pd system

Indigent defense on trial

Jul 12th

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

20 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.

Equal justice for all

Feb 15th

Posted by Gideon in pd system

6 comments

On a cold day in January, 1963, 9 men sat atop a perch and listened, for hours, to three other men argue for and against the means to dispense equal justice for all citizens of these United States. A short two months later, in March, Gideon v. Wainwright was born, mandating that States were required to provide attorneys for those who could not afford them to assist with the defense of criminal accusations.

At the time of the decision, public defender systems and counsel for the indigent wasn’t a novel concept: almost 45 states already had either full-fledged public defender systems or court rules that provided for the appointment of counsel. Gideon just provided a Constitutional basis for the widespread notion that all defendants should have access to counsel, in spite of their financial abilities.

Of course, the application of Gideon has been uneven over the years. Some states have strong public defender systems and some provide counsel in a piecemeal, arbitrary and haphazard manner. Much has been written, and continues to be written, about the state of indigent defense.

Without adequate funding, the reality of Gideon‘s promise will fall far short of the ideal. Of course, public defenders aren’t the only players in the game: there is the private defense attorney, who existed long before Gideon provided a way for me to have a job. People with some income are free to hire such an attorney and will always continue to be so.

A new idea has been tossed around these parts (and by that I mean the blawgosphere) over the past few days: that perhaps the best way to ensure equal justice, and for defendants to stand on equal footing with the frightening power of the States, is to have a universal public defender system. “Lawyers for all” is the call, and at first blush it seems like a good idea.

State legislatures these days have criminalized all human actions but breathing. If they are so inclined, goes the argument, then they must also be forced to provide the resources to defend against the zealous overprosecutions. Why must the defendant be left to his own devices and his own resources, when the State has its entire treasury at its disposal? Even the footing, goes the argument, and more prosecutions will fall by the wayside. Perhaps, if they are forced to provide the same resources to both sides, the staggering costs along with the piling “losses” for the State will knock some sense into the “tough on crime” legislators and force a rethinking of the penal code.

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

It is a fine idea and one that I stand behind in principle. But I’m not entirely sure what “universal public defenders” actually means. Scott raises the concern that to conscript all criminal defense lawyers into this army would be to place the power of defense in the hands of the State, and the resources at their whim and fancy. 9 different men and women may one day decide that the 6th Amendment never did mean all defendants. And then what?

If the criminal defense bar becomes dependent on the government for its livelihood, we likewise become dependent on the government for our existence. One day, somebody gets it into their heads that they don’t like us anymore and, poof, we’re done. One bad Supreme Court decision and Gideon is toast. A vital private bar, beyond the reach of the government, must continue to exist if we’re going to be positioned to fight for the accused. If our children’s next meal depends on government largesse, we have sold our independence for good. We’re just another cog in the government wheel.

Put us on the government payroll and we work for the Man. Do we really want to serve the Man? Not me. I serve my client, no one else.

In response to Scott, Norm Pattis of the one-man-army-on-revolutionary-ideas further explains the concept of the UPD:

Having a unviersal public defender service does not mean conscripting all members of the bar and making them government employees. It means that all members of the bar can apply to be appointed off a list of qualified defenders. It also means that making your way onto that list, and remaining there, requires demonstrating minimal competence in the difficult work of defending the accused.

Not all lawyers will seek such appointment. Those who don’t want strings attached to what they do can compete for the private dollars swirling in the wake of the arrests of the affluent. But the middle class, those folks not indigent but without the means to hire a full defense team, won’t be facing the resources of the state armed only with the wits of the lawyer they could afford.

And so we come to the crux of it and thus to a tune that I have long trumpeted (GET IT!?). There are three classes of criminal defendants: the very poor, the rich and those in between. The first two we need not worry about: they will always have counsel and will always have the resources to fight their prosecutions. Indeed, the concept of the ‘UPD’ already does exist in some form. First, there is the public defender system for those who are “indigent”. For the overflow cases, i.e. the cases above and beyond that which the normal person can and should handle, there is the conflict attorney or special public defender (or your local variation thereon). This covers a very, very large percentage of the criminal docket. For example, here in CT, the latest statistics show that the public defender system will represent over 80% of the criminal defendants in the State.

