pd system

Free-ish

Jan 12th

Sometimes I think that if it weren’t for Georgia and Justice Thomas, I wouldn’t have much to blog about. Having fulfilled the Thomas quota for the night, I now move on to that rotten peach of a state, which seems to be continually perplexed at the existence of the thing called “the indigent defendant” and completely at a loss to deal with them and their pesky “constitutional” rights.

Why just yesterday, the Georgia Supreme Court heard oral argument in a case where the issue, as framed by the Atlanta Journal-Constitution, was:

whether the state’s public defender system can ethically provide and — and also afford — conflict-free representation for thousands of indigent clients.

Go ahead, shed that tear. More, from the concisely named GeorgiaCriminalAppellateLawBlog (a LexBlog production, natch):

So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.

What is this cataclysmic event that brought the two sides together? An ethics opinion [PDF], opining rather uncontroversially that:

Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.

In plain-speak-ese, if you – an individual lawyer – can’t represent co-defendants at the same time due to a conflict of interest, then neither can anyone else from your office. Not groundbreaking, not so far beyond the pale that it required the unholy union of a public defender and an attorney general.

The United States Supreme Court has long maintained that “a criminal defendant is entitled to be represented by an attorney free from conflicts of interest”. Wood v. Georgia, Strickland v. Washington, Cuyler v. Sullivan…I could go on and on. In fact, I can’t think of an ethical duty that is more important for the criminal defense attorney than this one to provide conflict-free representation. Just as the prosecutor’s duty is to seek justice (go ahead, chortle), ours is to our client and only to our client.

Yet it is this very duty that seems to give defense attorneys the most trouble. It is this unambiguous, bright line, don’t-touch-with-someone-else’s-10-foot-pole duty that somehow turns into a jumbled, confusing incomprehensible mess when it works its way through the neurons of public defender officials. It was this precise issue that the Connecticut Appellate Court considered last October (albeit erroneously concluding there wasn’t a conflict).

How then, given the Constitutional right and the ethical obligation, could the public defender’s office argue that it shouldn’t be required to provide this conflict-free resolution? The answer, as always, is money.

Stunningly, the explanation from the Georgia public defender isn’t that the right doesn’t exist, but that he can’t afford to provide it:

Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.

He didn’t say that last bit, but he might as well have. Public defenders have enough of a PR problem as it is. Siding with the state on whether to provide our clients conflict-free representation isn’t really helping our cause.

Look, I get it. There is only so much money and there are only so many resources. The answer, however, isn’t to capitulate and argue that our clients should be entitled to conflict-free-ish representation, but instead to do what we’re supposed to: stand up for our clients and demand the State to adequately fund the prosecutions they seem so happy to initiate. If, in this no-brainer of a situation, we public defenders take positions that are clearly contrary to our clients’ interests, then is it any wonder that they refuse to trust us and call us pawns of the prosecution?

The duty isn’t ambiguous or predicated on the availability of funds. Free isn’t free-ish.

Public defenders vs. assigned counsel vs. private attys: Round I lost count

Jul 21st

Posted by Gideon in pd system

11 comments

As I sit here in the dark, lamenting the death (and dearth) of blogging public defenders, I’ll leave you to read this latest study that seeks to compare the effectiveness of public defenders, assigned counsel and private attorneys. This isn’t the first study that’s been done, nor should it be the last, but the results aren’t Earth-shattering by any means.

The study, published by a statistician at the U.S. Bureau of Justice Statistics, focuses on:

What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do these defense counsel types perform in terms of securing favorable outcomes for their clients? These and other issues are addressed in this article analyzing felony case processing data from the Bureau of Justice Statistics (BJS). Specifically, this paper examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing.

By way of preliminary information, the public defenders are full-time attorneys employed by a governmental organization who exclusively represented indigent defendants, while assigned counsel are private attorneys appointed on an as-needed basis by the courts. You know who private attorneys are.

The findings of the study really aren’t surprising at all. There’s almost no difference to speak of between the three, except that private attorneys’ clients are more likely to get some form of probation and assigned counsel clients are more likely to end up incarcerated.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The similarities between assigned counsel and public defenders, however, do not carry over when examining case outcomes. Here, the descriptive analysis shows defendants with assigned counsel receiving outcomes that, on the whole, are less favorable compared to defendants with public defenders or private attorneys. In general, defendants with assigned counsel are more likely to get convicted and sentenced to prison than their equivalents who are represented by public defenders or who have the means to hire their own attorneys.

Moreover, defendants with assigned counsel were sentenced to longer periods of confinement than those with public defenders. Another finding concerned the underwhelming evidence in support of the proposition that private attorneys secure better outcomes for their clients. Overall, the descriptive section showed that defendants who hired their own attorneys were just as likely to get convicted and actually received longer sentences compared to defendants represented by public defenders. The one area in which private attorneys seemed to be doing better involved the decision by courts to incarcerate defendants. The descriptive analysis found defendants with private attorneys being incarcerated less frequently compared to their counterparts with indigent counsel.

In conclusion, these findings suggest that indigent defendants who are represented by assigned counsel are receiving less favorable outcomes compared those with public defenders or private attorneys. They also imply that hiring an attorney does not automatically guarantee superior results; although, there is some evidence that private attorneys are keeping their clients out of prison or jail to a greater extent than indigent counsel.

It’s also interesting to note, although not surprising, that private attorneys’ clients are less likely to have a criminal record and are more likely to be white.

In terms of defendant characteristics, these findings show that defendants represented by assigned counsel and public defenders have remarkably similar characteristics. In general, defendants receiving legal representation through these two forms of indigent counsel are charged with relatively comparable crimes and have similar criminal histories and demographic characteristics. In comparison, defendants with the means to hire their own attorneys are exemplified by different attributes compared to their indigent counterparts. These defendants tend to have less serious criminal backgrounds and are charged with an array of offenses both more and less serious compared to their contemporaries with indigent counsel.

…

However, these attorneys also provided legal advocacy to more defendants charged with less serious public-order offenses compared to defendants who could not afford to hire their own attorneys. Lastly, private attorneys represented minorities less frequently than public defenders or assigned counsel.

The one takeaway from this study is that there is some noticeable disparity in the outcomes obtained by public defenders/private attorneys and assigned counsel. The study notes that further research is necessary to determine if assigned counsel systems are truly disadvantageous to those defendants who are subjected to it:

A more interesting, and in some ways troubling, finding concerns the role of assigned counsel in felony case processing. In general, defendants represented by assigned counsel received the least favorable outcomes in that they were convicted and sentenced to state prison at higher rates compared to defendants with public defenders. These defendants also received longer sentences than those who had public defender representation.

Although the offense specific analyzes did not always find significant associations between assigned counsel and the case processing outcomes being modeled, for several of these models the likelihood of conviction and state imprisonment, as well as the length of sentence, were found to be significantly higher for defendants with assigned counsel representation.

