pd system « Page 2

Equal justice for all

Feb 15th

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!

Ineffective Assistance in action

Sep 2nd

Posted by Gideon in pd system

8 comments

Via an anonymous PD, here is a transcript of some truly atrocious lawyering by a public defender in Virginia. Read it for yourself.

Indigent defense is in dire need of reform

Apr 17th

Posted by Gideon in pd system

2 comments

look states, you're making Gideon cry. Boo.

A very important study was released earlier this week by The Constitution Project, titled: Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel [here's a PDF of the entire report].

The study is a survey of all 50 states and the Federal government and the levels of indigent defense provided by each. It is an extremely lengthy report with many recommendations (22 in all) and observations. The study is damning in its conclusions about the state of indigent defense. Not only does the study identify workload issues with indigent defense but also structural problems with state or county agencies that inhibit the provision of adequate defense.

[As an aside, discussion of this report should not be limited to indigent defense circles, especially in times like these where money is drying up and indigent defense is bearing the brunt. Legislators, judges, etc., in States where funding has been cut or will be cut should be given a copy to read.]

From the Executive Summary:

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

Yet, today, in criminal and juvenile proceedings in state courts, sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon decision and the Supreme Court’s soaring rhetoric. Throughout the United States, indigent defense systems are struggling. Due to funding shortfalls, excessive caseloads, and a host of other problems, many are truly failing. Not only does this failure deny justice to the poor, it adds costs to the entire justice system. State and local governments are faced with increased jail expenses, retrials of cases, lawsuits, and a lack of public confidence in our justice systems. In the country’s current fiscal crisis, indigent defense funding may be further curtailed, and the risk of convicting innocent persons will be greater than ever. Although troubles in indigent defense have long existed, the call for reform has never been more urgent.

Chapter 2 of the Report summarizes the problems currently plaguing indigent defense:

Inadequate funding “continues to be the single greatest obstacle”.
Indigent defenders have “astonishingly large” caseloads.
Defendants get lawyers, but lawyers who cannot provide adequate representation because it “is not humanly possible to do so”.
“Tough on crime policies” exacerbate the caseload problems, the need to be aware of collateral consequences of conviction, the criminalization of minor offenses, the complexity of the law, a lack of open file discovery practices by prosecutors, and specialty courts.
Lack of independence from authorities that provide funding for indigent defense services.
Lack of experts, investigators and interpreters.
Inadequate access to technology.
No meaningful supervision, training or oversight.
Lack of timely appointment in cases.

That’s not all. Here’s the next paragraph, which I find particularly disturbing:

So far, we have focused on situations when lawyers are provided for the accused, although sometimes later than they should be. But there is another dimension to the problem, namely, the total absence of counsel because defendants either are not advised or not adequately advised of their right to counsel. When a defendant is not adequately advised of the right to counsel, the waiver almost certainly would not withstand scrutiny as a valid waiver of the right to legal representation. The invalidity of the waiver, however, typically fails to come to light, as the waiver process is of low visibility and defects rarely surface in the appellate courts. There are still some lower courts, moreover, that do not maintain a record of proceedings, so there is no way to be sure exactly how counsel was offered to the accused and if the waiver of legal representation was valid. There also is considerable evidence that, in many parts of the country, prosecutors play a role in negotiating plea arrangements with accused persons who are not represented by counsel and who have not validly waived their right to counsel. Not only are such practices of doubtful ethical propriety, but they also undermine defendants’ right to counsel.

So with this veritable quagmire, what are States to do? How do we fulfill Gideon’s promise? The report has several recommendations, one of which is the use of litigation. But in the end, it all comes down to one thing and one thing only: adequate funding.

Recommendation 1—States should adhere to their obligation to guarantee fair criminal and juvenile proceedings in compliance with constitutional requirements. Accordingly, legislators should appropriate adequate funds so that quality indigent defense services can be provided. Judges should ensure that all waivers of counsel are voluntary, knowing, intelligent, and on the record, and that guilty pleas are not accepted from accused persons absent valid waivers of counsel. Prosecutors should not negotiate plea agreements with accused persons absent valid waivers of counsel and should adhere to their duty to assure that accused persons are advised of their right to a lawyer.

