Inventing the Public Defender

Abstract

Clara Foltz, one of the first women lawyers in the United States, was also the first to propose a public defender. Her radical idea that the state should provide a defense for those it accuses was born from Foltz's experiences as a jury lawyer facing unfair prosecutors, and from her involvement with other reform movements such as suffrage and populism. She marshaled creative constitutional arguments and a rights-based presumption of innocence in support of her conception. Foltz's public defender was a capable jury lawyer, the equal of the public prosecutor in resources and respect. As actually enacted in the Progressive Era twenty years after Foltz first proposed it, the public defender was less concerned with individual advocacy than with more generalized fair process. The history of the public defender reveals the tension between the models of zealous advocate and responsible public official, a tension both present at the creation and perhaps inherent in the office itself.

Full text

I
NVENTING THE PUBLIC DEFENDER
Barbara Allen Babcock
∗
Stanford Law School
Abstract: Clara Foltz, one of the first women lawyers in the United States, was also the first to
propose a public defender. Her radical idea that the state should provide a defense for those it
accuses was born from Foltz’s experiences as a jury lawyer facing unfair prosecutors, and
from her involvement with other reform movements such as suffrage and populism. She
marshaled creative constitutional arguments and a rights-based presumption of innocence in
support of her conception.
Foltz’s public defender was a capable jury lawyer, the equal of the public prosecutor in
resources and respect. As actually enacted in the Progressive Era twenty years after Foltz first
proposed it, the public defender was less concerned with individual advocacy than with more
generalized fair process. The history of the public defender reveals the tension between the
models of zealous advocate and responsible public official, a tension both present at the
creation and perhaps inherent in the office itself.
∗
Judge John Crown Professor of Law, Emerita. Stanford Law School.

2
TABLE OF CONTENTS
Introduction..................................................................................................................................... 3
An Overview of the Origins of Public Defense.............................................................................. 5
Sources and Forces Shaping the Public Defender Idea ................................................................ 14
First Woman Experiences..............................................................................................................14
Unfair Prosecutors.........................................................................................................................17
- People v. Wells: Foltz’s case.............................................................................................. 19
- Clara Foltz’s Authorities: Wharton and the Compendium of Case Law............................ 20
- Women Accused: Maria Barbella (aka Marie Barberi) and Mary Alice Fleming ............. 25
Feminism and Other Reform Movements......................................................................................28
Nationalism: the Movement...............................................................................................31
The Women’s National Liberal Union...............................................................................34
Foltz’s Constitutional Arguments for the Public Defender.......................................................... 38
The Presumption of Innocence.......................................................................................................39
“Constitutional Obligations"...........................................................................................................41
Conclusion: Re-inventing the Public Defender ............................................................................ 46

3
Introduction
The great case of Gideon v. Wainwright
1
in 1963 required every criminal court in the country to
provide free counsel to the indigent accused. Though in some jurisdictions lawyers do this
work pro bono by court appointment, in most places, the government pays for the
representation. Generically, the attorneys who regularly represent poor people charged with
crime are called public defenders.
Since Gideon, public defense has become an integral and essential part of the vast decentralized
criminal justice bureaucracy. Yet the institution remains controversial, even as to its essential
features. To many, it is anomalous, at least, that the government should pay for the defense of
those it accuses. Certainly, it is not an idea many legislatures have been willing to fund
adequately over the long run.
Every decade or so, often on the anniversary of Gideon, studies and articles lament the broken
promise of that case.
2
The most recent and elaborate of these reports, based on extensive
hearings about an array of indigent defense delivery systems, concludes that many thousands of
people are convicted every year with “either no lawyer at all, or with a lawyer who does not
have the time, resources, or in some cases, the inclination to provide effective representation.”
3
Following on earlier studies, the report warns of an unacceptable risk of wrongful conviction
and erosion of the integrity of the criminal justice system.
4
In one respect, however, this latest report is hopeful; it shows that though the problems of
public defense are deep and their solution costly, they are not ineradicable.
5
Unlike, say,
eliminating poverty or inequality, providing good lawyers for poor people accused of crime is
something that we can do: if we have the political resolve.
Our collective failure of will arises at least partly, I think, from a profound disagreement over
the nature and purposes of public defense. If mapped on a continuum, the disagreement would
have at one end those who would give the poor the same level of capable defense he could
obtain if he had means: the equal rights advocates. At the other end are the due process
proponents—those who would protect the factually innocent and assure generalized fairness to
all. Along the continuum are positions placing varying weights on such factors as the
defender’s duty to the community at large, and to the court as its officer.
1
372 U.S. 335 (1963).
2
See e.g. Norman Lefstein, Criminal Defense Services for the Poor, Report, AM. B. FOUND. STANDING COMMITTEE
ON
LEGAL AID & INDIGENT DEFENDANTS, 2 (1982) (”Millions of persons in the United States who have a
constitutional right to counsel are denied effective legal representation.”); Note, Gideon’s Promise Unfilled: The
Need for Litigated Reform of Indigent Defense, 113 H
ARV. L. REV. 2062, 2065 (2000) (providing citations and
statistics describing the failed promise of counsel). See also D
EBORAH L. RHODE, ACCESS TO JUSTICE 122-33
(2004); Barbara Allen Babcock, The Duty to Defend 114 YALE L.J. 1489, 1515 (describing the failure of Gideon).
3
Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice, Report, AM. B. FOUND. STANDING
COMMITTEE ON LEGAL AID & INDIGENT DEFENDANTS, iv (Dec. 2004).
4
Id. at 38.
5
Id. at 14. The report contains specific recommendations for organization and governance of public defender
programs, and urges increased oversight by courts and the Bar. Id.

4
The distance between the two ends of this continuum is observable in the disputes over
funding and caseloads for defenders, but it emerges most clearly in court opinions on
ineffective assistance of counsel. The case of Ronald Rompilla,
6
decided in 2005, is a good
example. Rompilla’s lawyers, public defenders in an overworked office, failed to obtain a
readily available file containing leads to the defendant’s horrendous childhood, evidence of
severe alcoholism and other serious mental illness. Nothing of this history was presented to
the jury in mitigation of the death penalty. Five Justices took the equal rights view in the
case and found the representation inadequate.
To the due process proponents at the other end of the continuum, the situation appeared entirely
different. First, Rompilla was clearly guilty and second the “committed criminal defense
attorneys”
7
had investigated the case, interviewed the family and the defendant at length, and
employed three mental health experts who did not produce anything helpful to the accused. No
more process was due in the view of the dissent. Moreover, since obviously “today’s decision
will not increase the resources committed to capital defense” this requirement of further
investigation would “divert resources from other tasks” and possibly “diminish the quality of
[overall] representation.”
8
Rompilla is recent and revealingly stark in its oppositions. But the same divergence is found
in most cases dealing with ineffective assistance of counsel. Perhaps the tension is inherent
in making individual defense a public function—in the nature of the public defender
institution particularly. This is the issue I aim to explore through the little-known history of
public defense.
Clara Foltz, lawyer and suffragist, inaugurated the public defender movement with a speech at
the Chicago World’s Fair in 1893
.9
In the course of researching her biography I have necessarily
uncovered a great deal about the original intentions and founding aspirations of the movement.
Presenting those ideas is my purpose here, rather than telling the heroic story of Foltz in her time
and setting, though there will be some of that too.
Part I is an overview of the history of public defense—from Foltz’s original conception through
its first enactment as a Progressive Era reform.
10
I will examine the differences between Foltz’s
6
Rompilla v. Beard, 125 S. Ct. 2456 (2005) (J. Alito was the judge reversed below, and J. Sandra
Day O'Connor wrote the majority opinion in the Supreme Court.)
7
Id. at 2472 (Kennedy, J., dissenting).
8
Id. at 2475.
9
Clara Foltz, Our Public Defenders, 25 CHI. LEGAL NEWS 431, Aug. 12, 1893; Public Defenders—Rights of
Persons Accused of Crime—Abuses now Existing in 48 A
LB. L.J. 248 (1893) [hereinafter Foltz, World’s Fair
Speech]. There are only slight textual differences between the two reprints; I will cite to the Albany Law Journal
version. Later, Foltz elaborated her argument and responded to criticism in two law review articles: Duties of
District Attorneys in Criminal Prosecutions 18 C
RIM. L. MAG. & REP. 415 (1896) [hereinafter Foltz, Duties]; Public
Defenders. 31 A
M. L. REV. 393 (1897) [hereinafter Foltz, Public Defenders].
10
During her lifetime, Foltz was recognized as the founder of the public defender. See, e.g., Editor’s Note, 52 ALB.
L.J. 66, 66-69 (1897) (noting the “new and original idea”); Editorial, Public Defenders, 10 HARV. L. REV. 514
(1896-97) (“Mrs. Foltz’s idea”), reprinted in, Editorial, Public Defenders, 3 V
A. L. REG. 228 (1897-1898) (same);
John Henry Wigmore, Shall The Legal Profession Be Reorganized?, 4 J.
CRIM. L. & CRIMINOLOGY 641, 642 (1913-
14) (“a measure first proposed by Clara Foltz, of the San Francisco bar, now thirty years ago, in the American Law
Review”); R
EGINALD HEBER SMITH, JUSTICE FOR THE POOR (1919). at 109 n. 6, 110 n.4, 110-111 n.1 &

5
defender and the Progressive model and show how the debate over public defense in the early
part of the twentieth-century laid the groundwork for Gideon, as well as commencing the
continuum with its opposite extremes.
Part II describes the main sources and forces that shaped Foltz’s original conception of the
public defender. Most influential was her unique experience as a woman lawyer confronting
overbearing prosecutors. The public defender was born as an oppositional figure to check
and correct the unfair district attorney. In a case she tried and appealed, Foltz established an
important precedent on the prosecutor’s duty, and her experience on a shadow jury in
another case led her to make an in-depth study of the case law on trial misconduct.
A second major influence on Foltz’s formulation of the public defender was feminism and
other associated reforms. Of special note in this section are the Nationalism movement and
its proposed public defender model, as well as Foltz’s first presentation of the idea on a
nationwide platform at the Women’s National Liberal Union in 1890. In the last section, I
will analyze the Constitutional arguments that Foltz devised to support the public defender
campaign.
Ultimately, we will find that equal rights idealism and due process desire both play through
the conception and enactment of the public defender. I will close by urgently observing that
the conditions that fueled the first defender still exist today, and that Foltz’s vision, the
Progressives’ plans and Gideon’s promise all remain unfulfilled.
An Overview of the Origins of Public Defense
For the conviction of the accused every weapon is provided and
used, even those poisoned by wrong and injustice. But what
machinery is provided for the defense of the innocent? None,
absolutely none.
- Clara Foltz, World’s Fair Speech, 1893
The first published proposal for a Public Defender was the text of Clara Foltz’s speech at the
Congress of Jurisprudence and Law Reform in 1893.
11
One of the great public meetings held
accompanying text (crediting Foltz with the idea, but misspelling her name as “Fultz” and “Fultze”); A. Mabel
Barrow, Public Defender: A Bibliography, 14 J. AM. INST. CRIM. L. 556 (1924) (asserting that the public defender
had its inception at the World’s Fair where “a woman lawyer of San Francisco first advanced the idea”); O
SCAR T.
SHUCK, BENCH AND BAR OF SAN FRANCISCO AND CALIFORNIA 109 (1926) (recording that Foltz pioneered the
movement for the establishment of the office of Public Defender, authored bills introduced in the legislature of
thirty-two states, and had public defender included in Los Angles charter in 1911, and in state-wide legislation in
1921); Jennie Allen, The Fight for a Public Defender,
13 W. COAST MAG. (1912) (noting the public defender
legislation “will be forever be known as the Foltz defender bill”). More rare is modern recognition. But see
Resolution Commemorating Founding of Public Defender Movement by Clara Shortridge Foltz, National Legal Aid
and Defender Association, (adopted at annual meeting, December 1984) (recognizing Foltz as the founder).
11
Foltz, World’s Fair Speech, supra note 9. The reprinting of Foltz’s speech in the Albany Law Journal appears to
be the first article on the subject of public defenders in any American legal journals. A search of the Thomson Gale
The Making of Modern Law database, available at http://www.gale.com/modernlaw, returned no others (accessed
Aug. 2005).

6
in conjunction with the Chicago World’s Fair,
12
the Law Reform Congress had many stars.
James Bradley Thayer delivered one of the most famous of all works of American
Constitutional law scholarship,
13
and other presentations included such notable scholars as
Judge Thomas Cooley, John Henry Wigmore and David Dudley Field.
14
Clara Shortridge Foltz was neither a judge nor an academic—no woman lawyer was. But she
had fifteen years of experience in the criminal courts of the West. Vividly, in phrases drawn
from jury arguments, she pictured the breakdown of the criminal justice system. First the
desperate defendant, “reduced to a savage state—one of self-defense”
15
must pay for counsel,
though the cost “may ruin his business, impoverish his family and make his wife and children
objects of charity.”
16
On the other hand, if he “announces himself a pauper,” the court will appoint counsel for him.
17
But these are not capable lawyers: “they have no money to spend in an investigation of the
case, and come to trial wholly unequipped either in ability, skill or preparation to cope with the
man hired by the State.”
18
Foltz brought forth her solution. “For every public prosecutor there
should be a public defender chosen in the same way and paid out of the same fund.”
19
She described a powerful, resourceful figure to counter and correct the prosecutor, to balance
the presentation of the evidence, and to make the proceedings orderly and just. Her defender
would engage the law’s presumption of innocence on a deep level—making no distinction
between the factually and presumably innocent. He would investigate every case for favorable
evidence, would summon witnesses, seek expert testimony, and prepare to cross examine.
Public defense would not be a professional charity; or a training ground for inexperienced
attorneys; or a low visibility plea mill run by shysters and incompetents. Instead the public
defender would hold an honored position, even more important than the prosecutor because he
would be protecting the innocent. Just as the prosecutors made no distinctions based on wealth,
12
THOMAS J. SCHILERETH, VICTORIAN AMERICA: TRANSFORMATIONS IN EVERYDAY LIFE 71-72 (1991) (describing
the Congresses, and claiming 700,000 in attendance); THE BOOK OF THE FAIR
:<HTTP://COLUMBUS.LIT.EDU/BOOKFAIR/CH26 HTML> (describes various congresses and success of the
idea). .
13
James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129
(1893). See also Symposium, One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 N
W. U.
L. REV. (1993). See especially, Thomas C. Grey, Thayer’s Doctrine: Notes on Its Origin, Scope and Present
Implication, Id at 28-41.
14
For contemporary accounts of the Congress of Jurisprudence and Law Reform, see: DAILY INTER-OCEAN, Aug.
8-11, 1893; C
HI. LEGAL NEWS, Aug. 12, 1893; CHI. TRIB., Aug. 9-12, 1893; The World’s Congress Auxiliary, DIAL
(Chicago, IL), Dec. 16, 1892, at 377-79; Belva Lockwood, The Congress of Law Reform, 3 A
M. J. OF POLITICS 321-
333 (July-Dec. 1893).
15
Foltz, World’s Fair Speech, supra note 9, at 248.
16
Id. at 249. She repeated her concern for the defendant with money in her Public Defenders article: “he must pay
for his defense, no matter what hardship it may involve. It may ruin his business, destroy his credit, and may reduce
him and his family to want, but he must pay or go without counsel and, therefore, without justice….Is not the
disgrace of arrest, the pain of imprisonment, and the torture of trial quite enough for him to suffer without adding a
financial punishment in compulsory counsel fees?” Foltz, Public Defenders, supra note 9, at 398-99.
17
Foltz, World’s Fair Speech, supra note 9 at 249.
18
Id.
19
Id.

7
so Foltz’s defender would represent all who sought his services: No one, she believed should
have to “buy justice in a land that boasts that justice is free.”
20
Foltz’s defender for rich and poor
alike had an ideological base, and a practical one. She knew that a defender for only the
friendless and destitute would not command the respect or resources necessary to do the job.
A few years after the Fair, she made her proposal explicit by placing it in statutory form.
21
The
Foltz Defender Bill is an appendix to this article—its radical nature apparent on its face. In the
winter of 1897, Foltz’s statute was introduced in “more than a dozen states.”
22
She herself took
the proposed bill to the premiere state legislature in Albany, New York.
23
A “new and original
idea” of “great importance” said the editor of the.
24
Albany Law Journal
25
. By Foltz’s count, 200
newspapers “mentioned and explained” the measure.
26
Of those that commented editorially, she
found that fifty percent liked it, and added generally that the public defender met with “a
favorable reception among a large class of people.”
27
The Harvard Law Review said that the idea “certainly merits consideration,” though it doubted the
necessity for a public defender in smaller towns, where competent volunteer lawyers were available
for appointment.
28
In large cities, amidst “the hurry and bustle of litigation” however, it
acknowledged that there might be a need.
29
On the other hand, the New York Times derided her
defender as “absurd” and as “a female attorney's strange project.”
30
The New York Daily Tribune held
it “a ridiculous thing for the State to prosecute with one hand and defend with the other the violation of
its own statutes.”
31
Though it made a splash in the popular and professional press, the Foltz defender bill did not
pass anywhere in 1897. Within a year, she had left New York and by the end of the decade was
back in San Francisco practicing oil and gas law. After the earthquake and fire in 1906, she
moved to Southern California for the rest of her life.
32
Whatever else she was doing, and
20
Foltz, Public Defenders, supra note 9, at 397.
21
The statute was entitled “An act to create the office of Public Defender, provide for his election, define his duties,
and fix his compensation in the several counties, and cities and counties of New York.” Public Defender Bill of
1897, § 1, printed in 55 A
LB. L.J. 66, 67 [hereinafter Appendix, Public Defender Bill].
22
Foltz, Public Defenders, supra note 9, at 393.
23
See, e.g., Mrs. Clara Foltz urges the appointment of a public defender: Hearings on Bills before the New York
Judiciary Committee; Public Defenders, N.Y.
DAILY TRIB., Jan. 25, 1897, at 6; A Bill for a Public Defender, ALB.
EVENING J., Jan. 21, 1897; N.Y. TIMES, Jan. 22, 1897, at 4; How Mrs. Clara Foltz Would Provide Counsel for Those
Who Are Too Poor to Employ a Lawyer, B
ROOKLYN EAGLE, Jan. 23, 1897, at 7; EVENING TIMES (Trenton, NJ), Jan.
25, 1890 (discussing the likelihood of the measure’s success in New York); Allen, supra
note 10 (recounting Foltz’s
story of taking the bill to Albany).
24
Editor’s Note, 55 ALB. L. J. 66, 67 (1897).
25
Id. at 67. The Chicago Legal News, which had reprinted Foltz’s speech, also printed the statute. Public Defenders,
29 C
HI. LEGAL NEWS, Jan. 30, 1897, no. 23, at 191.
26
Foltz, Public Defenders, supra note 9, at 393 & n.2.
27
Id. at 393 & n.1.
28
Editorial, Public Defenders, HARV. L. REV., supra note 10, at 514.
29
Id.
30
N.Y. TIMES, supra note 23, at 4.
31
Public Defenders, N.Y. DAILY TRIB., supra note 23, at 6.
32
Barbara Allen Babcock, American National Biography Online, “Clara Shortridge Foltz” entry,
http://www.anb.org [hereinafter American National Biography]. In the criminal justice field, Foltz was also the first
woman named to the State Board of Charities and Corrections, serving from 1910-1912. N
OTABLE AMERICAN

8
wherever she was, however, Foltz continued to lobby for the public defender. By 1912, she
claimed to have personally introduced the statute in sixteen states;
33
her last count, a decade
later, was thirty-two.
34
She also took credit for the first public defender office established in Los Angeles in 1913, an
outgrowth of the Progressive movement, which bloomed early in California.
35
Founded on the
belief that efficient government programs could solve most human problems, Progressivism fit
well with the idea of public defense, and one movement rose with the other.
36
In 1919, when
Reginald Heber Smith wrote the first history of public defense in Justice for the Poor,
37
he
described it as largely a Progressive reform (though he credited Foltz with originating the idea
and used some of her arguments in its favor).
38
According to Smith, the public defender movement took off from the early success of the Los
Angeles office. After 1914, he described “a flood of articles” committees, studies, and “a large
WOMEN: A BIOGRAPHICAL DICTIONARY COMPLETING THE TWENTIETH CENTURY, Foltz entry at 643 (Susan Ware,
ed. 2004).
33
“Sister of Men” Has Fought Battles of Women; Now Runs for Judge, FORT WAYNE SENTINEL, June 26, 1912
(crediting Foltz with the introduction of the public defender in sixteen states).
34
SHUCK, supra note 10, at 109 (recording that Foltz pioneered the movement for the establishment of the office of
Public Defender, authored bills introduced in the legislature of thirty-two states, and had public defender included in
Los Angles charter in 1911, and in state-wide legislation in 1921).
35
Id.; On Progressivism, all standard American histories cover it and there are many biographies on individual
reforms and reformers. Books I found most useful, R
ICHARD HOFSTADER, THE AGE OF REFORM: FROM BRYANT TO
F.D.R. (1955); ROBERT H. WIEBE, THE SEARCH FOR ORDER: THE MAKING OF AMERICA (1967); WILLIAM L.
O’NEILL, THE PROGRESSIVE YEARS, AMERICA COMES OF AGE (1975). On the California progressives, see GEORGE
E. MOWRY, THE CALIFORNIA PROGRESSIVES (1951) (providing the classic account of the California movement);
CALIFORNIA PROGRESSIVISM REVISITED (William Deverell & Tom Sitton, eds., 1994) (offering a splendid collection
of essays taking issue with Mowry on various accounts); RICHARD COKE LOWER, A BLOC OF ONE THE POLITICAL
CAREER OF HIRAM W. JOHNSON (1993) SPENCER OLIN, JR., CALIFORNIAN’S PRODIGAL SONS: HIRAM JOHNSON AND
THE
PROGRESSIVES 1911-1917 (1968) (same). Though public defense was a typical progressive-type reform, none of
the standard accounts and sources treat it at all.
36
Thomas A. Green gives a wonderful account of legal Progressivism in Freedom and Criminal Responsibility in
the Age of Pound: An Essay on Criminal Justice. 93 M
ICH L. REV. 1915 (1995). [hereinafter Green, Age of Pound.]
He describes the focus of the Progressives on inefficiency rather than injustice, and the founding of The Journal of
Criminal Law and Criminology. “The reformist writing of the early-to-mid teens ranged over every stage of criminal
justice administration: investigatorial technique, prosecutorial bureaucracy; trial procedure, including inter alia, the
rules of evidence, the role of the judge, and the scope of the jury’s authority; and—most importantly—penology and
the treatment of the insane, the feeble-minded, and juvenile offenders.” Id. at 1951. Though the Public Defender
idea was not one Pound seems to have mentioned, The Journal included a number of articles about the public
defender. See notes 40, infra.
37
SMITH, JUSTICE FOR THE POOR, supra note 10, at 109 n. 6, 110 n.4, 110-111 n.1 & text. Smith suggested that the
public defender originated in the late eighteenth century and cited Benjamin Austin, (Honestus, pseudonym)
Observations on the Pernicious Practice of the Law, (1814, first published in 1786). Id. at 115-116. Though Austin
does call for an “Advocate General” for all defendants, this figure was part of a larger scheme to do away with
adversary lawyering altogether. After Benjamin Austin proposed it, Smith says, the idea was “revived and by 1896
legislation pointing toward public defense had been introduced in a dozen states.” Id. at 116. For this proposition, he
cites Foltz's law review article at 31 American L. Rev, but spells her name as Fultze and does not otherwise identify her.
38
SMITH, JUSTICE FOR THE POOR supra note 10, at 110-111 n.1 & text (crediting Foltz but cruelly misspelling her
name two different ways).