We are fortunate enough to have vast resources at our disposal. I need an expert? I got an expert. I need to send my investigator to Florida to contact a witness? The investigator is on a plane/train/automobile. The same applies to our Special Public Defenders, although it may take slightly longer.

Then we have the really rich. They hire private counsel, have some sums of money at their disposal and can generally adequately fund their own defense. And what if they no longer have any money? Well, there’s a mechanism to provide the tools of their defense there too. Ake v. Oklahoma provides for the State to pay for the necessary tools to conduct a defense, if someone who wasn’t indigent at the time of the institution of the prosecution now becomes indigent. Mr. Rich Client has burned through the sums of money in his bank account and has already mortgaged his house and yet needs to hire the forensic expert? The State will pay for it.

Which brings us to the one category that would really benefit from some modification of the public defender system: the poor-by-everyone-elses-standards-but-not-poor-enough-to-get-a-pd.

This is the class of defendants who make a little too much to fall below the artificially low income threshold and don’t make nearly enough to realistically hire a lawyer and fund the tools of an adequate defense. It is these people that we need to be worried about. Several times have I expressed disgust at the indigency cutoff and the arbitrary enforcement of these “guidelines”. What might get you counsel in one court, county or state may not get you counsel in another. There needs to be an honest and serious rethinking of the guidelines.

[Second thought: this also raises the uncomfortable specter of the private attorney who charges very little to get this business and the attendant problems. Now, I've never had to quote a price for a case and I hope never to have to do that. I don't know how all private lawyers operate, but it would seem that, given the glut of lawyers, there is a fair percentage that will take cases for the lowest possible fee and provide proportional representation. Do these lawyers know of Ake? Do they care? Does that defendant get equal justice? This, of course, is a very touchy issue with the private bar, just as the "overworked and underqualified" public defender is a touchy issue with me. But the reality is that there are attorneys on both sides of the money divide who are half-assing it for various reasons.]

Perhaps that is what is meant by a universal public defender system. Income eligibility should not be determined by gross income, but rather by disposable income. People should not be asked to make the difficult choices of paying for insurance, rent and utilities at the expense of hiring a lawyer. That is the unacceptable reality of the public defender system today.

Increase the guidelines, thus making more people eligible for public defenders. All but the very rich should have access to our services. And the very rich, if they were to ever run out of money, should also have the ability to have the State pay for their defense. And it has indeed happened: private counsel file motions seeking to be appointed as special public defenders once the client runs out of money and work still needs to be done.

I realize that I write this from a State of relative comfort. In CT, we get most of the funding we seek and we are rarely ever left wanting. I could not name a single case where I needed to do something for the defense and was unable to pay for it. Other states, I know, are far worse. But a universal public defender system without the funding is no different from what we have today.

And if there is greater funding, then the problems that currently exist no longer are a concern.

So the question, then, is: how do we get states to adequately fund the defense of criminal prosecutions? That requires a shift in thinking.

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To have the Assistance of Counsel for his defence

Feb 2nd

Posted by Gideon in pd system

1 comment

Clarence Earl Gideon, we salute you. On the first go around, sans counsel:

and after the landmark decision:

HT: Tannebaum

It’s time to wake up (updated)

Dec 27th

Posted by Gideon in drug offenses

4 comments

It’s a different world today than it was in the ’80s, ’90s and even the early whats. The economy may or may not be recovering, but one thing is for sure: budget deficits are spiraling out of control. Crime may be down, but the workload of the criminal justice system is up. In particular, the burden on public defender systems is one that has rarely been seen before.

Whether this is a product of reduced funding, of lengthy sentences coming home to roost, of a zero-tolerance “tough on crime” policy enacted years ago or of the sheer overcriminalization of our society is an open question (my guess: a mix of them all). When a small state like CT has 1663 crimes defined in its statutes (and that’s in 2006; several more have been added since) and when books are written warning us that we commit three felonies a day, it’s time for someone to sit up and take notice. And by someone I mean those with the power to change the direction we’ve gone in: legislators and voters. So you, all of you.

