Category Archives: pd system

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.

 

The madness of death

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It is never enough to want to kill someone; the desire to murder is always accompanied by the desire to do so quickly and without question. One could liken it to a madness that makes one talk quickly, ranting and foaming at the mouth. While it was ultimately thought that King George suffered from Acute Intermittent Porphyria, it remains to be seen what afflicts the modern day proponents of the death penalty.

How else does one explain the Florida legislature’s passage of a new bill “streamlining” (such a beautiful euphemism: “streamlining”; what do the British call it? “Redundancies”. Such a way with words) the death penalty process. What they really mean is jetlining it. Making it fast. Quicker than quick. No room or time for questions or doubt. Under the bill – “The Timely Justice Act” – deadlines for filing appeals are getting shorter and the time between an affirmance by the Florida Supreme Court and the issuance of an execution warrant has been reduced. Because it isn’t like there have been 24 people exonerated in Florida who were on death row. Because doing it fast is the same as doing it right.

“This is not about a question of innocence, this is about making sure that timely justice is realized,” [Republican Senator Rob] Bradley said.

Bradenton Herald. [More here, here, here and here.] It is not a question of innocence, for innocence is irrelevant. The only dynamic in this game is finality. Once it is done, it must never be spoken of again. For if we speak of it, we must acknowledge that the system doesn’t work. And if the system doesn’t work, maybe we can’t fix it. And if we can’t fix it, maybe we can only get rid of it. But it’s not about innocence. It’s about speed. It’s about victims. It’s not like DNA could tell you if he’s really guilty or not. And even if it did, would you care?

Willie Manning thought you would, but prosecutors in Mississippi didn’t. Manning, who sits on death row, inches away from execution, doesn’t have much direct evidence linking him to the murders.

There is no physical evidence linking Manning to the 1992 murders of two Mississippi State University students. The “jailhouse informant” who once told trial jurors that Manning “confessed” to the crime, has since recanted, telling defense lawyers he thought he would receive “consideration” from prosecutors for incriminating Manning. And Mississippi officials now are refusing to test DNA and fingerprints found at the crime scene — evidence which did not directly incriminate Manning before, has never been tested using modern procedures, and which might definitely resolve the case one way or the other.

But there’s more. The FBI has sent letters in the past days to Manning’s lawyers, disavowing their own “forensic science” that was used to convict Manning. And so today, after just last week denying Manning’s request for a stay 5-4, the Mississippi Supreme Court reversed course and agreed to stay his execution 8-1. Eight-to-One. There was still one. The Madness of Justice Randolph:

The letter also states that the Department of Justice is “assist[ing] [the Innocence Project and the National Association of Criminal Defense Lawyers] in their evaluations.” “The Innocence Project supports a moratorium on capital punishment.” The “NACDL has been an outspoken critic of the death penalty system. Of critical concern is the language contained in the first FBI report stating that, “[g]iven the abbreviated time frame for review, the FBI requests the Innocence Project (IP) to advise as to whether or not they agree with the FBI’s conclusions as soon as possible.” Although the connectivity and expediency by which this review was accomplished is mind boggling, I should not be surprised, given that the families of the victims of the clandestine “Fast and Furious” gun running operation can’t get the Department of Justice to identify the decision makers (whose actions resulted in the death of a border agent and many others) after years of inquiry, and that this is the same Department of Justice that grants and enforces Miranda warnings to foreign enemy combatants.” [emphasis in original]

The madness is upon him. Manning must be executed because fast and furious Obama and the FBI have juxtaposed the commission of the offenses of felonies in the circumvention of the current regime and the syncopation of the circumstances of the revolution of the conspiracy of the freedom of guns and religion in this Communist extravaganza.

—

There’s another form of madness at play here – and that is blame. If there is a fault with the system, that fault lies with the defense; if there is a problem, the problem is too many rights. It seems that the Constitution has become a roadblock on the fastrack to summary justice and execution.

The Florida “Let’s Speed up the Murder Yeehaw!” Bill has the following provision:

Notwithstanding another provision of law, an attorney employed by the state or appointed pursuant to s. 27.711 may not represent a person charged with a capital offense at trial or on direct appeal or a person sentenced to death in a post conviction proceeding if, in two separate instances, a court, in a capital post conviction proceeding, determined that such attorney provided constitutionally deficient representation and relief was granted as a result. This prohibition on representation shall be for a period of 5 years, which commences at the time relief is granted after the highest court having jurisdiction to review the deficient representation determination has issued its final order affirming the second such determination.

and this one:

(2) In a capital postconviction proceeding in which it has been determined that an attorney of record provided constitutionally deficient representation and relief has been granted as a result of such determination, after the highest court having jurisdiction to review such determination has issued its final order affirming the determination, the court making such determination shall furnish a copy of the findings to The Florida Bar for appropriate disciplinary action.

