Guest Commentary: Marking 60 years of the right to counsel

I truly believe that a healthy, well-funded and well-resourced indigent defense system leads to a safe and healthy society. If we do our job well, the justice-involved people of Delaware will not only receive a fair trial but will also be less likely to become justice-involved in the future, and that benefits all of us.”

Kevin O’Connell is Delaware’s chief defender. He leads the Office of Defense Services, which represents individuals who are charged with criminal offenses and who cannot afford an attorney. He was appointed by Gov. John Carney in 2021.

For years, the popular belief has been, if you’re charged with a crime, the last person you want representing you is a public defender. The image of a public defender is often that of an overworked, underpaid hack, who just wants you to plead guilty, so that they can close another file. There’s this idea that public defenders aren’t even real attorneys.

That image has nothing to do with reality.

The reality is that public defenders are not just real attorneys but really good attorneys. We’re experienced litigators. We win trials — lots of them. We secure favorable outcomes for our clients, and, when we don’t, we win appeals — lots of them. We’re in it for our clients. We are dedicated to fulfilling the promise that everyone, regardless of income, is entitled to a zealous defense.

March 18 is the 60th anniversary of Gideon v. Wainwright, the landmark U.S. Supreme Court case that recognized a person’s Sixth Amendment right to counsel in a criminal case. The anniversary is an opportunity to reflect upon where we’ve been as public defenders. But it’s also a moment to look ahead to where we’re going. The anniversary of the Gideon decision challenges us, as public servants, to think about the stereotype and consider past actions that informed the notion that a public defender is less than an attorney.

When Delaware first established the Office of the Public Defender in 1964, a few attorneys handled a total of 874 cases. Now, as we near the sixth decade of public defense in Delaware, things have changed. For starters, we’re known as the Office of Defense Services, and we handle a lot more cases than 874; more than 20,000 criminal matters were handled by our team of lawyers and nonlegal professionals last year alone. We represent approximately 85% of justice-involved individuals in the First State.

In 2016, our attorneys successfully argued that Delaware’s death penalty was unconstitutional. In 2018, we became a pilot location for Partners for Justice, a national nonprofit whose advocates help us address both the root causes that led our clients into the criminal legal system, as well as the collateral consequences of being justice-involved. Last year, our second chances unit assessed 900 criminal records for individuals seeking a second chance, reached out to 400 youth with juvenile records and held nearly a dozen expungement clinics across the state. We are getting out of our offices and spending time in the community, making “know your rights” presentations at schools and holding public listening sessions at community centers. This is just a small sample of the type of work our office is engaged in, and I am so excited about where we’re going next.

The next 60 years for the Office of Defense Services will be defined by what we call “holistic defense” — a focus on not just the case but the person, as well. Holistic defense is zealous legal advocacy, complemented by an interdisciplinary team to better assist our clients outside of the courtroom. The best way to describe holistic defense is to illustrate its impact.

I had a client; let’s call him Robert. Robert was a veteran of the United States military, who served his country honorably, but his service left him with trauma. One day, when Robert was unmedicated, he found himself in serious legal trouble. Through our efforts, he received a favorable outcome that reflected his situation and mental health history. Our work didn’t stop there, though. We knew that Robert had nowhere to live once he was released from prison. Thanks to his client advocate, Robert was matched with housing specifically for veterans. His advocate also made sure that he had bridge medication before he left jail and ensured that his personal belongings from his prior residence would follow him to his new location. That is what client-centered, holistic defense looks like.

The next 60 years of public defense in Delaware will continue to be client-centered, collaborative and community-driven. This is what our clients and their families can expect from our office. Where the first five or six decades focused solely on the results of the case, our future is focused upon the human beings that we are privileged to represent and their lives beyond the courtroom.

I truly believe that a healthy, well-funded and well-resourced indigent defense system leads to a safe and healthy society. If we do our job well, the justice-involved people of Delaware will not only receive a fair trial but will also be less likely to become justice-involved in the future, and that benefits all of us.

The principle that everyone is entitled to a defense is not just a constitutional right but a part of the shared fabric of our common identity. Public defenders may not fit your image of what it means to be a hero, but the work that they are doing each and every day is nothing short of heroic.