and the tendency of these lawyers to develop close relations with prosecutors that may impair their ability to act unequivocably in their clients' interests. See, e.g., the following pamphlet: Center for the Study of Democratic Institutions, The Law: Interviews by Donald McDonald with Edward Bennett Williams and Bethuel M. Webster, one of a series of Interviews on the American Character (Santa Barbara, Cal., 1962).Google Scholar

11 The focus on court organization provides a perspective useful in explaining characteristics of both assigned counsel and defender office representation. Much work has focused on the relative merits of these systems rather than on their common problems and their sources. See, e.g., Dallin H. Oaks & Warren Lehman, Lawyers for the Poor, in Abraham S. Blumberg, ed., The Scales of Justice 91 (Chicago: Aldine Publishing Co., 1970).Google Scholar

12 See sec. III infra.Google Scholar

13 See sec. IV infra.Google Scholar

14 See sec. V infra.Google Scholar

15 See sec. VI infra.Google Scholar

16 See generally for a discussion of why the preliminary hearing is waived, David W. Neubauer, America's Courts and The Criminal Justice System 238–39 (North Scituate, Mass.: Duxbury Press, 1979).Google Scholar

17 In practice, not all defendants who desire them receive preliminary hearings. In some court systems the hearing is by-passed by the prosecutor. The state may request a continuance and in the interim take the case to the grand jury for indictment. Most states consider the need for a preliminary hearing mooted once an indictment has been returned.Google Scholar

18 In some jurisdictions the preliminary hearing court operates as a major place for screening felony cases. See, e.g., McIntyre, Donald M., A Study of Judicial Dominance of the Charging Process, 59 J. Crim. L.C. & P.S. 463 (1968); James Eisenstein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts 190–92 (Boston: Little, Brown & Co., 1977).Google Scholar

19 A recent National Institute of Justice, Criminal Justice Research Solicitation for proposals on “The Role of the Grand Jury” reported findings of a study the institute funded. In a recent Institute-sponsored survey of grand jury practices, it was found that twenty (20) states rely exclusively on the grand jury process for felony prosecutions, five (5) states require indictments for certain specific criminal offenses (e.g., murder, rape, etc.), with the remaining states generally providing prosecutorial discretion over method of prosecution…. Furthermore, in many jurisdictions the case initiation process is an amalgam of both procedures. For example, in some states a preliminary hearing and grand jury review are both required, with the preliminary hearing held within a specified time of arrest and prior to presentment to a grand jury. Id. at 3.Google Scholar

20 Id.Google Scholar

21 Public Hearing of the Assembly Interim Committee on Criminal Procedure: Duties of Public Defenders, Assembly Bill No. 1852, California Legislative Assembly 27 (Nov. 13, 1959) (statement of Ellery E. Cuff) (hereinafter referred to as Public Hearing).Google Scholar

22 Janet A. Gilboy & John R. Schmidt, Replacing Lawyers: A Case Study of the Sequential Representation of Criminal Defendants, 70 J. Crim. L. & Criminology 1, 6, 8 n.36 (1979) (calculated from table l(a)(b)(c)(e)(f)).CrossRefGoogle Scholar

23 See Alschuler, supra note 9, at 1199–1200.Google Scholar

24 Id. at 1199; Abraham S. Blumberg, Criminal Justice 113 (Chicago: Quadrangle Books, 1970); Gilboy & Schmidt, supra note 22, at 9; Ryan L. Petty, Fee-Setting and Fee-Collection Practices Among Criminal Defense Attorneys in the State of Texas 6 (student paper prepared for the Criminal Justice Project, 1973; on file at the University of Texas Law School).Google Scholar

25 Gilboy & Schmidt, supra note 22, at 9.Google Scholar

26 For a discussion of the ethical and legal issues involved in undertaking representation for only the initial stages of a case, see id. at 17–18.Google Scholar