Blame the defendant; blame the lawyer. It’s taking too long. We never make mistakes. There never is a “report the prosecutor; fire the prosecutor” provision. The system cannot make mistakes; the system cannot admit fault. If the lawyer caused a problem, punish the lawyer. Nevermind that the specter of habeas is already a problem in the criminal defense bar with many taking the position that it’s a lawsuit against them personally, causing them to gleefully throw their clients under the bus, thus further compounding the failure of justice.

But can one really blame Florida when its an attitude that permeates from the top? A week or so ago, the United States Supreme Court did the unthinkable. It dismissed as improvidently granted [PDF] Boyer v. Louisiana. What that means is that after deciding to decide the important issue of just who pays when the system can’t pay to prosecute the cases prosecutors initiate, 5 justices of the august court decided that they didn’t want to decide that issue after all. Not because it isn’t an important issue, but because it was the defendant’s fault for raising that issue:

In sum, the record shows that the single largest share of the delay in this case was the direct result of defense requests for continuances, that other defense motions caused substantial additional delay, and that much of the rest of the delay was caused by events beyond anyone’s control. It is also quite clear that the delay caused by the defense likely worked in petitioner’s favor. The state court observed that petitioner’s assertions of his speedy trial right were “more perfunctory than aggressive.” 2010–693, p. 34 (La. App. 3 Cir. 2/2/11), 56 So. 3d 1119, 1143.

…

And as noted, most of this delay was caused by the many defense requests for continuances of   hearings on the issue of funding. If the defense had not sought and obtained those continuances, the trial might well have commenced at a much earlier date—and might have reached a conclusion far less favorable to the defense.

Justice Alito, apparently with a straight face, because he just gone writing that if only the damn defense didn’t raise that issue of the systemic lack of funding for capital defendants, the case wouldn’t have taken 7 years and we’d have had a death sentence already. So it’s the defendant’s fault that his right to a speedy trial was violated, but we’ll never say that because that would mean a new trial. So dismissed. And good luck with the next case, because the money still isn’t there but don’t you dare bring it up again.

Justice apparently need only be speedy when it is racing toward execution. The rest of the time, the system could grind itself to a halt for all anyone cares.

“Only God can judge,” Matt Gaetz, a Republican who sponsored the bill in the House of Representatives, said last week during House debate. “But we sure can set up the meeting.”

Let’s be sure we’re sending the right person to that meeting, first.

CT Supreme Court: To be a law firm you’d have to be a real lawyer

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If you’ve ever had to respond to an opposing party’s filing in Court, you know that some are very good and make your job challenging. And you know that some are so bad that you don’t know where to start. You sit and stare at the pleading or brief or whatever it may be and you stare at a blank computer screen because the depths and lengths of the sheer absurdity of the filing that you are tasked with criticizing and rebutting is unimaginable and it is swallowing your brain whole because there is no possible way any human being can even begin to deconstruct the stupendously mindboggling arguments that have been made. And you stare and stare in the hopes that someone will rescue you by showing up in your office and saying “April Fool’s! That’s not the real thing” or “hey, never mind about that reply because they withdrew their filing out of sheer embarrassment when they realized how it’s not even wrong” and then you resign yourself to the fact that you can’t actually submit a response that consists entirely of the Picard facepalm, because, while funny, it’s not very professional and so you write several different opening sentences only to delete them all and try again while swimming in the despair and futility of it all.

This is how I feel right now – and have felt since 11:30am yesterday morning, when the Connecticut Supreme Court issued its opinion in Anderson v. Commissioner [PDF].

Anderson is an appeal of an Appellate Court decision that I wrote about in October 2011. It was a post-conviction appeal in which Mr. Anderson argued that his conviction was illegal because his lawyer represented him in a way that violated the Sixth Amendment because the lawyer was operating under a conflict of interest.

This is a big deal, because everyone has the Constitutional right to have a lawyer whose only interest is the interest of that client and no one else. See Cuyler v. Sullivan. You can easily imagine why this is paramount. The client hires the attorney with the intention that the attorney will represent the client and only the client in his case and that the attorney is working for the client and what the client wants and thus the attorney’s loyalties cannot be divided.