H/T: SL&P

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The Cstit_io_ State

Jul 15th

Posted by Gideon in ct legal news

4 comments

The judicial branch today announced its list of proposed cuts to services to make the monetary savings required by the Governor’s new budget proposal. As feared, lots of people are going to be laid off, courthouses will close and services will be drastically compromised. You can read the full list of cuts here [PDF] and here‘s a Capitol Watch post on the proposed cuts. I’ve listed the most significant (to me) proposed changes below, but first, a quote from the Chief Justice’s press release [PDF] today:

Our state Constitution in Article I, Section 10 states: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

…

With these cuts, however, I am not certain that we can adequately meet the requirements of Article I, Section 10. Access will be limited and we also anticipate that the resolution of civil, family, housing and small claims cases will be delayed. The end result is that our ability to administer justice as required by the Constitution may very well be compromised.

Now, onto those cuts. First, four criminal courts will either physically or functionally close:

Enfield (GA13) will shut down the entire building and transfer criminal cases to Manchester (GA12) and Hartford (GA14).
Derby (GA5) will move its criminal and motor-vehicle matters to the Milford (GA22/JD) court.
Bristol (GA17) will move its criminal and motor-vehicle matters to New Britain (GA15).
Norwalk (GA20) will move its criminal and motor-vehicle matters to the Stamford Judicial District court.

In addition, juvenile court operations in several courts will also close/move: Danbury (moved to Waterbury/Stamford), Rockville (moved to Willimantic/Hartford) and Torrington (moved to Waterbury).

119 Temporary Assistant Clerks (affectionately called “tacks”) will lose their jobs. I believe that’s a large majority, if not, all of them. These are, most often, the clerks you see sitting in courtrooms, taking notes, marking exhibits and doing clerk-y things.

But there’s more dire stuff: the only three operational drug courts in CT: New Haven, Bridgeport and Danielson will close. Drugs courts were introduced as a very useful and effective way to combat the high incidence of minor drug-related offenses. If you ask about its success, YMMV, but undoubtedly it was an attempt to recognize that drug offenders need help and treatment, not incarceration.

The cuts also mean that some important services like “Building Bridges” which helps provide housing for homeless people who can no longer stay in shelters, is completely eliminated.

Finally, in more devastating news for the state’s poor and needy, the amount the Judicial Branch provides to Legal Aid organizations in the State will be reduced by 33%: from $1.5 million to $1million. For those organizations who are constantly struggling to find funding, $500,000 is a lot of money and sadly this only ensures that their ability to provide needed services just got more challenging.

It’s already pretty clear from this brief summary that it will be the poor, underprivileged and needy who will most feel the effects of these cuts and closings. But that’s not the end of it. The public defender’s office also has to reduce its budget by some $4.7 million dollars, which only means layoffs, increased caseloads and – unfortunately – an adverse impact on the ability to effectively represent – yet again – the underprivileged and poor among us. I have no actual details about the public defender cuts, nor would I be stupid enough to actually say anything about that even if I did, so instead I’ll just point you to this piece in the New Britain Herald, which has some information.

Wherever you stand on the political spectrum, it’s a sad day in CT for not only the thousands of employees who stand to lose their livelihoods and who knows what else as a consequence, but also those who rely on the State for the support that they are unable to provide themselves. One can only hope that there’s a way to avoid all of this becoming reality.

Wrong time, wrong battle

Mar 28th

Posted by Gideon in clients

5 comments

There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go. I get that, even in the relative nirvana of Connecticut, we are severely understaffed in most of our public defender offices. And I get that it’s worse in places like Georgia and Florida and South Carolina.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights. And that time isn’t at a critical stage of a criminal proceeding. So it irked me to read Bobby G.’s post today, about a seemingly office wide policy of the public defender’s office in Horry County, SC, to automatically waive all preliminary hearings for clients who are entitled to them.

South Carolina is an odd place to people from the Northeast, like me. They use terms like “general sessions courts” and “solicitors”. They still utilize a grand jury, and – although he doesn’t use it in his post – I bet they have something mechanism whereby cases are “bound over” to some other place.

But the commonality in the language we use this:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The preliminary hearing is a critical stage of the process, where the defendant or his attorney is able to cross examine the arresting officer to determine what the probable cause is for his arrest, and discover at least some of the evidence against him. The right to a preliminary hearing is guaranteed to every defendant with general sessions level charges

Public defender’s offices have decided that these hearings are a waste of time and they don’t have the resources to conduct these hearings (bear in mind that lawyers are already appointed – so it’s not a question of providing counsel for these hearings, but rather a question of showing up and doing your Constitutional duty). I suppose the idea is to tell the legislature that people are going to be deprived of their Constitutional rights unless more money is provided, but in reality, as Bobby G notes, no one gives a shit.

Except the defendant, of course, whose rights are being trampled upon by the very people appointed to protect them. It would seem that part of this scenario is created by the fact that this right to a preliminary hearing is a statutory right, not a Constitutional one, and one that seems to have been interpreted as not being “personal to the defendant” and waivable by his attorney instead. Even when a defendant wants to proceed pro-se, judges are loathe to permit that – at least anecdotally – because they are all too aware of the fact that pro-se defendants usually do more harm than good to their own cases. So instead of forcing the attorneys to show up and conduct a hearing, courts are all too happy to mute the voice of the most voiceless: the criminal defendant.

In Connecticut, there’s no such thing as a preliminary hearing. There’s an information filed by a prosecutor after the arrest of an individual. The only cases in which a “preliminary hearing” is required are those where the defendant is exposed to a sentence of life imprisonment. We call it a probable cause hearing (HPC for short – hearing in probable cause). This, as our legislature was once smart enough to deem – is a Constitutional right, embodied in amendment seventeen to Article 1, Section 8 of the Connecticut constitution [the link is to Amd 18, scroll up just a bit to get to Amd 17]:

Section 8 of the article first of the constitution is amended to read as follows: [...] No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.

The purpose of this Constitutional amendment was to do away with the notoriously useless grand jury system and instead replace it with a reliable, adversarial system whereby one could meaningfully challenge the State’s ability to proceed against an individual charged with the most serious of crimes. The right to counsel and to cross-examine witnesses and to utilize the testimony obtained at this hearing at future proceedings was paramount in the minds of the legislators when they proposed the amendment:

Amendment seventeen to article first, § 8, coupled with implementing legislation effective May 26, 1983; see General Statutes § 54-46a; has created expansive new rights for an accused charged with a serious crime. In order to provide such an individual with greater protections than he was afforded under the former grand jury system; see 26 S. Proc., Pt. 4, 1983 Sess., pp. 1413-14, remarks of Sen. Howard T. Owens; 26 H. R. Proc., Pt. 8, 1983 Sess., pp. 2945-46, remarks of Rep. Alfred J. Onorato; 26 H. R. Proc., Pt. 10, 1983 Sess., p. 3783, remarks of Rep. Alfred J. Onorato; this new provision guarantees that no one will be forced to stand trial for a serious crime unless a court has first made a finding of probable cause at an open hearing in which the accused is provided with a full panoply of adversarial rights. A judicial determination of probable cause has thus been made a constitutional prerequisite to the court’s subsequent jurisdiction to hear the trial.