27 Alschuler, supra note 9, at 1199–1200.Google Scholar

28 Blumberg, supra note 24, at 112.Google Scholar

29 See Public Hearing, supra note 21, at 16 (statement of Richard E. Erwin):. Well, I think that in almost any instance where a man has sufficient assets and can't raise it before the preliminary hearing, you won't find that the lawyers are near as technical about going to a preliminary hearing as they are getting on record in that superior court. Most of them will go along on the matter of credit on the preliminary hearing—if you go into the superior court, you're stuck. The guy can demand a jury and might be in trial [sic] for a week or two weeks, then you go back and forth to court there a number of times; but on preliminaries, if the man has any prospects of being able to raise some money by the time he gets in the superior court, he'll find a lawyer's going along with him pretty good.Google Scholar

30 Gilboy & Schmidt, supra note 22, at 10.Google Scholar

31 North Carolina provides by statute for the separate filing of a document of appearance in the district and superior courts. See generally on the subject Wade Smith, Article 4 and Subchapter 6 of the Pretrial Criminal Procedure Act: Entry and Withdrawal of Attorneys, First Appearance Before District Judge, Probable Cause Hearing, the Grand Jury and Its Proceedings, Indictments and Related Instruments, 10 Wake Forest L. Rev. 465, 468 (1974).Google Scholar

32 But see Jones v. United States, 342 F.2d 863, 870–71 (D.C. Cir. 1964). In Jones the defendant had been appointed counsel by the preliminary hearing magistrate. Subsequently, without notice to his lawyer, Jones was taken before a grand jury, where he acknowledged previous confessions. In addition it appears that the defendant's appointed counsel considered his obligations to his client completed at the preliminary hearing stage. The defendant never saw his lawyer again, although his appointed counsel never formally withdrew from the case at either the preliminary hearing or the trial court stages. The trial court in considering this behavior issued in its opinion this statement about the continuing responsibilities of a lawyer once appointed to a case. Any practice of assigning a lawyer for the few moments the accused is before the magistrate and no more would mock the requirement of assistance of counsel. The appointment must continue until the prosecution is terminated or other counsel is appointed, which should normally be before arraignment. Except in rare emergencies no lawyer should be asked to accept a truncated appointment. There is no contention that Short's counsel, either with or without notice to Short, obtained leave of court to withdraw. Unauthorized withdrawal cannot be tolerated.Google Scholar

33 See Eisenstein & Jacob, supra note 18, at 109.Google Scholar

34 See Banfield, Laura & Anderson, C. David, Continuances in the Cook County Criminal Courts, 35 U. Chi. L. Rev. 259, 277 (1968).Google Scholar

35 Alschuler visited and interviewed defense lawyers in ten major urban jurisdictions. He reported that lawyers “observed that trial judges commonly refuse to allow an attorney to withdraw from a case once his appearance has been entered and that a lawyer might therefore find himself impressed into a trial for which he had not been paid.” Alschuler, supra note 9, at 1199. He also reported that the attorneys he interviewed felt that reluctance to allow lawyers to withdraw had “increased greatly in recent years.”Id. at 1199 n.62. Petty, however, reported that two-thirds of the Texas lawyers responding to his questionnaire indicated that judges permitted withdrawals for retained counsel whose fees had not been paid. Petty, supra note 24, at 16. In California, however, if a lawyer goes on record in superior (trial) court as counsel on a case, he may be “stuck” representing the defendant even if he is unable to collect his fee. Public Hearing, supra note 21, at 16 (statement of Richard E. Erwin).Google Scholar

36 It appears to be a well-recognized feature of the assigned counsel system that defendants may be appointed either the same or different counsel at the preliminary hearing and trial court stages. See Katz, Lewis R., Gideon's Trumpet: Mournful and Muffled, 55 Iowa L. Rev. 523, 549–50 (1970).Google Scholar

37 In this study, judges in jurisdictions with the assigned private counsel method were asked to choose the method of selection of assigned counsel that best described the most common practice in their jurisdiction. The study reported:. The majority of the reporting assigned counsel system judges make the selection of appointed counsel themselves. One third of the felony judges indicated that a magistrate or justice of the peace normally makes the first appointment of counsel and that they re-appoint the same attorney. In several jurisdictions the presiding judge or a special assignment judge selects the appointed counsel. In a few cases this task is undertaken by the Clerk of the court. In 3% of the jurisdictions an agency outside the court selects the attorney to be appointed. National Defender Survey, supra note 1, at 42.Google Scholar