9
number of bills” in the state legislatures.”
39
An annotated bibliography published in 1924 had
110 entries on the public defender, almost all in the 1914-1924 decade.
40
From the Smith study, and the articles in the bibliography, the Progressive public
defender emerges, and shows himself different in important ways from the figure that
Clara Foltz first imagined.
41
Instead of an equal adversary representing everyone, the
Progressive defender would focus on the indigent accused. He would be an officer of the
court protecting the innocent and pleading the guilty. Even when he went to trial, the
Progressive defender would present the evidence in a balanced and fair way—his interest
not solely that of the client, but of truth and justice, which entitled him to the same
respect accorded the prosecutor. As a leading Progressive proponent put it: the public
defender would not “pervert justice by trying to acquit a guilty defendant as private
counsel do.”
42
Foltz’s model was a capable jury lawyer; in contrast, many legal elites and Progressive
academics thought juries and the lawyers who played upon them were part of the
problem.
43
To these thinkers, public defense was less a solution in itself than a segment
of a more generalized reform of the entire criminal justice system. They would focus on
the criminal rather than the crime, on treatment rather than punishment, on cooperation
rather than on adversary presentation.
44
The early reports of the Los Angeles office reveal its difference from Foltz’s original vision, as well as
the successes that inspired imitation. Just as Foltz had predicted when she introduced her bill some
twenty years earlier, the public defender almost immediately eradicated “the shyster and swindling
39
SMITH, JUSTICE AND THE POOR, supra note 10, at 116.
40
A. Mabel Barrow, Public Defender: A Bibliography, 14 J. OF AM. INST. OF CRIM. L. 556, 556 (1924). Barrow lists
two bibliographic references, four books, nineteen general articles, seventy-one favorable articles, and fourteen
opposition articles. All of them (with the exception of Foltz’s articles) were published after 1909. Id. Perhaps most
striking is that Barrow fails to mention Smith, or other writings on the Legal Aid movement because she did not
understand its connection with the public defender. See text at notes 62-69 infra.
41
Reginald Heber Smith, who wrote the first history of public defense, supra note 10, was also co-author of the
report summing up the Progressive movement for public defense. Reginald Heber Smith & John S. Bradway,
Growth of Legal Aid Work in the United States, Bureau of Labor Statistics, U.S. Dept. of Labor, Bulletin No. 398, at
57 (1926). The picture of the Progressive defender summed up here and in the text at notes infra, largely depends on
Smith and Bradway, id., Smith, supra note 10, and Goldman, infra note 43. See also E
STHER LUCILE BROWN,
LAWYERS AND THE PROMOTION OF JUSTICE 253-59 (1938). In this study commissioned by the Russell Sage
Foundation more than a decade later, the author gives the same basic story of the public defender history as Smith
and Bradway and treats it still as a rare but promising innovation.
42
Mayer C. Goldman, Public Defenders for the Poor in Criminal Cases, 26 VA. L. REV. 275, 280 (1939-40).
43
Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, in REPORT OF THE
TWENTY-NINTH ANNUAL MEETING OF THE AMERICAN BAR ASSOCIATION 404-05 (1906) (decrying the “sporting
theory” of justice); Green, Age of Pound, supra note 36, at 1968-69 (Pound’s opposition to adversarial advocacy);
Michael McConville & Chester L. Mirsky, Understanding Defense of the Poor in State Courts: the Sociological
Context of NonAdversarial Advocacy, 10 S
TUD. IN L., POL. & SOCIETY 217, 223 (1990) (describing the progressives
position against adversarial advocacy);
44
Green Age of Pound, supra note 36, at 1970-76; Maurice Parmelee, Public Defense in Criminal Trials, 1 J. AM.
INST. CRIM. L. & CRIMINOLOGY 735 (May 1910-Mar. 1911); Maurice Parmelee, New System of Criminal Procedure,
4 J. A
M. INST. CRIM. L. & CRIMINOLOGY 359 (May 1913-Mar. 1914).

10
riffraff of the legal profession” from the courts.
45
Other systemic evils Foltz had described in her
speeches and writings were also decreased: conviction of the innocent, guilty pleas by the confused,
neglect by court appointees, and unfair and vindictive prosecution.
46
To Foltz’s arguments that the introduction of capable defense counsel would reform the system,
the Progressives added a strong pitch that it would also save money.
47
Cost-effectiveness was a
talking point for the Progressive defender in a way impossible for Foltz to claim.
48
The Los
Angeles defender boasted, for instance, of obtaining a light sentence on a guilty plea by showing
that his client was starving and seeking work when he stole.
49
Though this representation cost
more than an appointed lawyer who would plead without investigation, it was a lot less
expensive than Clara Foltz’s defender who might well take these appealing facts to a jury.
Another example from Los Angeles was a murder case in which insanity was the only possible
defense.
50
Instead of employing competing psychiatrists (“alienists” as they were called), the
prosecutor and defender joined in requesting the court to choose three experts who would be
equally available to both sides. Foltz’s defender would be at least troubled by the possibility that
this arrangement could effectively destroy any jury defense (if all three found the client sane).
51
Yet another case of Progressive-type representation came from Connecticut, where the public
defender represented a stranger to the town, accused of killing a popular local priest.
52
There
were eyewitnesses, a gun with one bullet missing, and a confession. Yet the public defender
believed him innocent and proclaimed as much to the press, resulting in further investigation by
the district attorney.
53
It turned out that the confession was coerced and false, the bullet no
match, and the eyewitnesses unreliable. “An innocent man . . . was saved by the lawyerlike work
of the defender and also, let us remember, by the cordial and thorough cooperation of the
prosecuting attorney,” said a report describing this performance as a model of public defense.
54
45
SMITH, JUSTICE AND THE POOR, supra note 10, at 123 (citing The Place of the Public Defender in the
Administration of Justice, infra note 323, at 14); Walton J. Wood, Unexpected Results from the Establishment of the
Office of Public Defender, 7 J.
AM. INST. CRIM. L.& CRIMINOLOGY 595 (May 1916-Mar. 1917) (noting “jail lawyer”
has been “eliminated” in L.A.). See e.g., B
ROOKLYN EAGLE, Jan. 23, 1897 (quoting Foltz’s reference to “shyster and
swindling riffraff when introducing the bill); Appendix, Public Defender Bill, supra note 21 (same).
46
Foltz, Public Defenders, supra note 9; Foltz, World’s Fair Speech, supra note 9.
47
Smith & Bradway, supra note 41, at 58 (“the defender plan serves the defendant just as well as the paid assigned
counsel plan and is inherently a more efficient and more economical method for getting the necessary work done”).
48
Foltz claimed some cost-savings from the public defender’s single calendar and criminal expertise. Public
Defenders, supra note 9, at 401. But her full-service defender for all who asked was expensive. For her argument on
cost see infra, notes 88, 283, 301.
49
Walton Wood, The Place of the Public Defender in the Administration of Justice, 5 J. OF CRIM. L. 5, 6 (1914)
(described in S
MITH, JUSTICE AND THE POOR, supra note 10, at 118-119).
50
The Office of the Public Defender in Los Angeles, 3 J. CRIM. LAW & CRIMINOLOGY 441, 442 (1914).
51
The Foltzian defender might try for a procedure which we used in Washington D.C. when I was a public defender
in the 1960s. In cases where a mental examination showed the defendant to be insane, the prosecutor would agree to
an uncontested insanity defense. The procedure went like this: both sides waived jury trial; the defense would
stipulate to the government’s case against him in an agreed upon statement of facts (saving the government large
sums); a psychiatrist would testify to the elements of the insanity defense (without adversary cross-examination).
52
Smith & Bradway, supra note 41, at 44-45.
53
Id. at 44.
54
Id. at 45.

11
Again, though a Foltzian defender would certainly negotiate with the district attorney, it is not
clear she would completely forego the trial advantage from surprise should the prosecutor be
unconvinced.
55
And what does the defender’s public proclamation of innocence say about his
client in the next case? By Progressive lights the question was irrelevant because the public
defender would not be committed to the concerns of individual clients, but to the public interest;
not to obtaining the best possible result for each accused, but to making the system fair and
impartial.
The different visions—individual advocate versus Progressive public servant—drove much of
the debate about defenders in the decade or so in which it was a hot topic. Nowhere did the
arguments on each side play out more plainly than in New York. On the Progressive defender
side was Mayer Goldman, who wrote the first book on Public Defenders and devoted his career
to the subject.
56
Goldman’s defender had twin duties: “to protect the innocent” and “to see that
the guilty is fairly punished—not over-punished.”
57
He would not go to trial with a defendant he
thought was guilty.
58
To those who carped that the public defender should represent everyone, Goldman responded
that private counsel could refuse to defend the guilty, and prosecutors to charge the innocent, so
why shouldn’t the public defender have the same option?
59
Perhaps because his defender was so
different from Foltz’s, Goldman never mentioned her name.
60
Clara Foltz did not speak of him
either.
Goldman’s active antagonists were less opposed to the idea of providing counsel for poor people
than they were to making the function public and non-adversarial.
61
Confusingly enough, each
55
Foltz’s defender, presuming all clients innocent, would investigate the case herself and then negotiate with the
prosecutor having the favorable evidence in hand.
56
MAYER C. GOLDMAN, THE PUBLIC DEFENDER, A NECESSARY FACTOR IN THE ADMINISTRATION OF JUSTICE,
(1917) [hereinafter GOLDMAN, THE PUBLIC DEFENDER]. Goldman published numerous articles about the public
defender, and lobbied for it repeatedly in the New York legislature. The book’s preface describes his campaign and
the opponents in general terms. Id. at vii-ix. Obituary for Mayer C. Goldman, N
EW YORK TIMES, Nov. 25, 1939. See
also Goldman, Public Defenders for the Poor in Criminal Cases, supra note 42.
57
GOLDMAN, THE PUBLIC DEFENDER, supra note 56, at 8.
58
See Goldman, Public Defenders for the Poor in Criminal Cases, supra note 42. Smith’s Justice And The Poor,
says questions about defending the guilty “always obtrude themselves,” and are mostly “philosophical and ethical in
nature.” S
MITH, JUSTICE AND THE POOR, supra note 10, at 120.
59
GOLDMAN, THE PUBLIC DEFENDER, supra note 56, at 66-67. Goldman would not turn away the guilty defendant
altogether, but would represent him “properly” by pleading him guilty. Id. at 66. See also
SMITH, JUSTICE AND THE
POOR, supra note 10, at 120-121 (going to trial with guilty defendant is matter of individual ethics—generally public
defender will not use “trickery or falsehood”).
60
GOLDMAN, THE PUBLIC DEFENDER, supra note 56, at 87-96. See also Appendix: Chronology of the Public
Defender, id., (first entry is founding of LA public defenders office in 1913 and there is no mention of Clara Foltz).
As to earlier history, Goldman mentioned ancient Rome, medieval Spain, some nineteenth century European
examples of provision for the criminally accused. G
OLDMAN, THE PUBLIC DEFENDER, supra note 56, at 9-11; see
also
Mayer Goldman, The Necessity for a Public Defender, 4 WOMEN LAWYERS’ J. 1, 40 (1915) (calling on women
to be interested in the reform and show Progressive spirit; also mentions woman assistant in LA defender although
no mention of Foltz).
61
See e.g., Henry A. Forster, Reply to Robert Ferrari, On the Public Defender: A Symposium, 6 J. AM. INST. CRIM.
L. & CRIMINOLOGY 378, 382 (May 1915-March 1916) (opposing the creation of a public defender office); Fifth
Report of the Law Reform Committee of the New York City Bar Association on The Necessity and Advisability of
Creating the Office of Public Defender 19-23 (1915) (also opposing the idea) (cited in Forster, id. at 383 and cited in

12
side in the New York debate claimed the Legal Aid Society, as its ancestor and model. The
Society was a private charity, which had started before the Civil War to assist German
immigrants.
62
By the mid-seventies, however, it had focused on legal needs, and spread to other
nationalities and to other cities.
63
Legal Aid Society lawyers helped poor immigrants cope with cheating employers, slum
landlords and predatory lenders.
64
They went to court only as a last resort—mostly they
negotiated and conciliated and educated. In many ways, Mayer Goldman’s version of the public
defender was a replica of the Legal Aid Society representation, and some people thought Legal
Aid should just add criminal cases to its docket. A few Societies did just that.
65
But the flagship
New York office, recognizing that the criminal work could well absorb all its resources
sponsored a spin-off organization, the Voluntary Defenders.
66
Private lawyers donated their services for adversarial individual representation on the Foltzian
model. Goldman’s opponents argued that the Voluntary Defenders were superior because they
would give the poor the same defense that the wealthy had.
67
Others urged that the state should
not be in the defense business, and yet others believed it was the non-delegable responsibility of
SMITH, JUSTICE FOR THE POOR, supra note 10, at 114 n.1); Minority Report, 5 J. OF CRIM. L. & CRIMINOLOGY 660
(1915); SMITH, JUSTICE AND THE POOR, supra note 10, at 105-107 (providing an excellent description of New York
contest, though not in terms of a Progressive defender versus an adversary advocate).
62
SMITH, JUSTICE FOR THE POOR, supra note 10, at 106-07. See also J. P. SCHMITT, HISTORY OF THE LEGAL AID
SOCIETY OF NEW YORK: 1876-1912 3 (noting “public-spirited American citizens of German birth” founded legal aid
society in New York in 1876); HARRISON TWEED, THE LEGAL AID SOCIETY: NEW YORK CITY 1876-1951 7 (1954);
Arthur V. Briesen, The Legal Aid Society, 1 L
EGAL AID REV. 2 (providing a short history of the New York legal aid
society); Smith & Bradway, Growth of Legal Aid Work, supra note 41, at 51; JAMES ARTHUR MAGUIRE, THE LANCE
OF JUSTICE 269-276 (1928) (describing Legal Aid History and Voluntary Defenders spin-off); EQUAL JUSTICE FOR
THE
ACCUSED, A SPECIAL COMMITTEE OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK AND THE
NATIONAL LEGAL AID AND DEFENDER ASSOCIATION 43(1959) [hereinafter EQUAL JUSTICE FOR THE ACCUSED].
63
KATE HOLLADAY CLAGHORN, THE IMMIGRANT’S DAY IN COURT 479 (1923) (noting that in the year 1916, there
were forty-one Legal Aid Societies in thirty-seven cities).
64
Id. at 468-509 (excellent contemporary description of the type of cases).
65
MAGUIRE, supra note 62 (noting that New York Legal Aid originally designed to take criminal cases, but never
did take a real volume). See L
OS ANGELES COUNTY CHARTER, § 23 (June 1913); Elmer J. Miller, A New Departure
in County Government: California’s Experiment with Home Rule Charters, 7 A
M. POL. SCI. REV. 416 (1913) (“The
most unique of all of these officers, however, is the public defender. . . . He must defend poor persons in civil suits if
he thinks they are being persecuted or unjustly treated.”).
66
See Smith & Bradway, Growth of Legal Aid Work, supra note 41, at 51; MAGUIRE, supra note 62, at 269-276
(describing Legal Aid History and Voluntary Defenders spin-off); E
QUAL JUSTICE FOR THE ACCUSED, supra note 62,
at 43-45. At first the Voluntary Defenders were a group of prominent lawyers who donated their services. But later
they added an office that supported and investigated the cases, backing up the volunteers Id. S
MITH, JUSTICE FOR
THE
POOR, supra note 10, at 106. Later still, the Voluntary Defenders were absorbed back into the Legal Aid
Society; Smith & Bradway, Growth of Legal Aid Work, supra note 41, at 51.
67
See, e.g., Henry A. Forster, supra note 61, at 382 (May 1915 - Mar. 1916) (opposing the creation of a public
defender office) and other sources cited supra note 28, 30.

13
the profession to aid the destitute and oppressed.
68
In the end, the Voluntary Defenders beat out
Mayer Goldman’s Public Defender in New York
69
Foltz herself did not address the difference between the Progressive model and her original idea.
Maybe she agreed with the shift, or thought it one of emphasis only (and maybe it was). At any
rate, the Progressives established the Public Defender as a working institution, and she surely
approved of that. Twelve public defender offices were founded between 1914 and 1926.
70
Moreover, as a result of the stir about conditions in the courts and the need for lawyers, some
jurisdictions that did not adopt a public defender, did start providing payment for appointed
counsel.
71
Another outgrowth of all the activity and debate around public defenders in the Progressive era
was widespread acceptance of the principle that defense lawyers were necessary to a fair trial;
and even that the government was responsible for providing them. The United States Supreme
Court held as much in the Depression-era case that became a cause celebre: Powell v.
Alabama.
72
Young black men riding the rails looking for work were charged with raping two
white women, who had also been on the train. Even though the trial court appointed all the
attorneys in Scottsboro to see to their rights, and one lawyer volunteered his individual efforts,
the Supreme Court found that the defendants were effectively denied counsel. Calling the right to
counsel one of “those ‘fundamental principles of liberty and justice which lie at the base of all
our civil and political institutions,’”
73
the Court required more than the perfunctory
representation provided in this case.
The opinion emphasized the state’s duty toward those who are friendless, despised and ignorant
of their rights when they come to court.
74
Though it said nothing of public defense, Powell set
the stage for Gideon.
75
I like to imagine Clara Foltz, reading the case in 1932 just two years
before her death and recalling that she had first recognized both the evils and the efficacy of
counsel to cure them.
68
Public Defenders, WASH. POST, Feb. 12, 1897 (predicting “we shall see the best lawyers volunteering to defend
the poorest defendant—competing for the honor of such service” without forcing the bar to take on the ethical
responsibility).
69
Smith & Bradway, Growth of Legal Aid Work, supra note 41, at 51; MAGUIRE, supra note 62, at 253-282; THE
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, FIFTY REPORT OF THE LAW REFORM COMMITTEE (1915)
(opposing Goldman proposal and saying that it is not such a new idea; referring to Foltz’s bill, but not by name).
70
Smith & Bradway, Growth of Legal Aid Work, supra note 41, at 53; Warren F. Spaulding, State Provision for
Defending Poor Persons Accused of Crime, 10 J.
CRIM. L. & CRIMINOLOGY 618, 618 (1920) (noting that eight
jurisdictions had passed public defenders though only one was state-wide; sixteen states provided compensation for
appointed counsel, and twenty-six appointed counsel but did not pay them). See also Betts v. Brady, 316 U.S. 455
(1942) (holding no due process right to counsel; dissent notes that all but nine states have provided for it through
statute or court opinion).
71
Smith & Bradway, Growth of Legal Aid Work, supra note 41, at 53; W. Spaulding, supra note 70, at 618.
72
Powell v. Alabama, 287 U.S. 45, 47 (1932).
73
Id. at 67 (citing Hebert v. State of Louisiana, 272 U.S. 312).
74
Id.
75
Gideon v. Wainwright, 372 U.S. 335 (1963).