State v. Mitchell, 200 Conn. 323 (1986). C.G.S. 54-46a, which codifies the HPC and sets out its procedures, states, among other things:

(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.

The right to waive the hearing itself belongs exclusively to the defendant and not counsel. Subsection (b) of the statute, which deals with the time period within which the state has to conduct this HPC, has been interpreted to be waivable by counsel, instead of personally by the defendant¹. That’s not the case with the right to the hearing itself.

That’s not to say that I agree with Bobby G that there’s never any harm done by going ahead with the hearing: whether to waive the hearing or conduct it is a case-specific question that depends on many factors. How weak, really, is the State’s evidence? Is there a legitimate shot that the judge would find no probable cause? The upside is that while the defendant is entitled to Brady material before the hearing in probable cause², he isn’t entitled to all discovery, so there may be a bit of a disadvantage going into the hearing blind. There’s always the pitfall of locking a witness into testimony that hasn’t been subject to fully informed and developed cross-examination and then have that testimony read into the record as substantive evidence at the trial when the witness is “unavailable”³.

But what all of this presupposes is that counsel is available to discuss the pros and cons of a preliminary hearing with the defendant. It is an informed decision that the defendant should make, on the record. He is the one facing, at least in CT, life in prison.

We may want to moan and grumble about the lack of money given to us by the legislature, but all of that needs must take backseat to the prime directive: protect the interests of the client. Horry County’s public defender’s office seems to have forgotten that. In pursuit of a larger goal, it is doing a disservice to the very people who look to it for help.

__________________________________________________

¹State v. Santiago, 245 Conn. 301 (1998).
²State v. Mitchell, supra.
³See, e.g., State v. Estrella, 277 Conn. 458 (2006).

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Guilt by convenience

Nov 17th

Posted by Gideon in ct state law

7 comments

[I was going to go with the far more catchy title "If you're innocent and you know it and you really want to show it, plead guilty" sung to the tune of - you know what? Stop that. Don't judge. You try writing funny and interesting blog posts every day. Sheesh. Nowadays everyone's a damn critic.]

So let’s start first with this statement a month and a half ago, from the Mayor of New Haven and the New Haven Police Chief:

“This is America. Anyone can film anytime they want, including you, me and the PD while on duty,” Mayor DeStefano stated.

“Assume you’re being videotaped all the time when you’re out there,” [Chief] Limon said he has been telling his officers.

Limon said he has upcoming in-service training sessions for his rank and file will include an “update about legal procedures on interfering and videotaping issues.” He’s also looking into putting together a “policy to let officers know what are the exceptions” to when citizens can take video.

He was too slow with that training. Because this happened:

In the midst of swirling controversy about cops and cameras, Luis Luna was put under arrest for filming police in action—not by a rogue patrolman misunderstanding official department policy, but by none other than the assistant chief of police.

Luis Luna (pictured) [not here], a 26-year-old from Wallingford, was arrested on College Street early in the morning of Sept. 25 while he was using his iPhone to videotape police.

According to a police report, his arrest was ordered by Assistant Chief Ariel Melendez, who had told him not to film police breaking up a fight. Read the report here.

Luna said police took his iPhone from him and erased the video he had made. He was charged with interfering with police and spent the night in jail.

Oops. Now, I’m not going to get into the whole “police vs. cameras” angle on this story, because others have covered longer and more effectively. What I want to talk about is what happened on October 8:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

On Oct. 8, Luna appeared in Superior Court on Elm Street to answer to the charge of interfering.

“I approached the prosecutor and he said they would drop my charges and that I would have to pay a fine for creating a public disturbance,” Luna said. Luna said he thought to himself that he shouldn’t have to pay anything, that he hadn’t done anything wrong. But the prosecutor told him he probably wouldn’t qualify for a public defender, Luna said. He said when he asked where he might find a lawyer, he was referred to the yellow pages.

Without the time or money to fight the case, Luna decided to agree to the deal. He was charged with the lesser crime of creating a public disturbance.

When the judge asked if he was guilty, he said no, Luna recalled. “The judge explained I have to plead guilty,” he said. “At that moment when I said I’m guilty, I felt like I was going against myself.”

October 7: Actions perfectly legal and acceptable; not guilty of anything. October 8: Actions perfectly legal and acceptable; guilty of creating a public disturbance.

GA23 - where air goes to die

How did this happen, and why? Luna himself tells us why: because he didn’t have the time or the money to be bothered with it. Confronted with an overwhelming court system in that most overwhelming of courthouses: New Haven’s GA23 courthouse on 121 Elm Street, where the facade is barely hanging on supported by rafters and where throngs of people cram into the hallways like sardines and where air quality has been terrible for years, I’m told.

Luna, with nary an involvement with the system prior to this, was likely confronted with that madhouse like scene and had only one thought: “Get me the hell out of here“. So when faced with the daunting prospect of waiting to fill out an application for the public defender’s office, without any certainty of being eligible for the services of one of my brethren, or thumbing through a yellow pages (really? the prosecutor handed him the Yellow Pages?), he took the easy way out. He pled to something that was dangled in front of him: the all-saving “lesser charge”. An infraction, which is not a crime. It’s a slap on the wrist.

But wrists should only be slapped when someone’s done something wrong. Luna, even as of today, hadn’t. But he bore the sting of that slap just to get on with his life.

And Luna isn’t alone. Given the volume of people that wind their way through the system, it just isn’t possible for everyone to fight their fights. People, like Luna, want to forget their interactions with the criminal justice system like a bad nightmare about that ex who stole all your money.

And the ones that cave in are the ones that have had no prior interaction. The irony is that once you’ve been bitten by the court system, you aren’t shy anymore. You realize that it’s a sham for the most part and that sometimes, they’re just out to get you no matter what. So those with records stand and fight. Sometimes over nothing more than pride, but they fight like they’re Ali.

Those who are first timers fight like they’re Liston.

And that’s why Constitutional principles are decided in the cases of people who’ve had long exposure to the justice system – and that’s why these cases are called loopholes, because they only help the “lifelong criminals”. Well, that’s because they’re the only ones with nothing left to lose. So they stand up to the State and extend that middle finger.

Some of the comments on other sites seem to suggest that the prosecutor shouldn’t have extended the offer and the judge shouldn’t have accepted the plea. But I have a hard time faulting the judge. Factual bases for infractions are often sparse and limited. Did the judge know the underlying facts? The story – and Luna – doesn’t tell. What about the prosecutor? Should the prosecutor have known that what Luna did wasn’t illegal? Heck, the mayor and police chief are pretty clear on that. But then again, some seem to suggest that once a prosecutor believes probable cause exists – which is akin to believing there’s evidence of some higher power – then he’s within his rights to push for a conviction. If it’s not unethical, then well, what is it?

Remember that Luna was charged with Interfering With An Officer, which carries a maximum penalty of a year in jail:

(a) A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer, special policeman appointed under section 29-18b, Department of Motor Vehicles inspector appointed under section 14-8 and certified pursuant to section 7-294d, or firefighter in the performance of such peace officer’s, special policeman’s or firefighter’s duties.