38 Id.Google Scholar

39 E.g., on-site evaluations undertaken by the Washington State Bar Association indicated that in Asotin, Cowitz, Lewis, and Whitman counties counsel (assigned counsel or a contract attorney) is appointed by the judge before whom the defendant appears. In none of these counties was there a system for assuring continuity of representation between stages of a felony case. Washington State Bar Association, Report on Current Status of Defense Services for the Indigent Accused, 139, 152–53, 165–66, 171 (Olympia, Wash.: Law and Justice Planning Office, Office of Community Development, Office of the Governor, 1976). The current system in Houston, Texas, is also ad hoc appointments by judges at each court level. Alschuler, supra note 9, at 1256. See also on the practice in Texas of trial judges appointing their favorite lawyers, Anthony Friloux, C. Jr., Equal Justice Under the Law: A Myth, Not a Reality, 12 Am. Crim. L. Rev. 691, 699 n. 37 (1975).Google Scholar

40 National Defender Survey, supra note 1, at 42.Google Scholar

41 In some cases the appointment of new counsel may be to the advantage of the defendant. New counsel at the trial level may be appointed in order to provide the defendant with a more experienced lawyer. 1 Jean G. Taylor et al., A Comparison of Counsel for Felony Defendants 98 (Arlington, Va.: Institute for Defense Analyses, 1972).Google Scholar

42 National Defender Survey, supra note 1, at 42. See generally, Carlson, Ronald L., Appointed Counsel in Criminal Prosecutions: A Study of Indigent Defense, 50 Iowa L. Rev. 1073, 1080 (1965) (Polk County, Iowa); Elison, Larry M., Assigned Counsel in Montana: The Law and the Practice, 26 Mont. L. Rev. 1, 7 (1964) (Montana). 1 Taylor et al., supra note 41, at 98; National Center for Defense Management, Maricopa County, Arizona Technical Assistance Project 21 (paper prepared for National Legal Aid and Defender Association project, n.d.). Most U.S. district court plans call for the reappointment at the trial court level of counsel appointed by the commissioner. U.S., Senate, Committee on the Judiciary, Subcommittee on Constitutional Rights, 90th Cong., 2d Sess., The Criminal Justice Act in the Federal District Courts 107 (Comm. Print 1969) (hereinafter cited as Criminal Justice Act).Google Scholar

43 In California, for example, the reappointment of preliminary hearing counsel to the trial court state is expressly for the purpose of protecting indigents from some of the perceived difficulties of a sequence of different lawyers. Trial judges and preliminary hearing magistrates attempt to protect indigents against some of the weakness of the assigned counsel system by selecting experienced counsel to handle the serious cases, and by appointing the same attorney to represent the defendant at both the preliminary hearing and the trial…. As an additional protection, superior court judges try to appoint the attorney who took the preliminary hearing in order to preserve the attorney-client relationship and avoid having the trial attorney placed at a disadvantage because of tactics of the attorney appointed for the preliminary hearing. Note, Representation of Indigents in California—a Field Study of the Public Defender and Assigned Counsel Systems, 13 Stan. L. Rev. 522, 538–39 (1961) (hereinafter referred to as California Field Study).Google Scholar

44 Alschuler, supra note 9, at 1257.Google Scholar

45 Id. at 1256 n.211.Google Scholar

46 Joint Committee of the Judicial Conference of the D.C. Circuit and the D.C. Bar (Unified), Report on Criminal Defense Services in the District of Columbia 13 (April 1975).Google Scholar

47 Id. at 58–60.Google Scholar

48 Tague, Peter W., The Attempt to Improve Criminal Defense Representation, 15 Am. Crim. L. Rev. 109, 163 n. 282 (1977).Google Scholar

49 Ralph J. Temple, The Cadre Plan: No Help to the Accused, District Law. Summer 1977, at 51, 51.Google Scholar

50 Id. at 52.Google Scholar

51 Id.Google Scholar

52 A few years ago cadre representation was discontinued. There is no longer systematic representation of indigent defendants by different lawyers at each stage of their cases. Defendants are now appointed private counsel who will presumably represent them from their initial presentment through to their disposition. Author's conversation with Howard B. Eisenberg, executive director, National Legal Aid and Defender Association (Sept. 10, 1981).Google Scholar