There are very strict Rules of Professional Conduct that govern this matter and whether lawyers in the same law firm can represent two parties whose interests are at odds with one another. The rules are pretty clear, stating that you cannot do that, unless you get waivers from both clients. Unless, of course, you’re not a “real lawyer”. By which I mean you’re a public defender. Continue reading →

Gideon at 50: A time for truth

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Calm down, the talky part of the day is over. Miranda (the original one) recommended I set up some polls to get to the truth of the matter. So here, I present 3 polls to you. Votes are anonymous. I don’t care who you are. This is informational only. Participate, feel like a community, make fun of others, I don’t care.

I feel that I provide constitutionally adequate representation:

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What I need to do a better job for my clients

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My advice to clients has been affected negatively by my caseload

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Raison d’être

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I could quote, as I have done before, Ammianus Marcellinus and his tale of Delphidius and Caesar. I could quote Martin Luther King, Jr., and his admonition that injustice anywhere is a threat to justice everywhere. I could even quote my namesake, but I’ve already written about him once today. Instead, I quote Jonathan Rapping, former training director of Public Defender Services and current something of Gideon’s Promise, a program dedicated to training and resurrecting crumbling public defender offices in the South.

Expectations for what poor people deserve have fallen so low that people in the system have come to accept these low standards. They have lost sight of justice and the role they are supposed to play in promoting it.

While limiting caseloads is certainly one part of the solution, if we expect to change America’s public defense system, we must change its culture. We must teach public defenders to resist the low expectations of a broken system. And we must prepare the next generation of public defenders to improve those systems.

Perhaps being fortunate to practice in a public defender system that has most everything one could ask for* has blinded me to the obvious realities of practicing in other jurisdictions where we are barely funded at all.

But the charge that it is the dedication of the public defenders that needs examining that gives me pause. Is it, like I want to think, that those public defenders who have accepted the low expectations of the broken system are few and far between, or is it like Rapping teaches it: an infestation that has taken root in a discordant system in states where there is little or no attention paid to indigent defense? Continue reading →

Gideon at 50: A stolen promise and the search for a soul

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Q.E.D.

Q.E.D.

Clarence Earl Gideon, of Florida by way of many state’s penitentiary systems, was a thief. He was a rather poor one too. Gideon, whose name I have adopted and which I shroud myself in on a daily basis, was also a dreamer. And like most dreamers, he was also a fool. A thief, a dreamer and a fool, and in the end, he and his legacy have done us all in.

50 years ago today, Clarence Earl Gideon the man, the thief, was vindicated. Writing for an unanimous Supreme Court, Justice Black opined that

reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.

Obvious in principle, obvious in necessity but hardly obvious in execution. Clarence himself bought into the lofty ideal idealized in his namesake decision, going so far as to put some grandiose on his tombstone:

And yet, somehow, here we are. There is no joyous celebration of the 50th anniversary. There are no pats on the back or accolades, let alone a sense of satisfaction of a job well done.

There is only a moment of attention that has drawn the pleas for help out into the open, as the world, for this instant and only this instant, has muted every other noise to pay perfunctory obeisance at the altar of indigent defense, because it is the right thing to do. So in these few fleeting moments, take note of the near-universal message of “dear God please help us we are drowning”.

In this moment, I am reminded of another favorite quote of mine:

In all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defence.

While the meaning of the phrase “shall enjoy the right” may have been up for debate prior to Gideon v. Wainwright, that decision left little room for its continuation. What the Constitution (and by extension Gideon) did not provide is the will to enforce that right.

That will comes entirely from the people. And the people for about 49 years now, haven’t given a shit.

Oh, don’t get me wrong. The people – you – care very deeply about the criminal justice system. The people – you – have very strong senses of right and wrong. The people – you – have very strong opinions about what should be a crime and how swiftly, quickly and severely that crime should be punished. This hasn’t changed. Just remember Justice Black:

Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society.

Law & Order, DAs, cops, FBI agents, rogue cops, the triumph of good over evil are staples of our modern imagination. They are woven into the fabric of our existence and color the lens through which we view the world.

Every person arrested is guilty and those that are not are rare exceptions that don’t alter the perception of the system. We don’t care if the people who get arrested get good defenses; we assume they’re guilty. What we really need to do is pay the people who catch criminals. And prosecute them. And guard them. The guys who defend them? Scumbags. Criminals themselves. Government fatcats.

