Daily Archives: June 23, 2008

Roth-very narrow

SCOTUS today issued its opinion in Rothgery v. Gillespie County [pdf], which has caused some discussion in the blawgosphere. The prevalent theme in this discussion is a sense of being unfulfilled. A sort of “that’s it?”

There’s also some confusion as to what the decision really means.

Only one thing is clear: It is narrow. Very, very, narrow.

Our holding is narrow. We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

So the decision was on a small, technical issue and the case will be sent back to the Fifth Circuit to determine whether any of Rothgery’s rights were actually violated (remember, this is a 1983 case).

So if they’d left it at that, it’d be fine. But then there’s this other business (from J. Alito’s concurrence):

As I interpret our precedents, the term “attachment” signifies nothing more than the beginning of the defendant’s prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel. I write separately to elaborate on my understanding of the term “attachment” and its relationship to the Amendment’s substantive guarantee of “the Assistance of Counsel for [the] defence.” The Sixth Amendment provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The Amendment thus defines the scope of the right to counsel in three ways: It provides who may assert the right (“the accused”); when the right may be asserted (“[i]n all criminal prosecutions”); and what the right guarantees (“the right . . . to have the Assistance of Counsel for  his defence”). It is in the context of interpreting the Amendment’s answer to the second of these questions—when the right may be asserted—that we have spoken of the right “attaching”.

Weaving together these strands of authority, I interpret the Sixth Amendment to require the appointment of counsel only after the defendant’s prosecution has begun, and then only as necessary to guarantee the  defendant effective assistance at trial. Cf. McNeil, 501 U. S., at 177–178

So the criminal prosecution commences for Sixth Amendment purposes when there is an arraignment (or in Rothgery’s case – a presentment to a magistrate), but that doesn’t necessarily mean that the defendant be afforded counsel?

Some put it this way:

As Justice Alito’s concurrence notes, a finding that the right to counsel has “attached” means only that counsel must be present for “critical stages,” which are events where counsel needs to be present to preserve rights related to the forthcoming trial. There is, to date, no Supreme Court precedent that requires appointment of counsel for indigent defendants to protect rights other than trial.

So, we have no concrete decision on what is that first “critical stage”. Does the right to counsel attach only for critical stages, so in between these “critical stages”, there is no right to counsel? Or is it a critical stage from that first event all the way through to trial?

Obviously, I think the answers to these are fairly simple. There is an initial stage, say the arraignment, where a criminal prosecution is commenced. Anything that happens after that is with an eye toward a trial. So after arraignment, indictment or whatever it is in your local jurisdiction, right to counsel should attach (and a substantive right, not this incomprehensible Rothgery “right”). It only makes sense.

Some argue that there is no right to counsel during pre-trial negotiations. That is a red herring. No prosecution is undertaken with the goal of resolving it via plea bargaining. Plea bargaining is something that happens (albeit very frequently) along the way to a trial. During the plea bargaining process, the defense attorney is investigating the state’s case, conducting legal research, filing motions to dismiss/suppress, etc. It’s all with an eye toward the trial. That most cases are resolved via pleas is incidental.

Further, a plea bargain still results in a conviction (mostly) or a dismissal. If there were no right to counsel to assist in the plea bargaining process, then convictions would be obtained without counsel. There would be no one to point out the weaknesses in the State’s case; the whole system would be reduced to prosecutors vs. pro-se defendants. And then if a plea bargain goes south and case proceeds to trial, a defense attorney is placed in the position of having to undo the damage done by the pro-se defendant.

The system would not function. See previous post on IAC during plea bargaining for more.

One final point on Rothgery: The decision does not mandate, as some have suggested, that Texas appoint counsel for defendants every time someone is “presented” at a bail hearing. The decision did not address what Texas (or any other state) must do when a criminal prosecution is commenced. It simply addressed the time at which a prosecution is deemed to commence.

[The Crime and Consequences post linked to above has the throwaway line: “Of course, to be truly faithful to history the Court would have to overrule Gideon v. Wainwright, and be done with the whole appointed counsel matter.” Such a statement is dangerous and possibly ignores the disastrous consequences of such an event. It merits a whole post, which will follow sometime this week.]