53 See Milton Heumann, Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys 25–26 (Chicago: University of Chicago Press, 1978); Banfield & Anderson, supra note 34, at 278; Lewis Katz, Lawrence Litwin, & Richard Bamberger, Justice Is the Crime: Pretrial Delay in Felony Cases 133 (Cleveland: Press of Case Western Reserve University, 1972).Google Scholar

54 Friloux, supra note 39, at 699 n.37.Google Scholar

55 The commentary to the ABA Standards relating to professional independence of appointed counsel suggests: “[I]f a lawyer desires continuous appointments from the court or elected officials, there may be a strong temptation to compromise clients' interests in ways which will maximize the number of future assignments.” American Bar Association Standards Relating to the Administration of Criminal Justice, Providing Defense Services § 5–1.3, Comment at 5 (2d ed. Tent. Draft 1978; approved 1979).Google Scholar

56 Richard Harris, Annals of Law: In Criminal Court—I, New Yorker, Apr. 14, 1973, at 45, 46.Google Scholar

57 Temple, supra note 49, at 52.Google Scholar

58 The ABA Standards recommend:. The legal representation plan for a jurisdiction should be designed to guarantee the integrity of the relationship between lawyer and client. The plan and the lawyers serving under it should be subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice. The selection of lawyers for specific cases should not normally be made by the judiciary or elected officials, but should be arranged for by the administrators of the defender and assigned-counsel programs. ABA Standards, supra note 55, § 5–1.3.Google Scholar

59 Wice, Paul B. & Pilgrim, Mark, Meeting the Gideon Mandate: A Survey of Public Defender Programs, 58 Judicature 400, 406 (1975). In addition, various materials describe how particular defender offices are organized. Comment, Client Service in a Defender Organization: The Philadelphia Experience, 117 U. Pa. L. Rev. 448, 450–51 (1969) (Philadelphia: public defender assigned to courtrooms except in major cases); Platt, Anthony & Pollock, Randi, Channeling Lawyers: The Careers of Public Defenders, 9 Issues in Criminology 1, 8 (1974) (Alameda County, Cal.: public defenders assigned to courtrooms); Jonathan D. Casper, American Criminal Justice: The Defendant's Perspective 103 (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1972) (“Connecticut Town”: at the time the study was published, two public defender systems at different stages of prosecution); Eisenstein & Jacob supra note 18, at 155 (Detroit: public defenders assigned to cases); Wice, Paul B. & Suwak, Peter, Current Realities of Public Defender Programs: A National Survey and Analysis, 10 Crim. L. Bull. 161, 172 (1974) (St. Louis, Los Angeles, San Francisco, Chicago, and Baltimore: at the time the study was published, all defender offices in these cities assigned defenders to courtrooms); National Center for Defense Management, Training Program Assessment: Office of the Public Defender, Santa Clara County, California 5–6 (paper prepared from a project of the National Legal Aid and Defender Association, June 1977) (Santa Clara County, Cal.: public defenders assigned to courtrooms). Some defender offices in metropolitan areas represent clients continuously, but previously clients were represented by a sequence of lawyers. The Los Angeles Public Defender Office, since February 1977, assigns lawyers to represent all its clients. Memo to Justine Knipper from John V. DeStefano, Vertical Representation System in the Public Defender's Office of Los Angeles County, California (undated internal memo of the Cook County Public Defender's Office). On the prior organization of the defender's office see Graham, Kenneth & Letwin, Leon, The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations, 18 UCLA L. Rev. 635, 649–50 (1971). In late 1971 The Denver defender office began to assign lawyers to cases rather than courts. 1 Taylor et al., supra note 41, at 30 n.1. New York City's Legal Aid Society presently assigns lawyers to cases although previously defendants were transferred from lawyer to lawyer as they passed through successive stages of their prosecution. Gassier, Frank H., The Proposed New York City Public Defender Office: An Interview with Judge Harold J. Rothwax, 7 Colum. Human Rights L. Rev. 417, 422 (1975–76). In 1974 the Cook County Public Defender Office in Chicago began to provide continuous services to homicide defendants. A few years later these services were expanded to a portion of the felony cases from one part of the city. Gilboy & Schmidt, supra note 22, at 5 n.26. The San Francisco Public Defender Office recently introduced continuous representation on a selected basis in two preliminary hearing courts. Robert Rosenblum & Vicki Garvin, The San Francisco Public Defender Office: A Preliminary Assessment 8 (Cambridge, Mass.: Abt Associates, Inc., 1980). Since its inception in 1970, all defendants represented by the Public Defender Service of the District of Columbia have been provided continuous representation. U.S., Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice, an Exemplary Project: The Public Defender Service of the District of Columbia, vol. 1, Policies and Procedures 6 (Washington, D.C.: Government Printing Office, 1974) (hereinafter cited as NILECJ).Google Scholar