Do Luna’s actions fit within the definition of the crime? Depends on who you ask, I guess. Everyone but the prosecutor: No. The prosecutor (who’s the only one whose opinion counted): Yes/Maybe.

Luna could have been appointed a public defender – certainly the crime is eligible for our services – but maybe he made too much:

(a) In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant, unless, in a misdemeanor case, at the time of the application for appointment of counsel, the court decides to dispose of the pending charge without subjecting the defendant to a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation or the court believes that the disposition of the pending case at a later date will not result in a sentence involving immediate incarceration or a suspended sentence of incarceration with a period of probation and makes a statement to that effect on the record.

Maybe he made too little to hire a private attorney. Maybe Luna was stuck in dead man’s land. And now? Now he’s guilty because it was convenient. The system claimed another victim.

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The rotten peach? It’s in Washington now

Oct 4th

Posted by Gideon in death penalty

No comments

Maybe there’s nothing more than coincidence at work here and maybe I have my understanding of the philosophies of Supreme Court justices all wrong, but I find it noteworthy that on the first day in 35 (!!!) years that SCOTUS opened a term without a justice named Stevens sitting in one of the 9 chairs, and on the eve of the release of the biography of Justice Brennan, they also denied cert to Jamie Ryan Weis, that most unfortunate of Georgia defendants. Weis, of course, is the poster boy for the failed public defender system in Georgia, which was once heralded, but then crippled by, among other things, the unsuccessful capital prosecution of Brian Nichols.

Georgia’s Supreme Court, by a 4-3 vote, did not find any problem with Georgia’s public defender system or the lack of funding or the fact that his lawyers withdrew and a new set of lawyers asked not to be appointed or….sigh.

And now a system that provides little to no adequate representation to those charged with and convicted of the most serious crimes with the most serious attendant penalty receives no Federal review. SCOTUS just denied cert. No explanation, no dissents, nothing.The stench has spread to Washington.

For a while now I’ve argued that these individual claims in State courts in individual cases will do little to bring the issue of systemic failure into the spotlight. That the only way to adequately challenge the failure to provide counsel is through lawsuits against the State (and maybe this latest legislation will help do just that). With this latest rejection by SCOTUS, it seems that Jamie Weis (and others) may have run out of all other options.

We haven’t yet seen what Justice Kagan will do for the everyman and I’ve been told by many, including His Presidency that she’ll be just fine. Maybe. But maybe, just maybe, if Justice Stevens were still on the bench, we’d have had someone take an honest and critical view of the mess that is Georgia:

The U.S. Supreme Court in recent years has taken a close look at Georgia’s capital punishment procedures. Now-retired Justice John Paul Stevens in 2008 slammed the state’s high court for an “utterly perfunctory” review of a death penalty case.

But we’ll never know. Sorry, Jamie Weis. It seems that when it comes to capital murder, close enough for government work is better than you deserve.

Indigent defense on trial

Jul 12th

Posted by Gideon in death penalty

1 comment

The stereotype of the over-worked, under-paid public defender exists for a reason. Even though I’ve personally fought against the stereotype here on the blog and in real life, I must necessarily admit that in a lot of States, the caricature is not a caricature at all, but an accurate representation of the state of indigent defense. Often, the public defender is only as good as the resources and time available to her. The best lawyer may seem incompetent if overburdened and underfunded.

I noted a while ago that a battle was brewing on the state of indigent defense and two recent news items seem to validate that observation. First, via CrimProf, a troubling decision out of Florida, where the intermediate appellate court reversed a trial court’s ruling granting a public defender’s motion to withdraw from one particular case because he could not adequately represent the defendant due to his high caseload. Then, on July 7, the Third District Court of Appeal reversed the trial court, holding that the mere word of a public defender that he was unable to provide constitutionally adequate representation was not enough to establish that the defendant would suffer prejudice:

Our analysis of the record in this case, however, leads us to conclude that there was no evidence of actual or imminent prejudice to Bowens’ constitutional rights. If the trial court’s order stands, all that the PD11 must do to show prejudice is swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the client’s speedy trial rights. This “prejudice” is not the type of prejudice that this Court referred to in State v. Public Defender. Prejudice means there must be a real potential for damage to a constitutional right, such as effective assistance of counsel or the right to call a witness, or that a witness might be lost if not immediately investigated. And this is the critical fact — the PD11 has not made any showing of individualized prejudice or conflict separate from that which arises out of an excessive caseload.

This conclusion is on the back of Florida statute that explicitly prohibits public defenders from withdrawing from cases because of excessive caseloads or inadequate funding:

(d) In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.

Here’s a statute that so blatantly conflicts with the professional and ethical responsibility of a lawyer to withdraw from the representation of a client if he feels he is unable to provide adequate and competent representation. Court, making the determination of whether to permit counsel to withdraw, do so on a case-by-case basis, but to exclude a very real and prevalent reason for that inability to provide adequate representation seems to be problematic on many levels, not the least of which a violation of the separation of powers.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The problem with the standard articulated by the appeals court is further highlighted when viewed against the backdrop of the facts as found by the trial court:

Mr. Kolsky had between 105 and 164 pending felony cases during 2009. In fiscal year 2008-2009, he had handled 736 felony cases in addition to 235 pleas at arraignment. Because of his caseload, he cannot meet with in-custody defendants until two months after arraignment, and then usually only for 30 minutes. The judge found that “The unrebutted testimony is that Kolsky has been able to do virtually nothing” on the case for which he was seeking an order of withdrawal. His only meeting with the client was at arraignment. He had not investigated the case or discussed discovery with his client. The client was facing a possible life sentence as an alleged habitual felony offender.

In essence, the appeals court is saying that we cannot say whether the defendant’s rights have been prejudiced because he hasn’t gone to trial yet and the sub-text is: “who knows, he may be really guilty and the lawyer can’t do anything about it even if he spent all year working on the case”. That the prejudice required for arguments such as these is the fact of conviction, it is a duplicitous and misleading argument, as I’ve argued before. From the appeals court’s perspective, there is nothing constitutionally deficient or problematic about a defendant going to trial for a case which could result in a life sentence, assisted by a lawyer who’s met him once over 2 yeas and that too for 30 minutes at arraignment.

The idea that a lawyer’s crippling workload renders him unable to spend any time focusing on a particular defendant and that this in turn renders his representation per se ineffective (because, well, he hasn’t done anything!) and prejudices the defendant, is not a difficult one to grasp at all and shouldn’t be outside the reach of the august minds on appellate courts.

But that they choose to ignore this reflects a dangerous attitude that underscores how deep the “guilty until proven innocent” culture runs in the justice system. There may be some hope, though. The appeals court did certify the question of whether the statute is unconstitutional to the Supreme Court of Florida, which accepted that question. It’s up to the court of last resort in Florida to restore a semblance of dignity to the Constitution and the criminal justice system.

[Here's a collection of excessive workload litigation links and filings from the Miami PD.]