14
Sources and Forces Shaping the Public Defender Idea
I deplore the fact that the law does not provide for a public defender as well
as a public prosecutor. Do you think this poor innocent man would have
applied to a woman to defend him if he had money to pay some
distinguished male member of the bar?
- Clara Foltz: Summation in People v. Wells, 1892.
76
First Woman Experiences
When Clara Foltz spoke at the World’s Fair in 1893, she was one of a tiny band of women
lawyers in the country—208 according to the 1890 census.
77
Most of them were, like their
20,000 or so male counterparts, local practitioners, hardly known beyond the courts in which
they appeared.
78
Clara Foltz, by contrast enjoyed a nationwide reputation. Her celebrity had
started with her entry to the Bar, and subsequent efforts to attend law school in northern
California in the late 1870s.
79
Deserted by her husband in the midst of an economic depression, Clara Foltz turned to law as a
way to support her five children (“none old enough to earn the milk it drank” as she often
said).
80
She first led an effort to change the California Code, which provided that only white
76
THE CALL (San Francisco, CA), October 15, 1892 (Foltz’s closing argument in People v. Wells, see infra text 20-
22 and infra, notes 116-124).
77
Calculated from the U.S. Bureau of the Census, Eleventh Census, vol. 1, pt. 2, p. ci. For a table charting the
decennial growth of women and men lawyers from 1870-1960, see V
IRGINIA G. DRACHMAN, SISTERS IN LAW:
WOMEN LAWYERS IN MODERN AMERICAN HISTORY 253, tbl. 2 (1998).
78
DRACHMAN, supra note 77; Barbara Allen Babcock, Feminist Lawyers 50 STAN. L. REV. 1689, 1694-95 (1998)
(reviewing D
RACHMAN, id.) [hereinafter Babcock, Feminist Lawyers]; Barbara Allen Babcock, Making History:
Lelia Robinson’s Index to American Women Lawyers, 2 GREEN BAG 65 (1998) (introducing reprint of Lelia J.
Robinson, Women Lawyers in the United States, (1890) a woman lawyer’s collection of biographies of 120 women
lawyers); Kathleen E. Lazarou, ‘Fettered Portias’: Obstacles Facing the Nineteenth-Century Women Lawyers, 64
W
OMEN LAW J. 21, 28 (1978). Ada M. Bittenbender, Woman in Law, CHI. LAW TIMES 11, 301-02 (1888); WOMAN’S
WORK IN AMERICA (Annie Nathan Meyer ed., 1891); INEZ HAYNES IRWIN, ANGELS AND AMAZONS: A HUNDRED
YEARS OF AMERICAN WOMEN (1933); Admission of Women to the Bar, CHI. LAW TIMES 76 (Nov. 1886); D. KELLY
WEISBERG, BARRED FROM THE BAR: WOMEN AND LEGAL EDUCATION IN THE UNITED STATES, 1870-1890; 2 WOMEN
AND THE
LAW: A SOCIAL HISTORICAL PERSPECTIVE 231 (D. Kelly Weisberg ed., 1982). The Women’s Legal History
course and website at Stanford are producing and collecting biographical accounts of the pioneer women lawyers in
American. See http://womenslegalhistory.stanford.edu
.
79
Foltz was admitted to the Bar in September, 1878. Clara Shortridge Foltz: “First Woman” 30 ARIZ. L. REV. 673
(1988), reprinted with a new introduction in 28 VAL. U.L. REV. 1231, 1262 (1994) [hereinafter Babcock, First
Woman, page citations to Valparaiso University Law Review]; Barbara Allen Babcock, Clara Shortridge Foltz:
Constitution-Maker, 66 I
ND. L.J. 849 (1991) [hereinafter Babcock, Constitution-Maker]; American National
Biography Online, supra note 32.
80
Barbara Allen Babcock, Reconstructing the Person: The Case of Clara Shortridge Foltz, in REVEALING LIVES 131
(Susan Groag Bell & Marilyn Yalom eds., 1990) (describing Foltz’s marriage and divorce); Clara Shortridge Foltz,
The Struggles and Triumphs of a Woman Lawyer, N
EW AMERICAN WOMAN, ch. 24 (Mar. 1918) (In her monthly
autobiographical column, Foltz refers to her “five children—none of whom could swim alone, nor yet was old
enough to earn the milk it drank.”) [hereinafter Foltz, Struggles]

15
men of good character could be lawyers.
81
Then Foltz used the newly minted statute herself, to
the accompaniment of nationwide publicity dubbing her the Portia of the Pacific.
82
The first-woman hyperbole had hardly passed before the next wave of publicity gathered
around Foltz’s effort to attend the newly-established Hastings Law School.
83
Refused because
she was a woman, she did what any lawyer in her position would do. She sued Hastings,
successfully arguing that it was part of the University of California, co-educational since its
founding.
84
For good measure, Foltz and her suffrage friends lobbied through an amendment to
the California Constitution making the Women Lawyer’s Bill part of the fundamental law. It
was the first such clause in any American constitution.
85
Foltz’s story, well known in her day, gave her credibility. Having surmounted almost
inconceivable barriers herself, she could hardly be dismissed as a mere theorist, an overly
sympathetic female, or one ignorant of the harsh realities. But where did she get the idea in the
first place? How did a seriously undereducated single mother of five living in the far-West long
before women had the vote, conceive an entirely new way to practice law?
The most important influence was her own experience as a woman lawyer. Joining the Bar was
only the beginning of Foltz’s struggle to earn a living at law. For anyone without independent
wealth or family connections, starting a practice was hard going.
86
For a woman lawyer,
especially one practicing without a husband, father or brother, it was almost impossible, at least
initially, to attract paying clients. In her first years of practice, Clara Foltz mostly helped
dependent women obtain divorces and represented poor people charged with crime.
87
At least with the divorce cases, there was a chance of a fee if she could win a property
settlement for the wife. But only the most destitute criminals were desperate enough to turn to a
woman lawyer and in fact at first many of Foltz’s poor criminal clients did not choose her, but
received her services by court appointment.
88
When she appeared in court for her criminal
81
Babcock, First Woman, supra note 79, at 1261 (discussing Foltz’s oral bar examination and her unanimous
certification).
82
See, e.g., The Tuneful Clara, LOS ANGELES TIMES, Nov. 12, 1888, at 2 (calling Foltz the “fair-browed Portia of
the Pacific Coast”); Woman at the Bar, The First Female Lawyer of the Pacific Coast, S
AN FRANCISCO CHRONICLE,
Jan. 30, 1879, at 3; N.Y.
TIMES, Sept. 27, 1878, at 4.
83
Babcock, First Woman, supra note 79 (describing in detail the Hastings suit). See also Babcock, Constitution-
Maker, supra note 79 at 889-91; .
Mortimer D. Schwartz, Susan Brandt, & Patience Milrod, Clara Shortridge Foltz:
Pioneer in the Law, 27 H
ASTINGS L.J. 545 (1976); THOMAS BARNES, HASTINGS COLLEGE OF THE LAW: THE FIRST
CENTURY 46-47 (1978).
84
Foltz v. Hoge, 54 Cal.28 (1879).
85
CAL. CONST. art. XX, § 18 (1879) (“No person shall, on account of sex, be disqualified from entering upon or
pursuing any lawful business, vocation, or profession.”). Babcock, Constitution-Maker, supra note 79, has a detailed
account of the women’s lobbying efforts.
86
GORDON MORRIS BAKKAN, PRACTICING LAW IN FRONTIER CALIFORNIA 8-14 and passim; Babcock, Women
Defenders in the West, 1 N
EV. L.J. 1, 1 2 (2001) (describing early practice) [hereinafter Babcock, Women
Defenders].
87
Babcock, Women Defenders, supra note 86, at 12-13; Babcock, Feminist Lawyers, supra note 78, at 1701 (1998).
88
Id. By the late nineteenth century, most courts appointed lawyers to serve those charged with felonies who were
unable to pay their own counsel. See supra notes 284-85 and accompanying text. Carpenter v. County of Dane, 1859
WL 2840 (Wis. 1859) held that the government must pay appointed counsel, even in the absence of a statute. The
obligation of the government to provide free counsel for the indigent was rejected early on in California, however,

16
clients, Clara Foltz found a male bastion second only to the polling place. She wrote that the
courtroom had “degenerate[d] into an arena,” where “acrimonious contests” were waged
between “men striving for verdicts.”
89
Though actual physical blows, bawdy stories, and oft-missed spittoons were waning in the
“Wild West,” still courtrooms were places nice ladies simply did not go.
90
Clara Foltz once
described how a lone woman felt in the courthouse, “faced by a male judge, flanked by a male
jury, surrounded by male lawyers generally, with a male clerk and bailiff, and a mob of male
bipeds in the lobby. . . . .A woman, especially if she is a timid one, is at a terrible disadvantage
in such a place.”
91
As an outsider and newcomer to the criminal courts, Foltz saw the injustices ignored by the
regulars, who she said were “deadened in feeling by constant contact.”
92
As a woman, she
observed such telling details as “the soiled linen, the whiskey breath”
93
of the shyster as well as
innocents “too dazed to understand their rights and legal position.”
94
She also saw the
incompetent appointed lawyers at work.
It was not a great mental leap from Foltz’s first-hand observations to the idea that the
government was responsible for a fair presentation of both sides of the case. When Foltz spoke
about the public defender, all the underdog clients and the lone woman experiences of the last
fifteen years figured in her formulation. Precisely because she had been there, she knew it would
change everything for the criminally accused to be represented by a lawyer endorsed by the state
and backed by its full resources.
At the same time she spoke of justice for the accused, however, Foltz’s subtext was equal
treatment for women lawyers in the courtroom. Too often she had found herself on trial, along
and the refusal reaffirmed just a few years before Foltz joined the Bar: “Such a promise, however, cannot be implied
where it is the duty of the attorney to perform the services when called upon by the Court to do so. It is ‘part of the
general duty of counsel to render their professional services to persons accused of crime who are destitute of means,
upon the appointment of the Court, when not inconsistent with their obligations to others.’ This view was announced
here some fourteen years since in Rowe v. Yuba County, 17 Cal. R. 62, and no change of the rule has been effected
by subsequent legislation or judicial decision brought to our notice.” Lamont v. Solano Co., 49 Cal. 158, 159 (1874)
(quoting Rowe v. Yuba Co., 17 Cal. 61 (1860)). T
HOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL
LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION §334 (1st ed.
1868); W. Spaulding, supra note 70.
89
Foltz, World’s Fair Speech, supra note 9, at 250 (1893).
90
In the commentary after Foltz’s speech at the Congress, the improvement in the atmosphere of the western courts
was commented on by a member of the audience: “Court jokes, bawdy stories, and badgering witnesses in the West
have largely passed away.” Lockwood, supra note 14.
91
SAN FRANCISCO CHRONICLE, Sept. 2, 1894 (Foltz who was speaking of a woman litigant, though the quote was
equally applicable to herself as the lone woman lawyer.).
92
“Every lawyer not deadened in feeling by constant contact has seen and felt these evils a score of times, and every
reader knows of them in a dim half-conscious way; but the public mind has long grown callous and insensible to
them.” Foltz, Public Defenders, supra note 9, at 393.
93
Clara S. Foltz, On Lawyers, SAN FRANCISCO CHRONICLE, Oct.15, 1892; THE DAILY EXAMINER (San Francisco, CA),
Apr. 11, 1885, at 2.
94
Foltz, World’s Fair Speech, supra note 9, at 393.

17
with her clients.
95
Prosecutors reacted harshly to what they saw as the unsporting advantage she
had with the all-male juries.
96
Irrationally, they also experienced it as a peculiar humiliation to
lose to a woman.
97
Some prosecutors routinely attacked both Foltz and her client—him for his
alleged crime and her for doing the dirty, unfeminine work of representing criminals.
98
While suffering these personal attacks as plain Mrs. Foltz, she imagined a titled government
official –herself perhaps—of equal status with the prosecutor. A public defender would elevate
the representation of the criminally accused so that all reputable lawyers, especially women,
could do the work without risking personal opprobrium.
Unfair Prosecutors
In addition to equalizing the sides, Foltz’s defender would provide a powerful check on
prosecutorial misconduct. Based on her observations and experience, Foltz believed that the
prosecutors had lost their sense of mission, and that only an equal adversary could assure
fairness in the courts. Her picture of the failed public prosecutor was almost as arresting as her
image of a public defender.
99
Joining the two – the one necessitating the other—was something
entirely new.
100
Her bold theory arose first from one of her own appeals setting an important precedent on
prosecutorial misconduct. She also drew on two mid-nineties New York trials in which the
district attorney exceeded all bounds in an apparent effort to put the first woman in the electric
95
Barbara Allen Babcock, Western Women Lawyers, 45 STAN. L. REV. 2179, 2185 (1993) (relating Foltz’s
responses to these kinds of attacks); Babcock, First Woman, supra note 79, at 689 nn.80-81, 711 n.197; Babcock,
Women Defenders, supra note 86, at 3-11. See, e.g., S
ACRAMENTO UNION, Jan. 11, 1878; SACRAMENTO RECORD-
UNION, Feb. 26, 1878, at 1 (containing argument against bill that would allow women to become lawyers); DAILY
ALTA, Feb. 25, 1879, at 1. Foltz rebutted such criticism in her column. Foltz, Struggles, supra note 81, at ch. 4 (June
1916).
96
See, e.g., DAILY ALTA, id. (noting that ”if this lady should go before a jury with as good a speech as she made in
her own behalf, she would have an advantage of which the Bar might well complain”); S
ACRAMENTO RECORD-
UNION, supra note 95 (“It is not mere eloquence, nor melodious utterance, nor logical force, nor imaginative
capacity that brings great forensic successes. For want of a better term it is commonly said that lawyers who have
won difficult jury cases are endowed with a mysterious attribute called personal magnetism. Now it is precisely this
mysterious attribute, already well established as an adjunct to men's success at the bar that is objected to when
women are in question.”). Babcock, Women Defenders, supra note 86, at 9-10 and accompanying notes.
97
Babcock, Women Defenders, supra note 86, passim; Babcock, Constitution-Maker, supra note 79, at 923 n.78;
S
ACRAMENTO RECORD-UNION, supra note 95 (“Men are afraid of the competition.”).
98
In an autobiographical column she wrote in her sixties, Foltz described this prosecutorial tactic of using her sex
against her and related her triumphant argument countering the assault. Foltz, Struggles, supra note 80, Oct. 1916, at
11. Babcock, Western Women Lawyers, supra note 95.
99
World’s Fair Speech, Duties, and Public Defenders follow the same pattern of showing that the prosecutor has
departed from his historical role of protecting the rights of defendants, necessitating a public defender. I will quote
from them interchangeably.
100
Foltz’s idea that prosecutorial excess necessitated a public defender is like John Langbein’s thesis that it was the
introduction of prosecutors into the courts, that made defense counsel necessary, and that brought about the
adversarial system of deciding criminal cases. J
OHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL
(2003). It is significant that defense counsel were first introduced in highly politicized treason trials, where the
absence of an advocate for the defense was easily seen as unfair. Clara Foltz did not have available to her the
sources Professor Langbein studied, but she came to much the same conclusion about overzealous prosecutors
establishing the need for defense lawyers.

18
chair. Finally, she collected an in-depth picture of the case law, and published it under the title,
Duties of the District Attorney in Criminal Prosecutions.
101
Foltz opened her attack on the prosecutor by picturing the ideal, a powerful male figure:
“strong of physique, alert of mind, learned in the law, experienced in practice and ready of
speech.”
102
He was “a minister of public justice, aiding the court in a solemn investigation of
crime . . . laying bare the truth, whatever it may be.”
103
In the days before the accused had
counsel or even the right to testify on his own behalf, it was the duty of the State’s attorney to
“produce all the facts both for and against” the accused.
104
Even the judge joined in seeking out
favorable evidence and every defendant in this due process Eden was “fairly treated and
perfectly secured in the benefit of all those rules and maxims of law and evidence . . . necessary
for the protection of the prisoner and the good of the state.”
105
Having set him up, Clara Foltz, a preacher’s daughter, made a gripping sermon of his fall. It
was a tale of power corrupting. “The vanity of winning cases” and “the lust for gold” turned
him into an “indiscriminate public persecutor,” whose motives were mainly his own “interest,
vanity, avarice and fear.”
106
Gone was “that free and impartial investigation which was the
pride and boast of the English law.”
107
Even the prosecutor who had some twinges about trying
a case on weak evidence “soothes his conscience by putting the responsibility on the jury.”
108
Then she said he would turn around and mislead that very jury at every stage of the trial.
Foltz detailed specific practices: the custom in some states of paying prosecutors by the
conviction, for instance. She also denigrated the very common system of joining “hired
counsel” in the prosecution. “[C]ounsel in no sense representing the majesty of a great State,
but rather, the malice of a great prosecuting witness whose pride and vanity urge him to pay for
a conviction.”
109
Even police perjury, not a subject usually discussed in learned discourse, was the fault of the
bad prosecutor.
110
He “brings to his aid a detective and police force ever too ready to forge a
101
Foltz, Duties, supra note 9.
102
Foltz, World’s Fair Speech, supra note 9, at 249.
103
Foltz, Duties, supra note 9, at 415.
104
Foltz, World’s Fair Speech, supra note 9, at 248. And “of the judge to see that his rights were preserved to the
uttermost; so that the judge announced himself as the counsel for the prisoner.” Id.
105
Foltz, Duties, supra note 9, at 416.
106
Id. at 415-16. Other “misperceived” motivations: “to pander to and uphold a friendly police in its frequent
blunders”; “the unfortunate belief, engendered by the office itself apparently (for they all have it after a few years
service) that the accused is always guilty, though the presumption of the law is the other way, and in fact over one-
half are actually found not guilty;” “fear of public criticism if they fail to convict;” and “the money reward of from
ten to one hundred dollars given in many states for each conviction.” Id. at 416.
107
Foltz, Public Defenders, supra note 9, at 395.
108
Id.
109
Foltz, World’s Fair Speech, supra note 9, at 248. Foltz dropped this point from her law review articles, perhaps
because she had continued the hired counsel practice in her statute. See supra text at notes 25-26. Foltz’s reference
here was not to her own experience but to one of her younger brother’s first trials. A judge appointed Sam
Shortridge to represent an indigent Chinese accused of murder. Against him, a neophyte at the Bar, was not only a
seasoned prosecutor, but also two special lawyers employed by the victim’s family.
See SHUCK, supra note 10.
110
Foltz, World’s Fair Speech, supra note 9.

