Category Archives: clients

No confidentiality in PD applications

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Public defenders, pursuant to Gideon v. Wainwright, are provided to all indigent people accused of crimes. Seems simple enough in theory, but in practice, there has developed over the years a battle over what “indigent” means exactly. Some states, like CT, use the Federal poverty guidelines and set eligibility at 125% of that. Other states do… I don’t know what.

But the problem arises when people are borderline indigent or just above the line or far above the line. Remember, though, that the line is drawn very low: in CT, if you’re charged with a felony, you can’t be making more than $22,340 per annum. That’s the cost of sponsoring a starving child in Africa.

Some jurisdictions adhere to this strictly: if you make $22,345 you’re not eligible. Tough luck, Go find a bottom-feeding “defense” “attorney” or represent yourself. Some jurisdictions correctly recognize that if you’re charged with a serious felony, even if you make $70,000 a year you can’t afford to hire an attorney to properly represent you. That’s why they’re called guidelines. I’ve written about this – over and over again – and also about the conflict this causes between the private bar and the public defender’s offices. Are we taking food off their tables? I doubt it, but the point of contention still remains.

What I’ve never discussed, however, is what happens if an indigent person “lies” on their application of financial indigency. The indigency statute, 51-297(b) provides that:

(b) Any person who intentionally falsifies a written statement in order to obtain appointment of a public defender, assistant public defender or deputy assistant public defender shall be guilty of a class A misdemeanor.

I’m pretty certain that this has almost never happened, but it seems as though the indigency application is not confidential and open to investigation by the prosecution but I’m pretty certain it hasn’t been judicially tested. Which brings me to New Jersey.

Just a few days ago, the NJ Supreme Court held [PDF] in an opinion that the indigency application and the financial affidavit can, “in some circumstances” be open to the state to investigate “fraud”. This arose in the case of some mobster who:

Deputy Attorney General Mark Eliades had submitted affidavits listing Cataldo’s assets when he was charged in 2010, including a $659,600 house in Florham Park co-owned with his wife, Lorraine, for which he was paying off a $160,000 mortgage and a $100,000 home equity line; a $750,000 mortgage on a property in Readington and another home in Florham Park owned by his wife that was assessed at $484,300, the court said.

The prosecution also presented a car lease agreement in which Cataldo said he worked as a contractor for Cataldo Construction and his monthly income was $10,500, the court wrote.

Cataldo obviously applied for and was granted the services of the public defender. The Court reasoned that in order to investigate fraud of public services, the prosecution should have access to the financial affidavit form that is prepared by and kept by the public defender in the file of each client.

This, of course, would breach confidentiality. So how do we get away with what? Per the NJ Supreme Court, now the form has to include a statement that the information is not confidential and may be disclosed in “appropriate circumstances”. Voila! Magic wand waved; problem solved!

Except obviously not. The trend seems to be that if money is tight, the solution isn’t to reduce the number of prosecutions or provide more funding, but rather to cut funding to indigent services. While Cataldo may or may have tried to con the system into granting him the services of the public defender – and believe me, if I were ever arrested in CT, I’d give away all my assets too so I was indigent – the ruling has the potential to further damage the relationship between public pretenders and their clients.

I’m not sure what the NJ Statute says (I’m too lazy to go look it up), but I’m not sure if this would work in CT. The statute in CT makes no reference to what the income eligibility is. It simply states that someone is indigent if:

(f) As used in this chapter, “indigent defendant” means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation

That could – and should – mean different things in the contexts of different cases. Our job, as public defenders, should never to be to determine who is worthy of representation and who isn’t. The statute leaves it to us to determine who is indigent and we should have the freedom to do so.

To open up that process to the overzealous, prying eyes of the prosecutors could have disastrous consequences. As AmbImb at PD Stuff says:

In a jurisdiction where I once practiced, giving the state access to a client’s financial data became an incredible problem. For example, I once had a client testify in a speedy trial hearing that he’d suffered prejudice after years in prison awaiting trial because he’d lost his work tools and income. In response, the state trotted out his affidavit of indigence which was part of his application for a public defender. “Didn’t you swear here that when you were arrested you weren’t working and had no income?” they asked triumphantly. Needless to say, that was not a good moment for us.

What a ruling like this does it that it gives prosecutors yet another tool to go after clients and this makes us complicit in that process.

 

Reciprocal discovery: should we have to?

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The United States is a vast place and practices that seem de riguer on one coast are apparently unheard of on another border. This discordant approach – a product of State’s rights – is quite evident in criminal justice procedure. While the substantive laws are usually the same and the rights of each defendant are necessarily identical, the manner in which justice is delivered varies greatly from state to state.

