How Atlanta public defender Lynne Borsuk rebelled after being overwhelmed by hundreds of cases a year

By RICH SHUMATE
ABA Barrister Magazine/Winter 1991-1992

One day each week, buses pull up in front of the Fulton County Courthouse in downtown Atlanta, disgorging a routine cargo of accused felons. They are herded upstairs to the courtroom of Superior Court Judge Joel J. Fryer to formally hear the accusations being made against them and go through a question-and-answer session as to whether they understand their rights.

Lynne Borsuk stood in Fryer’s courtroom through dozens of these weekly cattle calls. By the fall of 1990, after nearly four years as an assistant public defender, Borsuk had worked her way up to one of the top jobs in the PD’s office — trial attorney in the criminal division. As the only public defender assigned to Fryer’s courtroom, she was appointed to represent virtually all of the indigent defendants making their way through this branch of the judicial system.

But these were not easy times in the Fulton County courts, particularly for those charged with defending the poor. Resources were stretched beyond their limits by an exploding caseload. Trial-level attorneys had been grousing for months about a workload so overwhelming that it was turning courtrooms into “plea mills,” where justice and fairness took a back seat to keeping the system afloat.

Borsuk, 30, says she became increasingly uncomfortable about her role as a cog in this judicial machine, uneasy about what her participation in a process collapsing under its own weight was doing to her clients. While the problems had been festering for months, they came to a climax during one exceptionally chaotic arraignment session in September 1990.

“I was assigned 45 cases for one arraignment calendar,” she says. “When I figured it out, it wound up being 10 minutes per defendant. I had 10 minutes to devote to each one.”

“I guess sometimes in life, that’s how you realize things — when they just get so bad that you think ‘I just can’t do it anymore.’ And that’s what happened.”

Borsuk began talking to her fellow defenders, as well as outside experts in the criminal justice field, to try to come up with some way, any way, to spark reform.

“I recognized that I was no longer doing my clients a service by keeping quiet. It was a sham. We were pretending that we were providing adequate representation. We weren’t. You can’t provide adequate representation for somebody charged with a felony when you devote 10 minutes to their case. That’s a lie. It’s not honest, and it’s not ethical.”

“The judge would ask the defendant, ‘Do you have a lawyer?’ The defendant would say ‘no.’ Then it would come out during the conversation, ‘No, but I’ve got a public defender.’ If I were ever, God forbid, charged with a felony, and my attorney presumed to spend 10 minutes on my case, I wouldn’t think I had a real lawyer, either.”

By October 2, Borsuk had settled on a risky plan of action. Assisted by two attorneys from the Georgia Association of Criminal Defense Lawyers, she marched into Fryer’s courtroom prepared to use the legal system itself — and its constitutional guarantees — to turn the spotlight on the deficiencies in Fulton’s system of public defense.

After receiving her sixth court appointment of the day, Borsuk turned and faced the judge.

“I would ask your honor not to appoint me to any more cases at this time,” she said. Then she handed the clerk a written motion which stated that her caseload was so overwhelming that is violated her clients’ rights to effective assistance of counsel, due process, and a speedy trial. She also pointed out that the canons of ethics of the State Bar of Georgia prohibit her from taking on more cases than she can handle.

“Filing the motion seemed to be a sound, legal way of achieving change,” she says. At the same time she filed it, Borsuk had 121 active cases pending. While the National Advisory Commission on Criminal Justice Standards recommends that a public defender close no more than 150 cases a year, she had already closed 476 in the first 10 months of 1990. She asked Fryer to give her no more than six new cases a week.

“I didn’t know what was going to happen. I just knew it couldn’t go on,” Borsuk says.

“With that many cases, at some point you’ve got to start choosing who’s more important, who’s got more to lose, whatever. So that while I’m devoting hours and hours to a particular person charged with murder or rape or a series of armed robberies or something, there’s somebody over here who is not getting the attention that they deserve. That’s a conflict of interest. No client should be sacrificed.

“Even a little case in Superior Court is a significant case. You’re talking about a year in jail for that person. You’ve got to pity the person whose case is the little one because you figure they’re going to get smushed through the most quickly.”

Borsuk’s motion made an immediate splash, and the size of the waves it created surprises her even now. News of her action spread from the legal community into the mainstream press, throwing the spotlight on the problems with the indigent defense system in Atlanta and making Borsuk something of a local celebrity. The problems were an open secret among practitioners in Atlanta’s criminal courts, but the politicians and the public had little idea of what was going on. The publicity her motion generated changed all that.

It was also the beginning of the end of her career as an assistant public defender in Fulton County.

While Borsuk met with Fryer prior to the arraignment session to tell him what she was about to do, she did not inform her boss, Chief Public Defender Vernon Pitts. He found out about Borsuk’s motion when questioned by a reporter, and his response was that he was considering firing her.