60 Katz et al., supra note 53, at 133.Google Scholar

61 In a history of the Society, Harrison Tweed observed this emergence of the initial structure of the New York Legal Aid Society. Harrison Tweed, The Legal Aid Society: New York City, 1876–1951, at 82–88 (New York: Legal Aid Society, 1954). Legal services were first extended to defendants at the felony trial level. Later the organization grew in response to the requests of various judges in the felony (preliminary hearing level) and general session courts. At the end of 1949 the Criminal Courts Branch [of the Legal Aid Society] opened an office in Brooklyn to provide representation for those who need it in the Felony Court in Kings County. This was done on the insistence of Chief City Magistrate Bromberger …. It is noteworthy that much of the recent growth of the work in the criminal courts has been in response to the deep and determined and distinctly vocal desire of the Bench. The judges, seeing the need and having confidence in the ability of the Society to meet it, have demanded and obtained action by the Society. In 1950 Chief City Magistrate Murtagh requested the Society to supply a staff attorney regularly in the Women's Court …. About the same time the then Chief Justice of the Court of Special Sessions, Judge Bennett, urged the Society to extend its services to that court in Brooklyn. The last geographical extension of the Criminal Courts Branch was initiated by Judge Murtagh and consisted in the opening of a branch office in the Bronx. This office now provides representation to defendants in the Bronx Arrest Court, which is similar to the Manhattan and Brooklyn Felony Courts. Id. at 87–88. For a discussion of the difficult emergence of the present structure of continuous representation, see text at notes 86–94 infra.Google Scholar

62 Connecticut Planning Committee on Criminal Administration, The Administration of Criminal Justice in Connecticut 108 (Hartford, Conn., 1969); Newman, Jon O., Prosecutor and Defender Reform: Reorganization to Increase Effectiveness, 44 Conn. B. J. 567, 568–69 (1970). More recently a Connecticut statute has established a single defender office in the state. Conn. Gen. Stat. Ann. § 51–290 (West Cum. Supp. 1981).Google Scholar

63 See sec. IV supra.Google Scholar

64 Peter F. Nardulli, The Courtroom Elite: An Organizational Perspective on Criminal Justice 157 (Cambridge, Mass.: Ballinger Publishing Co., 1978).Google Scholar

65 Public Hearing, supra note 21, at 2 (statement of Richard E. Erwin).Google Scholar

66 Id. at 55 (statement of Judge Allen Miller).Google Scholar

67 Alschuler, supra note 9, at 1230–31.Google Scholar

68 Id.Google Scholar

69 See generally, Alschuler's discussion of the limitations inherent in the courtroom defender's position in seeking delay. Id. at 1232.Google Scholar

70 Id.Google Scholar

71 Criminal Justice Act, supra note 42, at 168–69.Google Scholar

72 See Alschuler supra note 9, at 1240.Google Scholar

73 Id. at 1238–40.Google Scholar

74 Newman, supra note 62, at 569.Google Scholar

75 This has been observed in a number of commentaries about public defender offices. Rosett and Cressey, concluded:. There are organizational reasons for this zone defense arrangement in the public defender's office. First, it takes more of a defender's time to process a client's case from beginning to end. Time is lost going from place to place and waiting for cases to be called in court. The defender's office is chronically shorthanded; the work must be organized to make the most efficient use of scarce defenders rather than to provide the best service to clients. Second, the public defenders in a courthouse cannot control the number of cases they will be assigned; nor may they decline to represent clients…. They must take what comes, and it is quite impossible to predict what is coming on a given day. Accordingly, office manpower must be kept flexible, covering every courtroom. Arthur Rosett & Donald R. Cressey, Justice by Consent: Plea Bargains in the American Courthouse 120 (Philadelphia: J. B. Lippincott, 1976). Wice and Pilgrim more generally observed:. Urban criminal justice systems have been described as “assembly lines” where the defendants are hustled from one procedural point to the next, while the judges fight a battle with an overwhelming backlog. This assembly line process usually forces public defender agencies to station lawyers at various points in the criminal process i.e. initial appearance, or arraignment; and make them responsible for all clients reaching them at a particular state [sic] in the proceedings. Wice and Pilgrim, supra note 59, at 406.Google Scholar