The repercussions of too many people in the justice system are beginning to reverberate throughout the country: Georgia is on its 4th lawsuit to force indigent defense spending; Michigan is being sued by three defendants who claim that the lack of funding forced their public defenders to pressure them into entering pleas of guilty; the Missouri Supreme Court recently allowed public defenders the nuclear option of shutting down their doors and refusing cases if caseloads got unmanageable; the costs in Ohio are rising quick; the Fresno public defender’s office got permission to lay off 6 attorneys before the end of the year to balance their budget; and contract attorneys in Nebraska have been receiving a $100 flat fee instead of $50 per hour for all misdemeanor cases.

Should I even go near the financial black hole that is the death penalty? How, in times where basic rights of defendants may be in jeopardy – ordinary run of the mill defendants, mind you – can we even consider sustaining the machinery of death?

This will not end anytime soon and even if there is an alleviation of the financial crisis, the impact on the criminal justice system will be temporary. More crimes will be committed, more knee-jerk reactions will be induced and harsher sentences will be given out. The burden continues to build until there is a fundamental change in the way we think about the numbers, the crimes and the system.

A report from 2000, that I’ve mentioned before, seems to have gotten it right. Too bad no one is listening. I’ll reprint the salient points:

Prison overcrowding has a cyclical pattern in Connecticut — reaching a crisis point about every 10 years. The committee report showed most of the causes of prison overcrowding occurred outside the administration and jurisdiction of the Department of Correction and these complex issues and problems cannot be addressed by a single state agency. Specifically, the program review committee identified five main causes of prison overcrowding. They are:

Despite the decrease in arrest and crime rates, the number of offenders in prison or jail continued to increase due to the “war on drugs”, increased funding for police, increased role of victims and victim advocacy groups in the court process, added bed capacity in the correctional system, recidivism and technical violations of probation and parole, harsher penalties for certain types of crimes, and narrowed eligibility for community release and alternative sanction options.

Convicted inmates were remaining incarcerated for a greater portion of their court-imposed prison sentences as a result of the shift from an indeterminate to a determinate sentencing structure, elimination of “good time”, creation of time-served standards for parole eligibility, and the enactment of several “truth in sentencing” initiatives.

The aggressive “tough on crime” approach supported by the legislature and adopted by the executive and judicial branches allows the criminal justice system to narrow its use of discretion and take a more conservative and less controversial approach to punishment.

A lack of prison beds, especially high security and pre-trial beds, forced DOC to operate at capacity.

Poor planning and a lack of an accurate population projection and offender needs analysis contributed to the cycle of overcrowding and hampered DOC’s efforts to adequately plan for new or expanded facilities.

In reviewing options available to manage and control growth of the inmate population, the committee found Connecticut cannot build its way out of a prison overcrowding crisis. However, prison expansion is one model to address prison overcrowding. This strategy has been Connecticut’s primary response to prison overcrowding over the past 20 years. It is the simplest but least effective and most expensive approach. Services in this model are concentrated primarily on the small percent (25 percent) of the offender population in prison.

And yet here we are: more crimes, longer sentences and an almost unmanageable burden. We’re still fighting the absurd war on drugs and on parolees and probationers. While our prison population has seen somewhat of a slight decline from the record numbers of last year, it would be a tremendous mistake to consider that an improvement. The record numbers were the result of the Governor’s ban on parole. But don’t let that obscure the fact that even prior to the ban, the population numbers were already at the breaking point.

And it’s not going to get any better. Per the OPM‘s most recent projections, the population is expected to increase from its current numbers to around 18, 942. [Here are the Dec 2009 monthly indicators.] The most recent breakdown of inmates by crimes is this one from 2007. And here’s the most recent recidivism study [there's a wealth of information in there if you're interested].

So how is this to be done? Over the years, I’ve made many suggestions: legalize marijuana, get realistic about prison sentences, divert all non-violent offenders into treatment and community based rehab, address the problem at its root, etc.