Pitts says he and his staff had discussed refusing to take on more cases as an office, which he maintains would have been more effective that what Borsuk tried alone. He also says prior to Borsuk’s motion, he sent another lawyer to help her, but she refused to relinquish her existing caseload while insisting on taking on no more than six new cases per arraignment.

At the next arraignment session, Pitts told Fryer that he didn’t support her motion. Two weeks later, he transferred Borsuk, one of the most experienced lawyers in the public defender’s office, to juvenile court, which is normally the domain of green, newly hired attorneys — the place Borsuk herself started out in 1987.

“I didn’t enjoy being punished, and I don’t think it was proper to punish me for what I was ethically bound to do because the punishment for not doing what the ethical rules tell you is disbarment,” says Borsuk, who vowed after her transfer to juvenile court that she would not resign — or shut up.

“I thought I owned a duty to my clients to try to and see that they receive adequate representation. And resigning would have shirked that responsibility.”

For Lynne Borsuk, life as a public defender wasn’t always so contentious. After graduating from the University of Florida College of Law, she was hired by Fulton County just a week after passing the Georgia bar. I was not a career path she intended — Borsuk says she went to law school solely to learn legal theory and never intended to become a practicing attorney.

“In so many ways, it’s really a great job. You have a tremendous opportunity to help people. You learn so much and have the ability to have hands-on experience. You actually get to try cases for people.”

After she was hired, Borsuk was thrown into juvenile court with virtually no training. She would have to sink of swim on her own.

“I actually was neurotic about it. I would stay up until 11 o’clock every night thinking, ‘Oh my God, what am I going to do?’ My boyfriend was a lawyer, and I would ask him, ‘How do I do this, how do I do that?’ at night so that I could figure out how to do things during the day.”

As her career progressed, Borsuk became a fervent believer in the importance of public defense and her role in it.

“Part of the problem with this is that indigent defense is not popular. It’s never going to be politically popular. People charged with crimes are not viewed fondly by the voters. But the rights that accrue to those charged accrue to all of us, including the voters. And if we want to protect those rights for all of us, we need to ensure that we’re protecting them for the poor.”

When she was promoted to handling felony cases in Superior Court, the number of people indicted on felony charges in Fulton County had begun an astronomical rise, doubling in just five years. An increased emphasis on drug arrests was the main reason. Prosecutors also stepped up the pace of indictments to help relieve severe jail overcrowding, cutting down the time indigent defendants would sit in a cell between arrest and indictment.

The 25 attorneys in the public defender’s office shared one computer. They had no paralegals and only three investigators. In addition to handling their courtroom work, defenders would at times have to play Matlock or Rosie O’Neill, investigating their own cases and even serving subpoenas.

Grand juries were churning out an indictment as often as once every three minutes. On one day that his courtroom calendar contained 98 arraignments, Fryer quipped to Borsuk, “We’re going to be drowned.”

“We’re already drowning,” she replied.

“We’re drowning, and we’re going to get drowner,” he answered.

Yet Fryer’s reaction to Borsuk’s motion was not sympathetic. During the next arraignment session after the October 2 episode, he repeatedly asked her why her caseload moved more slowly than that of other defenders. “We’re here together,” he said. “If you’re busy, so am I.”

He began assigning cases to the public defender’s office, rather than to Borsuk personally, so that her caseload never technically reached the six-cases-a-week maximum she requested. Then she departed for juvenile court, and the judge never formally ruled on her motion.

Today, Lynne Borsuk is no long doing penance in juvenile court. She resigned in frustration from the public defender’s office in February 1991 — four months after vowing that she would not leave.

“In all honesty, I just have to say it was common sense at that point. I left. I tried very hard to effectuate some change and worked as hard as I could the whole time I was there. I did what I could.”

She still practices criminal law, albeit in a different setting from the drab confines of the downtown courthouse. She has launched her own defense practice from a sunny office in the heart of Atlanta’s fashionable Buckhead neighborhood, although she does continue to occasionally accept appointments to represent indigent defendants.

She says she’s frustrated by the lack of change in the public defender’s office, despite her very public protest. Yet there is some encouraging evidence that Borsuk’s actions weren’t for naught.

Even though funding for indigent defense is not politically popular, media reports of deficiencies in Fulton County’s system led the county commission to appropriate an additional $470,000 for new lawyers, investigators and clerical help. To investigate indigent defense, the Atlanta Bar Association appointed a blue-ribbon panel, make up of some of the most high-powered lawyers in the city. That panel is considering recommending fundamental changes in the organizational structure of the office.

If she had it to do all over again, Borsuk says she would still blow the whistle on the deficiencies within Fulton County’s system of public defense, despite what it did to her career. In fact, she firmly believes that what she did will be good experience as she moves out into her own practice.

“I love criminal defense. And as a criminal defense lawyer, your aim is to advocate for your clients. And that’s what I have done.”