76 A national survey of indigent defense services reported that “[n]early half of the defender offices indicated that they need additional staff attorneys to effectively handle their felony and misdemeaner caseloads.” National Defender Survey, supra note 1, at 20.Google Scholar

77 There is some evidence from Los Angeles that cases handled by one lawyer over time may be handled more efficiently, thereby increasing the time lawyers have to work on additional cases. Cf. Memo to Wilbur F. Littlefield from Charles D. Boags, Report on the Operation of the Vertical Representation System (Mar. 16, 1978) (on file with the author of this study). [O]ne of the main advantages gained from the institution of the vertical system, besides wiping out the backlog in the Municipal Court, was an 18 percent reduction in the amount of the cases continued…. This substantial reduction covered a 6.8 percent decrease in the amount of cases the Municipal Court had to handle …. This resulted in a substantial saving of time and money for everyone within the justice system. “Looking at the vertical system from the Public Defender's Office point of view, we were able to clean out the backlog and handle all the new cases filed with less staff than was required under the old system.”. Memo, supra, at 1–2. Although Los Angeles provides services continuously to clients it also stations its lawyers in courtrooms. See text at notes 84–85 infra.Google Scholar

78 Such decisions are largely influenced by the location of courts in relation to each other in the jurisdiction, the number of clients the office represents, and generally the financial and manpower resources of the office.Google Scholar

79 In one case, Moore v. United States, the defendant's arguments amounted to a claim that sequential representation by different defenders was per se a denial of effective representation. The claim, however, was rejected. 432 F.2d 730 (3d Cir. 1970).Google Scholar

80 In United States ex rel. Thomas v. Zelker, the court took into account the fact of sequential representation in considering the defendant's claim of ineffective representation. In this case the defendant was represented by a long series of different attorneys at different court appearances without any defender ever taking the opportunity to talk to any of his witnesses. By the date of his trial, the newly appointed lawyer in the case still had never interviewed any of his client's witnesses. Judge Frankel ruled in favor of the defendant's claim of ineffective assistance of counsel. 332 F. Supp. 595, 596–98 (S.D.N.Y. 1971).Google Scholar

81 ABA Standards, supra note 55, § 5–5.2.Google Scholar

82 Id. § 5–5.2, Comment at 24.Google Scholar

83 See generally note 59 supra.Google Scholar

84 Author's conversation with Mark Overland, Chief of Central Superior Court Trial Division, Los Angeles Public Defender Office, (Aug. 18, 1981).Google Scholar

85 Id.Google Scholar

86 Michael T. Kaufman, Legal Aid Strike Leader: Karen Faraguna, N.Y. Times, July 3, 1973, at 24, col. 1.Google Scholar

87 Id.Google Scholar

88 Thomas F. Brady, Legal Aid Threatened by a Strike, N.Y. Times, May 2, 1970, at 35, col. 1; Lesley Oelsner, 75 Legal Aid Lawyers Strike to Protest ‘Crisis Conditions’ in City Courts, N.Y. Times, May 5, 1970, at 35, col. 1; Legal Aid Society Lawyers End 3-Day Job Action, N.Y. Times, May 7, 1970, at 38, col. 2.Google Scholar

89 Brady, supra note 88.Google Scholar

90 Legal Aid Talks Cut Off; Strike Will Begin Today, N.Y. Times, July 2, 1973, at 31, col. 7; Lesley Oelsner, 400 Legal Aid Lawyers Go on Strike for Better Pact, N.Y. Times, July 3, 1973, at 1, col. 1.Google Scholar