The second story comes from the Constitutionally Confused State of Georgia, whose Supreme Court has remanded a case to the trial court to determine whether there has been a systemic breakdown of the public defender system. In Phan v. State, the GA Supreme Court remanded a capital case to the trial court to determine whether a systematic breakdown exists and if that breakdown deprived Mr. Phan, now on his 6th year of incarceration awaiting trial, of his constitutional right to a speedy trial. The deprivation of Phan’s rights here is caused primarily by the lack of adequate funding:

The defense attorneys had wanted funding to go to Vietnam and search for mitigating factors, the lawyers said in court documents. The sole witness identifying Phan as the shooter, Hoangoah Thai, the wife and mother of the victims, returned to her village there after awakening from a seven-week coma caused by her injuries in the shooting, they said. Also, all of defendant Phan’s family remains there.

Those allegations, the state Supreme Court majority wrote, “are based on the notion that budgetary shortfalls and the lack of funding have caused a systemic breakdown of the public defender system.”

Nor have Harvey and Adams been paid for their work. Adams said he last was paid in August 2008, and is owed about $45,000. Harvey, who the court record indicates has not been paid for his four years on the case, was in court and could not be reached for comment. Adams, noting that the state’s public defender system has a $22 million funding shortfall, said he thought his co-counsel was owed about the same amount.

Adams, who is co-chairman of the death penalty committee for the National Association of Criminal Defense Lawyers, said nationwide data from his group shows capital cases are about 10 times as expensive as non-capital cases. He said the average cost of a Georgia death penalty defense is about $360,000, not factoring in prosecution and court costs, and that the Phan case likely would cost more because of factors such as the sole witness being in Vietnam.

In July 2009, Adams and Harvey filed two motions to dismiss the charges against Phan, who has remained in jail since his arrest more than five years ago. They said that the state failed to fund Phan’s defense against the death penalty, and alleged that his speedy trial rights were violated.

Gwinnett Superior Court Judge Ronnie K. Batchelor denied those motions, agreeing that there was a “systemic failure” and noting that the district attorney had agreed as well.

The dissent argues that the evidentiary hearing before the trial court already determined that there was a systemic breakdown, so let’s get on to Barker already. And then there’s the concurrence, which cuts right to the heart of it:

The trial court may take aggressive action to safeguard the public interest and preclude a speedy trial violation … and the District Attorney has the authority to dismiss the death penalty notice, if that will make adequate funding available to the defense and allow for a speedy trial of this case.

Of course, when a prosecutor gets called out in an appellate opinion, said prosecutor has to respond:

When the portion of Nahmias’ concurrence noting the DA’s authority to dismiss the death penalty notice was read to him, [District Attorney] Porter said, “It’s been suggested at several points along the way, and … I’ve considered it but I have not agreed to it … because I’ve always had more or less the feeling that at that point, it’s a capitulation which I’m not prepared to make. If that’s the solution, then why not just do away with the death penalty? The public defenders at that point have managed to win the war of attrition.

I guess it’s easier to stick your fingers in your ears when faced with an increasingly defeaning chorus that the obstinate desire to stick with a barbaric and expensive mode of punishment is contributing to current and future economic ruin of the State and the wholesale trampling of core Constitutional rights. You’re right, Mr. Porter. Just do away with the damn thing already.

The third story is just an update of sorts on the rotten Georgia peach. Jamie Ryan Weis, whom the Georgia Supreme Court told to “fcuk off, coz it’s all ur fault, u crim1nal” (exact quotes, btw) back in March, is seeking cert. from the Supreme Court.

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Paying for injustice

May 18th

Posted by Gideon in cops

No comments

Meet Manuel Hidalgo Rodriguez, arrested and convicted in 1995 for child sexual assault that he did not commit. Hidalgo spent 5 years out of a 5 1/2 year sentence before his conviction was reversed and the charges dismissed.

Meet Thomas White, also convicted for child sexual assault and who also spent 5 years in prison before a third jury finally acquitted him in 2005.

But Hidalgo and White have more in common that merely being falsely accused of terrible crimes for which they both spent long years in harsh conditions in prison. Both convictions were obtained by a failure of the system: in Hidalgo’s case, aided by the complete inexperience of his defense attorney in what amounted to a constructive denial of counsel; in White’s, horrifying misconduct by the police and prosecutors to hide exculpatory evidence.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Stevensen was working for the Barker and Howard law firm, which provided indigent defense services for Chelan County, when he was assigned in 1995 to represent Hidalgo. He had been admitted to the Washington State Bar less than two years earlier, and had been working as a Chelan County public defender for a little over a year.

In a declaration filed in court on Friday, Stevensen, now a juvenile prosecutor for Chelan County, wrote that he had had limited legal experience and little supervision or support from his employers when he was handed the Hidalgo case.

Stevensen wrote that he was unable to launch a counter defense to medical testimony, offered by prosecutors, that one of the children Hidalgo was accused of attacking had been sexually assaulted. He said that he did not know how to “attack” the strong medical testimony or to call on expert witnesses to attest that children sometimes make up stories of being sexually assaulted when they are improperly questioned by authorities.

It would be pointless for me to recap the problems in White’s case here, so just go read these posts. I’ll wait.

Done?

In both cases, one thing is clear to me: the system failed the defendants. Whether it be the public defender system in Hidalgo or the law enforcement and criminal justice system in White. The difference is that Hidalgo’s lawyer has seemingly taken responsibility for his contribution to Hidalgo’s nightmare, whereas the officer and prosecutor in White’s case pretend like they’ve done nothing wrong.

The suit against the police in White is nothing new. The suit in Hidalgo is extremely rare. Hidalgo’s lawyer settled, because he has malpractice insurance although his suit against the public defender system is still pending.

Someone, ultimately, must pay. In some form or another. While courts have routinely declined to hold prosecutors responsible for their misconduct (see here and here and more generally here and here), defense lawyers have no such immunity. And Stevensen, to his credit, did the right thing. He stood up and took responsibility for his actions. That he is being held financially responsible for his inexperience and not any intentionally malicious act on his part is unfortunate, but as long as courts decline to recognize that the system itself is flawed, the burden will fall on the individual lawyer.

Much about the system, though, is backwards. Just like the detective in White who continues to remain a police officer,

Stevensen was admitted to the Washington State Bar in October 1993 and was hired by Barker and Howard in 1994.

Barker and Howard no longer provides the county’s public defense, but did provide it from January 1994 until December 2002. One of its partners, attorney Keith Howard, then contracted with the county until 2006. In 2007, the county switched to a public defenders office, called Counsel for the Defense of Chelan County, and hired Howard as its director.

Hopefully Stevensen has learned from his mistakes, although he’s now on the other side of the fence as a juvenile prosecutor.

There’s one more thing worth mentioning in Hidalgo, especially in light of the conversation around the ‘sphere a few weeks ago regarding IAC and our responsibilities:

Partway through the trial, Firkins, a private attorney [and Hidalgo's current attorney], sent a letter to the court offering to represent Hidalgo if the judge, Carol Wardell, would grant a two-week continuance. Wardell denied the request, saying in court that she thought Stevensen was doing a good job.