19
missing link in the legitimate testimony.”
111
For authority, Clara Foltz drew first on her own
“experience and observation.”
112
She had seen, for instance, a new policeman admit on cross-
examination that he was “instructed . . . to color his testimony,” and thought that part of his
duty.
113
Other sources she named were a judge, a criminal court lawyer, and a court
stenographer, who “said he never knew a case where a pertinent fact was missing, but what it
could be supplied at the last moment by the police.”
114
Foltz’s main inspiration for the fallen statesman-prosecutor came out of a trial she lost because
of her opponent’s misconduct. In fact, she filed her brief on appeal in that case shortly before
she made her public defender speech at the World’s Fair. The sense of injustice and desire for
vindication any lawyer feels when appealing entered into her speech, as did some of her
arguments. The case was the People of California vs. James E. Wells.
115
- People v. Wells: Foltz’s case
Before his arrest, Wells had been a successful real estate man with an office near Foltz’s in San
Francisco.
But he was in jail and broke when he turned to her for representation. The case
against him involved a forged mortgage given for a large sum in gold, and the question was
whether Wells was a victim or a perpetrator of the fraud. Against Foltz was an experienced
prosecutor determined to defeat the famous woman lawyer.
“Around and behind him [was] an army of police officers and detectives ready to do his
bidding, and before him ... a plastic judge with a large discretion often affected by
newspapers,” as she later described the scene.
116
Foltz objected to the prosecutor’s unfair
conduct at every turn, but lost the verdict. In her forceful appeal, she relied heavily on an earlier
case, People v. Lee Chuck.
117
Lee Chuck was convicted of shooting a countryman on the streets of San Francisco. In a hard-
fought trial, the prosecutor deliberately inserted inadmissible evidence in an offer of proof
made in front of the jury. The California Supreme Court found that even with “due allowance
for the desire of every lawyer to win his case,” the district attorney had fallen below the
standard of fairness and impartiality, and had failed to “remember that it is not his sole duty to
convict…”
118
But they did not reverse the conviction on this ground.
111
Foltz, Public Defenders, supra note 9, at 396. At the World’s Fair, she referred to the “colored testimony and
overawing presence” of the police. Foltz, World’s Fair Speech, supra note 9, at 248.
112
Foltz, Public Defenders, supra note 9, at 396, n.5.
113
Id.
114
Id.
115
People v. Wells, 100 Cal. 459 (1893). The record on appeal in Wells contains some of the trial testimony as well
as the briefs of each side. See, e.g., Brief for Appellant, People v. Wells, 100 Cal. 459. (1893) (Calif. State Archives,
Foltz Archive) (on file with author); Brief for the State, People v. Wells, 100 Cal. 459 (Calif. State Archives, Foltz
Archive) (on file with author). The trial proceedings are well reflected in extensive coverage by the San Francisco
dailies: T
HE CALL, THE EXAMINER, and THE CHRONICLE from October 10-15, 1892.
116
World’s Fair Speech, supra note 9, at 248.
117
78 Cal. 317 (1889). Foltz continued to cite Lee Chuck. Foltz, Duties, supra note 9, at 415 n.2, 419 n. 14; Public
Defenders, supra note 9, at 396 n.1.
118
Id. at 329. Foltz, Duties supra note 9, at n.4, prints the entire Lee Chuck quote: ‘We have been called upon many
times to caution, sometimes to rebuke, prosecuting officers for overzealous performance of their duties. They seem

20
Three years later, the San Francisco district attorney employed the same tactic in the Wells trial,
this time slipping inadmissible material into a question on cross examination. To Foltz’s
invocation of Lee Chuck in her brief, the district attorney taunted: “The Court may stand, like
Jupiter Tonans, with the lightening of rebuke flashing from their uplifted hands till weary of the
task without any apparent change in the deportment of prosecuting officers.”
119
Within weeks of filing Wells, Foltz was on the World’s Fair platform describing the bad
prosecutor: “he misrepresents the facts he expects to prove, attempts to get improper testimony
before the jury, garbles and misstates what is allowed, slanders the prisoner and browbeats the
witnesses.”
120
Soon after her return, she won the Wells appeal.
121
The opinion sounded just like
Clara Foltz: “It is too much the habit of prosecuting officers to assume beforehand that a
defendant is guilty and then expect to have the established rules of evidence twisted, and all the
features of a fair trial distorted, in order to secure a conviction. If a defendant cannot be fairly
convicted he should not be convicted at all.”
122
The California Court not only used strong language, but also reversed the conviction even
though the trial judge had upheld Foltz’s objections. Wells was thus a forceful precedent and
Clara Foltz used it often in her public defender writings. Forty years later, the United States
Supreme Court cited Wells as the most “apposite” case on prosecutorial misconduct.
123
In its
first full dress opinion on the subject, the Court used now familiar words about “striking hard
blows, but not foul ones” and spoke also of the prosecutor’s ”duty to refrain from improper
methods calculated to produce a wrongful conviction.”
124
Writing in 1935, the Berger Court referred to Wells and a handful of other cases to support a
generalized duty of fairness. It cited no treatises or other commentary on the subject. In 1896-
97, Clara Foltz found the same dearth of authority when she wrote her Duties of the District
Attorney article.
- Clara Foltz’s Authorities: Wharton and the Compendium of Case Law
to forget that it is their sworn duty to see that the defendant has a fair and impartial trial, and that he be not convicted
except by competent and legitimate evidence. Equally with the court the district attorney, as the representative of
law and justice, should be fair and impartial. He should remember that it is not his sole duty to convict, and that to
use his official position to obtain a verdict by illegitimate and unfair means is to bring his office and the courts into
distrust.’”
119
Brief for the State, supra note 115.
120
Foltz, World’s Fair Speech, supra note 9, at 248. Compare id. with Brief for Appellant, supra note 115. Another
Wells reference in the speech referred to police perjury, Foltz, World’s Fair Speech, supra note 9, at 248: “by
colored testimony and overawing presence.”
121
People v. Wells, 100 Cal. 459 (1893).
122
Wells, 100 Cal. at 465.
123
Berger v. United States, 295 U.S. 78, 89 (1935).
123
Id. at 89. Berger is still the leading authority on prosecutorial misconduct. It cites five lower court cases, and says
of those that Wells is the most “apposite” precedent on the higher duty of the prosecutor.
124
Id. at 89. For the actual quote on hard but not foul blows, the Berger opinion offers no citation. Id. at 88.

21
The idea of an impartial statesman-prosecutor was not, in fact, widely articulated or popularly
accepted in the late nineteenth century.
125
The only non-case authority Foltz gave for her
generalized duty of fairness was “Wharton on Criminal Law S.3003.”
126
Since he was the leading
authority on American criminal law,
127
a single reference to Wharton might suffice—except that
Foltz was citing the 1874 version; it was the only one of nine editions that had a separate section
on prosecutorial duty.
128
Though dated and possibly superseded, Wharton’s Section 3003 was right on point. It
articulated the prosecutor’s duty as “a sworn officer of the government . . . not merely to
execute justice, but to preserve intact all the great sanctions of public law and liberty. No matter
how guilty a defendant may in his opinion be, [he ] is bound to see that no conviction shall take
place except in strict conformity to law.”
129
Wharton also cautioned prosecutors to remember
that their words carry extra weight because they represent the people at large as “independent
officers of the state.”
130
Departing from his customary copious citation, Wharton provided no authority at all for
Section 3003.
131
He had lots of cases in hand on bad district attorneys, but he saved them for
the parts of the treatise devoted to the duties of counsel at specific points in the trial: opening
125
See Carolyn B. Ramsey, The Discretionary Power of “Public” Prosecutors in Historical Perspective, 2002 AM.
CRIM. L. REV. 1309, 1312 (“Although the seeds of the modern position that a prosecutor should adopt a neutral
stance, similar to that of a judge, were sown by the late nineteenth century, this was not the inevitable or even the
dominant view.”). Professor Ramsey’s splendid study of prosecution in nineteenth century New York makes the
point from a cache of clippings, and case studies. See e.g., id. at 1342 (“It is the [District Attorney’s] function and
his duty in each criminal case to present every fact and circumstance that can be brought forward on behalf of the
people. The prisoner’s counsel may be trusted to present every fact in favor of his client. . . . [T]he plea of mercy is
one with which the District-Attorney has little or nothing to do.”) (citing The District-Attorney’s Proper Function,
N.Y.
DAILY TRIB., Nov. 26, 1887).
126
Foltz, Duties, supra note 9, at 415 n.1; Foltz, Public Defenders, supra note 9, at 395 n.1.
127
FRANCIS WHARTON, A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES (nine editions, 1846-1885)
[hereinafter C
RIMINAL LAW]; FRANCIS WHARTON, A TREATISE ON CRIMINAL PLEADING AND PRACTICE (two
editions 1880 through 1889; originated as the procedure part of Wharton’s criminal law treatise) [hereinafter
C
RIMINAL PLEADING AND PRACTICE]. STEPHEN A. SIEGEL, FRANCIS WHARTON’S ORTHODOXY: GOD, HISTORICAL
JURISPRUDENCE, AND CLASSICAL LEGAL THOUGHT, 46 AM. J. LEGAL HIST. 422 (2004) (characterizing Wharton as
one of the leading treatise writers and legal thinkers of the nineteenth century).
128
See WHARTON, CRIMINAL LAW, supra note 127, § 3003 (7th ed. 1874). This is the volume Foltz would have read
when studying for the Bar. She did not cite to Wharton’s spin-off practice volume,
A Treatise on Criminal Pleading
and Practice § 566 (1st ed. 1880), the same section with a different number.
129
WHARTON, CRIMINAL LAW, id., § 3003 (7th ed. 1874).
130
Id.
131
In the 1880 version, Wharton provided several notes, though none for “the sworn officer of the court” passage.
W
HARTON, CRIMINAL PLEADING AND PRACTICE, supra note 127, at 566 (1st ed.). For his statement that the
prosecutor must “see that no conviction shall take place except in strict conformity to the law,” he referred to State
v. Sanford, 1 Nott & McC. 512. (S. C. 1819) where the prosecutor acknowledged doubt about the applicability of the
statute under which the defendants were convicted. But the case was off-kilter because he also tried to sustain the
verdict under an un-charged statute—hardly statesmanlike. Wharton’s other support for the prosecutor’s duty to
insist on “strict conformity to the law” was a story told in “Talfourd, in his review of Twiss’s Eldon.” Id.
(Apparently, Wharton expected his readers to know that Talfourd was an English judge and literary man, and that
Horace Twiss was the biographer of Lord Chancellor Eldon). In addition to being extremely courteous in his
demeanor, Lord Eldon once decided to prosecute for treason rather than conspiracy even though he would be more
certain of conviction if he charged the lesser crime. Thin authority indeed for the broad textual statement.

22
statements, presentation of evidence, and closing argument. In these sections and cases, the
ideal of the statesman prosecutor was present as subtext though rarely stated explicitly.
132
In her Duties article, Foltz used Wharton’s technique. After her discussion of the generalized
obligation of fairness and impartiality, she turned to the prosecutor’s failure at each stage of the
trial,
133
adding
188 cases from 34 jurisdictions to the 12 (9 from California) that she had cited
in her Wells brief. Taken together, her case compendium showed that the prosecutors of the
land were out of control, and carried the unspoken message that a public defender could
remedy the situation.
Piling up the examples, Foltz proceeded with plentiful citation through each stage of the trial,
starting with the “simple and easy” rules”
134
about the Opening Statement --rules “grossly”
violated in case after case.
135
In an almost antic spirit, she compiled the “choice vituperative
literature aimed at the accused: ”
136
black thief—black as hell itself; bloody assassins; butcher
boy; contemptible brute; grocery bully; midnight assassins; mean, wicked, low-down, dirty devil;
pusillanimous puppy; sugar-loafed, squirrel-headed Dutchman; terrible desperadoes. So went her
list of “justice-polluting” epithets.
137
In a similar riff on closing arguments, Foltz wrote of the common law privilege that protected
a lawyer from suit for statements “material to the issue or inquiry before the court.”
138
She gave
twenty examples of prosecutorial remarks beyond the pale of privilege,
139
including the gem
comparing a witness to a “upas tree that blighted and killed everything within its reach.”
140
132
See e.g., WHARTON, CRIMINAL LAW, supra note 127, § 3008 (7th ed. 1874) on opening statement in which
Wharton not only cites many cases, but explicitly cautions that prosecutors to remember that they are not
“advocates for a party struggling for a verdict” but “ministers of public justice, called on to develop evidence for the
adjudication of the court.” Foltz, possibly relying on her memory, attributed this language to Section 3003; Foltz,
Duties, supra note 9.
133
Foltz, Duties, supra note 9. Special thanks to Michael Subit, Angie Schwartz and Rae Woods for reading the
cases Foltz cited. They found her research to be accurate and on point.
134
Foltz, Duties, supra note 9, at 417. Like Wharton, Foltz stressed the moment when the newly sworn jury was
“fresh” and “free from bias;” a moment when the prosecutor must be “eminently cautious and exact in his pre-
announcement to the jury.” W
HARTON, CRIMINAL LAW, supra note 127, § 3008 (7
th
ed. 1874). WHARTON,
CRIMINAL PLEADING AND PRACTICE, supra note 127 (1st ed. 1880). Foltz, Duties, supra note 9, at 417.
135
Foltz cited a dozen well-chosen cases from seven states, as well as a few English examples.
None of the examples
overlapped Wharton’s section 3008, which indicates that Foltz did her own research here.
136
Id. at 421.
137
Id. at 422. (alphabetization suppliled).
138
EDWARD P. WEEKS, A TREATISE ON ATTORNEYS AND COUNSELORS AT LAW, §110, at 205-210 (1878)
[hereinafter W
EEKS, ON ATTORNEYS]. This was the first treatise on the law of lawyers. It was published in San
Francisco the year that Clara Foltz joined the Bar. Foltz cites it as “Weeks on Attorneys” in her Public Defenders
article, supra note 9, § 184 on right to counsel. Compare W
EEKS, id., §184, with COOLEY, supra note 88, §334.
Cooley gives as the main reason for the privilege its necessity for implementing the right to counsel, particularly in
criminal cases, and where representing a client in civil cases.
139
Abuse of the privilege was most “reprehensible” when joined with facts outside the record. Foltz gathered these
examples of grossly improper statements by the district attorney:
“that he personally knows that the defendant is a hotel thief,
that he is an ex-convict;
that he is a bad character or a desperate one;
that he had committed other crimes;
that defendant confessed the crime to him;

23
Foltz sardonically summed up: “after outraging defendant’s rights in the opening statement,
violating the law of evidence and the rules of court in the production of testimony, injecting
new matter, personal belief, unlawful comment, illegitimate deductions and personal abuse into
his closing argument” one would think the prosecution officer would feel satisfied.
But no, “he
invades the province of the court and presses the giving of unfair instructions; and a weak court
too often yields.”
141
Foltz’s main example here was not her Wells triumph,
142
but a case she had lost on appeal
many years earlier.
143
William Morrow had taken the stand and denied stealing a gold watch
and chain; the judge had instructed the jury that they could disbelieve his testimony unless they
that defendant had threatened him if he was prosecuted;
that witnesses not produced would have testified against defendant;
that similar crimes had been committed to which the accused confessed;
that he made no promise to an accomplice to secure a confession;
that defendant could testify if he wanted to;
that defendant could appeal and any error made could be corrected in favor of the defendant but not in
favor of the state;
that defendant “fled to the woods”;
that a witness had told him, the district attorney, that deceased was doing nothing when defendant shot him;
that a witness had made other and different statements before the grand jury;
that a witness has been bribed;
that another judge had expressed a belief that defendant was guilty; that prosecuting witness had whispered
to him that defendant had tried to arrange to plead guilty;
that defendant had got a change of venue, and commenting adversely thereon;
that defendant’s brother was a upas tree that blighted and killed everything within its influences;
that many similar crimes had been committed in the neighborhood;
that defendant had been guilty of another similar crime in another place.
“Nor is it proper for the prosecution to read letters, or show documents or diagrams to the jury unless they have been
introduced in evidence,” Foltz continued:
or, to charge that defendant is under indictment for other offenses;
or came to the state stained with blood;
or to declare that so many crimes have been committed that people will resort to lynch law if the defendant
is not convicted;
or that defendant was tried before and convicted by a jury of twelve honest men;
or that the public or good citizens demand a conviction.”
Finally, Foltz wrote:
“It is likewise improper to comment on the expense to which the state has been put;
or to dare the defendant to stand up and call him a liar for declaring him guilty;
or to admit, to avoid a continuance, that an absent witness would swear to a statement and then characterize
the statement as not sworn testimony and as made of lies;
or to request the jury to act as and consider themselves detectives in hunting down crime.”
Foltz, Duties, supra note 9, at 419-21 (footnotes omitted).
140
Foltz, Duties, supra note 9, at 421.
141
Id. at 428.
142
The language, “invades the province of the court” is from her brief in Wells. Appellant’s Brief, supra note 115.
143
State v. Morrow, 60 Cal. 142 (1882).

24
found it “convincing.”
144
Unconvinced, they convicted, and Foltz had her first case for a client
in the California Supreme Court. The year was 1881.
145
In an eight page handwritten brief, she made the sophisticated points that the instruction
violated the right of the defendant to testify, and burdened the reasonable doubt standard. Foltz
had lost Morrow (albeit with dissents) because the majority was unwilling to overrule an old
precedent allowing a trial judge to comment on the special nature of a defendant’s testimony.
146
Over the years, though the appellate court continued to cast doubt on the instruction,
prosecutors continued to urge it.
147
Foltz cited Morrow and subsequent cases for the sluggish
pace of progress through rebuke and reversal. Again unspoken, was the need for an
oppositional figure like the public defender who could maintain a steady lobby for law reform.
Appellate review could not assure justice because it was too slow, and because of “vicious
assumptions” like the possibility of harmless error or of curative instructions.
148
“False in fact
and pernicious in practice,” she wrote, drawing on her courtroom experience.
149
“The mind is
not a slate and a judge’s charge a sponge that can wipe from it every word once written. . . .
One cannot forget at will; much less reject matter actually in the mind, in forming a belief.”
150
With a trace of bitterness, she pointed out the defense lawyer’s dilemma when faced with
prosecutorial misconduct. If he fails to ask for a corrective instruction, the appeals court may
refuse to hear the point. But if the judge does instruct, then the Court may find the error
cured.
151
As numerous and shocking as the cases were, Foltz said they were mere “illustrations of the
vices” because “poor defendants cannot appeal, so that the wrongs done them are not
recorded.”
152
Concluding with a summary of the “untold evil”
wrought by errant prosecutors,
she emphasized the “enormous expenditures for appeals and new trials.”
153
Her contemporary
144
Morrow, 60 Cal. at 142. See also
Foltz, Duties, supra note 9, at 424, n. 2.
145
Her only previous case was her own when Hastings appealed the order to admit her. Foltz had filed her Morrow
brief in 1881, eight pages of legal argument in her own hand, citing ten cases. Clara Shortridge Foltz, Appellant
Brief, 4, People v. Morrow, 60 Cal. 142 (1881) (Calif. State Archives, Foltz Archive) (on file with author).
146
The opinion deferred to precedent: “The case of The People v. Cronin . . . was determined nearly fifteen years
ago . . . . We see no reason to disturb it now.” Morrow, 60 Cal. at 147 (Morrison, C.J.). Two Justices dissented,
writing separate opinions.
147
People v. Van Eman, 43 P. 520 (1896). Duties, supra note 9, at 424, nn.5-6, Van Eman is reprinted in the same
issue as Foltz’s Duties article. See 18 C
RIM. L. MAG. 171 (1896).
148
“It would naturally seem that if the record shows that a right of the defendant was actually invaded, from which
would naturally follow an injury that might have affected the verdict, the court would consider the matter. But such
is not usually the case.” Foltz, Duties, supra note 9, at 424.
149
Foltz, Duties, supra note 9, at 425. Foltz’s comments now a commonplace were unusual in her time, and grew
from her first-hand experience before juries.
150
Id
151
Id. at 424-25. Foltz did not object to the requirement that counsel seek an instruction in order to lay a foundation
for appeal, but to the presumption that an instruction could cure the prosecutor’s errors. Thus, wrote Foltz, “in order
to get into the appellate court [he] is obliged to raise such a conclusive presumption as to preclude him a remedy.”
Id.
152
Foltz, Duties, supra note 9, at 424.
153
Foltz, Duties, supra note 9 at 426 (identifying other social costs of bad prosecutors: “they crush the patriotism of
the wronged defendant and awaken in him and his friends a spirit of hatred against the state; they destroy public
respect for the district attorney’s office and invite contempt for the dignity of the court.”).

25
audience knew Foltz was referring to a recent much- publicized reversal on account of
prosecutorial excess.
154
Only a jury acquittal had saved a similar case from the same appellate
fate.
155
Both trials featured women accused of murder and both were important subtexts to
Foltz’s Duties article.
- Women Accused: Maria Barbella (aka Marie Barberi) and Mary Alice Fleming
Maria Barbella was a poor immigrant who had killed her lover, Dominic Cataldo. At her trial,
two inexperienced and overmatched attorneys appointed by the court thoroughly botched the
case,
156
failing even to straighten out the spelling of her name so that she went down in legal
history as Marie Barberi.
157
Without the check of adequate defense counsel, the prosecutor
abandoned all niceties in order to convict.
When Barbella took the stand, speaking through an incompetent translator, the district attorney
hounded and abused her.
158
Speaking man to man, he cautioned the jurors: “If you acquit Maria
Barbella, you will implicitly grant to every woman in this city who has an illicit relationship
with a man the right to cut his throat with impunity.”
159
Likewise, the trial judge instructed
them to do their duty as men and to remember that “the law does not distinguish between the
sexes.”
160
Upon conviction, he sentenced her to death by electrocution.
161
Then, in a story straight out of light opera, an American woman married to an Italian Count
intervened in the case and employed top lawyers to appeal it.
At the same time, a movement
combining suffragists and society ladies with death-penalty opponents formed around Maria’s
cause, creating a sympathetic public atmosphere.
162
In April, 1896, the appellate court reversed
the conviction, and returned the case for a new trial in which “all competent proof may be
154
People v. Barberi, 149 N.Y. 256 (1896); 43 NORTHEASTERN REP. 635 (1896); 18 CRIM. L. MAG. & REP. 449
(1896).(the same issue as Duties).
155
People v. Mary Alice Fleming. See infra text at 27-30 and notes 167-172. Foltz referred to “the remarkable
conduct of counsel in the recent trial of Mrs. Fleming,” as an example of flawed prosecution. Foltz, Duties, supra
note 9, at 415.
156
IDANNA PUCCI, THE TRIALS OF MARIA BARBELLA, THE TRUE STORY OF A 19
TH
CENTURY CRIME OF PASSION 48-
84 (1997) (providing account of first trial). Though not footnoted or indexed, my independent check of many of her
sources, and her use of direct quotations throughout attest to the accuracy of the account. It was written from
contemporary diaries, letters and news reports, by the great-granddaughter of the Countess de Brazza, who played a
large role in it.
157
I will refer to Barbella when speaking of the person, and Barberi when speaking of the case. Certainly these
bumblers were no match for the District Attorney who was said to have successfully prosecuted more murderers
than anyone in the entire United States Women Jury in the Fleming Case, S
UNDAY WORLD (New York), June 28,
1896 (quoting Foltz on expertise of district attorney).
158
Barberi, 149 N.Y. at 276 (1896) (reporting that the prosecutor asked “why did you cut his throat?” five times and
“why did you kill him?” twice.).
159
PUCCI, supra note 158, at 48-84, 181 (reporting that evidence favorable to accused was suppressed).
160
Id. passim.
161
Id. at 102-103. Barbella was scheduled to be the first woman executed in the electric chair since it was installed
in 1889. Id. at 97. Five men had been electrocuted by 1896. STUART BANNER, THE DEATH PENALTY 177-194 (2002)
(giving history of introduction of electric chair in New York).
162
Not everyone was so sympathetic, however. See Maria Barberi[sic] Not an Innocent, BROOKLYN EAGLE, Aug. 3,
1895; Conference of Colored Men, N.Y.
TIMES, July 30, 1895 (reporting that at a meeting of colored Republicans,
one speaker denounced supporters of the “red handed murderess” Barbella by people who said nothing when
colored women were lynched in the South.)