Reading this report makes me realize that even a State like CT, which has a system that is favored with an independent and autonomous public defender’s office, which provides a large amount of funding, still has a long way to go toward fulfilling Gideon’s mandate.

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This is a stickup!

Apr 2nd

Posted by Gideon in ct legal news

4 comments

you so cute...now gimme your money!

Times are tough. Everyone is going through an economic crunch and we all need money. The State needs money, you need money and I most certainly need money (what, you think this blog comes for free?).

So it was surprising when almost $2 million was stolen a few weeks ago, without many batting as much as a single eyelid. To make it worse, the money was stolen from victims! Victims of theft and fraud, I might add.

So who is this criminal with such audacity? Who is this person or entity that engaged in such a daring daylight heist? Why, the State of CT of course.

Last week, the CT legislature, as part of the Governor’s budget bill, passed legislation co-opting $2million from the Client Security Fund. The client security fund is a fund into which all 36,000 lawyers are required to pay $110 per year. There’s also a proposal to alter the Attorney Occupation Tax to remove the exemption for state employees. More after the jump.

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The Client Security Fund money is held in a trust to reimburse victims of lawyer fraud and embezzlement. The fund has $7.8million currently, but approximately $5.8million of that is currently tied up in claims. That leaves the $2million that the State just “took”.

I’ll let minds greater than I explain. Associate Justice of the CT Supreme Court wrote an op-ed on this a few weeks ago, but apparently no one in the legislature gave a damn:

The transfer also will leave the fund with no cushion against pending claims. At the end of 2008, the fund had a balance of about $7.8 million available against $5.8 million in pending claims. The actions of the governor and legislature place the fund at risk of being unable to fully pay claims if there is a large scale defalcation or an appreciable number of defalcations in the future.

In addition to reducing reserves, the governor and legislature have also violated the trust of members of the bar, who have paid the annual fee with the expectation that it would be used, as noted in the Superior Court rules, “to promote public confidence in the judicial system and the integrity of the legal profession” by reimbursing clients in rare instances when an attorney has violated the trust established within the attorney-client relationship.

The fact that a theft or embezzlement of funds by an attorney is, however, a rare event is of little comfort to a client who learns that he has been the victim of such an act. It will be even less comfort for the client to learn that his losses may not be reimbursed fully because the governor and legislature have seen fit to use those funds for purposes that were never intended.

Norm Pattis (who apparently thinks this blog isn’t good enough to link to) wrote about this weeks ago, and recently made a call to arms:

I am told that heads are spinning in the judiciary. They ought to be. But we need more than spinning heads. How about litigation designed to challenge whether the executive and legislative branches really have the power to steal? I understand lawmakers have the power to tax. But this is something new, and something dangerous.

It looks like Norm’s plea has been heard…by lawyers. The Connecticut Bar Association and a bunch of who’s who of CT lawyers sued the Governor on Monday seeking a return of that money.

The lawyers claim that it’s illegal to take the $2 million because it is generated by fees for the specific purpose of aiding clients — and was not collected via general taxation for use in the overall budget.

As worded in the suit, the plaintiffs claim that taking the $2 million violates the “constitutional separation of powers” among the three branches of government. “The payments made to the fund by [lawyers] were not levied or collected by the Legislative Department, were not assessed, paid or collected as a tax, and cannot retroactively be expropriated as tax revenues for deposit in the general fund,” the suit claims.

“We think it’s absolutely unconscionable” to take money from “this segregated fund for people who are victimized by that small minority of lawyers,” said Ernest F. Teitell, a favorite of Scott Greenfield.

The outrage has been sufficiently expressed elsewhere, so I’ll spare you the anger. But, for those in CT, there’s more. A little prosecutor birdie told me yesterday that the legislature is now considering increasing the Attorney Occupation Tax to $640 and removing the exemption for State employees. Until now, people like me and those on the other side of the courtroom were exempt from paying this silly tax (I mean, is there a neurosurgeon’s tax? A dentist’s tax? C’mon people..) because we don’t get hired by clients.

Now the plan is to exempt us from the exemption and make us all pay it. There is no way to defray this cost or to pass it on to our hundreds of clients. There’s no offsetting for us in the public sector. I know that people in the private sector have been complaining about this tax for years. But don’t some (if not most) firms pay the tax on their associates’ behalf? I certainly can’t go to my supervisor and ask him/her to pay it for me.

