Public Defenders Will Save Us

With the rule of law in our country under siege, public defenders are uniquely equipped to fight back. (Excerpts from the 2025 David H. Bodiker Lecture on Criminal Justice.)

Last week, I had the privilege of delivering the David H. Bodiker Lecture on Criminal Justice at The Ohio State University Moritz College of Law. David Bodiker was Ohio’s longtime Public Defender and a fearless champion of justice for all. I was tremendously honored to be asked by the Bodiker family to deliver this annual lecture in memory of David. It gave me the opportunity to speak about one of my favorite subjects: the power of public defenders.

As you may know, I spent 10 years working as a public defender before I joined the Department of Justice. I have come to appreciate that public defenders are built differently than other lawyers—in ways we need now more than ever. Right now, the rule of law in our country is under existential threat. Public defenders are uniquely equipped to meet the moment and to defend and preserve our shared democratic ideals.

Below I share some excerpts from my lecture entitled, “Public Defenders Will Save Us” (delivered October 23, 2025, at The Ohio State University Moritz College of Law).

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In America, our justice system is founded on the principle that all who come before it should receive equal and impartial treatment. The words “equal justice under law” are etched into the pediment above the entrance to the U.S. Supreme Court. Justice Anthony Kennedy recently described this as an enduring reminder that “equality is one of the principal and necessary components of justice.”^[1]

The promise of equal justice under law is so ingrained in the fabric of our democracy that many Americans take it for granted. But not public defenders.

Public defenders know all too well that equal justice under law is an aspiration. It is a goal, and a noble one. But it is not a reality and has never been a reality for most Americans who bear the weight of our criminal laws. As hard as we strive, the same inequities that pervade our society at large—like wealth disparities, education gaps, and racial bias—continue to affect the quality of justice meted out by our courts.

Public defenders work to bring us closer to the ideal of equal justice under law, one client at a time. We know the work will never be finished. But every time we stand up in court to protect the rights of our client, we are vindicating the righteous ideals of fairness and equality that animate the American system of justice.

As we gather here today, those ideals are facing an existential crisis. The epicenter of the crisis is inside the Department of Justice, an institution that for over 150 years has been entrusted with upholding the rule of law, protecting our civil rights, and keeping us safe. Throughout its history, the Justice Department has earnestly strived to fulfill the promise of equal justice under law. The results have been imperfect, but the commitment has been sincere. Until now.

Right now, the Justice Department’s longstanding commitment to fair and impartial enforcement of the laws is eroding from within. The norms and traditions that have guided the institution for over a century have been abandoned. The guardrails that check prosecutorial power have been stripped away. The experienced and knowledgeable career workforce has been dismantled.

As political influence grows within the Department, the rule of law is withering. Core principles like due process have been treated as inconvenient obstacles to be shattered or surmounted, not as shared values to be nurtured and protected. The goal of delivering equal justice to all has taken a backseat to outcome-oriented prosecutions.

For the first time in the history of our constitutional democracy, the rule of law itself is fighting for its life. And it needs public defenders. Public defenders possess unique skills, instincts, and experience that set them apart from all other lawyers. Those qualities are exactly what we need at this critical moment in history to protect and defend the rule of law in our country.

Prosecutors are not going to save us. Corporate law firms are not going to save us. I believe that only public defenders can save us. Let me tell you why.

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I have spent a lot of time reflecting on how we got here. A question I keep turning over is this: How could an institution as old and venerable as the Department of Justice prove so vulnerable to the winds of political change? How could such a powerful institution fall so far, so fast?

The answer I keep coming back to is that too many of us took it for granted. Too many of us became complacent.

Alums of the Justice Department frequently speak about the “norms” and “traditions” of the Department. They are referencing the longstanding, shared values that have shaped and defined the place inside and out. Thanks to those enduring norms and traditions, generations of Americans have been able to take for granted that the Department would strive to administer justice without fear or favor; that it would seek to uphold the civil rights of all Americans; that it would do its best to keep us all safe; and that it would use its powers for the public good.

Those institutional values were so entrenched that they were believed to be immutable. They seemed to require no protection or reinforcement. No one ever contemplated the possibility that those values could be challenged.