It must’ve been clear to some that Stevensen wasn’t doing a constitutionally adequate job, perhaps even Hidalgo himself. Yet he was denied the opportunity to prevent the injustice prior to its occurrence and only gets some measure of vindication after spending 6 years:

Hidalgo was assaulted while in prison and put in solitary confinement. Other court documents state that he was assaulted twice in prison and spent six months in solitary confinement for his own protection.

One can’t begin to put an economic price on the damage to the lives of Hidalgo and White. Money goes a long way, but it isn’t everything. And the beating taken by the system and our notions of justice? What’s the price on repairing that?

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Gideon stirs

May 9th

Posted by Gideon in pd system

6 comments

On Thursday, the New York Court of Appeals issued a 4-3 decision permitting, but narrowing, the NYCLU’s lawsuit [prior post] against 5 counties to proceed. The crux of the claim is not a violation of Strickland , but rather a violation of Gideon itself.

This complaint contains numerous plain allegations that in specific cases counsel simply was not provided at critical stages of the proceedings. The complaint additionally contains allegations sufficient to justify the inference that these deprivations may be illustrative of significantly more widespread practices; of particular note in this connection are the allegations that in numerous cases representational denials are premised on subjective and highly variable notions of indigency, raising possible due process and equal protection concerns. These allegations state a claim, not for ineffective assistance under Strickland, but for basic denial of the right to counsel under Gideon.

The argument was in two parts: 1) That the public defender system is so under funded that lawyers are provided in name only and that results in a de facto denial of counsel (the Cronic claim); and 2) That the public defender system is so underfunded that there is no way these lawyers provide effective representation of counsel (the Strickland argument).

The court permits the first to proceed while rejecting the second. The Court seems bent on ensuring that these particular plaintiffs don’t backdoor in their ineffective assistance claims, because that is necessarily a post-conviction, fact specific inquiry, whereas the institutional denial of counsel touches on the basic obligation of a State to provide counsel at all.

Collateral preconviction claims seeking prospective relief for absolute, core denials of the right to the assistance of counsel cannot be understood to be incompatible with Strickland. These are not the sort of contextually sensitive claims that are typically involved when ineffectiveness is alleged. The basic, unadorned question presented by such claims where as here the defendant-claimants are poor, is whether the State has met its obligation to provide counsel, not whether under all the circumstances counsel’s performance was inadequate or prejudicial.

It is that last part that is truly noteworthy about this decision: that a court has finally acknowledged that Gideon‘s promise may be going unfulfilled and that states cannot prop up a warm body next to the defendant and be allowed to pass the blush test. Gideon did not make a hollow promise. Time to hold states to their obligations.

The other Michigan bailout

Apr 21st

Posted by Gideon in pd system

2 comments

Much has been written over the last two years or so about bailouts: bailouts of Wall Street, banks and of course the auto-industry, formerly of Detroit, Michigan. This blog has also focused on bailouts, but those of a different kind: the bailouts of public defender systems which are not forthcoming.

As I’ve mentioned before, we are approaching a tipping point in the fight against constitutionally inadequate public defender systems across the country. The ‘sphere has been atwitter over the news that 14 public defenders in Minnesota have filed a labor grievance over excessive caseloads.

Yet the internet has been oddly silent about a battle on another front in nearby Michigan. In 2007, the ACLU of Michigan filed suit against three counties and sought to have their indigent defense systems declared unconstitutional and to have the state provide funding.

On April 14, 2010, the Michigan Supreme Court heard oral argument in an expedited appeal on the state’s motion to dismiss the lawsuit.You can view the oral argument here [and really, even if you ignore this entire post, make sure you watch the oral argument], and the briefs and other related documents are available here.

The oral argument, despite its premature stage, beautifully frames the core issues at play here: can defendants sue the State to ensure that they receive constitutionally adequate representation; whose duty is it to provide that representation; and just how difficult a task is it to prove that there is a systemic 6th Amendment failure?

[The oral argument is also noteworthy for other things, such as the Attorney General's complete butchering of Cronic and the conflation of the Strickland standard with the civil "injury" and of course, the proffer of the idea that any and all 6th Amendment violations can only be asserted after a conviction.]

The idea of a systemic failure, of course, is not difficult to grasp. States that leave the funding to individual local counties are bound to have an indigent defense system that is arbitrary and inconsistent.

It must be the State’s obligation to provide effective assistance of counsel to all defendants at all stages of a criminal proceeding. That is the only way to ensure that Gideon’s mandate is fulfilled.

Whether this lawsuit will achieve that goal remains to be seen. I suspect, however, that the ACLU and those bringing suit have another motive in mind: to force the state to legislate more funding, as has been done in other states and is currently being done in others still.

It seems that the strategy may be paying off already, at least in Michigan.

Going back to what I wrote earlier, it doesn’t matter what the mechanism employed is, as long as states are forced to confront the reality that their public defender systems are woefully inadequate and that the first step to fixing them is greater funding.

The battle has begun, the war will be won.

Guilty of being poor

Apr 5th

Posted by Gideon in bail

6 comments

There is a myth that persists among criminal defendants that is well known to all of us: if you are poor, there’s a greater likelihood you’ll be found guilty of something. This myth – and a myth it is, because the rate of conviction is so damn high that you can’t honestly carve out any special class among the universe of defendants – is a steady source of amusement for the public servant.

“Man, if I had a real lawyer, I’d have gotten a dismissal already.”

Yeah, sure.

“I know how this works. If I had a private lawyer, he could fight for me more, but I can’t afford one so I’m stuck with you and this crappy deal.”

Whatever you say.

The irony is that the myth “you’re guilty if you’re poor” is just a few minor edits away from being close to the truth. The reality is that in the volume-high, fund-low world of indigent defense, most people are certainly guilty of one thing: being poor.

I’m not referring to the link between poverty and crime, for which there is much to be said – despite the tortured claim put forth last year that the declining economy coincided with a declining prison population and hence there was no link, an argument that any statistician worth the paper his degree was printed on would snarkily dismiss out of hand with the acronym SSS* – and indeed much has been said, but rather to the reality that unfolds every single day in the busiest courthouses across the country.

In response to my post yesterday on the “difficulty facing public defenders” [and if you want to read a more thoughtful post on the subject, check out Gamso's], a commenter points out that what I identified as a difficult wasn’t really exclusive to public defenders. The presumption of guilt applies to all defendants. But what is special to the indigent bar is that we often have to sit by and watch clients plead guilty, without having a clue whether they are actually guilty or not and without having the opportunity to determine that.

For almost every defendant except the guy doing life on the installment plan, the single biggest motivating factor is liberty. “When can I get out?” is the paramount question.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

What with the concept of bail being a joke and no one really having any clue what a reasonable amount is anymore, the choices available to the average defendant are stark and bleak: pray for a promise to appear, sit in jail or do whatever it takes to get the hell out.

Some judges and most prosecutors are acutely aware of this dilemma and a fair percentage of them are not above leveraging it into a conviction.

Offer a deal – any deal – that involves no jail time and the incarcerated defendant will jump on it faster than you can say “suspended sentence”. Guilt or innocence be damned. As long as he can get out today, he’s taking it.