26
given in the regular and orderly way, and the questions presented in [a] temperate and
dispassionate manner.”
163
The month after the Barberi reversal Mary Alice Fleming went to trial accused of poisoning her
mother’s clam chowder—before the same judge with the same prosecutor.
164
Uncowed by the
appellate rebuke, the district attorney engaged in the same florid displays of hostility toward the
accused as he had done in Barbella. He portrayed Fleming as a slave to sexual passion who
needed her inheritance to lure back a wandering lover; he also made much of her irregular life,
unmarried with three children, and of her breach of promise suit against a very rich man.
Unlike Barbella, however, who was dumbstruck by the personal attacks, Fleming had skilled
lawyers who turned his words against the district attorney.
To the jury they argued: “she is one of the People, entitled to the People’s protections, entitled
to the People’s mercy, entitled to the People’s leniency, if you please, as any other member of
the community.”
165
The all-male jury acquitted,
166
and so did an all- female shadow jury
assembled by the New York World to follow the evidence and render a second verdict.
167
Clara Foltz was the chief spokesperson for the World’s women jury, and her expansive critique
of the prosecutor was printed and picked up by other journals.
168
Of the arsenic in the body,
Foltz said: “She may have kept it about her. People blunder with rat poison, laudanum and
didn’t-know-it-was-loaded guns, and she may have blundered with the arsenic.”
169
In any
event, Foltz pointed out, no “poison was ever traced to Mrs. Fleming. With the detective and
the police force and drug store records at hand, no attempt to show a purchase was made.”
170
163
People v. Barberi, 18 CRIM. L. MAG. 449, at 462 (April 21, 1896).
164
Jury selection in the Fleming case started on May 11, the trial on May 25, and the verdict was returned on June
24, 1896. The trial was extensively covered in all the New York dailies. I have relied mainly on the New York Times
and New York Sunday World accounts, especially on Clara Foltz’s description of the evidence. Mrs. Fleming and
the Sunday World’s Woman Jury, These Twelve Clever Women Who Think for Themselves are Considering the
Evidence and Will Render a Verdict from the Woman’s Standpoint When the Case is Closed, S
UNDAY WORLD (New
York), June 21, 1896 (including a full-page spread, with thanks from Mrs. Fleming to the jury). This was the week
before the verdict. The week after in another long story, the women’s verdict was discussed. The Sunday World’s
Woman Jury in the Fleming Case. The World Reports a Disagreement—Seven Jurors Are for Acquittal, Three for
Conviction and the Remaining Two Vote “Not Proven”—Some Interesting Opinions, S
UNDAY WORLD (New York),
June 28, 1896 [hereinafter Women Jury in the Fleming Case,
SUNDAY WORLD].
165
PUCCI, supra note 158, at 97. NEW YORK TIMES, June 23, 1896 (summation of Emmanuel Friend).
166
PUCCI, supra note 158, at 97. Apparently the jury accepted Fleming’s defense that though there was arsenic in
the corpse, there was none in the chowder. Mrs. Fleming’s mother was an arsenic eater, a health fad of the day, also
said to whiten and purify the skin.
167
Women Jury in the Fleming Case, SUNDAY WORLD, supra note 166. Some commentators played up the failure of
the woman jury to acquit altogether. See Women in Celebrated Criminal Cases, 18 C
RIM. L. MAG. & REP. 479-81
(1896) (calling the World’s women jury “one of the amusing newspaper episodes,” referring to “eminent women,”
all “well-known,” and mentioning Clara Foltz by name).
168
Women Jury in the Fleming Case, SUNDAY WORLD, supra 166. Foltz’s remarks were the bulk of the World’s
long story on June 28, 1896. They were reprinted in Editor’s Note, 51 ALB. L.J. 38-39 (1896). Though the editor
disapproved of the practice of shadow juries, he praised Foltz’s perspicacity. Id. See also Women in Celebrated
Legal Cases, 18 C
RIM. L. MAG. & REP. 479 (1896) (noting Foltz is a “practicing lawyer in New York as well known
there as in California” where she achieved an “enviable reputation”).
169
Woman Jury in the Fleming Case, SUNDAY WORLD, supra note 166.
170
Id.

27
Even seeking the death penalty on such a flawed case was an outrage in Foltz’s view. “No
normal mind,” she said could find for certain that the mother even died of arsenic poisoning,
much less who administered it, or whether there was intent to kill. “[W]e do not commit
judicial murder on suspicion in these days.”
171
Unfortunately, the modern prosecutor has lapsed
into a “very rickety and unlawful way of thinking everyone guilty until innocence is proved,”
Foltz wrote.
172
She also accused the prosecutor of withholding certain exculpatory information from the
defense, and added that: “Suppressing evidence is little less than crime.”
173
Summing up her
critique, Foltz said: “Such cases should not be tried, for a verdict of guilty is almost certain of
reversal, a long trial is wanton waste of the people’s money and an outrage on the unfortunate
defendant.”
174
A month after Fleming’s acquittal and Foltz’s censure of the prosecutor in the World, she
published Duties.
175
The sequence suggests that she may have started collecting cases to use on
appeal in the event of a conviction. In format and tone, Duties is like an appellate brief, and its
lame conclusion calling on courts to control their officers could well have replaced the usual
plea for reversal.
176
On the other hand, there are many more cases than a working lawyer would
deploy in a brief, and few from the relevant jurisdiction.
Perhaps instead of a brief, Foltz planned from the beginning of her research to write an article
on prosecutorial misconduct playing off the publicity generated by Fleming and Barberi. As
she searched the digests and periodicals, Foltz discovered a shocking number of cases in a
“seemingly increasing stream,”
177
and used them to lay the groundwork for the introduction of
171
Id. The use of the term “judicial murder” indicates that Foltz was a death penalty opponent. See e.g., Hugh O.
Pentecost, The Crime of Capital Punishment, 1 ARENA 180-181 (1890) (using term) (cited in BANNER, supra note at
163). She used the term also in a striking article she published several months after Duties, during the re-trial of
Barberi. Clara Foltz, Should Women be Executed?, 54 A
LB. L. J. 309 (1896) (“If Marie Barberi is guilty of murder
she should receive the same punishment that would be meted out to a man for the same offense.” Her plea was
against class legislation, and more subtly against the death penalty. See H
OWARD GILLMAN, THE CONSTITUTION
BESIEGED, THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993) (quoting Clara Foltz at
101, 102) (noting the power of the idea that the law was entirely neutral, and should never favor one group over
another); see also H. Teichmuller, The Province of Government, 29 A
M. L. REV. 21 (1895). For contemporary
approval of Foltz’s formulation, see Should Women Be Executed, a comment on Foltz’s article in 18 C
RIM. L. MAG.
& REP. 479 (1896).
172
In her World critique, Foltz made other points about the prosecutor’s misconduct that were not repeated in
Albany. One of her points was the use of additional hired counsel by the prosecutors, a practice she condemned in
Duties as a “raid on the public treasury.” In the World, she said the prosecutor recognized the weakness of his case
when he hired special counsel to aid him: “Clear cases the office tries alone.” Id. Foltz also attacked the prosecutor
for his opening statement in which he made the age-old error of referring to evidence he knew to be “wholly
inadmissible . . . . The attempts to get this statement before the jury under the guise of a question after the ruling of
the court that it was improper was another evidence of the straits to which the prosecution was driven. Lawyers with
a good cause do not resort to tricks that make a reversal certain.” Id.
173
Id.
174
Id.
175
The verdict was returned on June 24, 1896. Foltz’s critique in World was published on June 28, 1896 and her
Duties article was published in July, 1986.
176
“It is certainly time for trial courts to so discipline their officers, that they will preserve a decent respect for law
and the established rules of justice.” Foltz, Duties, supra note 9, at 426.
177
Foltz, Duties, supra note 9, at 422 (footnote omitted).

28
her public defender statute. At any rate, soon after publishing Duties, Clara Foltz launched her
statutory campaign.
Feminism and Other Reform Movements
In exploring the forces that shaped Foltz’s original conception of the public defender, we have
looked initially at her first-woman and courtroom experiences, especially her confrontation with
corrupt and overbearing prosecutors. Next we will consider the relationship of the public
defender to the general nineteenth century reform ethos—especially to feminism.
Foltz was foremost a feminist of the second generation—not converted to the movement but
raised in it. One of her earliest memories was hearing Lucy Stone speak in her father’s church in
the little town of Mount Pleasant, Iowa.
178
Her only formal schooling (from eleven to fourteen)
was at Howe’s Academy, founded on principles of equality and freedom.
179
Clara Foltz’s first
popular lecture was on Impartial Suffrage
180
and her last public act a campaign for Governor of
California on an Equal Rights ticket. Throughout her varied career, her primary identification
was woman’s rights advocate, and as she told her own story, her struggles were all for this
cause.
181
Movement women were at Foltz’s side in everything she did. For just two examples, Laura Gordon, the
second woman lawyer in California, lobbied the Woman Lawyer’s Bill with Foltz, joined in the suit
against Hastings, and in pressing for the women’s amendments to the Constitution.
182
Myra Bradwell,
the editor of the Chicago Legal News, and the unofficial dean of women lawyers, was largely
responsible for Foltz’s great opportunity to speak at the World’s Fair.
183
Not only did the movement supply her with comrades and contacts, but with modes of operation. From
long years of cause lobbying,
184
Clara Foltz had learned the techniques: generating and milking the
178
See Babcock, Constitution-Maker, supra note 79, at 861.
179
SHUCK, supra note 10, at 828. The founder of Howe’s Academy was an abolitionist and a suffragist.
180
In a New Field, NEW NORTHWEST, Feb. 22, 1877, at 2. The “lecture was a well written production, and was well
delivered, frequently calling out protracted applause.” Id. (quoting the San JoseMercury-News). Other titles were
Impartial Suffrage, Impartial Citizenship, Political Liberty, Why Women Need the Ballot, Women and Work and
Equality of the Sexes.
181
See generally Foltz, Struggles, supra note 81.
182
Babcock, First Woman, supra note 80; Babcock, Constitution-Maker, supra note 79, at 865-868 (describing
Laura Gordon’s role throughout).
183
See 28 CHI. LEGAL NEWS (Aug. 22, 1896), which notes Foltz’s admission to the New York Bar: “Mrs. Foltz is
not unknown to the Chicago Bar. Myra Bradwell, as Chairman of the Woman’s Branch of the Law Reform
Congress, in 1893, invited Mrs. Foltz to deliver a paper before the Congress at the World’s Columbian Exposition,
which she did, choosing for a theme ‘Public Defenders.’” Bradwell had tried unsuccessfully to establish the right to
pursue a profession as “a privilege of citizenship” under the then recently-enacted Fourteenth Amendment. Bradwell
v. Illinois, 83 U.S. (16 Wall.) 130 (1873). Though she lost her case, her name become synonymous with the
ambition of women to be lawyers, and she was a major promoter and publicizer of women’s efforts to enter the
profession. N
OTABLE AMERICAN WOMEN: A BIOGRAPHICAL DICTIONARY COMPLETING THE TWENTIETH CENTURY
(Susan Ware, ed. 2004); Babcock, First Woman, supra note 79, at 1266-70; Babcock, Feminist Lawyers, supra note
78, at 1689-91.
184
Even after she successfully lobbied through a Woman’s Lawyer Bill, and amendments to the state constitution,
see infra note 86, and became a practicing lawyer, Foltz continued to lobby for women’s rights legislation: for
women to be the executors of wills, to be Notaries Public, and to vote and serve in all public offices.
Mortimer D.

29
publicity, supplying the arguments and the statutory text, and appealing personally one-on-one to power-
wielders. She also transferred classic liberal arguments for suffrage to public defense. Locke’s social
contract theory for instance, which movement rhetoricians used to urge women’s equal citizenship
worked well in the new context.
185
“Every citizen surrenders his natural right to defend himself and pays
his share for the support of the State, under the implied contract that … the government will defend his
life and liberty from unlawful invasion,” Foltz said at the Fair.
186
“When therefore the rights of a person
are assailed it is the duty of the government to provide him defense.”
Women’s rights anchored Foltz’s other causes because it endowed her with a reformist approach
to life.
187
She wanted suffrage as a badge of full citizenship, yes, and she also thought women
voters would make government more responsive to human needs. Similarly, she believed that
once women became lawyers, they should work to improve the administration of justice. The
Public Defender was an example of the kind of idea women would contribute. In fact, as we shall
see after exploring other movements connected with the public defender, the first office in Los
Angeles was tied directly to women’s suffrage victory in California.
Though feminism was her working principle, Clara Foltz was far from a single issue activist.
She engaged the entire “sisterhood of reform” as Thomas Wentworth Higginson designated
them; membership in one implied support for all the others.
188
Higginson himself, perhaps best
known for leading a Black regiment and for championing Emily Dickinson, included in his
personal “sisterhood” not only abolition and feminism, but also temperance, prison reform,
eradicating the death penalty, eliminating child labor, and establishing merit civil service.
189
Foltz espoused Higginson’s causes and more.
Schwartz, Susan Brandt, & Patience Milrod, Clara Shortridge Foltz: Pioneer in the Law, 27 HASTINGS L.J. 545
(1976). Foltz introduced the first parole bill in California. SHUCK, supra note 10, at 109 (reporting Foltz “pioneered
the movement for the establishment of the prison parole system in California”). Foltz also introduced the first
legislation providing for the segregation of juveniles from adult offenders in jails and prisons. N
OTABLE AMERICAN
WOMEN, supra note 32; American National Biography Online supra note 32; Unsolicited Honors Worthily
Bestowed, T
IDINGS, Feb. 10, 1910, at 13 (describing Foltz’s appointment to the State Board of Charities and
Corrections and discussing her advocacy of the public defender, prison parole, and police matrons).
185
Women suffragists relied on their undeniable citizenship as establishing the same social contract that male
citizens enjoyed. See e.g., account of early campaign in Ohio using Lockean arguments. D
ORIS WEATHERFORD, A
HISTORY OF THE AMERICAN SUFFRAGE MOVEMENT 40 (1998). Locke and the other social contract philosophers like
Hobbes and Rousseau did not accord full citizenship to women, however. See SUSAN M. MARILLEY, WOMAN
SUFFRAGE AND THEORIGINS OF LIBERAL FEMINISM IN THE UNITED STATES 1820-1920 3 (1996); CAROLE PATEMAN,
THE SEXUAL CONTRACT 39-57, 97-99, 168-172 (1988) (exploring the rationale that a sexual contract pre-dates the
social contract).
186
Foltz, World’s Fair Speech, supra note 9, at 250. I . “This is not merely a privilege or latent function of
government. It is a duty inseparably connected with its very existence.” Id.
187
See REBECCA EDWARDS, ANGELS IN THE MACHINERY: GENDER IN AMERICAN PARTY POLITICS
FROM THE CIVIL WAR TO THE PROGRESSIVE ERA (1997). (women involved in many reforms and in party
politics); Pioneers at the Polls: Woman Suffrage in the West, in VOTES FOR WOMEN: THE STRUGGLE FOR
SUFFRAGE REVISITED at 90-91, passim (2002) ( connection of woman suffrage with populist reforms in the
West especially; may have slowed more general adoption). PEGGY PASCOE, RELATIONS OF RESCUE, THE
SEARCH FOR FEMALE MORAL AUTHORITY IN THE AMERICAN WEST, 1874-1939
. MORTON
KELLOR, AFFAIRS OF STATE; PUBLIC LIFE IN LATE NINETEENTH CENTURY AMERICA at 122-136
(describing the post-war quest for the good society, free of vice and intemperance),
188
HOWARD N. MEYER, Introduction, THE MAGNIFICENT ACTIVIST: THE WRITINGS OF THOMAS WENTWORTH
HIGGINSON 1823-1911, at 8 (2000). RONALD G. WALTERS, AMERICAN REFORMERS 1815-1860 (1978).
189
Id .

30
Prison reform was especially closely related to the public defender idea—for Foltz and more
generally. Those who regularly visited jails and prisons, like the reformers did, were probably
the first to see the need for a governmental officer to protect the rights of the defendant and to
collect favorable evidence on his behalf. For instance, a prison reform magazine in Boston called
at mid-century for representation of the innocent, many imprisoned without counsel of any
sort.
190
Clara Foltz was a frequent visitor to prisons, especially in her early practice when many of her
clients were seeking pardons from the governor. Most had previously been ill-served by
appointed or even retained lawyers at trial.
191
Charles Colby, for instance, wrote from death row
that he had spent all his savings on inadequate counsel, when “they got the best lawyer in Santa
Cruz to prosecute.”
192
From the scaffold, he thanked Clara Foltz, for her “earnest and zealous
efforts”
193
while lamenting her late entry into his case. Cases like Colby’s may have inspired her
idea that the public defender should be available to all the accused, even those who could pay a
fee.
Aside from her pardon practice, Foltz was tied to prison reform through her suffragism. Many
suffragists, especially the lawyers, were also prison reformers.
194
Clara Foltz was the first woman
190
See A County Attorney for the Defense of Criminals, 8 PRISONERS’ FRIEND, Oct. 1855, at 58 (calling for
appointment of an attorney for indigents accused of minor crimes”); A District Attorney for Poor Criminals, 9
P
RISONERS’ FRIEND, Oct. 1856, at 41 (reprinting an article from the Boston Herald; would
work cooperatively with prosecutor to identify deserving cases). Originally called Hangman, this publication began
in 1845 as an anti-death penalty weekly, but soon took on a broader agenda and started publishing monthly. History
of the Prisoners’ Friend,
1 PRISONER’S FRIEND, Sept. 1848, at 3. The Prisoners’ Friend claimed to be “the only
journal known in the world that is wholly devoted to the Abolition of Capital Punishment and the Reformation of the
Criminal.” Id.
191
For indigents, pardons were their only form of appeal since they had no lawyers to file regular briefs for them.
Even courts that appointed counsel did so only for trial.
192
Colby was a forty-year-old Scandinavian whose name was Anglicized from Kohlbenser. People v. Colby, 54 Cal.
37 (1879), 54 Cal. 184 (1880); M
ARGARET KOCH, SANTA CRUZ COUNTY, PARADE OF THE PAST (1973); SAN JOSE
WEEKLYMERCURY-NEWS, Mar. 4, 1880, at 3, c.1 (“Mrs. Clara Foltz has put in circulation a petition asking for
executive clemency in the case of Chas. Colby...”). Colby’s case received unusual attention because he was the last
man publicly hanged in Santa Cruz.
193
ALTA CALIFORNIA, Mar. 6, 1880, at 1 (quoting from open letter to People of California that ends with thanks to
Clara Foltz.); S
AN FRANCISCO CHRONICLE, Mar. 6, 1880, at 3.
194
Susan Hammond Barney, Care of the Criminal, in WOMAN’S WORK IN AMERICA 359, 365 (Annie Nathan Meyer,
ed., 1891) (discussing women’s involvement with prison work, appointment to State Boards of Charities and
Corrections). For background material one woman prison reformer, Marilla Ricker, see Marilla M. Ricker, 1 L
AW
STUDENT’S HELPER 304 (1893), at http://www.law.stanford.edu/library/wlhbp/articles/mricker.pdf; Charles Wells
Moulton, Mrs. Marrila M. Ricker, in A WOMAN OF THE CENTURY: FOURTEEN HUNDRED-SEVENTY BIOGRAPHICAL
SKETCHES ACCOMPANIED BY PORTRAITS OF LEADING AMERICAN WOMEN IN ALL WALKS OF LIFE (eds. Frances E.
Willard & Mary A. Livermore), at http://www.law.stanford.edu/library/wlhbp/archives/ricker-marrillam1893.pdf
;
Marilla Marks Ricker, in NEW HAMPSHIRE WOMEN: A COLLECTION OF PORTRAITS AND BIOGRAPHICAL SKETCHES
OF
DAUGHTERS AND RESIDENTS OF THE GRANITE STATE, WHO ARE WORTHY REPRESENTATIVES OF THEIR SEX IN THE
VARIOUS WALKS AND CONDITIONS OF LIFE
(1895), at
http://www.law.stanford.edu/library/wlhbp/archives/RickerMarilla1895.pdf
. See also Women’s Legal History
Biography Project, Marilla M. Ricker, at http://www.law.stanford.edu/library/wlhbp/profiles/RickerMarilla.html;
Lockwood, supra note 14.