91 Emanuel Perlmutter, Striking Lawyers Weigh New Offer, N.Y. Times, July 9, 1973, at 37, col. 8; Lacey Fosburgh, Legal Aid Lawyers Vote to End Strike, N.Y. Times, July 10, 1973, at 46, col. 1; Tom Wicker, When Lawyers Strike, N.Y. Times, July 15, 1973, § IV, at 13, col. 1; Michael Meltsner & Philip G. Schrag, Legal Aid After the Walkout—Strikers Were Right: Poor Get More Help, N.Y. Times, Dec. 23, 1973, § IV, at 7, col. 1.Google Scholar

92 Allan M. Siegal, 350 Legal Aid Lawyers Go On Strike Here; Face Action by Court, N.Y. Times, Sept. 12, 1974, at 76, col. 4.Google Scholar

93 Id.Google Scholar

94 Tom Goldstein, Legal Aid Staff Ends Strike Today, N.Y. Times, Oct. 1, 1974, at 1, col. 8.Google Scholar

95 Much concern has been expressed that low-income groups are more likely than other populations to receive discontinuous or fragmented services. Not only legal services but also medical services rather than being provided by one professional are more likely to be provided by a sequence of different professionals over time. Robert J. Haggerty, Session III—Present Strengths and Weaknesses in Current Systems of Comprehensive Health Services for Children and Youth, Am. J. Pub. Health & Nation's Health, Supp. to April 1970, at 74, 80; Heagarty, Margaret C., et al., Some Comparative Costs in Comprehensive Versus Fragmented Pediatric Care, 46 Pediatrics 596, 596 (1970). Similarly hospital wards for lower socioeconomic groups may be organized so that patients have no single physician caring for them during their stay. Raymond S. Duff & August B. Hollingshead, Sickness and Society 127 (New York: Harper & Row, 1968). It has been thought more advantageous for a patient to receive services from the same physician. Haggerty, supra, at 85. (“Continuity is generally considered to be beneficial. It should increase the efficiency of care (the entire history does not have to be taken anew) and satisfaction. Two bits of data are cited to support the thesis that there are benefits: children whose own doctor prescribed penicillin were significantly more likely to complete the course … and children with continuity of physician were more likely to keep appointments than when no continuity existed.”).Google Scholar

96 Chicago Bar Association, Commission on Administration of Criminal Justice in Cook County, Program for Action: Report and Recommendation of the Commission on Administration of Criminal Justice in Cook County 153 (Chicago: Chicago Bar Association, 1975); Katz et al., supra note 53, at 118; Katz, supra note 36, at 549; Rosett & Cressey, supra note 75, at 129; Eisenstein & Jacob, supra note 18, at 88; Comment, supra note 59, at 468; Graham & Letwin, supra note 59, at 919–20. Contact between initial and successor counsel in a defender organization may be limited “to forwarding the results of interviews and any investigation, and the hearing transcript.” California Field Study, supra note 43, at 542. Various arrangements for providing services to the indigent defendant (defender services versus assigned counsel system) may differ in the potential for communication of information among lawyers at different stages of a case. See generally on various factors affecting cooperation among lawyers, Gilboy & Schmidt, supra note 22, at 10–17.Google Scholar

97 In a number of jurisdictions a transcript at the preliminary hearing is prepared. However, a transcript is not a complete substitute for being at the preliminary hearing stage itself. One study comparing sequential and continuous representation of homicide cases by the Cook County Public Defender's Office (Chicago) described the difference in representation under these systems of representation. Beginning representation at the preliminary hearing permits the lawyer to interview the client, the witnesses, and the law enforcement officer while the facts of the case are still fresh in their minds. The attorney, who will continue representing the client through to disposition, is able to collect the relevant facts first-hand and need not rely solely upon the preliminary hearing transcript for a recapitulation of the hearing. Under the old system of representation (staged) the trial lawyer had only the preliminary hearing transcript as a resource for the relevant facts of the case and the reliability and credibility of witnesses. Elizabeth Lynch, A Study in the Style of Public Defender Representation 84–85 (Master's thesis, University of Illinois (Chicago Circle Campus), 1976).Google Scholar