This certainly seems like kicking a group when it’s down. I fully expect that the prosecutor’s union will make several concessions when it renogotiates its contract in the coming year (and that applies to all public defenders pursuant to the parity statute). Maybe we’ll go back to 35 hours; maybe we will be forgoing raises for the next 3 years. Whatever it is, I know there will be a loss that we will have to absorb. On top of that you’re going to make me pay $640 per year?

Maybe we should start collecting that $25 per indigent client and use it to pay for our Attorney Occupation Tax. Unless the legislature gets to that first.

[Note that I received this tip on April Fool's Day, so it might be an elaborate joke by some prosecutor, but it does sound plausible.]

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The Nichol(s) effect

Jan 2nd

Posted by Gideon in death penalty

2 comments

The capital case of Brian Nichols has had a terrible effect on the state of indigent defense in Georgia. A system that was already strained under the pressure of one capital case is on the verge of a deathblow. There are many, many other defendants not named Brian Nichols in Georgia who need representation and need it now. One of them is Jamie Ryan Weis and he’s suing the public defender’s office:

Since April, Weis has been sitting in jail awaiting trial without lawyers to represent him. The lawsuit was filed after trial judge Johnnie Caldwell scheduled a Jan. 5 hearing on the case.

“It’s frustrating,” Pike County District Attorney Scott Ballard said. “Everybody wants the defendant to be well represented. We’ll be ready to prosecute just as soon as they’re ready.”

The suit was filed in Fulton County Superior Court against Mack Crawford, director of the Georgia Public Defender Standards Council, and Gerry Word, acting head of the capital defender’s office.

As the Nichols case made its way through the system, Weis’ case took a beating:

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Marketplace wants to hear from you

Dec 8th

Posted by Gideon in pd system

2 comments

Marketplace, a program of American Public Media (the second largest producer of public radio programming in the country, presumably behind NPR, and producer of A Prairie Home Companion) wants to hear from legal professionals about how the economy is impacting them. From the e-mail I received earlier today:

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Selection, naturally

Dec 6th

Posted by Gideon in judges

5 comments

to vote or not to vote

What has always struck me as rather curious about the various jurisdictions in the US is their disparate ways of employing judges and state’s attorneys and public defenders. Some states elect their officials, some states select them.

In Connectictut, I guess one could say that the state’s attorneys, public defenders and judges are akin to civil servants. It is, fundamentally, a merit-based system, where you are appointed and then promoted based on your abilites and performance. Not all states do it this way and I wonder why. Two recent stories would highlight my query:

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First, in Texas, where Houston Criminal Defense Lawyer, aka Mark Bennett is covering the election of Pat Lykos as DA, and the impact it has had on attorneys in the prosecutor’s office (for a first hand take, see AHCL’s posts here and here). After promising not to fire anyone who worked hard and was competent, she promptly fired everyone (or close to it).

The other cautionary tale is from Florida, which I mentioned in the Jumpstart on Monday. This one is a little more puzzling. Bill White, a public defender for 34 years was defeated in the election by Matt Shirk, an attorney who spent 5 years in the public defender’s office and 4 years in private practice. He was endorsed by the Fraternal Order of the Police and, by some accounts, promised not to raise questions about the integrity of the police and their work. He also stated:

he has no intentions of making sweeping personnel changes to the office of 140 employees, but plans to put his own management team in place.

And then he promptly fired the 10 most experienced attorneys in that office. Two of those 10 are Pat McGuiness and Ann Finnel, both of whom represented Brenton Butler in an infamous murder case in 2000, that resulted in Butler’s acquittal. Both McGuiness and Finnel were simultaneously featured in an Oscar winning documentary about Butler’s case. [CT pd, you should remember this documentary and remember McGuiness. He spoke at a seminar once and the documentary was screened at the Mystic annual meeting. If you, like me, slept through it, then go rent it and watch it now.]

McGuiness believes the firings are payback:

“There are very few people who would have acted as divisively as Mr. Shirk in term of ridding the office of skill and experience without interviewing a single attorney or looking at a single personnel file,” McGuiness said.

The mass firing occurred eight years to the day of when Butler was found not guilty after McGuiness and other attorneys who were recently fired proved the sheriff’s department bungled the case.

McGuiness said the firings are payback.