[Update: This NYT editorial makes the case for smart reforms, pointing to a slew of legislation pending in NJ to make the prison system more rehabilitation centric. Among some of the proposals is one akin to the ban the box idea implemented in New Haven earlier this year.]

But it’s all a futile exercise. It’s never going to happen unless there’s a fundamental shift in the thinking. That shift may well be driven by the financial engine. So how about taking a different tact. How about we keep detailed statistics: how many people end up going to jail for a violation of probation for drug problems instead of to a treatment facility? Let’s keep a record of that for 3 years and calculate the cost of sending that person to jail. How about defendants sentenced to 7 years in jail where 5 years would have been just as good. Keep a track of the costs there. How many inmates were denied entry into programs for lack of beds and so instead were forced to take a prison sentence? Let’s keep track of that.

At the end of 3 years, let’s add it all up and look at the staggering cost of our penal system. Let’s put it into real numbers and compare it to the budget shortfall. Extrapolate that over the last 20 years and I bet we will see that these “tough on crime” policies have come at a significant, tangible cost to us.

The Georgia peach has turned rotten

Dec 20th

Posted by Gideon in death penalty

8 comments

not cool, GA. You made lolcat swear.

I’m going to throw some numbers at you. See if you can recover sufficiently to read the rest of this post. Ready?

475, over a year, $160,000, 187 and finally 2 and a 1/2.

Any guesses? If you guessed active cases, time pending, funding for contract attorneys, clients without counsel as of November ’09 and finally, the number of appellate attorneys state-wide in GAs pd system, then you either deserve some sort of prize or have read this.

That’s right. Two full time and one part time appellate public defenders. Handling a caseload of 475.

I don’t think you understand.

475 divided by 2.5 = 190 appeals per lawyer. Appeals. Per. Lawyer. And it isn’t like the State of GA has stopped prosecuting and convicting people.

This is the latest stand in the war against the rape of Constitutional rights in GA. The Southern Center for Human Rights has filed a fourth lawsuit against the State of GA, seeking to ensure that adequate funding is provided. This, from their press release, nearly made me cry:

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

The individuals bringing forth this challenge are among nearly 200 people who have been convicted of offenses in Georgia carrying a term of incarceration who are without legal representation to assist with their appeals. Two of the six named plaintiffs have been incarcerated for more than three years and do not currently have counsel to represent them in their motion for new trial proceedings; three others have been denied counsel for at least a year. The sixth has been without appellate counsel for almost ten months and has been informed by GPDSC that he is number 105 on the Council’s backlog list; the GPDSC is unable to even estimate when he is likely to be appointed an attorney.

However, is this sorry state of affairs surprising given comments like these from the Governor’s office:

“If these lawyers were truly interested in helping the defendants, they would focus on getting them the services they need instead of chewing up state dollars on a lawsuit. Unfortunately, the state will be forced to spend already limited dollars on unnecessary litigation instead of serving these defendants,” says Chris Schrimpf, a spokesman for Governor Perdue.

That is so idiotic a statement that I would hardly bother to address it. Here’s a simple solution Mr. Schrimpf: fund them and then you won’t have to respond to these “frivolous” lawsuits that only seek to secure that funding.

This is a crisis of epic proportions that has only one foreseeable conclusion: the courts (either State or Federal) stepping in and putting a stop to this madness. [See my previous posts on Jamie Weis's appeal: one of the four lawsuits currently pending in GA.]

The real lesson from such a crisis should be a rethinking of our criminal laws. When almost every act can be criminal and when lengthy penalties are handed out for most crimes, these problems are only going to continue to grow. Perhaps we haven’t seen the full effect of the “harsh on crime” policies of states. But some day, these 30, 40, 60 year sentences are going to come home to roost. Some day, there will be thousands of men sitting in jail, taking up a bed, costing healthcare when a 20 year sentence would have sufficed. That is money we do not have and will not have. All States should be ready for this. The crisis is only going to get worse.