As a result, no one was prepared to come to their defense. Norms and traditions have done a lot of work throughout history. But they do not have teeth, and we are learning now that they cannot defend themselves.

In the case of Kilmar Abrego Garcia, Judge J. Harvie Wilkinson warned of the peril we are facing, but he also spoke of opportunity. He wrote:

It is … all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

While there is still time. We lawyers, who have taken an oath to uphold the law and support the Constitution, must think about what that oath requires of us right now. We cannot be complacent in our commitment. We cannot be passive in discharging our duty. We must act while there is still time.

Most of us lawyers can see clearly the looming crisis that Judge Wilkinson warned of. Most of us feel aching concern about the future of our profession and our nation of laws. We have the will to vindicate our shared respect for the rule of law. But we have not found the way.

That is where public defenders come in.

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Public defenders are uniquely equipped to meet this moment. We are wired, trained, and skilled to do what DOJ’s legions of prosecutors have not been able to do: to protect and defend the rule of law against hostile forces trying to break it. What our democracy needs, urgently, is the kind of fight that public defenders give our clients every day.

I told you I’ve thought a lot about what makes public defenders unique among lawyers. I’ve actually made a list, and I want to share with you my Top 10 qualities of public defenders. These are ten qualities we urgently need right now as lawyers and as citizens. You don’t have to be a public defender to have them, but every public defender I know has them in spades.

One: We are hardwired to stand up to bullies.

We don’t appease. We don’t capitulate. We don’t go away quietly. We fight. Full stop.

Two: We know how to fight without institutional power behind us.

Unlike prosecutors, public defenders do not have the backing of a powerful institution. We are not given blunt force instruments to accomplish our objectives. We don’t have access to search warrants, arrest warrants, grand jury subpoenas, or indictments. We don’t have the leverage of mandatory minimums and sentencing enhancements.

Our fights are powered by duty, integrity, and conscience alone. We forge our own tools. We clear our own path. We make our own luck.

The rapid fall of the Justice Department illustrates how access to institutional power can engender complacency. Public defenders don’t have the luxury of growing complacent. We can’t take any outcome for granted. That keeps us sharp and resourceful.

Three: We see the world for what it should be—not for what it is.

Public defenders do not accept injustice, inequality, or unfairness. We see it. We feel it. Sometimes we are overpowered by it. But we never accept it. We fight every day to achieve the ideal of equal justice that has always been America’s unrealized aspiration.

Four: We have to earn trust every day.

When you walk into a jail cell to meet a client for the first time, and all your client knows is that you are a free lawyer they did not choose but are stuck with, you have to earn trust. And when you are sitting in that cell six months later, counseling that client that it’s in their best interests to sign away their rights in a plea agreement, you better have put in the time to earn their trust.

For a public defender, trust is not inherited or implicit or assumed. You start from zero with every client, every day. Trust is hard won, and it is easily lost.

Not just with clients, but also with judges. I spoke about the presumption of regularity that prosecutors enjoy in court. That does not apply to us. The only way a judge will take a chance on your client—cut them a break or show them compassion—is if they trust that you, the attorney, are leading them down the right path. Your credibility is everything.

Trust makes us or breaks us as public defenders. So, we are constantly striving to earn it.

Five: We are driven by mission—not by money, titles, or glory.

I say this with respect and fondness for my prosecutor colleagues. They really like awards. We used to snicker a little in the Defender’s office when every year, the entire staff of the U.S. Attorney’s Office spent a morning gathered at the courthouse for their annual award ceremony. It was a big deal.

Prosecutors are noble public servants—don’t get me wrong—and I’m sure they deserved those plaques. But public defenders pride ourselves on shying away from individual recognition. No one has ever deserved an award more than my old boss, Jim Wyda, who has been a public defender for 30-plus years and counting. But I know he would roll his eyes at that suggestion.

There is a particular line from Dr. Martin Luther King Jr. that has always resonated with me. It’s from his Drum Major Instinct sermon, delivered shortly before his death. Dr. King said this:

If you want to be important—wonderful. If you want to be recognized—wonderful. If you want to be great—wonderful. But recognize that he who is greatest among you shall be your servant.