McGuiness, Finnel and others fired are considering legal action. I know nothing about employment law, so maybe someone who does can chime in.

Given all of this (and this surely isn’t the first time something of this nature has occured), I wonder why states continue to elect their judges and other officials, who really should be civil servants. It creates an odd power game, where being a judge isn’t in the highest strata – it is being a public defender. Whether it is in Texas or FL or on Raising the Bar, you routinely read the resumes of district attorneys and see “former Judge” in them. We have this system backwards, don’t we? Do judges aspire to be prosecutors? I thought it was the other way round.

As Bobby G put it:

given the public’s abhorrence for and general misunderstanding of criminal defense and why we need it, public elections could be a recipe for disaster. Imagine if a candidate for office runs on a campaign of being tough on crime, easy on cops, and easy on the public dime (what the public wants to hear) and then they are elected?

That’s exactly what happened. Judges and public defenders should be beholden to no one except the law and their clients, respectively. Prosecutors, I think, should also be free from the encumberances of public pressure. Because almost always, public pressure veers prosecutors away from discretion and toward draconian and harsh punishments. In the very few cases that the public feels prosecutors are being unjust and unfair, they have the opportunity to rectify that: the jury.

Can anyone make a convincing argument for election?

*Image taken shamelessly from this year’s Senate race in MN between Al Franken and Norm Coleman. Via MPR.

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It’s the client, my good chap

Nov 23rd

Posted by Gideon in clients

29 comments

One of the primary reasons I started blogging was to express my thoughts and feelings about the criminal justice system. But the more I blogged, the more I realized that what it was really about was learning and sharing: learning new things and sharing experiences. Learning how to be a better lawyer, really. For the most part, the blawgosphere has served that purpose and it has enriched me as a lawyer and as a person.

There are times, though, when the blawgosphere exposes its ugly side. Slowly but surely, the blawgoshpere is moving away from actual conversation and closer to pure marketing. Everything is about the blogger and the blogger’s business or promoting their business. It’s getting a little dirty. Take, for example, this: Accident Prone, a public defender blogger, wrote about a common experience a few weeks ago:

Dear Private Attorney,

I know you think you know more than I do. Hell, maybe you do. I know that you think dispensing legal advice without, oh I don’t know, “reading the file” or “knowing about what the evidence is” is a good idea.

In the future, if you’re not going to do either of those things, please do not tell my already deluded client that he “should be able to get” a misdemeanor disposition from a felony. Or else, take the damn case and get what he “should be able to get” for him. Oh wait, what? You can’t/won’t/don’t have a valid legal license to do so? Then shut the f&*$ up!

This was clearly a post about an experience the blogger had in real life, but still was instructive: Remember that it’s about the client and not about drumming up business. It’s not about making a name for yourself, but rather for doing something that’s in the best interests of the client. If you do a good job, you’ll get a good reputation and the business will follow and so on. Really, everyone should know this. I know I keep harping on it, but you’d be amazed how infrequently other lawyers actually act in this fashion. Take this response to Accident Prone’s post from a private attorney:

Dear Public Defender,

I am sorry that I can get a better deal for your client than you can. Maybe it is because I have been practicing law for about as long as you have been breathing. False confessions, eye-witness allegations and testilying cops don’t frighten me. I plea bargain, but I do so from a position of power, even when I am the “underdog”. I give your client a feeling of protection and ability.

Chances are I know, taught, mentored or helped elect the judge or prosecutor you are dealing with and s/he will take a chance on a client I represent because I bring a sense of reliability that you don’t enjoy. That is likely because your investment in our legal community is limited to telling your fellow lawyers what rubes we all are or rolling your eyes as we invite you to belong to our bar associations.

Oh don’t forget that while you are guaranteed a salary,I am not. Hence, you don’t work on every holiday or go in on weekends or even return calls… I do.

I give my clients my private cell number and my e-mail address. I am available to him or her 24/7. I am still in my office at 11pm on a pretty regular basis.

I did my time in Legal Aid. I appreciate the work that you do and I enjoyed it when I was doing it, but let’s face it, if I didn’t describe you, I described many PDs who get a lot of credit for dedication, but aren’t always as dedicated as they think. That is why their client is in my office begging me to take his case, and why I can’t. You can take it though, and you could win his undying loyalty and respect, but it’s not free, you have to earn it.