I talk frequently about eliminating the death penalty to reduce costs. That’s only the tip of the iceberg. In reality, States will need to do a lot more to have a more effective and efficient criminal justice system: first by taking a look at the sheer number of crimes in the statutes, then by determining whether we want to fund the prosecution, defense and incarceration costs for all those crimes, then by getting realistic and realizing that we simply cannot sustain this tidal wave of incarceration, for all the costs it has on our budget and our communities.

This money crunch is not only a product of the failing economy, but also of lawmakers’ short-sighted campaign sound bites. Until they wake up and do something about it, posts like this from a GA public defender will be the norm.

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Depends on what “money” means

Dec 17th

Posted by Gideon in clients

7 comments

As expected, my post yesterday on the money wedge between public defender and private attorneys has generated a response from Cousin Greenfield, who calls me on my bullshit of not noticing that there are, indeed, divergent interests to some extent between the private bar and public defenders. Scott, however, turns the table and gently points out that public defenders lack of concern for the actual eligibility of clients takes away from the ability of private lawyers to feed their families (which echos the comment left by “Bubba”).

The thing that disturbs private lawyers most, at least in New York City, is that defendants who can afford counsel are nonetheless given a free lawyer for the asking. There is no meaningful vetting process, and every defendant is handed a PD or 18b lawyer at arraignment by default.

Why buy the cow if you can get the milk for free?

Public defenders aren’t concerned about defendants who can afford a lawyer but elect to stick with the PD. I suspect they are flattered, though they should be angered. These defendants suck up their time, time which should rightfully belong to defendants for whom Gideon (the decision, not the blawger) was intended. They complain about being oppressively overworked, yet don’t turn anyone away, even if they drive up in a shiny Mercedes wearing 20 pounds of gold and diamonds around their neck.

To the private criminal defense lawyer, the defendant who can afford a lawyer is their domain. The PDs are taking away their next meal. Where’s the mutual love? Defend the poor and downtrodden all day long, but let the private lawyers make a living too. While PDs see themselves as just helping those in need, private lawyers see them as poaching on their turf.

While I suspect that Scott is engaging in hyperbole, I can see his point. However, I don’t necessarily agree with it. At least one hundred years ago (site very, very NSFW), I wrote about indigency standards and the authority of a court in CT to simply appoint a public defender even if the defendant has some resources available.

To be sure, there are extreme examples of defendants with liquid assets, who can (and routinely do) hire private counsel after they’ve become dissatisfied with their public defender. It’s happened to me and it irks me to no end. To that extent, I agree with Scott: don’t waste my time.

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

But then the problems we face in life and profession don’t arise in extreme circumstances. It’s the borderline questions that give us pause. Frequently, we’re faced with a client who has some resources: a steady but low paying job for instance, that puts him or her over the income guidelines. In reality everyone knows that the poor fellow will never be able to afford an attorney and even if he does somehow manage to scrape together the funds to pay for one, it will be akin to Sophie’s choice: pay for a lawyer or pay rent/utilities/etc. And what happens when the money runs out? One can assume that there will be a certain percentage of criminal defendants whose resources are greater than the majority – they have access to funds to pay for lawyers, experts, investigators, testing, etc. But Joe “I make $5000 a year more than the income guidelines so I’m technically ineligible for public defenders” Defendant doesn’t have these resources. And then what? How many times have you seen a private lawyer having to withdraw from a case because the client has no more money? I end up representing that guy anyway. (I don’t even want to go near some of the off-the-cuff comments I’ve heard some lawyers make about non-paying clients.)

The problem, as I can see it, is this: the indigency guidelines are a joke. Connecticut determines indigency based on the Federal Poverty Guidelines. For a single individual with no dependents, that’s about $13,000 a year. How many people do you know that make $13K a year?

I know many who make 4 times that and yet wouldn’t be able to “afford” a lawyer. Because it’s not just income that should determine resources, but disposable income. The average household income in the country was roughly $50,000 in 2008. That’s gross income. In CT, the figure is $57,000-ish, which is the highest in the country. [See this link for more detailed data, current to 2007.] So one might be tempted to say that’s a lot of money and surely the average person could hire a lawyer. But that’s not true at all. From that income, you remove taxes, rent, utilities, insurance and you can see how that figure gets whittled down to next to nothing. Then how is the “average” person expected to bear the heavy expenses of a criminal prosecution?

