Connecticut adopted the public defender system in 1917. Public Acts 1917, c. 225. Under this act, the judges of the Superior Court annually appointed a member of the bar who had practiced at least five years to represent persons accused of crime. By chapter 129 of the Public Acts of 1921, the original act was implemented so that it assumed substantially its present form. Rev. 1958, §§ 54-80 and 54-81. Under it an accused who lacks funds is assured of representation by experienced counsel, who, subject to the court’s approval, are able to incur whatever expense is necessary for the proper protection of the rights of the accused, not only in the trial court but also on appeal.
State v. Reid, 146 Conn. 227 (1959). And so, since 1917, have public defenders been called agents of the prosecutor, public pretenders and have had their educational qualifications besmirched. While I have often argued on this blog and in real life that these charges are false and nothing more than urban legends, I cannot escape the reality that there are, of course, public defenders (and private attorneys) who are just terrible lawyers who either care nothing about their clients or, as these things go, are hideously incompetent.
Having accepted that it is inevitable that some public defender clients will experience warranted dissatisfaction with their “court-appointed” lawyer, the interesting question is what should they be permitted to do.
The Sixth Amendment, as you all should know, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” That has further been explained to mean that “the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice” Powell v. Alabama. In the seminal case on the right to counsel of choice, Wheat v. United States, the Rehnquist court wrote:
In United States v. Morrison, 449 U. S. 361, 364 (1981), we observed that this right was designed to assure fairness in the adversary criminal process. Realizing that an unaided layman may have little skill in arguing the law or in coping with an intricate procedural system, Powell v. Alabama, 287 U. S. 45, 69 (1932); United States v. Ash, 413 U. S. 300, 307 (1973), we have held that the Sixth Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime. Gideon v. Wainwright, 372 U. S. 335 (1963). We have further recognized that the purpose of providing assistance of counsel “is simply to ensure that criminal defendants receive a fair trial,” Strickland v. Washington, 466 U. S. 668, 689 (1984), and that in evaluating Sixth Amendment claims, “the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.” United States v. Cronic, 466 U. S. 648, 657, n. 21 (1984).
As Justice Scalia noted so forcefully in United States v. Gonzalez-Lopez, the Sixth Amendment right to counsel of choice “commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause.”
In other words, a defendant should have the right to choose the person he wants to represent him during his criminal proceeding. This makes sense. After all, the stakes in a criminal trial are extremely high, usually involving the liberty and freedom of the accused. The ability to choose counsel will determine the amount of trust that the defendant places in his lawyer, his receptiveness to advice given by the lawyer and the reliance on that advice. Criminal defense lawyers will attest that there is nothing more important to the relationship between them and their clients than the trust that must exist.
And yet. And yet this “particular guarantee of fairness” is qualified. It is limited and circumscribed. This right is freely given to those that can afford to hire their own counsel, yet withheld from the overwhelming majority of criminal defendants, who do not have the financial resources to do that. The poor and the indigent have no such right to choose the lawyer that will represent them as they undertake the arduous and perilous task of navigating the ferocious and choppy waters of the modern day criminal justice system.
Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them. As the dissent too discusses, post, at 3, the right to counsel of choice does not extend to defendants who require counsel to be appointed for them. See Wheat, 486 U. S., at 159; Caplin & Drysdale, 491 U. S., at 624, 626.
(More on this assertion later, but for now, let us take it at face value.) If this is a right that is so valued and so important, what is the justification for limiting it to only that minute percentage of the criminal defendant population: the one with money?
Further hidden within this right is the assumption that, barring a last-minute switch, defendants who have the funds to hire private attorneys are free to fire and hire as many as they want, usually for no reason whatsoever. Public defender clients are stuck with the luck of the draw.
Of course, I can’t realistically make the argument that indigent defendants should be able to pick and choose the public defender they want to represent them or force the State to pay for a private attorney to represent them. I’m not arguing for some sort of Bunny Ranch lineup at arraignment where the indigent defendant looks us all up and down and picks the one he likes the best. It would be a nightmare of epic proportions to have such a system and, of course, a publicly funded defense system should have some reasonable limitations for logistical purposes.