Warmly
Private Lawyer

Sigh.

This is what I mean. A large part of that comment is purely self-serving. It also belies a fundamental lack of understanding of what Accident Prone’s complaint was and what the greater, more deep-seated problem is that we as public defenders face. This is not a contest between public defenders and private attorneys, yet there is a consistent percentage of the private bar that engages in such divisive behavior.

The real problem is the willingness of some to put aside their professional responsibility and duty to the client to make a quick buck. The real problem is the maligning of the public defenders in order to do so. I know you have a business to run, private lawyer. I don’t begrudge you that. But when you start lying to clients or spreading misinformation that makes my job tougher, without taking responsibility for it, I will not sit silent. Just to make that extra $1500 (and I know it is a tough economy), you are willing to stick your nose into a file, give bad advice and then hold up your hands when asked to deliver. That doesn’t work, won’t work and shouldn’t work.

Look, I’ve said to clients on occassion: “why did you hire so and so?” or “I bet you won’t hire so and so again, will you?” But that’s not because I want him to be my client, but rather because I care about the client and want to see him get good representation and certain attorneys have certain reputations.

Our goal is the same and our clients are the same. We should be working together, side-by-side for the benefit of our clients. Your client today may very well be my client tomorrow. It doesn’t serve his interests for you to bad-mouth me now or promise him the moon.

It is our responsibility, both as members of the private bar and public defenders to quash this nonsense when we see it. I can’t tell you the number of times I’ve seen clients – mine and that of fellow public defenders – get enticed by the promises of the huckster. “Well, you can only get me the minimum on murder, he can get me manslaughter”. No, he can’t and I’ll tell you he can’t, but it’s your money and your life. If you want to do it, I can’t stop you, Mr. client. “Well, if I pay him $500, he can get me a program.” Right and so can I, because you’re eligible for a program. Not because he’s in bed with the judge. And this is the problem. Sometimes we’re fighting the fight on four different fronts: the judge, the State, the client and some unscrupulous members of the private bar.

We don’t need to be doing that. All of us in the profession should put our clothes on in the morning with the singular goal of doing something to help a client that particular day. If we don’t, the entire profession gets a bad name.

Scott, to whom I showed this exchange last night, offers his take from the perspective of the private bar. You’ll find some of the same notes being struck there, because he gets it. Let’s hope, after reading these posts, “private lawyer” gets it too.

[We tried to synchronize our posts, but lazy old me got behind. Sorry Scott.]

[Further: Forgive the disjointed thoughts in this post. I wrote and re-wrote it 5 times, so there are leftover fragments from previous iterations.]

Bailout where it’s needed: public defender systems

Nov 14th

Posted by Gideon in cheshire

6 comments

The last few months have brought us a crashing economy and massive government bailouts to the tune of 34 trazillion dollars (it’s a real amount). As banks fail and the auto industry fails and the real estate market plumbs the depths of depression, an equally frightening scenario is unfolding in states throughout the country: the crumbling of indigent defense systems.

Just like the economy, however, this failure of the legal system should come as no surprise. Back in May, I wrote about the mess in Minnesota (and followed up with a June post about Florida) [full coverage here] and our sister blog PD Stuff has been covering money problems for years. Nevada will face some problems starting next year. Things don’t look all rosy in Connecticut, either, as legal aid is taking a hit.

The NYT piece is rightly drawing a lot of attention in the blawgosphere. Bob Ambrogi and J. Craig Williams devoted their recent podcast to this problem by interviewing the Miami public defender Bennett Brummer and NLADA research director David Carroll. [The podcast is at the end of this post.]

This is a very serious problem. As funding for indigent defense declines with no corresponding declines in prosecutions, defendants will experience greater wait times for their trials, resources will be stretched thin and the criminal justice system will produce far more wrongful convictions. There will not be enough time to conduct proper investigations, to hire experts and, frankly, to go to trial.

If a public defender has an obscene number of clients, a number which grows every day, there will a lot of pressure to resolve cases without much advocacy. This is where the rest of the justice system needs to step up. Prosecutors need to take their duty to seek justice more seriously and drop the pursuit of “wins”. Judges need to take a more mediation-oriented approach and broker fair deals and not permit the State to demand the moon.