C.G.S. 51-297(f) defines indigency:

(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 [...]

The statute, however, leaves it up to the Public Defender Services Commission to decide how to determine that inability to pay for legal representation:

(a) A public defender, assistant public defender or deputy assistant public defender shall make such investigation of the financial status of each person he has been appointed to represent or who has requested representation based on indigency, as he deems necessary. He shall cause the person to complete a written statement under oath or affirmation setting forth his liabilities and assets, income and sources thereof, and such other information which the commission shall designate and require on forms furnished for such purpose.

The statute makes explicit reference to the liabilities of the accused, but most conversations about (and determinations of) indigency revolve around income and only income. If you make more than X, you’re not eligible. That’s not realistic. [Update: sometimes I think I'm friggin' prescient. See this story in today's NH Register about the public defender's office declining to represent an accused. I'm going to go buy a lottery ticket now.]

Scott writes further:

The difference here is the question of whether a person accused of a crime is required to render himself destitute in order to mount a defense, selling off all his assets to pay for a lawyer. The PD thinks not. The private lawyer thinks that there is no difference between cash in the bank and cash in the Mercedes to justify his getting a free ride. Regardless of how a defendant chooses to keep his assets, if he’s got them he should use them. Obviously, this is because the private criminal defense lawyer wants to earn a fee. In fairness, someone has to pay the cost of defense, and if not the defendant, then the burden falls on everyone else.

This is economics plain and simple and I can understand that. I think it might be instructive to draw a line somewhere: there’s a difference between those that have the ability to pay for their representation and choose not to and those that don’t realistically have that ability.

This also underlines the reason why I couldn’t ever go into private practice. Maybe it’s my bleeding heart, maybe it’s my absolute lack of any desire to do anything relating to the business world, but I could not require someone caught up in the criminal justice system to make that sacrifice. I realize that it is something they should do, but it’s not something I could ask them to.

So what’s the solution? Make indigency levels more realistic? An universal public defender system? I don’t know. There are too many competing interests at stake. I do know one thing, though. The next time the court appoints me on a case where the defendant is technically over the guidelines, I’m not going to bat an eyelid.

Since any post without music is no post at all, I give you this:

[youtube]http://www.youtube.com/watch?v=FFOzayDpWoI[/youtube]

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What’s a little money between friends?

Dec 16th

Posted by Gideon in pd system

2 comments

[Update: A follow up post with additional thoughts here.]

I always thought we were brothers (and sisters). You, the criminal defense lawyer in private practice, and I, the public defender. Cousins of a sort. We had one common objective: acquittals defending the Constitutional rights of those unlucky enough to be sucked into the vortex that is the criminal justice system.

But now it seems that there’s this schism between us. This divide that I’d never noticed. Your annoying wife, if you will. The one who tolerates me, but doesn’t really like me. I’m the Democrat to her Republican. Commenter Bill Thompson explains:

Your observations are but the tip of the iceberg relating to the inherent conflicts between the private bar and public defenders. The “money” factor is the absolute wedge dividing otherwise natural allies. Apart from the scare tactics you reference is the over-riding division between the two regarding general policy considerations. PD’s here complain about the phenomenon of over-indictment, while private practitioners celebrate it as “the difference between driving a Chevy and a Cadillac”. PD’s speak of decriminalizing drug offenses while profit-minded attorneys rue the day. It’s these differences which typically land a lawyer interested in criminal defense in one camp versus the other. Of course, there’s also the practical considerations of running or not running an office. Of paying or not paying support staff. Of looking for or not needing to look for clients. Of contributing or not to judicial candidates. Under the best of circumstances, the alliance between PD’s and private practitioners of criminal defense will always be tenuous at best. Loyalties are unfortuately compromised by the Almighty Dollar…

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

pd system

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

Equal justice for all

To have the Assistance of Counsel for his defence

It’s time to wake up (updated)

The Georgia peach has turned rotten

Depends on what “money” means

What’s a little money between friends?

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