98 When the New York Legal Aid Society used to sequentially represent defendants, its clients used to complain about having to “educate a new lawyer with respect to their case each time they appeared in court.” Lumbard, supra note 4, at 88 (quoting a report of the Judiciary Committee of the New York State Assembly). In Chicago, one researcher interviewed defendants who had been previously sequentially represented by the Cook County Public Defender's Office prior to the office's change to continuous representation in homicide cases. The defendants reported that they became “pretty sick and tired of telling their story over and over again to a different attorney.” Lynch, supra note 97, at 85. The result of such an occurrence is that defendants may “find themselves occasionally omitting or even embellishing facts to relieve their frustration.”Id. at 85.Google Scholar

99 Temple, supra note 49, at 52.Google Scholar

100 See, e.g., Jones v. United States, 342 F.2d 863, 870 (D.C. Cir. 1964), described in note 32 supra.Google Scholar

101 See California Field Study, supra note 43, at 543 n.137. (A preliminary hearing stage public defender may waive the hearing expecting his client to plead guilty in trial court, but a subsequent deputy may be put at a disadvantage in advising his client not to plead guilty if the defendant at the initial stages has waived the hearing and made a judicial confession.).Google Scholar

102 One commentator observing the routine practice in Baltimore of a public defender at the preliminary hearing stage being replaced by an assigned private attorney at the trial stage suggested:. This lack of continuity of representation tends to diminish the quality of the earlier legal assistance. Because the public attorney is not responsible for the case throughout, his interest in the case is diminished, and he is unlikely to be concerned with terminating the case at the preliminary hearing. Katz et al., supra note 53, at 118. It has been suggested that the assignment of lawyers to handle cases from their beginning to disposition in the Public Defender Service in the District of Columbia “substantially increases the attorney's sense of accountability and responsibility.” 1 NILECJ, supra note 59, at 6. The Criminal Justice System—the Final Report and Recommendations of the Special Committee on Criminal Justice, 34 Rec. A.B. City N.Y. 329, 344 (1979) (speaking about lawyers in both public defender and public prosecutor offices, “Assignments to major felony cases should be made on a vertical basis from arraignment through trial to develop individual professional responsibility and accountability”). The replacement of one lawyer by another may mean that no lawyer takes responsibility for out-of-court investigation and other tasks. An extreme example of this is United States ex rel. Thomas v. Zelker, 332 F. Supp. 595 (S.D.N.Y. 1971).Google Scholar

103 Rosett & Cressey, supra note 75, at 173.Google Scholar

104 For example, Sudnow draws on his courtroom observations to portray this experience of defendants represented by a metropolitan public defender office in California that assigned lawyers to courtrooms rather than cases. There is little communication between P.D. and client. After the first interview, the defendant's encounters with the P.D. are primarily in court. Only under special circumstances … are there contacts between lawyers and defendants in the jail before and after appearances in court. The bulk of the “preparation for court” (either trials or non-trial matters) occurs at the first interview. The attorney on station, the “attending attorney,” is thus a stranger to “his client,” and vice versa. David Sudnow, Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office, 12 Soc. Prob. 255, 265 (1965).Google Scholar

105 Wice & Suwak, supra note 59, at 172. See also O'Brien, Stewart et al, The Criminal Lawyer: The Defendant's Perspective, 5 Am. J. Crim. L. 283, 301 (1977) (“a different public defender is assigned to handle each stage of the case and is therefore not likely to become more than superficially acquainted with the defendant”); California Field Study, supra note 43, at 542 (“separate handling … sacrifices the traditional attorney-client relationship”); Rosett & Cressey, supra note 75, at 123 (the assignment of a public defender to a courtroom rather than cases “interferes with his relationships with defendants and routinizes interviews that he believes should be personal and professional”).Google Scholar

106 Sheldon Krantz et al., Right to Counsel in Criminal Cases: The Mandate of Argersinger v. Hamlin 220 (Cambridge, Mass.: Ballinger Publishing Co., 1976) (“lack of continuity also reinforces the defendant's feelings that he is being processed rather than tried according to justice”); Temple, supra note 49, at 52 (“The cadre system [former system in Washington, D.C. to handle preindict-ment work] will add to the already unfortunate feeling of many accused that they are not so much citizens with viable constitutional rights as they are objects on the conveyor belt of a system more concerned with moving the caseload than with the substance of justice”).Google Scholar