Take, for example, the issue of discovery. For the non-lawyers, discovery refers to the disclosure by the prosecutor of the evidence it claims to have and intends to use against you in a criminal prosecution. It also includes evidence that it has or has notice of that would tend to undermine their theory that you are guilty. Discovery is an essential component of due process and the right to be informed of the charges against you.

But a hotly debated topic is what, exactly, constitutes discovery? And that’s where a haphazard application of the Constitutional protections becomes evident. Brady v. Maryland, the seminal case establishing the State’s obligation to turn over exculpatory information has limited value precisely because prosecutors are free to – and generally do – adopt a moving target theory of what “exculpatory” means. Similarly, some prosecutors take a very dim view of “discovery”. The arrest warrant, if one exists, the charging document and maybe a police report or two. I know of jurisdictions – even CT back in the day – where prosecutors turn over witness statements after their direct examination of the witness on the stand during trial and as a defense attorney, you have about 10 minutes to read it and see if there’s anything you can use to cross-examine. Continue reading →

The Right to Counsel of Choice

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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.

But to get there, we have to start at another beginning. Continue reading →

Don’t be a part of the problem

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The problems that plague our criminal justice system are well known. Equally well known are the deficiencies in indigent defense systems country wide. Public defenders are overworked, underpaid and represent a lot of ungrateful clients. It’s tough to do this job out there in the world; there’s no doubt about it. There are inadequate resources, little to no time to study and investigate each case and an immense pressure to keep the line moving.

But to mistake that explanation for a justification is to submit to the oppressiveness of the system and to take the easy way out by playing the victim. It reeks of a certain whining and invokes the image of a 5 year old on a playground who fancies himself the coolest kid on the block but regularly gets his lunch money stolen only to be left there, empty handed, yelling “Moooooooooom!” Continue reading →

How not to represent a client

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Imagine that you represent a man accused of a bank robbery. He is in jail and you’re in your office. You receive a letter from this client in an envelope marked “Legal Mail”. That envelope contains within it another sealed envelope with a letter directing that the second sealed envelope be delivered to the client’s cousin. You:

a. Leave the envelope sealed and tell the client you won’t/can’t send that on, or;

b. Open the envelope, read the contents, discover that he’s attempting to fabricate an alibi and tell the client that you won’t forward the letter and that he shouldn’t be sending letters like that, or;

c. Open the envelope, read the contents, discover that he’s attempting to fabricate an alibi, turn the letter over to the prosecution, move to withdraw from representation and then testify against the client at his trial.

Corvet T. Williams’ lawyer Dennis Ryan chose option (c). At the criminal trial: Continue reading →

Idiocracy

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There is a moderately entertaining movie called Idiocracy, directed by Mike Judge and starring the less-stoned Wilson brother about a man of perfectly average intelligence who goes into cryogenic deep freeze for a long time and emerges 500 years in the future where the stupid have out-reproduced the intelligent and the Earth is ruled by grunts and monosyllables. Reading some reactions to the death penalty repeal here in CT, it seems to me that the future is now.

First, CT News Junkie reported, in a story with the provocative title ‘Lawmaker Guided By Experience As Defense Attorney’, of the tale of Representative David Labriola. Labriola, a Republican, drew upon his experience as a criminal defense attorney to vote against the repeal of the death penalty, in something that can only be described as fzzt-fzzt-does-not-compute-err-ROR-err-ROR.

You see, Attorney Rep. Labriola represented Miguel Roman. Miguel Roman, you might or might not remember, was the fourth man exonerated in CT with the assistance of DNA evidence. Unfortunately, before that happened, Roman spent 20 years of his life in jail for a crime he did not commit. His actual sentence was 60 years for a murder – one of three that the police believed were linked. Having represented a man you believe is wrongly convicted and has spent decades of his life unjustly in prison is not something a defense lawyer gets over quickly and it is certainly not something that builds confidence in the infallibility of the criminal justice system.

Yet, we have Labriola:

He said the sophistication and reliability of modern DNA analysis is one of the reasons he supported the death penalty statute, which a majority of his colleagues voted to take off the books Wednesday. DNA evidence provides the state with greater assurance that offenders handed guilty verdicts are, in fact, guilty, he said.

I suppose that’s somewhat logical so far, if a bit naive. But here’s the key part:

Labriola recalled that he did present DNA evidence in Roman’s case more than 20 years ago. He said it was one of the first DNA cases in the country. Though the DNA clearly didn’t belong to Roman, prosecutor John Massameno was able to argue that presence of another person’s DNA did not mean Roman was not guilty.