For the public defender, this is quite the conundrum. On one hand, the client’s interests are paramount and whatever is the client’s paramount interest is yours. The ability to investigate, to challenge the State’s case, to force a dismissal if the facts align themselves are all tertiary.

“I want to get out” is an argument against which there is no satisfactory response. Ethically, we must convey every offer to the client. And, at times, they’re not bad deals. They’re just not as good as they should be. When the State offers a suspended sentence, it’s patently obvious that there weaknesses in their case, sometimes even fatal ones.

If only we could convince the client to hold out longer, while we finish that investigation, while we round up those witnesses and get those statements, while we beat the State into submission with the glaring holes in their case, while three months have elapsed.

To the poor, incarcerated client, this is just not a convincing strategy. It’s hard to argue with the allure of immediate freedom and escape from the shitholes that are our prisons.

The reality is that our clients are poor. They want out. We stand by, often with nothing more than a police report and counsel them as best we can that we can’t really tell them whether to take the promise of immediate freedom because we haven’t had time to do any research or investigation. They look at us as nothing more than a warm body and decide that they’d rather take the abstract notion of an unjust conviction and the attendant liberty over the potential of no conviction and the fact of more time spent behind bars.

If only they had money to fight the case “from the outside”. If only they weren’t poor and the system didn’t take advantage of that.

That’s a difficult pill to swallow.

*small sample size

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The presumption of guilt

Apr 4th

Posted by Gideon in innocence

22 comments

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. The presumption of innocence, a bedrock principle of criminal justice systems the world over for generations, is really not that ambiguous or in doubt. The presumption has been traced by some to Deuteronomy and there is evidence that it was embodied in the laws of Athens and Sparta. “Better than 10 guilty persons escape than that one innocent suffer“, says Blackstone [see here for a summary of the history of the presumption].

It’s a catchy phrase: “innocent until proven guilty”. It nicely ties in the other core principles: the burden of proof is on the State; the defendant has a Constitutional right not to testify; each and every element must be proven beyond a reasonable doubt. I’ve often employed Emperor Julian’s response, reproduced above, in answering the cocktail party question.

It’s all a lie. A big, bold-faced, wool over your eyes lie.

The presumption of innocence is dead, at least in practice. The real presumption, if you must, is that of guilt. Despite the Constitutional and historical directives to the contrary, the defendant “enjoys” a presumption of guilt from the moment of the institution of criminal proceedings.

From the absurdly low standard of probable cause needed to arrest a citizen, to the pitifully slanted pre-trial proceedings, to the trial itself, the presumption weighs heavily against all those who have been charged with a crime.

22tweets, a creation of Lance Godard, asked those who were featured in last week’s Blawg Review one question on twitter. Mine was: “What would you say is the most difficult aspect of being a public defender?”*

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

As I pondered that past the deadline for a response, I cycled through the regular ills of a pd system: a lack of funding, crushing caseloads. But that’s not difficult. It’s a burden, to be sure, and an impediment, but one that can be overcome.

The most difficult aspect for me, then, is this. This wretched presumption that hampers and stymies and confounds at every step of the way. This presumption that takes what would be an obvious case of injustice and turns it into a fight for a dismissal.

Take it a step at a time: the State (or prosecution, if you prefer) has already made up its mind about the defendant’s guilt. They’re initiating a criminal prosecution. In their mind, they’ve already convicted the defendant. That’s the hand they’re playing from. “Why should I believe your client?” “You think a jury’s going to buy that?” “Oh, that’s his alibi?”

Skepticism and disbelief reign supreme. We have to prove to them that their initial assessment of the defendant’s guilt is incorrect. The burden is shifting.

The media coverage, if any, is almost always slanted toward the prosecution. Unbiased, non-sensationalist reporting is almost non-existent. The press plays a subtle role in shaping the opinions of the jury pool.

But there’s always the trial, you say. A determination of guilt or not-guilt to be made by a jury of “peers”. All 6 or 12 of them are indoctrinated about the presumption of innocence and all vow to uphold the State to its burden.

I have come to believe that that is hogwash. Jurors are smart enough to know what to say. They’ve also been reading the same newspapers and watching the same news. There’s still this cultural divide between “them” the defendants, and “us” the jurors. Someone’s been arrested and is going to trial? Well, there must be something to it or why else would the State waste its time?

The presumption goes to the State. If the State, in its benevolence and infinite wisdom has decided to pursue this matter, then, well…

If you had a client in whose case you believed the State’s evidence could not sustain the burden, would you dare rest without putting on any evidence? Do you have that much faith in jurors?

I have this belief – it may be a naive belief – that most trials are won not because the jury upheld the presumption of innocence, but because the defense overcame the presumption of guilt.

It is human nature to want to hear both sides of a story and then decide which one is more believable. To force the jurors to perform their duty in a manner that is contrary to this human need is merely wishful thinking, no matter how forceful the instruction from the judge.**

The presumption of innocence exists in name only; a lofty ideal that we can thump our chests about and shout from rooftops. Look at this fine example of how just we are as a society.

The real truth, hidden in the backrooms of courthouses and in the ugly, dirty trenches of everyday warfare is quite different. Every morning, the defendant and the defense lawyer face a nearly unsurmountable task: overcome the fact that almost everyone but you thinks your client is guilty.

[*If you have a better response to that question, leave it in a comment. I'd be glad to hear and discuss it.]

[**Maybe, must maybe times are changing with the proliferation of DNA exonerations and wrongful convictions. But I'm not yet convinced. And DNA evidence is surely a double-edged sword for the defendant. Somewhat akin to Rule 34 is the Rule of DNA: If there is DNA, he is guilty. Oh, and Google Rule 34 at your own risk.]

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Bad ad-Weis: spitting on Barker

Mar 28th

Posted by Gideon in death penalty

3 comments

To,

Jamie Ryan Weis
Soon to be on death row
Georgia, USA

It is your fault. It is your fault that your lawyers didn’t get paid. It is your fault that there wasn’t any money to hire investigators and mitigation experts. It is your fault that the two lawyers with whom you’d built up a relationship had to be replaced.

It is your fault that the lawyers they were replaced with weren’t experienced and didn’t have the time or resources to represent you. It is your fault that your Constitutional right to counsel of choice cannot be fulfilled. It is your fault that your new lawyers sought be replaced.

It is your fault that your old lawyers were promised funding if they returned to represent you. It is your fault that they never saw a dime of that money.

It is your fault that the public defender system has broken down. It is your fault that the State of Georgia doesn’t give a shit about indigent defense.

It is your fault that you now have to go to trial for a capital felony, still without any money.

Don’t you see? It’s so simple.

Love,

Georgia Supreme Court (well, at least four of us.)

One small step for Gideon…

Mar 23rd

Posted by Gideon in pd system

2 comments

see, you made Gideon cry

Today, New York’s highest court (confoundingly named the Court of Appeals , fuhhgeddaboudit), heard oral argument in a NYCLU lawsuit which seeks to enforce Gideon’s mandate (my previous post here). The case, and lead plaintiff, were profiled in this NYT article from Friday. The facts are the usual: pitiful client, not versed in the ways of the system; a contract public defender, overworked, overburdened and generally inattentive; a terrible error; a wrongful conviction; job lost, home lost, dignity dissolved, all over an error her lawyer made.