It’s not so much a funding problem (it is that too) as it is an attitude problem. The funding drought is merely a symptom of the greater issue with indigent defense: no one gives a shit.

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

How many reading this today would agree that it continues to be true? Maybe it did when Justice Black wrote it in 1963. But I don’t know. I wasn’t conscious then.

Do these principles still matter in a Honey Boo Boo world? Are we still obsessed with being the best in the world at everything? The most noble? Is that even on the radar?

—–

Imagine, if you will, a world without a public defender. What would this world look like? Do you know that in Connecticut [PDF], we handle over 80% of the criminal cases every year? That means approximately 81, 500 cases last year were handled by public defenders.

Yes, that’s 81, 500. In one year. I think the public defender system in Connecticut employed 214 attorneys in the last fiscal year. Any time you get arrested and face jail time, we represent you. Doesn’t matter if it’s because you shoved your girlfriend in a fit of rage or because you broke into a house and murdered the occupants because they interrupted you while you tried to steal their PS4.

Eighty-one thousand. In one year. And that’s in Connecticut, one of the smallest states.

We’re like your neighborhood mechanic who works on your car for free, whether it’s an oil change or a transmission.

But there are 81, 500 cars and only 214 mechanics. We need more mechanics.

—–

The avalanche of cases and politics come together to present a formidable obstacle to alleviating some of the problems that afflict the system in some states. Politicians do not like asking voters for money for indigent defense.

“Arguing for more money to defend criminals is not the easiest way to win a close election,” said former Vice President Walter Mondale. As Minnesota’s attorney general in the early 1960s, Mondale recruited 21 other states to join in a brief urging the court to rule as it did and rejected a plea from Florida to support limits on states’ responsibilities to poor defendants.

Why is that so? Who is to blame? It is the height of cheek for politicians to say that seeking funding for criminals is an untenable platform when they themselves have made it so. ‘Tough on crime’ was a political policy, not an intrinsic way of life. Politicians have made careers on ruining lives of those arrested and now lament the lack of popular will to fix the broken system.

Or is it our fault for letting them? How many times have you said: “why don’t they just find them guilty already and sentence them?” How many times have you disrespected the Constitution?

And what will happen when it is you, facing a judge, standing next to a public defender with 25 files in his hand? Or your son? Or your grandfather?

—–

Funding indigent defense isn’t funding criminals. Funding indigent defense isn’t paying incompetent lawyers to do nothing. It’s funding something far more important. It’s funding the protection of the Constitution.

Do you know what happens every day in the criminal justice system? The law is followed, changed or challenged. And that happens in the brightly lit, heavily populated courtrooms on which no light is shined. Public defenders (and other defense attorneys) are playing a long, complicated chess game with the government. At stake: your individual freedoms.

Tomorrow, when you wake up and wonder why there needs to be a debate about whether the President has the authority to order drone strikes to kill American citizens on American soil without due process, it’s because every incremental battle leading up to that preposterous proposition has been lost. Tomorrow when you get pulled over and the cop looks through your cell phone or pulls you out of your car and frisks you or lies to you and gets you to admit that you committed a crime that you didn’t, realize that those battles have been fought and lost.

These battles aren’t won or lost in cases of innocent people. Name every single case that you might know. They were all guilty. Ernesto Miranda? Guilty. Clarence Gideon? A criminal. Michael Crawford? Stabbed a dude. Ferdinand Oquendo? Killed a dude.

And it may be that those battles were well fought and would’ve been lost anyway. But you’d have known about them, if you paid attention. And maybe you’d have cared and demand differently of your legislators and lawmakers and governors who appoint judges who make these decisions.

Because, whether you realize it or not, you have entrusted your rights to me. I am their guardian. My black-or-Hispanic-lives-in-a-shitty-neighborhood-has-a-criminal-record-was-probably-robbing-a-bank-client’s Fourth Amendment rights are the same yours. Or rather, your rights are the same as his. If you want the government to truncate his rights because you judge him as “the other”, then realize that you’re giving the government full license to truncate your rights too. Don’t worry, I’ll fight just as hard when you’re standing next to me, but it might be too late then.

So decide today, America. What is more important to you: liberty, freedom and justice or just the idea of it?

I’ll be here either way.

Video via.

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Other reading (will try to update continually through the day):

Image of Clarence Earl Gideon’s tombstone credit Diane L. Wilson/Associated Press taken from this NYT article.