31
to serve on the California Board of Charities and Corrections.
195
Though her appointment came
before women had the vote in California, it was made in recognition of her prominence in the
movement as well as her efforts on behalf of prisoners. Foltz was also responsible for the first
parole bill in the state, matrons (instead of male guards) in jails, and the separation of juveniles
from adult offenders.
196
Toward the end of the century two new movements joined “the sisterhood of reforms,”
197
both
included suffrage and public defense in their agenda, and Clara Foltz in their vanguard. These two
short-lived causes were Nationalism and the National Women’s Liberal Union, and they were linked
to each other as well.
Nationalism: the Movement
As the last decade of the century opened, the Nationalism movement was well under way and for
a brief period it swept many multi-issue reformers into its path.
198
Nationalism was the direct
ancestor of Progressivism generally, and particularly of the Progressive public defender. It
started with the publication in 1888 of a novel by an unknown Boston lawyer: Looking
Backward by Edward Bellamy.
199
The novel pictured an American utopia, promised for the year 2000, in which everyone
contributed to and was cared for by the state, which also owned the major industries, railroads,
195
Unsolicited Honors Worthily Bestowed, THE TIDINGS, Feb. 10, 1910, at 13 (describing Foltz’s appointment to the
State Board of Charities and Corrections).
196
Id. (discussing her advocacy of public defender, prison parole, and police matrons). See supra note 32. For her
later career see Mortimer D. Schwartz, Susan l. Brandt, & Patience Milrod, Clara Shortridge Foltz: Pioneer in the
Law, 27 H
ASTINGS L.J. 545 (1976). Foltz introduced the first parole bill in California. SHUCK, supra note 10, at 109
(noting that Foltz “pioneered the movement for the establishment of the prison parole system in California” and also
introduced the first legislation providing for the segregation of juveniles from adult offenders in jails and prisons).
197
MEYER, supra note 190.
198
On Nationalism: Edward Bellamy, Looking Backward, 1988-1888 (Daphne Patai ed., 1988) (illuminating
essays). Nancy Snell Griffith, Looking Backward: A Selected Biography (1986), is thorough and useful. Other works
that I used include: S
YLVIA E. BOWMAN, THE YEAR 2000: A CRITICAL BIOGRAPHY OF EDWARD BELLAMY (1958);
S
YLVIA E. BOWMAN, EDWARD BELLAMY ABROAD: AN AMERICAN PROPHET’S INFLUENCE (1962) (reporting a
significant following in twenty-nine countries); A
RTHUR LIPOW, AUTHORITARIAN SOCIALISM IN THE UNITED
STATES: EDWARD BELLAMY AND THE NATIONALIST MOVEMENT (1982); ARTHUR E. MORGAN, EDWARD BELLAMY
(1944); H
OWARD H. QUINT, THE FORGING OF AMERICAN SOCIALISM (1953) ( relationship of Nationalism to later
socialistic aims; see especially chapter: Bellamy Makes Socialism Respectable, 72-103); J
OHN L. THOMAS,
ALTERNATIVE AMERICA: HENRY GEORGE, EDWARD BELLAMY, HENRY DEMAREST LLOYD AND THE ADVERSARY
TRADITION (1983).(places Bellamy in full historical context). Important articles include William Leach, Looking
Forward Together: Feminists and Edward Bellamy,
DEMOCRACY 2, no.1 (1982); John Hope Franklin, Edward
Bellamy and the Nationalist Movement, 11 T
HE NEW ENGLAND QUARTERLY, 739 (1938).
Several contemporary works are especially useful on the Nationalism phenomenon: NICHOLAS PAINE
GILMAN, SOCIALISM AND THE AMERICAN SPIRIT 195 (1900); F.I. Vassault, Nationalism in California, OVERLAND
MONTHLY, XV, 660 (June 1890); Francis Walker, Mr. Bellamy and the New Nationalist Party, 65 THE ATLANTIC
MONTHLY 248 (1890).
Larger works on where Nationalism fits in the late nineteenth-century political scene include: ROBERT
WEIBE, THE SEARCH FOR ORDER, 1877-1920 (1967); MARI JO BUHLE, WOMEN AND AMERICAN SOCIALISM 1870-
1920
(1981); ROBERT C. MCMATH, JR. AMERICAN POPULISM: A SOCIAL HISTORY (1993).
199
EDWARD BELLAMY, LOOKING BACKWARD (Daniel H. Borus ed.) (1995) (excellent introduction and bibliography)
[hereinafter, L
OOKING BACKWARD, Borus ed.].

32
and means of communication.
200
Every citizen would be an equal partner in a National
corporation, and would serve in the National Industrial Army between ages eighteen and forty-
five: hence, the name “Nationalism” The Army would do all the work from housekeeping to
history teaching.
Looking Backward was an immediate and astounding best-seller, second in sales only to Uncle
Tom’s Cabin in the nineteenth century.
201
Americans on the eve of a major economic depression
and alarmed at the ever-widening gulf between rich and poor, embraced the vision of a new
society founded on old principles of universal equality. Nationalist clubs sprang up all over the
country dedicated to the world-order depicted in the book.
202
Women, as “the greatest victims” of the previous civilization, would benefit most from
Nationalism
203
. They would be free actors and independent thinkers instead of “ennuied,
undeveloped, and stunted at marriage, bounded physically by the four walls of home and morally
by a petty circle of personal interests.”
204
Suffragists in particular flocked to Nationalism.
205
Clara Foltz, living in San Diego, was a founding member of a club that boasted six hundred
souls, “including the elite of the intellectuals of the city.”
206
By 1890, she was President of her
local group.
207
Nationalism would work its massive societal change in a civilized way. First, people were to
reshape the social environment through legislation—in time leading through normal evolutionary
processes to transforming humankind itself: “socialism with a silk hat,” as one wag called it.
208
Most of Nationalism’s specific proposals, though quite radical in themselves, were mere interim
measures, good until evolution had worked its magic and Utopia was achieved.
209
200
Id. 58-63. The army is divided by sex, and organized on the basis of skill and interest, with shorter hours and
lighter loads as an inducement for the more menial tasks.
201
Id. at 1.
202
BUHLE, WOMEN AND AMERICAN SOCIALISM, supra note 200, 77-81 passim; MORGAN, EDWARD BELLAMY, supra
note 200, at 248-253.
203
LOOKING BACKWARD, Borus ed., supra note 201, at 156.
204
Id.
205
BUHLE, supra note 202, at 78, n.71 (quoting the California Nationalist, Apr. 10, 1890). The attraction of
Nationalism to women suffragists was also found on a national level. See Franklin Rosemont, Bellamy’s Radicalism
Reclaimed, in L
OOKING BACKWARD, Borus ed., supra note 201, at 173-74 (mentioning involvement of Elizabeth
Cady Stanton, Lucy Stone, Julia Ward Howe, Caroline Severance, and temperance leaders Francis Willard and Mary
Livermore); William Leach, Looking Forward Together: Feminists and Edward Bellamy, in D
EMOCRACY 120, 122,
129, 133, 134. (Jan. 1981) (listing a number of feminists involved in Nationalism).
206
EVERETT W. MCNAIR, EDWARD BELLAMY AND THE NATIONALIST MOVEMENT 204 (1957) (citing the San Diego
Beacon of Aug. 10, 1889); A
RTHUR E. MORGAN, EDWARD BELLAMY 266-67 (1944) (600 members, “intellectual
elite” quote).
The club secretary reported that its leaders included “two millionaires and that celebrated lady lawyer, Mrs.
Clara Foltz,” and that Nationalism was making “a great impression on the newspapers and on current thought.”
N
ATIONALIST, Oct. 1889, at 225 (quoted in John T. McGreevy, Farmers, Nationalists, and the Origins of California
Populism, 1989 P
AC. HIST. REV. 471, 474).
207
THEODORE FULLER, SAN DIEGO ORIGINALS—PROFILES OF THE MOVERS AND SHAKERS OF CALIFORNIA’S FIRST
COMMUNITY 145 (1987) (noting that Foltz presided over the local Nationalist Club described as “a short-lived
movement to socialize basic industry”).
208
F.I. Vassault, Nationalism in California, OVERLAND MONTHLY, XV at 660 (June 1890).
209
Yet these interim proposals were revolutionary in themselves: political reforms like government ownership of the
railroads and utilities, electoral reforms like woman suffrage, direct election of senators, referendum and recall.

33
One such interim measure for improving the criminal process was a public defender for the
accused. In the New Nation, a movement publication, Bellamy urged its creation as one of the
“first steps toward nationalism.”
210
He wrote that “there are many abuses … resulting from the
inequalities of wealth, which cannot be remedied until society is radically reconstructed, but the
injustice as between rich and poor in the administration of the criminal law is not one of
them.”
211
Bellamy would make criminal defense a public function and eliminate private lawyers
altogether. This would put the poor and the rich on an equal par, with a vengeance: “the poorest
man would be sure of a fair defense and the richest man would not be able to get anything
more.”
212
Free justice: No paid attorneys in criminal cases, was Bellamy’s slogan.
213
His public defender would serve justice rather than the accused. The “presentation of the
prisoner’s case would be fair, temperate and adequate, but no special pleading or special devices
would be employed to delay or defeat justice.”
214
On the other side, the prosecutor, unprovoked
by defense tactics, would not exhibit that “vindictiveness toward the prisoner which now so often
scandalizes justice, but would confine himself, as he always should, to a clear presentation of the
evidence.”
215
Bellamy believed that the client-paid advocate was “the root cause” of all the problems in the
criminal courts.
216
Some of “the keenest, most astute men of the professional classes” find their
livelihood in “thwarting, delaying and tripping up justice at every step.”
217
He would abolish the
rich man’s defense lawyer along with the jury he misled, and the presumption of innocence he
wielded.
218
These three elements made criminal trials into a spectator sport, a competitive show,
when they should be orderly and calm examinations of the evidence.
As we have seen already, Clara Foltz’s defender differed in vital ways from the Nationalistic
model.
Her experiences in the courtroom steered her to an adversarial advocate as her model—
on the design of capable private counsel, whose representation she would not supplant but
Social reforms aimed at improving conditions in the cities, factories, prisons, and many, many other legal
propositions were urged in Nationalism’s name.
210
2:27 THE NEW NATION 419-420 (July 2, 1892) (“[I]f a public prosecutor suffices to protect the interest of the
people, surely a public defender, equally without private interest in the case, is all the accused can reasonably ask….
It should be his business to present the prisoner’s side in every case brought to the bar, without charge to the prison,
who should be allowed to have no other counsel –The result would be that the presentation of the prisoner’s case
would-be fair, temperate and adequate but that no special pleading or devices would be employed to delay or defeat
justice.”). See also 2:28 T
HE NEW NATION 494 (July 9, 1892); 3:17 THE NEW NATION (Apr. 29, 1893); LIPOW,
supra note 200, at 28, 75-76; BOWMAN, supra note 200, at 231-32.
211
3:17 THE NEW NATION (April 29, 1893) (poorest and richest comparison).
212
THE NEW NATION 419-420 (July 2, 1892).
213
Id.
214
Id.
215
Id.
216
Id. See also LIPOW, supra note 200 (quoting Looking Backward on lack of defense counsel: “It would not seem
reasonable to us in a case where the only interest of the nation is to find out the truth, that persons should take part in
the proceedings who had an acknowledged motive to color it.”).
217
THE NEW NATION 419-420 (July 2, 1892).
218
LIPOW, supra note 200, at 75 (Bellamy abolishing jury system, and presumption of innocence).

34
supplement.
219
Far from abolishing the presumption of innocence, Foltz would apply it across the
board; every accused was innocent in the eyes of the law.
220
She was, moreover, a jury-lover.
Winning verdicts was practically the only public power a woman could wield, and she had made
her reputation by rousing summations.
Though Foltz disagreed on the shape of the proposed public defender, the interest the
Bellameyites stirred in the general idea was surely encouraging. For the first time in history,
moreover, the idea of public defense was discussed and debated at a nationwide meeting: the
organizing convention of the Woman’s National Liberal Union in Washington D.C. in early
1890. Foltz was there, via her Suffrage and Nationalist associations, leading the discussion. The
whole story of the convention is rich and complicated; I will tell enough here to illustrate the
connection of nineteenth century reform movements, and especially the link between suffrage
and public defense.
The Women’s National Liberal Union
The Women’s National Liberal Union (WNLU) was the brainchild of Matilda Gage, author with
Susan B. Anthony and Elizabeth Cady Stanton, of the first three volumes of the History of
Woman Suffrage.
221
After many years of loyal lieutenancy, however, Gage abandoned the
mainstream movement because she thought it inadequately attuned to the dangers of the male
dominated church.
She put out a nationwide broadside summoning free thinkers in religion and
politics (Suffragists and Nationalists among others) to join together in a new organization.
222
Clara Foltz signed the Call for the founding convention and was an active participant in the
formation of the WNLU.
223
One entire afternoon of the three-day convention was spent on the public defender.
224
Foltz was
the leading speaker on the subject, though William Aldrich, a friend of Gage’s, and the
underwriter of the convention,
225
was responsible for putting it on the agenda. Aldrich was the
219
Section 7 of the Foltz Defender Bill provides that the defendant may have services of the public defender and his
own private counsel. Appendix, Public Defender Bill, supra note 21.
220
Foltz saw representation of individuals as protection of the innocent: “It is an act far more important to the State
than the prosecution of the guilty.” Foltz, World’s Fair Speech, supra note 9, at 248. For Foltz’s view of the
centrality of the presumption of innocence, see text infra notes 251-270.
221
Anthony, Stanton and Gage authored the first three volumes of the History of Woman Suffrage. (1881-88) (Foltz
and Gordon and their suit against Hastings was prominently featured in Volume Three). On Gage, see
SALLY
ROESCH WAGNER, SHE WHO HOLDS UP THE SKY (1998); Sandra Brooke Lee, More Than a Suffragist: Matilda
Joslyn Gage and the Marginalization of Radicalism in the Woman Suffrage Movement in America (March 23, 1989)
(B.A. thesis, Harvard University) (on file with author); Lucia Patrick, Religion and Revolution, The Thought of
Matilda Joslyn Gage 1826-1898 (1996) (Ph.D. dissertation, Florida State) (on file with author); N
OTABLE
AMERICAN WOMEN, Gage entry, supra note 32.
222
THE LIBERAL THINKER, Jan. (1890) (this was the first issue of the magazine established to be the organ of the
National Women’s Liberal Union).
223
Id.
224
On the convention, see Matilda Gage, Woman’s National Liberal Union: Report of the Convention for
Organization, Feb. 24-25, 1890 [hereinafter Gage, Report].
225
THE NATIONAL ENCYCLOPEDIA OF AMERICAN BIOGRAPHY, Aldrich entry (James T. White ed., 1897);
B
IOGRAPHICAL DICTIONARY OF THE UNITED STATES CONGRESS, Aldrich entry (1928); TWENTIETH CENTURY
BIOGRAPHICAL DICTIONARY OF NOTABLE AMERICANS (Rossiter Johnson, ed., 1904). William Farrington Aldrich
(1853-1925) was from New York, and had moved to Alabama after the Civil War and established an extensive coal

35
carpetbagger founder of an eponymous Alabama mining town—a “model of order, peacefulness
and cleanliness” according to local legend, where black and white employees “lived in perfect
harmony, with few regulations save the Golden rule.”
226
The resemblance to the Nationalist
utopia hardly seems coincidental.
Aldrich proposed public defenders combining the Bellamy and Foltz models.
227
They would
represent everyone, eliminating private counsel, but would also be adversarial advocates: “of
equal ability to the District Attorney and their reputation and professional success should be
based on the number of acquittals they secure for the unjustly accused.”
228
He offered ten
thousand dollars (contingent on twenty others giving a like amount) to anyone who “who will
advocate the public defender, assist in formulating it, and keep a watchful eye over its operations
in New York, Boston, Philadelphia, Chicago and Washington, D.C.”
229
At the convention, Aldrich spoke briefly before introducing Clara Foltz, to “tell you of innocent
people who have been imprisoned solely because they had no one to defend them.”
230
Foltz told
those stories, and delivered her patented attack on the district attorney, who strives for
conviction even when he knows “all that is on the side of the defense.”
231
She also had her
usual lines about the “pitiful pettifoggers” appointed to defend, and ended with a call for a
public official to protect the innocent.
232
mining business. He won a seat in the House of Representatives three times, each time by contesting the award of
the election to his opponent. He served from 1896-1900. William F. Aldrich v. Gaston A. Robbins, 54
th
Congress,
Report 572; William F. Aldrich v. Thomas S. Plowman, 55
th
Congress, Report No. 284. In all three contests, Aldrich
successfully demonstrated that his opponent had engaged in the boldest kinds of fraud, mostly aimed at
disenfranchising black voters, who supported Aldrich. He was a Republican, though had Populist backing. See
S
HELDON HACKNEY, POPULISM TO PROGRESSIVISM IN ALABAMA 67 (1969) (providing an account of the arcane
politics of Alabama in this period and generally of the relationship of 19th and 20th century reform and mentioning
Aldrich as Republican “endorsed by the Populists”).
The connection of Aldrich and Gage was probably through his wife, Josephine Cables, a prominent
Theosophist, and editor of Occult World, who was a good friend of Gage’s. On Josephine Cables Aldrich, see M
ARY
LIVERMORE AND FRANCES WILLARD, A WOMAN OF THE CENTURY, Aldrich entry (1893) (“With his tenderhearted
and sympathetic wife, he was the originator and first to advocate the creation of a new office in the courts, that of
public defender, to have all the privileges and be clothed with the same rights before the grand jury and the court [as
the public prosecutor], his duty being the defense of the poor and unfortunate who have no means of employing the
best legal talent.”). The entry continues that he made an appeal for such an office to the National Women’s Liberal
Union and to various senators, federations of labor, and church congresses.
226
On the local legends associated with them both, see Henry A. Emfinger, The Story of My Hometown, Aldrich,
Alabama.
(self-published, unknown date) (on file with the author).
227
William Aldrich, Public Defenders, in THE LIBERAL THINKER 3-4 (Jan. 1890).
228
Id. Aldrich’s few paragraphs were passionate, populist ones. Government of, by, and for the people had become
“a government of rich men, by rich men, for rich men.” His plan, like Bellamy’s, would eliminate private counsel,
yet Aldrich seemed more concerned about unjust convictions (of the poor) than with unjust acquittals (of the rich).
See also N
EWARK DAILY ADVOCATE, May 6, 1890 (Aldrich’s proposal).
229
Aldrich, supra note 229, at 3-4. Aldrich also wanted the public defender advocate to “secure such legislation,
both State and National, as to make the plan a permanent part of our legal machinery.” Id.
230
Gage, Report, supra note 226, at 72-79 (discussing the public defender). Gage officially introduced Foltz as “one
of the two most important women of California in woman suffrage work, who has come to Washington to attend this
convention and also to be admitted to practice in the Supreme Court of the United States.” Id.
231
Id. at 75-79.
232
Toward the end of her speech, almost as an afterthought, Foltz turned to “the purposes of this convention” and
decried the tactics of the suffrage leaders who had worked for 40 years with no real results. T
HE WOMAN’S TRIBUNE,

36
The Washington Post reported that “[e]arly in her remarks, [Foltz] gained the sympathy of the
audience and her strong words frequently called out bursts of applause.”
233
In the discussion
period, male lawyers in the audience challenged Foltz’s depiction of inadequate representation.
Foltz and Aldrich responded vigorously to critics, and then Belva Lockwood, the first woman
lawyer admitted to the Supreme Court Bar, spoke up.
234
Lockwood told of her sixteen years at the Bar, in court most days, representing “several
hundreds of criminals,” and of seeing “perfectly innocent” people sentenced to jail. “I have
known colored men and women too who have lain in jail for years because they have no
money. Everyone knows court appointment of defense counsel is a joke, most of all the
defendants. . . . I am glad the convention has taken up this topic, for if there is anything that
wants looking after in this country, it is criminal justice. I wish the women on the platform
would go into the prisons and police courts—and see what I have seen, and know what I have
known.”
235
In her report on the convention, Gage remarked the gender differences in the reactions to the
public defender proposal.
236
Famous women lawyers, Clara Foltz and Belva Lockwood, took
on men about the need for the office. They spoke from their experience—first as suffragists,
hence outsiders—which had led them to law, then as lawyers called into criminal practice by
necessity, and seeing with fresh eyes the injustices of the system.
237
No one objected, at least not on the record, that the public defender was unrelated to the objects
of the meeting. Maybe this was just good manners, after all Aldrich was paying for the
convention. More likely, most of the people there saw a connection between public defense,
suffrage, free thought, nationalism, prison reform and the myriad other causes represented at
the Women’s National Liberal Union. Indeed, as it turned out, the public defender debate was
the most noteworthy event at the convention—at least in long-term influence.
238
Mar. 15, 1890, at 85 (Foltz “argued at some length on the necessity of having ‘national defenders’ and then turned to
the woman suffrage movement and its leaders.”)
233
WASHINGTON POST, Feb. 26, 1890 (noting also that Foltz’s speech included a “recital of her experiences in
injustice to accused persons in that State”).
234
For background information on Belva Lockwood, see NOTABLE AMERICAN WOMEN, Lockwood entry, supra note
33; Jill Norgren, Belva Lockwood Blazing the Trial for Women, 37 P
ROLOGUE 14-23 (2005), at
http://www.archives.gov/publications/prologue/2005/spring/belva-lockwood-1.html
; Jill Norgren, Before It Was
Merely Difficult: Belva Lockwood’s Life in Law and Politics, 23 J.
SUPREME CT. HIST. 1 (1999), at
http://www.stanford.edu/group/WLHP/articles/Bnorgren.pdf; C. Sleeth, First Women Lawyers in the United States,
3 (1997), at http://www.law.stanford.edu/library/wlhbp/papers/sleeth.pdf
. See also Women’s Legal History
Biography Project, Belva Lockwood, http://www.law.stanford.edu/library/wlhbp/profiles/LockwoodBelva.html
.
235
Gage, Report, supra note 226, at 72-79 (recording Belva Lockwood’s remarks).
236
FREETHINKER, May 1890, at 263 (“[I]it was remarkable to note in what different spirit the proposition was
received by the lawyers taking part in the discussion; the men opposing, the women sustaining it.”).
237
Gage, supra note 226. Not only Foltz and Gordon in California, but Marilla Ricker and Belva Lockwood in
Washington D.C., Lavinia Goodell in Wisconsin, Lelia Robinson in Massachusetts, Kate Kane Rossi in Illinois are
further examples of movement women who became, sometimes by necessity, criminal lawyers. Babcock, Women
Defenders, supra note 86, Babcock, Feminist Lawyers, supra note 78, at 1701 (1998).
238
No record I can find puts Foltz and Aldrich together again in a public defender effort and neither ever mentioned
the other, though both continued working on the idea. And here is a suggestive item: they were both at the
Republican National Convention in 1896. Woman Suffragists Hopeful, Expect to Secure a Favorable Plank in the