This and 19 other anecdotes form the basis for the NYCLU lawsuit against The Empire State. But these stories aren’t special to New York. We’ve all heard them, seen them even. The oft-repeated mantra of the overworked, underfunded public defender exists for a reason: they’re out there. They may not be you or me, but we know them; we interact with them and we think to ourselves: this is ridiculous.

Gamso’s written about it; so has BlogMaster Scott and even Mike’s chimed in. I agree with Jeff, somewhat agree with Scott and wholly disagree with Mike. Scott first:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

What the NYCLU suit is really all about is forcing the creation of a statewide indigent defender system, an idea which should be implemented and which has, if properly crafted, the potential to resolve many of the faults in the existing system. But this isn’t the way to do it.

The 3d Department was right to conclude that this was a political issue, and not one that the courts could fix under separation of powers. It involves many interests and concerns, with many difficult choices. While I trust the legislative process no more than anyone else, it’s still the means by which such things are supposed to be decided. For better or worse, and I anticipate the latter.

This should never, ever be a political issue. The political will to adequately fund criminal defense is so miniscule that it might as well be the singularity. If left to legislators, there would be no public defender offices, no contract attorneys and certainly not a whiff of Gideon’s promise. Criminal defendants have a lobby: it’s a lobby against them. Criminal defense lawyers are often lumped in with the people they represent and while on or two may be politically influential, as a whole the community is ineffectual and easily ignored.

The only way – and the best way – to bring about real change, to put teeth into Gideon’s crying face is through the medium that gave him life: the court system. NYCLU’s challenge in New York isn’t new. Connecticut’s much vaunted public defender system was born of a protracted legal battle, culminating in a settlement in Rivera v. Rowland:

there have been cases similar to the New York one in states like Connecticut [in 1999], Indiana, Minnesota, Montana [in 2005] and Washington, with settlements, lower court decisions and inconsistent rulings. The Michigan Supreme Court is to hear a challenge to its public defender program next month.” Not to mention the lawsuit against Pittsburg in the mid-1990s, one in Mississippi in 2001, and more mentioned here.

Scott is right, though, when he says that holding the lead plaintiff in the NYCLU suit out as the shining example of systemic failure is not entirely correct. The fault for the travesty that has befallen Kimberly Hurell-Harring lies both on the shoulders of the attorney who misrepresented her and the system that failed her. The former is easily dealt with by way of post-conviction relief. What to do of the latter, is the $500 million question.

Experience in other states has shown that the force of a lawsuit can cause the state to bend and twist and even break to the point of agreeing to provide Constitutionally mandated funding to indigent defense systems.

Mike at C&F takes a different view of the NYT story:

There are several weak defenses of the public defense system. These arguments sound very much like the arguments police make when defending the blue wall of silence.

“I know some great public defenders.” Sure. Some are very talented. Many are hacks. The talented public defenders do not weed out the hacks. Thus, an indigent client who walks into a public defender’s office is playing the lottery – Shirley Jackson style, as the stakes are his life.

Aren’t public defenders who allow incompetent colleagues to take on clients the Burkean men who allow evil to flourish by doing nothing? If we were talking about police rather than public defenders, you know how you’d answer, don’t you?

“They are overworked, and their caseloads are too high.” Why don’t you demand that public defenders go on strike? Bring the system to a halt. That’s what you demand of police: Speak out, even if it means risking your job. Well, why don’t you demand that public defenders risk their jobs to improve the system?

The general defense of public defender is to ignore the individuals, while attacking the system. Yet when criticizing police misconduct, criminal defense lawyers attack both the system and the individuals who are part of the system. After all, change is possible only when those on the front line take bold action.

The fault in the system lies with the players, he essentially argues. That the good lawyers are few and far between. That there is no internal management, no checks, no corrections for poor performance and that we support one another blindly.

On one hand, I think it overestimates the authority that one colleague has over another. On the other, I think the points he makes are somewhat valid. While I would not hesitate for a second to place my liberty in the hands of those I work in close proximity with, there are several public defenders that I wouldn’t let within 5 miles of own criminal case. But this isn’t the issue in the fight for adequate funding or the fight against ineffective lawyers. Any lack of training or oversight or personal responsibility can be traced directly back to the issue of money.

As it is, public defenders are underpaid. The resources they are given are meager. They’re routinely ridiculed, demeaned and dismissed. Even those that work tirelessly for their clients are compared unfavorably to the “real lawyers” that the client could hire, only if he had money. We’re the backup to the backup.

This perception won’t change if I decide to go on strike. This perception won’t change if I step in front of an overworked colleague and prevent him from misrepresenting a client. I am not a Phoenix, rising out of the system. For better or worse, I am the system and I will always be viewed as such. My clients’ dissatisfaction isn’t with me because I’m a bad lawyer, it’s with me because I’m a public defender.

[Incidentally, I think we might be able to improve our image if we started referring to prosecutors by their original appellation: public prosecutors, thus giving the masses a point of comparison and understanding. They're the public prosecutors and we're the public defenders.]

Back to Gamso, who says:

Indigent defense is problematic pretty much everywhere – even when it’s superb – because at some point the system, and in particular its funding, is in the hands of the government. And indigent criminal defendants don’t have a great lobby and don’t make big campaign contributions.

Public defense at its best provides superb representation. There are places and settings (and lots of individual public defenders and appointed counsel) who provide that level of representation on a regular basis. But the system doesn’t. Not broadly enough, anyway.

The issue in the Court of Appeals tomorrow isn’t the quality of representation in New York. It’s whether the courts can address the quality of representation in more than a case by case way. It’s a predicate to the main event, but lose and the main event doesn’t occur.

And that hits the nail squarely on the head. We are only as good as our funding. I can have all the energy, zeal and desire to interview every single witness who might refute the State’s proof, but if I have only one investigator to share between 7 lawyers, there’s nothing I can do.

We might want to train all public defenders and teach them the tools of effective representation, but without the money to pay for that training, it’s never going to happen.

Funding is a very good first step. And that’s not within our control. If we get adequate funding and the Hurrell-Harrings don’t whittle down, then come yell at public defenders. I’ll join you.

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It sucks getting old

Mar 18th

Posted by Gideon in pd system

6 comments

Pardon the short missive, but i would be remiss if I didn’t remark on this, the 47th year of my existence.

I have a number of posts bubbling under, but we should all take a minute today to reflect on Gideon’s legacy and the absolute mess public defender systems are in around the country.

The promise of my youthful idealism seems so far away now. More than ever, I firmly believe that we are Sisyphus.

pd system

Free-ish

Public defenders vs. assigned counsel vs. private attys: Round I lost count

The Cstit_io_ State

Wrong time, wrong battle

Guilt by convenience

The rotten peach? It’s in Washington now

Indigent defense on trial

Paying for injustice

Gideon stirs

The other Michigan bailout

Guilty of being poor

The presumption of guilt

Bad ad-Weis: spitting on Barker

One small step for Gideon…

It sucks getting old

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