Category Archives: pd system

Preparing for Gideon Day

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You may or may not have been aware that my birthday is coming up on Monday, March 18, 2013. I will turn 50 on that day. I am ramping up my celebration efforts in advance of Monday, most of which include putting bandages on myself and drinking copious amounts of alcohol to deal with the pain, which then leads to further injuries and more alcohol and on.

So, if you wish to pay tribute to Gideon Day, write a short essay, not exceeding 1000 words and post it on your blog. Then send me the link and on Gideon Day I will admonish you to hug a public defender (any public defender, not ‘a public defender’) and then I will compile the links into a Gideon Appreciation Day post where your appreciation can be appreciated.

Get on with it.

3.5 appointments a day

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

It’s sad that in the 50th Anniversary year of Gideon v. Wainwright, we still do no more than pay lip service to one of the most important rights bestowed upon the people (it’s included in The Bill of Rights for a reason). It’s sad that the system has remained so overburdened that it is nothing more than an assembly line that must be kept moving at all costs. And if that cost is the rights of the defendants, so be it. Because in order for any criminal justice system to function, there must be turnover, because there is always volume. And you don’t get turnover if you don’t have attorneys who can “move” cases: plead ‘em out, convince clients to take deals, sell what the prosecutor is selling. To do anything else would be to tax the system and those who tax the system get punished.

So the system seeks out those who are compliant and rewards them. Rewards them to the tune of 3.5 cases for every business day in the calendar year. Rewards them for being one of the boys by assigning a fuckton of cases to them: 920 in the whole year.

Think about that for a second: 920 individuals are represented by one lawyer in one year. That means if he (and Geraldo Acosta of Harris County, Texas is a he) started 2013 with no clients, today he’d have 98 of them. 98 individuals relying on him for their liberty. 98 individuals relying on him to further their best interests.

What do you think happens? Do you think he manages 920 cases a year by rigorously investigating and defending each one? Do you think he spends every waking moment doing everything that is reasonably necessary for each client? Do you think he can?

And why does he get 920 cases a year? Because he’s so good? Or because he’s so good at moving them along?

Just for comparison’s sake, the “overburdened, overworked, underpaid, not a real lawyer” public defender in CT was assigned to an average of 462 cases last year  [PDF - Appendix Table 12] in the busy low courts. The highest per attorney appointment was 653: 267 cases short of Acosta by himself.

This is the state of your criminal justice system. This is the state of justice.

The joke’s on all of us

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Our priorities have gone askew. Never has this been clearer to me than today, viewing from afar the circus surrounding an apparent once-in-a-decade event gathering steam: the utterance of words out loud by a Supreme Court Justice. Yes, he spoke. Yes, he said something incomprehensible. Yes, he and Scalia were making fun of Yale and Harvard. And that, apparently, is newsworthy. That, apparently, has been the impetus for hundreds of posts and BREAKING NEWS items and thousands of wasted pixels speculating exactly what he meant. Has the streak been broken, the L.A. Times – which I thought was a reputable newspaper, but apparently not – asks of its readers and also somewhat funnily has this sentence in the same article:

It’s a slow news day at the U.S. Supreme Court when the biggest story is whether an overheard, offhand comment by Justice Clarence Thomas means he has broken his nearly seven-year streak of silence.

It’s a slow news day if you don’t really care about the issue of the massive funding crisis that is threatening indigent defense across the country; it’s a slow news day if you’re too fucking stupid to realize that everyone’s due process rights are about to take it in a most impolite way if it’s okay for the State to hold someone for 5 years without giving them a trial. It’s a slow news day if writing about Justice Thomas uttering half a sentence at the Supreme Court is what you do when you’re waiting for Lindsay Lohan to fire another lawyer.

I’m amazed at the number of articles that keep popping up in my feed reader about Thomas and his words of wisdom. Hell, the New Yorker got into it to remind us that, in their opinion, Thomas really hates Yale. Liptak engages in a Zapruder film like frame-by-frame analysis of what this man might’ve uttered. I could go on and on with links, but you get the point.

You know what’s missing in every single one of these articles? A mention of Boyer. Who’s Boyer, you ask? Boyer, of Boyer v. Louisiana [SCOTUSBlog preview; oral argument transcript here]. Boyer, who sat in jail for 5 years facing the death penalty because the State could afford to only pay one of his lawyers – one that wasn’t qualified to represent him in a death penalty case. Boyer, in whose case witnesses died while he was waiting for the political football of indigent defense funding to stop getting punted around from endzone to endzone like it was a Browns vs. Cardinals game. Boyer, whose egregious delay the state of Louisiana seeks to shrug off as not really important and certainly not their fault.

The State of Louisiana which had the gall to argue before Justice Thomas and the rest of the Court that using funds to pay prosecutors to prosecute crimes but not defense lawyers to defend against those crimes is not a “deliberate choice”. It’s the same State that will argue that it’s the fault of the poor, jailed defendant with an 8th-grade education that he wasn’t tried for 5 years after arrest. It’s the same State that thinks it’s okay for him to proceed to defend a death penalty case with counsel who is ineffective.

You want a story? I’ll give you a story: this is the 50th anniversary of Gideon v. Wainwright. That the decision trumpeted the arrival of an era of equal justice for all, but that era has never materialized. That states still woefully underfund indigent defense; that access to justice isn’t equal and that people get screwed. Every. Single. Day. And it’s this Court – Thomas and others – who have the authority to change that, to alter that reality for hundreds of thousands of Americans. Today for all my clients; tomorrow, perhaps for you.

But no. Let’s continue to be cute and write funny stories about what an odd man that Justice Thomas is that he hasn’t asked a question in 6 years and well, was he making fun of Harvard or Yale? Because, really, who gives a fuck about Boyer, right? Stupid Constitution getting in the way, just like Thomas always said.

Priorities.

TL;DR: Thomas mumbles, internet creams itself, Boyer sits in jail, Gideon weeps.

[Update: Sorry, couldn't resist this update. After my rant above, I stumbled across this stunningly bizarre, tone-deaf, self-important post by Tom Goldstein of SCOTUSBlog, who, apparently, chides the internet not for taking a serious issue and making light of it like I do, but almost the opposite: for taking the joke too seriously. That's some fucking serious level of meta that even I haven't been able to get to in all my years of internet trolling. Well played, TG, well played.]

The Right to Counsel of Choice

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Connecticut adopted the public defender system in 1917. Public Acts 1917, c. 225. Under this act, the judges of the Superior Court annually appointed a member of the bar who had practiced at least five years to represent persons accused of crime. By chapter 129 of the Public Acts of 1921, the original act was implemented so that it assumed substantially its present form. Rev. 1958, §§ 54-80 and 54-81. Under it an accused who lacks funds is assured of representation by experienced counsel, who, subject to the court’s approval, are able to incur whatever expense is necessary for the proper protection of the rights of the accused, not only in the trial court but also on appeal.

State v. Reid, 146 Conn. 227 (1959). And so, since 1917, have public defenders been called agents of the prosecutor, public pretenders and have had their educational qualifications besmirched. While I have often argued on this blog and in real life that these charges are false and nothing more than urban legends, I cannot escape the reality that there are, of course, public defenders (and private attorneys) who are just terrible lawyers who either care nothing about their clients or, as these things go, are hideously incompetent.

Having accepted that it is inevitable that some public defender clients will experience warranted dissatisfaction with their “court-appointed” lawyer, the interesting question is what should they be permitted to do.

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

Don’t be a part of the problem

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

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

Free-ish

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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