37
The WNLU faded swiftly from the scene—there was never a second national convention. Its
progenitor, Nationalism, also declined as rapidly as it had risen. Their inclusiveness—anyone
could be a member who believed in sex and social equality—was the downfall of both
movements. By most accounts, Nationalism failed because its followers were too diverse to form
a party or fix a platform.
239
Yet the movement had a significant afterlife, especially in California,
where the People’s Party took up Nationalism’s various causes, and then itself melded smoothly
into twentieth-century Progressivism.
240
Along with measures to regulate corporate greed and excess, especially by railroads,
Progressives inherited from their Nationalist and Populist predecessors a commitment to woman
suffrage and other social reforms, like public defense, embedded with it.
241
The intense
Progressive-era interest in public defense coincided with the last great push for a federal
amendment granting woman suffrage—and in California the two causes were coupled even
earlier.
By 1911, Progressives had elected the Governor of the state and controlled both legislative
houses.
242
They proposed a number of regulatory and democratic reforms, including woman
suffrage (and the referendum and recall), and held a special election to ratify the ones that
required constitutional amendment. Los Angeles, the hotbed of the movement, went even further
and passed a new city charter, including the possibility of a public defender.
243
Foltz claimed
credit for it all and for the establishment of a statewide defender option in California, which
passed the same year the Nineteenth Amendment was ratified.
244
Platform, N.Y. TIMES, June 14, 1896 (discussing Foltz’s appearance at the convention); William Aldrich, Alabama
Republicans, N.Y. TIMES, Apr. 12, 1896 (discussing Aldrich’s appearance at the convention). Shortly thereafter,
Foltz started her nationwide statutory campaign for a public defender statute. It may be that the Aldrich offer was
still open, and that she hoped to be paid for the idea she had been giving away for free.
239
MCNAIR, supra note 208, at 217-220 (describing the scene in April 1890 when the Nationalists made their only
attempt at a political convention and were faced with instant schism.) See also N
ICHOLAS PAINE GILMAN,
SOCIALISM AND THE AMERICAN SPIRIT 195 (1900) (noting that the movement was an invitation to all sentimentalists
“to come to the front and take charge”); John Hope Franklin, Edward Bellamy and the Nationalist Movement, 11
N
EW ENG. Q. 739 (1938); Francis Walker, Mr. Bellamy and the New Nationalist Party, 65 ATLANTIC MONTHLY 248
(1890).
240
This is a standard account. See e.g., GEORGE BROWN TINDALL, AMERICA, A NARRATIVE HISTORY 903 (1984)
(quoting Kansas editor William Allen White: “[P]rogressivism [is] just populism that had ‘shaved its whiskers,
washed its shirt, put on a derby, and moved up into the middle class.’”). Some historians find a sharper break
between the Nineteenth Century reform movements and the Progressives. See Robert H. Wiebe, The Progressive
Years 1900-1917, in T
HE REINTERPRETATION OF AMERICAN HISTORY AND CULTURE 425 (William Holman
Cartwright and Richard L. Watson, Jr. eds., 1973) (providing an old but not dated explanation of the historiography
of the Progressive Era). On the California Progressives, see supra note 35.
241
For the connection of woman suffrage with other reforms, see Rebecca West, Pioneers at the Polls: Woman
Suffrage in the West, in V
OTES FOR WOMEN 90 (Jean H. Baker, ed) 2002. Sources cited at infra note 247.
242
WALTON BEAN & JAMES RAWLS, CALIFORNIA, AN INTERPRETIVE HISTORY 251-259 (1988); FRANKLIN
HICHBORN, STORY OF THE SESSION OF THE CALIFORNIA LEGISLATURE OF 1911 (1911).
243
See SMITH, JUSTICE AND THE POOR, supra note 10, at 117, n.1 (noting the establishment of the public defender).
See also L
OS ANGELES COUNTY CHARTER, § 23 (June 1913); Miller, supra note 65, at 411-419 (describing charter
provisions). E
QUAL JUSTICE FOR THE ACCUSED, supra note 62, at 43-46.
244
See Allen, supra note 10 (noting that she stood all night receiving congratulations). See also SHUCK, supra note
10, at 109 (noting she was “successful in having the office created by the Los Angeles county charter”).

38
An explanation of the connection between suffrage and the public defender was offered in a
report on Women Professional Workers, written in 1921, the year of the final suffrage victory:
“women lawyers and leaders in the long fight for the franchise have gained an extensive legal
and political education which they are putting at the disposal . . . .of the ignorant and helpless
and exploited everywhere.”
245
So far Foltz would agree; but the next paragraph might have given
her pause.
On the subject of women lawyers, the study continued: “Their relative detachment from vested
interests and large property transactions leaves women free to devote themselves to the human
and preventive side of law, to the cause of Justice and the Poor . . . .”
246
Indeed they “seem
admirably fitted to fill the post of ‘public defender’ now so widely advocated.”
247
Foltz would
not like the sound of this—her public defender was not to dispense charity, which can degrade
the giver and the receiver. Instead, she would make criminal defense a high and well-paid calling
for lawyers, “full, adequate and free” for everyone.
Foltz’s Constitutional Arguments for the Public Defender
Free counsel in criminal cases is in line with free juries, free witnesses and free courts;
and we are approaching it by slow but certain steps. We long since took the gag out of the
prisoner’s mouth; we have let him meet the witnesses face to face; we have brought in his
own; we have read him the charge in open court; we have permitted him to pay for a
representative of his stammering tongue; in some cases we have paid for counsel; and in
foreign ports our consuls act for American citizens and no bill is ever presented to them.
- Clara Foltz, Public Defenders, 1897
One of the lessons Foltz took from the women’s movement was the importance of recording one’s
own history. At the end of her statutory campaign for public defense, she wrote it up in the
prestigious American Law Review with the evident purpose of cementing her own place, and
providing arguments for future proponents.
248
Public Defenders followed, virtually paragraph by
245
ELIZABETH KEMPER ADAMS, WOMEN PROFESSIONAL WORKERS (1921). Adams, like Kate Claghorn, supra note
63, was one of the first generation of women Ph.D.s, many of whom made studies of conditions among the urban
poor. See E
STELLE FREEDMAN, MATERNAL JUSTICE (1996); “THE BLUE BOOK”: WOMAN SUFFRAGE, HISTORY,
ARGUMENTS AND RESULTS 53-54, 57 (Frances M. Bjorkman & Annie G. Porritt, eds., 1917) (mentioning public
defender in California as example of the “women’s first care after their enfranchisement was to put through a most
extraordinary legislative program”); B
EATRICE DOERSCHUK, WOMEN IN THE LAW; AN ANALYSIS OF TRAINING,
PRACTICE AND SALARIED POSITIONS 90-92 (1920) (discussing similarity of legal aid and public defending, both jobs
attracting women lawyers).
246
Id. at 73-74 (quoting Adams who added that “women lawyers are of course especially needed in matters
concerning the protection and welfare of women and of children; they are needed in legal aid societies . .”).
247
Id. at 74.
248
Foltz, Public Defenders, supra note 9, at 393. Publishing in the American Law Review carried a measure of
professional recognition. It was edited by John Chipman Gray and Jon Codman Ropes (founders of the famous
Boston firm that bore their names), Oliver Wendell Homes, Jr. and James Thayer. The main citations crediting Foltz
as founder of public defense cite the American Law Review article. See, e.g., John Henry Wigmore, supra note 10;
S
MITH, supra note 10.

39
paragraph, Foltz’s World’s Fair speech, and occasionally repeated the language verbatim. A law
review article, however, required footnotes and hers were both ingenious and original.
The Presumption of Innocence
Initially, Foltz established the universal need of every accused for counsel. No matter how
innocent the defendant or how ironclad his defense, she said, he “cannot act for himself.”
249
He
does not know how to “lay the foundation of an expert’s testimony or impeach a witness” or
distinguish competent from improper evidence.
250
Note that she astutely identified the three
hardest things a trial lawyer does.
251
Everyone needs a lawyer, but does everyone merit a lawyer? To “the unthinking suggestion …
that a criminal deserves no consideration” because he is guilty,
252
Foltz had a two-fold answer.
First, she emphasized that “[o]ne-half of those arrested and charged with crime are actually
innocent.”
253
She cited statistics from New York, Chicago and San Francisco which she
apparently gathered from official reports and her own investigation.
254
Even the plea rate was
suspect because “innumerable innocent boys and girls and men and women” plead guilty
because they are “too dazed to understand their rights and legal position . . . or a fine is cheaper
than counsel and they can better stand the disgrace than the money loss.”
255
Many who might seem guilty are not actually so—this was always Foltz’s first point to soften
up the audience for her more fundamental and challenging proposition. “Every person is
presumed to be innocent and that presumption goes with him through every step of the trial
until the verdict is rendered. The law ought to treat him as it presumes him.”
256
So Clara Foltz
answered the perpetual puzzle proposed to defense lawyers—how can you defend someone you
know is guilty?
257
249
Id. at 397.
250
Id.
251
For this proposition, Foltz footnoted “the old saw that ‘a man who is his own lawyer has a fool for a client’. . .
enforced by the experience of Horace Greeley, in a series of libel cases, where he appeared for himself with
disastrous results and was compelled to admit his inability.” Id. at 397, n.2. Foltz was referring to Greeley’s best
selling tract where he represented himself against a skilled lawyer for the plaintiff. Greeley entered the wrong
technical plea for defending on the basis of truth, failed to appreciate the latitude given for closing argument, and did
not know how to put his points to a jury. See L.
D. INGERSOLL, THE LIFE OF HORACE GREELEY 122-145 (1873)
(quoting at length from Greeley’s tract). Foltz expected her readers to know the incident and see its relevance,
though it had happened well before the Civil War.
252
Foltz, Public Defenders, supra note 9, at 402.
253
Id.
254
In New York, only sixty percent of the felony arrestees and fifty-four percent of the misdemeanor accused were
“even held to answer.” Of these, she added, “The district attorney refused to make known the percentage of actual
convictions.” Her Chicago and San Francisco examples were sketchy, but suggested conviction rates of thirty-one
and forty-two percent respectively. Foltz, Public Defenders, supra note 9, at 401 n.38. Furthermore, Foltz noted
rates of police over-arrest, “The fallibility of the judgment of the police is strongly suggested by the fact that in New
York City, during the year ending October 31, 1896, the police arrested 2,455 people as “suspicious persons,” every
one of whom was discharged.” Id. at 401, n.36 (citing City Magistrates Report, p. 16).
255
Foltz, Public Defenders, supra note 9, at 393.
256
Id. at 402 (1897).
257
See e.g., Barbara Allen Babcock, Defending the Guilty, 32 CLEV. STAT. L. REV. 175 (1983) (offering various
rationales for defense work).

40
A professional lives out the law’s presumption; all clients are innocent until the state meets its
burden and the jury returns its verdict. Foltz drew no distinctions between counsel’s duty to the
actually innocent and those who had only the presumption to sustain them. Both were the same
before the law, and thus the same to the lawyer. The right to counsel applied equally, and it
followed that justice should be free for the innocent and for the presumed innocent. Available
to all the innocent people should be a capable public defender.
258
At the World’s Fair, Foltz had invoked “the common conscience of men” and “the great heart
of the people”
259
to support this point. In her law review article, she gave no authority at all,
though well-known sources discussed the lawyer’s role in defending the guilty.
260
Thomas
Cooley’s Constitutional Limitations, the most familiar treatise of the day
261
had a very usable
passage on the subject.
262
Even if a defense lawyer became convinced of his client’s guilt,
Cooley said, he
must continue his advocacy to assure that “a conviction is not secured contrary
to law.”
263
“But”—and next came the huge existential question that Cooley did not answer—
“how persistent counsel may be in pressing for the acquittal of his client, and to what extent he
may be justified in throwing his own personal character as a weight in the scale of justice, are
questions of ethics rather than of law.”
264
On the question of ethics, Cooley merely laid out the dilemma. “No counsel is justifiable who
defends even a just cause with the weapons of fraud and falsehood, and no man on the other
hand can excuse himself for accepting the confidence of the accused, and then betraying it by a
258
Foltz, Public Defenders, supra note 9, at 393.
259
Foltz, World’s Fair Speech, supra note 9, at 248.
260
Though there was not a huge literature on professional ethics, the duties of a defense lawyer toward a guilty
client were mooted in works that Foltz likely knew. In addition to Cooley and Weeks On Attorneys discussed supra
note 141, see also James Ram, A Treatise On Facts As Subjects Of Inquiry By A Jury. (1890) (4th
ed.). See also John
Downey Works, About Lawyers’ Morals—The Responsibility of Laymen, CENTURY MAG. (Jan. 1888), reprinted in
S
HUCK, supra note 10, at 417-20 (1889) (lawyer’s duty never to refuse for personal reasons the cause of the
defenseless or oppressed, even if he knows he is guilty). On the other side of the issue were frequent exhortations to
be honest with the court as its officer, to put duty to society and court above all others. For further citations on both
sides, see Norman W. Spaulding, The Myth Of Civic Republicanism: Interrogating The Ideology Of Antebellum
Legal Ethics, 71
FORDHAM L. REV. 1397 (2003).
261
THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE
POWER OF THE STATES OF THE AMERICAN UNION (2d ed. 1871). First published in 1868, it was ‘the most widely
used American law book” through many editions. PAUL D. CARRINGTON, STEWARDS OF DEMOCRACY;
LAW AS A PUBLIC PROFESSION (1999) at 8. See also Stephen A. Siegel, Historism in Late Nineteenth-Century
Constitutional Thought, 1990 Wis. L. Rev. 1431.
262
COOLEY, (2d ed.), supra note 263, at 361-62. See also WEEKS, ON ATTORNEYS, §184, at 323-29 (first treatise on
lawyer’s ethics; quotes Cooley practically verbatim, but see note 267 infra ).Though she did not cite Cooley, Foltz
was familiar with Weeks. Foltz, Public Defenders, supra note 9, at 399, n.1.
263
COOLEY, (2d ed.), supra note 263, at 361-62 (“the worst criminal is entitled to be judged by the laws . . .”).
264
Id. (emphasis supplied). Cooley continued, “and if his conviction is secured by means of a perversion of the law,
the injury to the cause of public justice will be more serious and lasting in its results than total escape from
punishment.”

41
feeble and heartless defense.”
265
Unlike Thomas Cooley who left the two sides in tension, Clara
Foltz told the lawyer how to avoid a “feeble and heartless defense;” treat every client as
innocent from initial contact until verdict.
One of her classic trial stories illustrated Foltz’s method.
266
Appointed to represent a poor Italian
immigrant on a charge of arson, she said she believed in her client at once, that this approach was
“a habit of mind with me.”
267
In her closing argument, she relied on the presumption: “It is
oftener the good heart and the sound sense of the jury, the innate sprit of right and appreciation
of justice that renders a verdict than the seeming logic of a prosecuting officer, who too often
moved by a selfish ambition to win, [forgets] that the accused is presumed to be innocent until
proven guilty and that this presumption obtains at every stage of the case and remains with him
until the verdict is rendered.”
268
“Constitutional Obligations”
Many decades before Gideon, Clara Foltz argued that the Constitution required free defense
counsel for everyone. She also argued that the government could not meet its obligation
through the appointed counsel system. These arguments were both sophisticated and original.
Opening with Blackstone, Foltz explained that though counsel was historically denied in
ancient England, judges and prosecutors protected the rights of the accused and produced
evidence in his behalf.
269
“Under such a system counsel was not greatly needed... the procedure
was reasonably fair and wholly free.”
270
By contrast, she said, counsel was never forbidden in
the United States, but neither was it ever free. Federal and state constitutions provided the right,
but the accused “must pay or go without counsel and, therefore, without justice.”
271
The right to counsel, Foltz continued, is “subject to the same rules of interpretation”
272
as all
the other Constitutional guaranties, which means that it “ought not to be impaired, nor burdens
imposed to its perfect exercise:”
273
She gave many examples of burdening a right—e.g..
“Suppose the legislative power should add to the guaranty of a speedy trial the proviso, or
condition, provided he pays for it, suppose it should add to the guaranty of a trial by jury, the
condition, provided he pays for their services: suppose it should add to the guaranty of
265
Id. WEEKS, ON ATTORNEYS, supra note 141, at 383, §184, n.2. Weeks takes his section on defending the guilty
verbatim from Cooley, which he cites, except for the “heartless defense” sentence, indicating that Weeks did not
agree with it.
266
Foltz, Struggles, supra note 80, at ch. 22 (Jan. 1918). See Babcock, Western Women Lawyers, supra note 95.
267
Id.
268
Id.
269
Foltz, World’s Fair Speech, supra note 9; Foltz, Public Defenders, supra note 9, at 393 n.4 (citing to 4
Blackstone Com. 355). Foltz’s text follows Blackstone very closely. The denial of counsel was most absolute in
death penalty cases; at the time of separation of the colonies from Great Britain, there were 160 crimes on the
English statutes punishable by death.. Foltz, Public Defenders, supra note 9, at 394, n.7 (1897).
270
Id. at 393.
271
Foltz, World’s Fair Speech, supra note 9, at 249.
272
Id. at 250.
273
Foltz, Public Defenders, supra note 9, at 398.

42
confronting the witnesses against him, the condition that he pay the witness fees and
mileage.”
274
At the Fair, Foltz concluded her examples by declaring: “Such conditions would be a public
disgrace and national scandal, and would not be tolerated for a moment.”
275
For the law review
article she needed better authority for the “fundamental rule that a constitutional right cannot be
impaired by burdening it with obligations.” All she found were two old state cases and a ruling
by John Marshall in the 1807 trial of Aaron Burr.
276
The cases both struck down statutes conditioning the right to a jury trial on posting a bond and
risking an enhanced sentence;
277
both held that it violated due process (or the law of the land)
to “treat the innocent, who are unable to furnish the required security, as if they were guilty and
[to] punish them, while still presumed innocent, for their poverty, or want of friends.”
278
Though these pre-war precedents were a little creaky, their mention of the presumption and use
of due process made them apt for Foltz.
279
274
Foltz, World’s Fair speech, supra note 9, at 249-50. In Public Defenders, Foltz multiplied her sometimes fanciful
examples of burdening the right. See Foltz, Public Defenders, supra note 9, at 398.
Right: Burden:
to witnesses fees for service and travel
to jury trial a per diem or courtroom rent
to know the charges against him a scrivener’s fee
a speedy trial the sheriff’s board bill profits
freedom of worship five dollars a prayer
free speech a dollar a minute
freedom from search ten dollars a week to the police captain
275
Foltz, Public Defenders, supra note 9, at 398.
276
Foltz’s cite was Saco v. Wentworth, 37 Me. 165; Green v. Briggs, 1 Curt. (U.S. Cir.) 811; 1 Burr. Tr. 158-9.
Foltz, Public Defenders, supra note 9, at 398, n.3. Saco and Greene were cited for this sentence: “If we were to-day
unfettered by custom, the plain construction would be that all these rights should be free, because a right ought not
to be impaired, nor burdens imposed to its perfect exercise . . .” The modern citation for the cases is Saco v.
Wentworth, 37 Me. 165 (1853); Greene v. Briggs, 10 F. Cas. 1135, (C.C.R.I. 1852).
277
Greene and Saco both arose from early state efforts to regulate liquor sales and were sub judice at the same time.
Both statutes provided seizure of liquor and forfeiture with a jury trial only available by posting security and risking
a greater penalty. In Saco, a criminal case, the Rhode Island court simply struck down the state statute. Greene was a
federal civil case in the diversity jurisdiction to recover forfeited liquors by a citizen of New York against the Maine
officials who had seized it. The federal court acknowledged that the case involved “important questions, arising
under the constitution and laws of the state;” but found deciding them “a duty, which we should neither seek nor
avoid, but perform.” Greene, 10 F. Cas. at 1139 found that the Maine court that issued the forfeiture was without
jurisdiction because it was operating under an unconstitutional statute.
278
Id. Both the state constitutions (Maine and the Rhode Island) protected all persons from being deprived of liberty
or property “unless by the judgment of his peers, or the law of the land.” Law of the land was equivalent to due
process before the passage of the Fourteenth Amendment. See also C
OOLEY, supra note 88, at 383 n.1 (including a
state-by state survey of due process wording); David M. Gold, The Tradition of Substantive Judicial Review: A Case
Study of Continuity in Constitutional Jurisprudence, 52 M
E. L. REV. 355 (2000) (citing and discussing Saco and
mentioning Greene); John Marquez Lundin, The Law Of Equality Before Equality Was Law, 49 S
YRACUSE L. REV.
1137, 1141 (1999) (same).
279
Cooley cited Greene for its interpretation of due process and the law of the land. COOLEY, CONSTITUTIONAL
LIMITATIONS, supra note 88.