[Ideally, at this juncture, I'd like to Professor Farnsworth uttering his signature "Whaaaa? - you can hear it in your head, can't you? - but I can't find it online. So this equally appropriate reaction will have to suffice.]

This is far beyond any timey-wimey plotline that Steven Moffat could conceive of, but I’m going to try and untangle it. Labriola believes:

1. The death penalty is appropriate.

2. Because DNA evidence provides great assurances that offenders are actually guilty.

3. He knows this because he represented an offender.

4. In whose case DNA evidence was presented.

5. And the DNA evidence excluded his guy.

6. And still his client was convicted.

7. And spent 20 years in jail.

8. ????

9. PROFIT!!!!

Labriola concludes with:

“I think working as a defense attorney for the last 25 years gives me insight into a wide range of issues and some crimes are so heinous that the death penalty is the only justifiable punishment,” he said.

It’s almost as if he got to logical step number 8 above, realized that he was going up the down staircase and ended with the handwavium encrusted “well, I know better”.  As a fellow criminal defense lawyer, that last quote of his is especially troubling. I’ve often written that in order to do this job well and honestly, one cannot judge one’s clients and one must take the place of the client and view the world through his eyes. We are the client. We are his advocate and his shepherd. Where does Labriola stop? If some clients are deserving of the death penalty, are others deserving of life without the possibility of release? Are others deserving of 60 years in jail, because, in his opinion, they’re bad people? How do we differentiate the role of the prosecutor from that of the defense attorney? At what point do we stop becoming an advocate and start becoming a mouthpiece – a mere messenger?

For many in this field, capital defense is the holy grail. It is the one job that embodies every ideal that leads us to this work: the defense of those who are most undeserving, the fight for another’s life, the pushback against the mightiest weapon the State possesses in its arsenal. Death penalty defense is more than a job. It is the embodiment of an idea. I believe that one can be a great defense attorney and not like all the crimes that our clients are charged with. Great lawyers refuse to represent people accused of sex crimes. I disagree with that, but I can see it. I believe, however, that anyone in favor of the death penalty has no business representing individuals accused of crimes.

It does not compute.

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Lagniappe (a word I have shamelessly borrowed from today’s MLK-themed edition of Blawg Review, hosted by the inimitable Mark Bennett): “Judge” Andrew Napolitano goes on FOX to suggest that CT delay the implementation of the death penalty repeal by, oh, 5 years so we can quickly execute the 11 men on death row. The stupendous idiocy of that position hardly merits the waste of more pixels.

 

 

 

To plead or not to plead: a critical question

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To be, or not to be: that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them?

So muses Hamlet in Act 3, Scene 1 of Shakespeare’s play of the same name. So goes the quandary faced by criminal defendants in today’s criminal justice system: to plead or not to plead? Is it more advisable to suffer the ignominy of a conviction and lesser jail time up front than to press the sword of trial and hope that it doesn’t turn on you, often to more deleterious effect?

Hamlet had no one to guide him honestly; the modern criminal defendant, however, does: his lawyer. And it is upon this lawyer that he relies for a frank and learned assessment of the pros and cons of the various options available to him. To argue that the decision to plead guilty or to reject an offer is not a “critical stage” of the criminal process is to disingenuously ignore the realities of this modern day system.

And yet this is precisely what agents of the various States have been arguing for many years. This is a nonsensical fight that I personally have fought for at least 5 years now, without any direct guidance from the United States Supreme Court. Until yesterday.

In two sure to be seminal cases, Lafler v. Cooper and Missouri v. Frye [both PDF], the Supreme Court unequivocally held that the right to counsel at all “critical stages” of a criminal proceeding means the right to effective assistance of counsel at those stages and yes, Dorothy, the plea bargain is a “critical stage”.

The argument for this holding is best explained by stating the position of those against it. The position against is this: so long as a defendant receives a fair trial, it is irrelevant whether – and to what extent – his lawyer erred in the time leading up to that trial. Reductio ad absurdum, to these folks, if a lawyer never speaks to his client prior to the trial and conveys no offer, it doesn’t matter, because the right to effective assistance of counsel only has force in the context of a criminal trial.

To a less absurd degree, take the case of Lafler, whose lawyer told him that he should reject a very favorable pre-trial offer and instead make the State prove its case because there was no way he could legally be convicted of attempted murder, since the victim was shot in the leg.

You don’t need 3 years of law school and a passed bar exam to tell you that’s just wrong. Stupid, wrong and dangerous. But the States would have you believe that it is of no moment that such patently faulty advice was given, because Lafler received a fair trial.