From the NYTimes piece:

Mr. Jones, in between hushed conversations with clients in the hallway or the holding pen, said he wished he had more time to investigate cases and could go to trial more often, rather than accepting the police version of events and then, after a short discussion, helping his clients make a life-altering deal.

“I’d love to have time to visit the crime scene and do more legal research,” Mr. Jones said.

No defendant should ever have to put up with this. No lawyer should ever be in a position where he is advising a client based on incomplete information. This is not only a money issue, but a Constitutional issue. Skimping on public defenders offices now will only postpone the problem, because there will be a greater number of successful habeas corpus petitions or appeals, which will result in new prosecutions.

Or worse: Federal courts will have to step in and force the state to pay for adequate funding, something no one really wants. So you know, might as well bail them out now, right Prez-elect Obama? Seriously, who better to give federal money to? The banks that set up their own downfall? The auto-industry that refused to innovate? Or the hardworking public defenders that protect your and my rights, day in and day out, doing a community service for little money?

But these are tough economic times. Money is drying up. Perhaps this is a very appropriate opportunity to look at truly reforming the criminal justice system. Let’s provide more alternatives to incarceration and true rehabilitation, let’s not keep non-violent offenders in jail any longer than we absolutely need to. As costs of the prison complex go down, there will be more money to fund the defense of the innocent man. We should start to look at the exorbitant sentences handed down by judges. Do we need a 40 year sentence when a 15 year sentence should do? Do we have to be punitive in our punishments? Must people be on probation for 35 years? A true reformation of the criminal justice system would go a long way towards alleviating these woes.

Then, of course, there’s the death penalty.

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Speedy trial: whose responsibility is it?

Oct 17th

Posted by Gideon in fifth amendment

3 comments

How many defense attorneys does it take to screw up a case? Or better yet, how badly malfunctioning does a public defender system have to be to get a court to blame it for delays in the criminal justice system?

Back in March, the Vermont Supreme Court issued a very curious opinion reversing a conviction for failure to prosecute in a timely fashion. The Court held that the three-years spent by the defendant awaiting trial violated his right to a speedy trial. Which would be fine if that were all to the story.

The reason for the delay? The defendant’s various public defenders.

In arriving at this decision, we acknowledge that much of the delay in prosecuting defendant resulted from the inaction of several of the assigned counsel who represented defendant during the three years he awaited trial. As we discuss in detail below, however, the inaction of assigned counsel does not relieve the state of its duty, through implementation of the criminal justice system, to provide defendant with a constitutionally guaranteed speedy trial. Indeed, the defender general’s office is part of the criminal justice system and an arm of the state. When, as in this case, a defendant presses for, but is denied, a speedy trial because of the inaction of assigned counsel or a breakdown in the public defender system, the failure of the system to provide the defendant a constitutionally guaranteed speedy trial is attributable to the prosecution, and not defendant.

The Court finds that

irrespective of the reason for the delay, egregious delay in bringing an incarcerated defendant to trial must be factored against the state in a speedy-trial analysis because, as the Supreme Court emphasized in Barker, it is ultimately the government’s responsibility to bring a defendant to trial in a timely matter. See 407 U.S. at 529 (holding that “the primary burden [is] on the courts and the prosecutors to assure that cases are brought to trial”)

You can read the facts for yourself, but what is important to recognize here is that Vermont is not the only state facing such problems with its public defender system. Normally, a lawsuit would be the appropriate way to remedy the lack of funding, but this certainly may make some ears perk up.

I will reserve judgment on whether the VT Supreme Court was right or wrong, but I get the sense that what the VT Supreme Court tried to remedy was what happens to every client in almost every system (albeit not to this extent), and that everyone accepts as the price of doing business.

Well, everyone except the legislature and the voting public, who are generally outraged that things take so long to go to trial. Maybe they shouldn’t take so long? Or maybe we shouldn’t be creating so many new laws and calling for “hard on crime” policies that clog our systems and lead to overworked public defenders.

pd system

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?

Ineffective Assistance in action

Indigent defense is in dire need of reform

This is a stickup!

The Nichol(s) effect

Marketplace wants to hear from you

Selection, naturally

It’s the client, my good chap

Bailout where it’s needed: public defender systems

Speedy trial: whose responsibility is it?

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