43
Her other citation was to the transcript
280
in the trial of Aaron Burr for treason. Burr
subpoenaed a letter to President Jefferson written by the key witness against him, and Jefferson
claimed executive privilege. Presiding as the trial judge, Justice Marshall held that “the right of
an accused person to the process of the court to compel the attendance of witnesses seems to
follow, necessarily, from the right to examine those witnesses; and, wherever the right exists, it
would be reasonable that it should be accompanied with the means of rendering it effectual.”
281
By analogy, Foltz implied, effectuating the right to counsel meant that it should be “full adequate
and free.”
Foltz’s next proposition was that only a public defender could effectuate the right. Initially this
required showing that the appointed counsel system was inadequate. “Do not imagine . . . that
this counsel is free. It is not. The accused is under actual legal obligations to pay for it, and if he
ever gets any property the lawyer can enforce the payment for his services,”
Foltz wrote.
282
Undercutting this point was a venerable case, Carpenter v. Dane, approved by Cooley and
adopted in a number of jurisdictions, holding the government responsible for the lawyer’s fee.
283
Foltz knew the case; indeed she cited it and even lifted some of its language.
284
It came close,
for example, to her point about unconstitutional burdens, holding it “a little like mockery to
secure to a pauper these solemn constitutional guaranties for a fair and full trial [and then deny
him counsel] who could alone render these guaranties of any real permanent value to him.”
285
But Foltz did not mention Carpenter in her section on the inadequacy of appointed counsel —
probably because paying lawyers would in theory remove the burden on the right and thus
undercut her constitutional argument. It would also patch up the appointment system and make
radical reform less urgent.
286
Generally, opponents of the public defender urged that the appointed counsel system was the
better way to provide counsel. Good lawyers were willing to serve the indigent accused as a
matter of professional obligation even though they were not paid in most jurisdictions. At least,
280
1 Burr. Tr. 158-9. Foltz, Public Defenders, supra note 9, at 398, n.3. The case was reported at United States v.
Burr, 25 F. Cas. 30 (1807) but Foltz cited to two pages in the midst of a dense trial transcript.
281
United States v. Burr, 25 F. Cas. 30 (1807).
282
Public Defenders, supra, note 9, at 398. A t the World’s Fair, Foltz added that there were few actual suits
because “the statute of limitations has run against his lawyer’s claim by the time [the client] gets out of prison.”
Foltz, World’s Fair Speech, supra note 9, at 249.
283
Carpenter v. County of Dane, 9 Wis. 274, 1859 WL 2840 (1859); see supra note 88. COOLEY, supra note 88
(approving Carpenter and covering cases following and rejecting it).
284
She cited Carpenter for the point that it was unfair to the lawyers to commandeer their services without payment.
Foltz, Public Defenders, supra note 9, at 400, n.2. Foltz also picked up some phrases and locutions from Carpenter.
See e.g., “[S]urely the citizens of a county are vitally more interested in saving an innocent man from unmerited
punishment than in the conviction of a guilty one.” Id. Compare id., with Foltz, World’s Fair Speech, supra note 9,
and Foltz, Public Defenders, supra note 9.
285
Carpenter, 1859 WL 2840, at *1-2. The court rhetorically asked: “is the right to meet the witnesses face to face,
and to have compulsory process to compel the attendance of unwilling witnesses, more important, or more valuable
to a person in jeopardy of life or liberty, than the privilege of having the benefit of the talents and assistance of
counsel in examining the witnesses, or making his defense before the jury?” Carpenter, 1859 WL 2840, at *1.
286
Carpenter made it clear that it was not promoting radical change by acknowledging the complaints of the Bar
that sometimes courts appointed lawyers for people who could afford to pay. “This is wrong, and the practice ought
to be abandoned.” Carpenter, 1859 WL 2840, at *2.

44
those were views commonly held by those who had never been in a large volume baseline
criminal court.
Foltz had been there, and had seen first-hand the tremendous pressures on the genteel appointed
counsel system from the effects of immigration and urbanization. She saw too that the legal
elites were turning away from criminal practice and knew little of the true state of affairs in the
courts.
287
Assailing the comfortable belief that the appointed counsel system was sufficient, she
spoke of “innumerable innocent boys and girls, men and women: . . . robbed by shysters . . .
neglected by irresponsible court appointees,” pleading guilty or going to trial without an
adequate defense, in jail or even if acquitted, impoverished, and embittered.
288
In Biblical phrases, she depicted a defense that was “but a shadow of the substance sought for,”
of asking for bread and receiving a stone.”
289
Though she acknowledged that occasionally good
lawyers defend,
290
Foltz said that in “in practice appointees come from the loafers in court and
from the young, the untried and inexperienced in the profession.
291
She ridiculed the argument
that court appointment provided needed training for tyro-attorneys.
292
“Is it the State’s business
to furnish victims to young lawyers? Are we so in need of more lawyers that the State should
sacrifice its duty to encourage them?”
293
Contemptuously, she denounced their advice, given without investigation or regard for the
individual situation, “to earn consideration by ‘saving the county expense,’ and throwing
himself on the ‘mercy of the court.’”
294
Foltz found this plea bargaining disgusting: “Think of
the spectacle of a court remitting part of a criminal’s legal punishment for a money
consideration!! [sic] And yet who has not witnessed it?”
295
Her description of the inadequacies of appointed counsel revealed Foltz’s expectations for the
public defender and indeed for all defense lawyers.
296
They should investigate the cases,
287
Michael McConville & Chester L. Mirsky, Understanding Defense of the Poor in State Courts: The Sociological
Context of Non-Adversarial Advocacy, 10 S
TUD. L. POL. & SOCIETY 217, 222 (1990) (“[T]he elite of the legal
profession distanced themselves from the representation of the poor and from state criminal court practice”).
288
Foltz, Public Defenders, supra note 9, at 393 (1897).
289
Foltz, World’s Fair Speech, supra note 9, at 249. HOLY BIBLE, King James Version, Hebrews 11:1 (Faith is
the substance of things hoped for ...); Id. Matthew 7:9 (“if his son ask for bread, will he give him a stone”)
290
Foltz, Public Defenders, supra note 9, at 399. “Sometimes the court braves the resentment of a busy lawyer and
appoints him . . . or a brilliant young lawyer, generally in novels, successfully defends.” Foltz was probably thinking
of G
ERTRUDE ATHERTON, PATIENCE SPARHAWK AND HER TIMES (1895), which was said to be based partly on
Barberi and Fleming cases, see infra text at 27-30 and notes 158-179, in which a skilled defense lawyer acting
without a fee, saves the falsely accused woman from the electric chair, at the last possible second.
291
Id.
292
See, e.g., Foltz, Public Defenders, supra note 9; N.Y. DAILY TRIB., supra note 23, at 6 (“It would deprive the
young criminal lawyer of the change to take the first steps in his profession.”).
293
Foltz, Public Defenders, supra note 9, at 402.
294
Id. (footnote omitted).
295
Id. at 399, n.2.
296
Foltz mentioned that appointed counsel were often caught up without a moment’s notice and compelled to go to
trial without time to prepare on the law or to secure testimony.” Id. at 399. Her Public Defender would not enter
guilty pleas without investigation, or plead a client “caught in the mesh of misunderstanding or circumstantial
evidence. ” Id. See also Foltz, World’s Fair Speech, supra note 9, at 249 (discussing the failures of the appointed
counsel system).

45
prepare the law, summon witnesses, advise the client on the plea, and use all ethical means to
achieve the most favorable verdict at trial. She lauded the skills of the good lawyer, and found
it unfair to compel “credit to a pauper” for their use.
297
Admitting that “professional ethics and sometimes the law require the lawyer not to reject the
cause of the defenseless or oppressed,”
298
Foltz urged that did not mean he must be generally
available for court appointment. She compared the physician’s ethic of care for the sick. “Yet
no one would think of compelling a physician to be at the free command of an alms-house
superintendent.”
299
The standard justification sounded in the attorney’s obligation to the court as its officer.
300
From her own experience, Foltz knew that this obligation fell very unequally on the profession.
She herself received far more than her share of court appointments. “Why should an attorney be
required to give his time and skill and energy—his sole capital—for a book account against a
pauper prisoner?”
301
The lawyer’s capital is doubly at stake, Foltz wrote, because “Criminal
cases, especially pauper ones, are often lost, and every case lost detracts from the reputation of
the successful lawyer. There is no justice in asking him to sacrifice such a reputation without
compensation.”
302
Another rationale for the lawyer’s duty to accept appointment was his professional concern
with fairness and due process. Foltz objected to this one too. “He is no more interested in
seeing justice done than any other citizen is, or ought to be.”
303
She believed in the collective
responsibility of all citizens for what happens in the courts. Her defender would entail public
participation in criminal justice at the same time it removed an onerous load from the legal
profession.
304
297
Foltz, World’s Fair Speech, supra note 9, at 249.
298
Foltz, Public Defenders, supra note 9, at 400. See, e.g., CAL. CIV. PRO § 282 (1889) (“It is the duty of an attorney
and counselor never to reject, for any consideration personal to himself, the cause of the defenseless or the
oppressed.”). See also C
OOLEY, supra note 88; WEEKS, ON ATTORNEYS, supra note 141 (commenting on the high
duty of appointed counsel).
299
Id.
300
COOLEY, CONSTITUTIONAL LIMITATIONS, supra note 88, at UNION §334; WEEKS, supra note 141 (high duty of
appointed counsel); Yuba v. Rowe County, 17 Cal. 61 (1860) (representing the indigent is an obligation of being
licensed by the state); Vise v. Hamilton County, 19 Ill. 78 (1857) (same).
301
Foltz, Public Defenders, supra note 9, at 400, n.2.
302
Foltz, Public Defenders, supra note 9, at 400.
303
Id. Compare Carpenter: “It may be that he is interested in seeing justice done, but really not more so than every
other citizen.” Carpenter, 1859 WL 2840, at *2.
304
Foltz: “True, lawyers have been generous in volunteer services in behalf of the unfortunate and despised so as to
secure them a fair trial; but is it just to impose on them the burden of laborious and, in practice, gratuitous services,
or the alternative of witnessing all the principles of law and justice outraged in the conviction of an undefended
prisoner?” Foltz, Public Defenders, supra note 9, at 400. Carpenter: “It is the boast of the profession that its
members have ever been ready to volunteer their services in behalf of the unfortunate, despised, degraded criminal,
so that he should have a fair trial. But is it just to impose upon them the burden of laborious and gratuitous services,
or the alternative of witnessing all principles of law and justice outraged in the conviction of an undefended
prisoner?” Carpenter, 1859 WL 2840, at *2.

46
The argument for appointed counsel was mainly a stalking horse for the real objection: the cost
of a full service public defender, representing all who asked.
305
On expense, Foltz responded
with a little lesson in economics. “Money is not cost; it is only a measure of it. Cost is the draft
of time and force and energy made upon a people. War would be a fearful cost though every
solider served free and every garment, cartridge and ration was a compulsory contribution.”
306
“Time, energy and effort,—these are the elements of cost because they are the prime factors of
wealth. The defense of the accused under a public defender law would require no more time nor
effort than is now consumed.”
307
In reality, Foltz continued, the public defender would save the
system money because “the orderly arrangement of causes for trial could be far better effected
between opposing officers than between a district attorney and a dozen lawyers with conflicting
civil business.”
308
Moreover, a public defender would become an expert in the criminal law and
court practices and thus “could actually accomplish more work with less effort and in less
time.”
309
Conclusion: Re-inventing the Public Defender
As I was putting the finishing touches on this piece, the San Jose Mercury-News published an
exposé of criminal justice in the county where Clara Foltz first practiced.
310
It describes the same
incompetence and neglect that she portrayed in her speeches and writings: the same. A hundred
years after Foltz shocked the jurisprudes, thousands still serve unjust sentences because they did
not have adequate counsel.
Prominent in the Mercury-News series is the failed ideal of public prosecution. Foltz described
the same fall from “ministers of public justice” to “violent advocates seeking only to win.”
311
Too many district attorneys, she said, are “imbued with the pernicious notion that they must
convict every prisoner at all hazards.”
312
They are governed by “the pride of contest rather than
the spirit of justice.”
313
On motivation for prosecutorial misconduct the Mercury articles echo
Foltz: their desire to “uphold a friendly police in its frequent blunders . . . the vanity of winning
cases . . . . the unfortunate belief, engendered by the office itself, apparently, (for they all have it
after a few years’ service) that the accused is always guilty.”
314
305
See, e.g., Foltz, Public Defenders, supra note 9; N.Y. DAILY TRIB., supra note 23, at 6 (“It would be a waste of
money to compel the taxpayers to pay a great corps of public officers to do what is now done for nothing.”); W
ASH.
POST, supra note 68 (arguing “there is a bottom to the public’s purse and a limit to the public’s tolerance”).
306
Foltz, Public Defenders, supra note 9, at 401.
307
Id.
308
Id.
309
Id. at 401-02.
310
Frederic M. Tulsky, Tainted Trials: Stolen Justice, SAN JOSEMERCURY-NEWS NEWS, (Jan. 22-26 2006),
http://www.mercurynews.com/mld/mercurynews/news/special_packages/stolenjustice
. [Hereinafter Tulsky, title of
specific article] The series is based on an intensive examination of all the appellate cases in a five-year period (727
total) plus several hundred cases that were not appealed, which were studied through court files and interviews.
311
Foltz, Public Defenders, supra note 9, at 395. Compare Tulsky, Prosecutors Over the Line (Jan. 23, 2006),
supra, note 314 (giving many examples of individual prosecutorial misconduct).
312
Foltz, Duties, supra note 9, at 416.
313
Id. at 415.
314
Id.

47
In one respect, the prosecutorial faults Clara Foltz exposed are different from the ones found by
the modern newspaper. She objected to the custom of allowing complainants to hire their own
special counsel to aid the prosecutor.
315
Though this practice no longer exists, there are modern
analogs tending to replace public justice with private revenge— the “unholy pleasure” as Foltz
named it. Consider the deference paid at sentencing to victims seeking closure or the corporate
complaining witness who provides the prosecutor with exhibits and experts.
On the defense side, just as in Foltz’s day the worst lawyers are the shysters. The Mercury News
article describes them as “a class of private lawyers who take a case for a relatively low fee and
then boost their profits by avoiding a time-consuming trial.”
316
The guilty plea rate (of eighty
percent) is thus suspect and the series gives some heart-wrenching examples of innocent people,
and others with strong defenses, pleading because badly advised. Moreover, the Mercury-News
makes the Foltzian connection between prosecutorial misconduct and inadequate defense. At
trial, incompetent lawyers fail to object to outlandish arguments and obviously inadmissible
evidence.
317
Then in the same logic trap Clara Foltz depicted,
318
the appellate court holds the
point waived. Nor, the Mercury News finds, does the court of appeals respond to claims of
ineffective assistance of counsel.
319
Writing long ago, Clara Foltz said of conditions in the criminal justice system: “[t]hese evils are
the constant subject of comment by courts and bar associations, but the wrongs continue.”
320
So
any observer would say today of the consistent round of reports and articles on the failed promise
of Gideon.
321
Yet, despite the regular round of studies and commissions, the profession as a
whole seems unaware of the actual situation in the criminal courts; certainly there is no sense of
urgency about it.
The widespread adoption of public defense has had the unintended consequence of walling off
criminal practice from general professional concern. Leave it to the public defender seems to be
the attitude, especially among the elite bar. Yet few public defenders have the resources even to
give effective individual representation, much less to counter the prosecutor systemically, or to
lobby for adequate resources to meet inevitably increasing caseloads.
322
It is time to renew the original understandings and founding aspirations of public defense as
conceived by Clara Foltz , envisioned in Gideon, and enacted by the Progressives. From her
315
Foltz, World’s Fair Speech, supra note 9, at 248.
Foltz denigrated “hired [special] counsel . . . in no sense
representing the majesty of a great State but rather, the malice of a prosecuting witness.”Id.
316
Tulsky, The High Cost of a Bad Defense (Jan. 24, 2006), supra note 314.
317
Id.
318
Foltz, Duties, supra note 9, at 424-26.
319
Tulsky, Last Chance, Little Help (Jan. 26, 2006), supra note 314.
320
Foltz, Public Defenders, supra note 9, at 397.
321
Letter from Abe Krash to Barbara Babcock, Aug. 11, 2005 (on file with author).
322
Notably, the Santa Clara public defender embraced the Mercury-News series. Mary Greenwood, Opinion, San
Jose Mercury-News News (Feb. 3, 2006) (“[T]he series accurately describes the frustration our lawyers often
experience n the effort to defend the indigent accused n a grinding adversarial system.”). Greenwood was not the
public defender during the period of the study. While depicting mistakes by public defenders and private attorneys,
the Mercury-News made the “telling distinction” that “private attorneys’ failings are often driven by money,”
implying that the public defenders err from overwork or lack of training. Tulsky, The High Cost of a Bad Defense,
(Jan. 24, 2006) supra note 314.

48
experiences as jury lawyer and feminist crusader, Foltz fashioned a powerful, resourceful figure
to counter and correct the prosecutor, to balance the presentation of the evidence, and to make
the proceedings orderly and just. Her defender would engage the law’s presumption of innocence
on a deep level—investigating for favorable evidence, summoning witnesses, seeking expert
testimony, and preparing to cross examine. Like a good Progressive, he would also plea bargain
but only after preparing the case, so that there was more to offer than the defendant’s right to
trial. He would work with the prosecutor’s office in designing fair procedures (for producing
favorable evidence for instance), would support programs for rehabilitation and treatment of
offenders, and would lobby on behalf of bills to make the right to counsel real for all the accused.
“Let the criminal courts be reorganized upon a basis of exact, equal and free justice; let our
country be broad and generous enough to make the law a shield as well as a sword,” Clara Foltz
said in her peroration at the World’s Fair.
323
In return, she promised “the blessings which flow
from constitutional obligations conscientiously kept and government duties sacredly
performed.”
324
The promise holds true today.
323
Foltz, World’s Fair Speech, supra note 9, at 250.
324
Id.

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Appendix: The Foltz Defender Bill
Reprinted from 55 ALB. L.J., 66, 67 (Jan. 1, 1897)
Section 1 There shall be elected by the qualified electors of each county or city and county,
at the general election to be held in the year 1897, and at the general election
every third year thereafter, a public defender, who shall hold office for three years
from and including the first day of January next succeeding his election.
Section 2 Any person duly admitted to practice as an attorney and counselor-at-law in this
State, and who has been a resident of the county or city and county for one year,
shall be eligible to the office of public defender, and no person not possessing the
said qualifications shall be eligible.
Section 3 The public defender, when authorized by the Board of Supervisors, Board of
Aldermen, or other legislative body of any county or city and county in which he
is public defender, may appoint one or more assistants. Every assistant public
defender shall be an attorney and counselor-at-law in this State, shall be a resident
of the county or city and county in which the service is to be performed, and shall
take and file the constitutional oath of office before entering upon his duties.
When similarly authorized, the public defender may appoint clerks or other
employees. Every appointment made by the public defender shall be in writing
and filed with the county clerk, and may by him be revoked by a writing similarly
filed.
Section 4 It shall be the duty of the public defender to attend all criminal courts, and to
appear for and defend all persons charged with violation of the law who are
without counsel and who desire an attorney to appear from them; also, to attend
the courts and boards of charities and appear for and in behalf of all persons
charged with being insane or lunatic.
Section 5 The public defender of any county or city and county in which a capital or other
important criminal action is to be tried, may, with the approval of a judge or
justice of the court in which the action is to be tried, which approval shall be filed
with the county clerk, employ counsel to assist him on such trial; and the costs
and expenses thereof, duly certified by the judge presiding at the trial, shall be a
charge upon the county or city and county in which the indictment was found or
information filed.
Section 6 The Board of Supervisors, Board of Aldermen, or other legislative body of the
county or city and county, shall provide suitable rooms for the use of the public
defender, and shall fix his salary or compensation and that of his assistants and
employees, and the same shall be a charge upon the county or city and county.

50
Section 7 Nothing in this act shall be construed to prevent any person from employing
special counsel to defend him, or to limit his right therein, and such special
counsel may appear and defend him alone, or may join therein with the public
defender, at the option and discretion of the defendant.