But inherent in the right to counsel of choice is the right to fire that attorney and no longer have him or her represent you if you feel that their representation doesn’t permit you to present your defense in the most optimal way possible. It is the substitution of counsel where I part ways – ideologically – with the courts.
The system as it currently exists makes it near impossible for indigent defendants to fire their court-appointed lawyers and have them replaced by other court-appointed lawyers with whom they might be more comfortable and in whom they might place greater trust. Why must this be so? Why must we thrust upon the poorest of the poor only two untenable choices: either proceed pro-se or proceed with a lawyer in whom they clearly have no trust?
And this brings me back to my original point: there are incompetent public defenders just as there are incompetent private attorneys. Yet those who are burdened with the incompetent private attorney have a much easier path to ridding themselves of that potentially dangerous attachment than those who have no financial resources. In essence, the courts are sanctioning a system whose motto might as well be “you get what you pay for”. And they pay nothing, thus, should expect nothing in return.
Certainly there is the potential for abuse, but just as there are safeguards built into the right to counsel of choice for rich defendants, there could be similar safeguards to ensure that indigent clients don’t just fire and ask for new assigned counsel willy-nilly. Yet the current standards are so high – and as can be seen from the language in Gonzalez-Lopez, entirely discretionary – that in effect we are placing a stamp of approval on a two-tier system.
Of course, mere displeasure with his options should never suffice to permit substitution, but why shouldn’t an indigent defendant request and receive alternate counsel if he can reasonably show that the lawyer is not communicative or dismissive or wishes to pursue defenses that the client wants no part of? [See quote from United States v. Calabro, below, for the current standard.] The public defender system doesn’t exist so I get to practice the art and skill of being a lawyer; it exists so that I may provide a much needed service to a large section of the community. Why must those that I purport to serve be saddled with my ineffectual representation merely because they are too poor to hire someone else whom they feel would benefit them more?
It certainly seems cumbersome, but unworkable it is not. While a rule such as the one that I have pondered above may increase the rate of substitutions somewhat, I suspect that there will be no astronomical rise in the number of public defenders fired by their clients, just as we don’t see a revolving door of private attorneys on a regular basis.
And isn’t the additional logistical quandary worth the lip-service we pay to these “fundamental rights” and worth dispelling the notion that there exist two criminal justice systems and two types of criminal defense lawyers? Isn’t faith in the system inimical to its continued viability?
While researching the relevant cases for this post, I went on a frolic to determine just where this distinction between substitution of private attorneys and public defenders comes from. I now invite you to join me on this invigorating journey into the bowels of Constitutional jurisprudence.
First, let us start with Gonzalez-Lopez. As reproduced above, it cites Wheat and Caplin & Drysdale for the proposition that indigent defendants have no right to counsel of choice. Caplin & Drysdale, in turn, cites Wheat. On this issue, Wheat states the following:
Similarly, a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant.
That’s it. There’s no attendant citation to any other case. That’s fine. Maybe Rhenquist got lazy and didn’t want to cite to every goddamn proposition already. So let’s try another tact. Here’s the most recent citation in a Connecticut case that I could find. In a footnote:
Moreover, it is well settled that “a criminal defendant does not have the right to have the public defender of his choice.” State v. Oliphant, 47 Conn. App. 271, 278-79, 702 A.2d 1206 (1997).
State v. D’Antonio, 274 Conn. 658, fn. 41 (2005). Okay, so let’s go to Oliphant:
[O]ur law is clear that a criminal defendant does not have the right to have the public defender of his choice. McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982); State v. Nash, 149 Conn. 655, 663, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962).
Well, that’s just another citation. Okay, I’ll bite. First McKee:
It is settled in this Circuit that “[o]nce trial has begun … a defendant does not have the unbridled right to reject assigned counsel and demand another.” United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973).