Monday Morning Jumpstart

Hailstorm in Chicago

Creative Commons License photo credit: Taekwonweirdo

Apparently there’s a hail advisory for this part of the State. Which one of you angered the weather Gods? Make it up to them by spending your morning reading some of these stories and posts:

  • Rest in peace, George Carlin.
  • The big news in Kansas is that juveniles now have the right to a jury trial.
  • SL & P brings us news of a bizarre motion filed by prosecutors in a death case, seeking to bar the defense attorneys from crying in court. The comments are a must-read too.
  • A prosecutor admits to throwing a re-trial where there was strong evidence of innocence. More from Talkleft.
  • Man sues church after falling due to receiving the holy spirit. Yeah, it’s exactly what you think it is.
  • The Kelo decision was not that bad.
  • Western Justice ponders the existence of a “crime gene”.
  • Grits reports on how flawed ID and crime lab procedures not only imprison innocent men, but also hamper crime-solving.
  • Anne Reed loves the bumper sticker question.
  • From across the pond: defendants have the right to know the identity of witnesses testifying against them.
  • CDW’s weekly edition is here.
  • AFI’s Top 10 courtroom dramas.
  • Having wrapped up Hartford’s crime problem, mayor Eddie Perez led a demonstration outside the Hartford Courant to protest anonymous commenters on its message boards.

Have a good day!

Attorney-client confidentiality in prisons

The Least Of Our Surveillance Problems

One of the most important aspects of our job is maintaining attorney-client confidentiality and it is also an integral component of the adversarial system. We need confidentiality so clients can take us in their confidence without fear of repercussion. Clients need advice and we need the information without the filter of someone overhearing that information and using it against the client.

In the criminal justice system, where the burden of proof is squarely on the State, the confidentiality is even more important. Clients tell us all sorts of things, none of which the State needs to know.

In this era of Prison Nation, however, maintaining that confidentiality has some unique challenges. As the prison population grows, so will the challenges to maintaining confidentiality. For example, defense attorneys in San Diego were outraged when they recently discovered that their telephone conversations with clients were being recorded.

A lawyer for the Sheriff’s Department said the recordings, which defense lawyers say are privileged conversations protected by law, were made because of an inadvertent glitch in the telephone system.

But defense lawyers said the eavesdropping is a felony under state law and can carry penalties of up to $5,000 per call.

They are also concerned that prosecutors – who have access to the recording system from their desktop computers – could have been privy to conversations, too.

It’s bad enough that a “glitch” in the system led to recording highly sensitive and confidential conversations, but the thought that prosecutors had access to those conversations sitting at their desks should be enough to make anyone cringe and cross their legs. Then there’s this silly waiver argument:

However, all of the calls from the jail that were recorded have an automated message at the beginning warning that the conversation was being monitored or recorded.

“I don’t know if it’s privileged if both parties are warned they are being recorded,” Toyen, a lawyer and a special assistant to the sheriff said. “If a client in jail made a phone call to me and I heard that, I wouldn’t say anything that I wouldn’t want recorded.”

So some automated recording serves as an automatic waiver of attorney-client confidentiality? Why spew this nonsense instead of just admitting you messed up?

In Connecticut, there are two “types” of phones in prisons: counselor’s phones and pay phones. The pay phones are recorded and counselor’s phones are not (supposed to be). It is rare, but sometimes I do get clients calling from pay phones in the prison. That’s when I ask them to hang up and let them know I will call their counselor to set up a legal call. But even calls with counselors aren’t always “private”. The counselor’s office is in a cell block, with other inmates outside the door – and often counselors don’t even leave the office while the client is talking.

This problem with talking to incarcerated clients isn’t limited to the phone, though. In person visits with clients also have confidentiality problems. Holding cells in small courthouses are the least confidential of all locations and yet one has to talk to clients there. There are other inmates being held in those cells and there are marshalls milling about.

One of the largest correctional facilities in the State has the least sound-proof professional visiting rooms ever built. There might as well be no walls. Anything you say above a whisper can be heard by the people in the next room and quite probably by the correctional officers standing guard outside.

But such is the system and you learn to work with it. It’s an unwritten understanding that anything heard during these “confidential” meetings will not be used by the State against your client. It has to be – otherwise the State is looking at massive lawsuits. Imagine that they did use a statement or fact learned from such a conversation. The State could quite possibly be forced to build new courthouse facilities, new visiting rooms in prisons: it would be looking at a massive expenditure.

It’s easier to turn a deaf ear. But when the conversations are being recorded, the pretense of ignorance has been shattered.

Creative Commons License photo credit: rekha6