Justice Kennedy, writing for both majorities, explains it well:

The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.  “To a large extent . . . horse trading [between prosecutor  and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is.  It is not some adjunct to the criminal justice system;  it is the criminal justice system.”

While the significant role of plea bargaining cannot be diminished (also why ideas like taking every case to trial are stupid and unethical), I would argue that the right to effective assistance pre-trial is not a product of only that large impact of the plea process. It is also a matter of simple logic and ethical responsibility. As I’ve long argued, we are our clients’ shepherds through this complicated quagmire that we call the criminal justice system. The layman, untrained in the nuances of this system, look to us to proffer advice and most often follow our advice. How would you feel if you were given bad advice by the person whose only responsibility was to give you good advice?

Simply put, the issue boils down to this: if you have a right to have a lawyer give you advice, then you have a right to have that lawyer give you competent advice.

This is an outcome that everyone involved – judges, prosecutors and defense attorneys – should be cheering, because it ensures that the system is fair. That is not to say that all advice given by counsel that a defendant doesn’t like is per se ineffective, as some folks1 would have you believe. Rather that a court should evaluate that advice to determine whether it was sound. I suspect that in the vast majority of cases, the advice will be deemed so. But there will also be cases where, but for the misadvice of counsel, the defendant would have not been worse off.

The problem with these opinions lies – as it often does – with the remedy. Here is where I part ways with Justice Kennedy. He writes, in the context of a sentence after a jury trial and a rejected plea agreement:

The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms.  In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence.  This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial.  In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea.  If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.

This proposed model of determining remedy is fundamentally unsound. The general underlying principle is – and should be – that the defendant, when disadvantaged by the Constitutional violation, should be placed back in the position he was in before the violation so disadvantaged him. See, e.g., Santobello v. New York. To suggest that an appropriate remedy for this Constitutional violation could be the same sentence he received as a result of this violation is incongruent and incomprehensible. In my mind, the only appropriate remedy2 is the first one: if the defendant can establish that the plea was rejected as a result of ineffective assistance and the plea would have been accepted by the judge, the only way to make the defendant whole is to sentence him to the terms of that plea. Anything else would be a band-aid on a gaping wound.

Finally, there will always be naysayers even among the defense bar. To them, I repeat words I wrote just under two years ago:

Ineffective assistance of counsel is a sort of “dirty” phrase in the criminal defense world. It is viewed by many as a personal attack and is met with scorn, anger and derision directed toward those who practice in the post-conviction arena. That this view is prevalent among the bar is alarming. It belies a fundamental misunderstanding of the duties and responsibilities of the defense lawyer in the criminal justice system.

IAC claims are not a taint on your reputation nor is it an indictment of your abilities. It is a recognition of the simple fact that we are all working within a juggernaut of a system that from time to time overwhelms even the best of us.  At the end of the day, it is you and I who go home to our comfortable beds. You and I have the ability to walk outside in the free world and to buy what we choose and talk to whom we want, whenever we want. To place our petty egos and some twisted sense of self-worth before the complaints of the convicted client, who has nothing but a badly beaten and bruised writ to use to seek his release from the oppressive conditions of confinement in our penal institutions is pettiness of the ugliest kind.

This may be getting repetitive, but it cannot be said enough that in order to truly serve our clients we must view ourselves as nothing but an extension of the individual client. We must be the client, at every moment that we represent them. We – criminal defense lawyers – are not parties to a criminal case. The client is. We are his representative. We must, at all times, remember that and act like it.

 

 

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1. The analogy given by the good folks at C&C is, simply put, stupid and inapposite. This is not a situation where “you offer to buy my car for $10,000.  After consulting with my expert, I reject the offer.  Turns out my expert gave me bad advice.  The next week, I want to go through with the deal.  In the meantime, though, I have wrecked the car.  Would it be fair to make you pay me $10,000 for the now-wrecked car?” The expert has no duty to give me advice and my “wrecking the car” is not analogous to going to trial with that expert as my advocate.

2. The same good folks at C&C suggest that the appropriate remedy should be that “the defense lawyer should be personally liable for the cost of the trial.  If the defense was the public defender’s office, the cost of prosecution should be transferred from the public defender’s budget to the district attorney’s budget.” If it wasn’t clear prior to today that the good folks at C&C were only concerned with obtaining convictions and watching people murdered by the State, it should be now. Such a rigid, simplistic view of the by-its-nature murky and unclear business of assigning guilt does a disservice to everyone.