That line—the greatest among you shall be your servant—captures what made me want to be a public defender in the first place, and what kept me at it every day. The idea that the greatest calling is serving our fellow citizens. That is the essence of being a public defender.

Six: We see serving others as a privilege, not a burden.

Being a public defender is hard. It is heavy. Our clients usually come to us as a last, unhappy stop on a journey through systems that have failed them: education, housing, medical care, and beyond. We are constantly confronted with problems that we don’t have tools to solve.

But what we can do is help to shoulder our clients’ burdens. And we know it is a privilege to be able to do that. It allows us to see the world from different perspectives. It creates human connections. It builds relationships.

If you’re doing the job right, you’ll learn that few relationships are more intimate than the one between a public defender and a client fighting for their life. Standing shoulder-to-shoulder with our clients weaves together the threads of our own life with those of our fellow citizens, which makes us all stronger.

Seven: We don’t mind rolling up our sleeves.

No task is too small for a public defender. We know it doesn’t matter how much time you spent researching your legal argument or writing your motion if your client doesn’t show up for court. That means, after writing your killer brief, you might also have to wake up early to give your client a ride to court. And you might need to grab them a coffee, too. You will never hear a public defender say, “that’s not my job” or “that’s not why I went to law school.”

We know that you can’t build something enduring without laying a solid foundation. So we roll up our sleeves, and we put in the work to make sure the foundation is strong—no matter what that requires of us.

Eight: We find the common humanity in our fellow citizens.

Public defenders are always focused on what unites us with others—not what divides us. Our clients come from all walks of life. Their backgrounds and lived experience almost always diverge from our own. We may disagree deeply with their choices, their actions, or their intentions. But still, we seek out and we find the shared spark of humanity that binds us together.

Nine: We are storytellers.

Communication skills are as vital as air for a public defender. We must be able to speak to our clients with clarity and authority, but also with empathy and compassion. We must be able to speak about our clients to others in much the same manner.

Telling our clients’ stories is one of the most important and most challenging things we do as public defenders. We can’t just tell a judge that our client deserves mercy. They are not going to take our word for it. We have to show them. We have to paint a picture. Our job is to help judges and prosecutors step into our clients’ shoes and see the world from their vantage point. And we are very good at it.

Finally, Number Ten: We believe in redemption.

Public defenders have a fundamentally optimistic view of humanity. We believe in improvement. We believe in change. We believe in second chances. We don’t give up on people.

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Public defenders are not usually thought of as leaders. We work quietly, behind the scenes, with no expectation of praise or recognition. But can you imagine if our elected and appointed leaders had the qualities of public defenders? Can you imagine what we could accomplish if those leaders had the conviction, the courage, the empathy, the compassion, and the tireless stamina to fight for what is right?

All around us, we have seen powerful institutions struggle to defend and preserve their values. This is not limited to the Department of Justice or even the public sector; it includes the nation’s premier law firms, its top universities, its largest media corporations. We have seen literal pillars of our democracy bow and bend to hostile forces.

At the same time, I see my fellow public defenders on the frontlines defending the rule of law. I have watched with appreciation as Judge Paula Xinis, a former public defender, has held the government’s feet to the fire in the case of Kilmar Abrego Garcia. I breathed a sigh of relief when I learned that the prosecution of James Comey would be overseen by Judge Michael Nachmanoff, another former public defender.

What we need in this moment, more than anything, is public defenders for our democracy. We need public defenders for the Constitution and the rule of law.

I urge all of you who have those public defender qualities to find your places defending our democracy. Figure out how and where you can best use your voice and your skills in service of the rule of law. This may or may not be in a courtroom. It may or may not be standing beside a client. It might be thankless, and it probably will not pay well.

But it’s what our nation needs from you right now. And it just might save us.

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^[1] Justice Anthony Kennedy, The Origin of “Equal Justice Under Law,” The New York Times (Oct. 6, 2025), available at https://www.nytimes.com/2025/10/06/opinion/anthony-kennedy-supreme-court.html.