You see where this is going now. Calabro:
The second branch of Leonard’s argument, closely entwined with the first, is that the court ought to have assigned new counsel once Leonard had dismissed Rosenthal. Once trial has begun, however, a defendant does not have the unbridled right to reject assigned counsel and demand another. United States v. Burkeen, 355 F.2d 241 (6th Cir.), cert. denied sub nom. Matlock v. United States, 384 U.S. 957, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); United States v. Paccione, 224 F.2d 801 (2d Cir.), cert. denied, 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788 (1955). A defendant with assigned counsel cannot decide for no good cause on the eve or in the middle of trial that he will have another attorney represent him. Cf. United States v. Abbamonte, 348 F.2d 700 (2d Cir. 1965), cert. denied, 382 U.S. 982, 86 S.Ct. 557, 15 L.Ed.2d 472 (1966)(retained counsel).
In order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict. Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970); United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968); United States v. Gutterman, 147 F.2d 540 (2d Cir. 1945). If a court refuses to inquire into a seemingly substantial complaint about counsel when he has no reason to suspect the bona fides of the defendant, or if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right. Brown v. Craven, supra. In the absence of a conflict which presents such a Sixth Amendment problem, the trial court has discretion to decide whether to grant a continuance during the course of trial for the substitution of counsel, and that decision will be reversed only if the court has abused its discretion.
(Emphasis added.) Hang on a second. Burkeen, Paccione and Abbamonte all stand for the proposition that you can’t just dick around with lawyers on the eve of or in the midst of trial. That standard’s no different for privately retained attorneys or public defenders! Look at that second paragraph, which states the standard for substitution of counsel, again during trial. The word “indigent” is missing as is the word “assigned”. So where does this general proposition that indigent defendants have no right to counsel of choice come from?
Okay, so I skipped over a case up there: State v. Nash. Let’s go see what that says. Nash is a fascinating case, least of all for the fact that it calls people “paupers” instead of indigent. Nash was a guy who was convicted in 1947 of murder or some such thing and then spent 19 years in jail without appealing. One day, apparently after he was unsuccessful in his bid to unseat Rip Van Winkle as the sleepiest man ever, he decided to you know what, file that appeal after all. A federal habeas was granted and the appeal restored in the CT Supreme Court. The court, now that he was a pauper, tried to get him a public defender to help him with the appeal. Nash, being the asshole-y type, instead sent the court a list of three private attorneys he wanted to be represented by. The Court, naturally, laughed heartily in their private chambers, smoking their pipes, while morse-coding each other salacious dots and dashes, or whatever it is they did back in the stone ages.
That case has little to do with the ability of an indigent client to fire one public defender and be represented by another. But there is another case that Nash cites: State v. Reid, which I opened this post with (now tell me I don’t pull things together!). Reid, unsurprisingly, is only marginally connected to that proposition, instead holding quite sensibly that a person can’t fire a public defender and then have the court pay a private attorney to represent him, just because.
But Reid is beautiful for one other reason:
A further claim, covered by no assignment of error, is that any public defender system, including that of Connecticut, wherein public defenders are appointed by the judiciary, must necessarily result in defenses which are at least potentially ineffective. This result is claimed in some way to flow from the fact that both state’s attorneys and public defenders receive their appointments from the same source and that this source is the judiciary. Of course, the main reason for appointment by the judiciary is to insulate these officials from improper pressures or influences from any source, political or otherwise, and to insure that they may fearlessly prosecute or defend, as the case may be, regardless of the public temper of the moment, or the power, influence or connections of the parties involved. The attack on our public defender system is too obviously lacking in merit to warrant discussion. Its best refutation is the work of the public defenders themselves in the more than forty years in which the system has been in effect in Connecticut.
The cockles of my heart, they are warmed.
So does this distinction really exist or have any basis in Constitutional jurisprudence? To be sure, a distinction is clearly stated in several cases, but the basis for that is non-existent. They are no more than assertions without reasoning or reliance on stare decisis. Should there be such a distinction? Are you awake? Are you alive? Hellooooo?