Category Archives: pd system

What if we focused on things that really mattered?

Matthew Yglesias, some guy who writes at Slate, writes this piece asking “What if George Zimmerman had a public defender?”

Obviously the natural response to that question would be: nothing different, but you know it’s a loaded question and you know what he’s getting at: banging the drum of the tired trope of the overworked, underfunded public defender.

Well, not exactly. Because he throws this in there:

What if Zimmerman, like most criminal defendants in the United States, was relying on a public defender with little emotional or financial investment in winning the case and no resources with which to pursue a robust defense even if he’d been inclined to do so. Wouldn’t that defender have told Zimmerman that the smart way to avoid a second-degree murder sentence was to plead guilty to manslaughter and work out terms of incarceration that would be less onerous than what he’d end up with if he fought and lost. And of course the last thing any sensible person wants to do is go to trial with his entire life on the line in a situation where his own attorney has just plainly said he’s not enthusiastic about running the case.

So, yes, Yglesias’ comments are moronic, but you don’t need to follow in his footsteps and become one.

There are so many errors with his premise: for example, a public defender has the same “financial incentive” that Mark O’Mara and Don “Knock, knock” West had: none. They both got paid up front – contigency fee agreements are illegal in criminal cases – you can’t get paid only if your client wins at trial. So they got paid. Just like any public defender would’ve been paid.

Emotional investment? You think public defenders like losing? You think we, who dedicate our lives to the defense of the poor, do so for money? Fame? Accolades? How does that even pass the basic logic test, because we’ve already established that everyone hates us and the clients we represent. We’re underfunded, underpaid and reviled. So, I’m doing this because…?

I bet if the State had made an offer to Zimmerman, O’Mara and West would’ve had to convey that to Zimmerman. Maybe they would’ve looked at the case and said “Hey, GZ, man, you really should think about pleading.” Or they would’ve said “Hey, you should take this to trial”.

Just like any other attorney would’ve said.

The logic is further missing in this argument because it presupposes that any privately hired lawyer in the world is per se and necessarily better than a public defender.

So it doesn’t matter if the private attorney has no experience in criminal law but charges exorbitant sums, he or she is, by the very nature of their existence, automatically better than a public defender.

That is what we call a damn fool argument. Because Zimmerman – who was poor and relied on donations to fund his defense – could’ve hired two morons like Yglesias to represent him. And then he’d have lost. And then? Then I don’t know because at this point I’ve officially thought about this more than Yglesias did before hitting publish. There are good attorneys and bad attorneys and they can be found everywhere.

Yglesias later apologized, to be fair, and said that his article was more about the lack of funding for public defenders. You read it and you decide, because if that’s what his article really was about, then he’d have spent a significant portion of it (read: all) focusing on the ways in which the federal government’s sequester is destroying the federal public defender’s office and the Constitutional right to counsel.

“All employees, from the receptionist all the way up to me, have lost almost three weeks of pay,” he said.  The office has also seen its staff size shrink by about 10 percent because of early retirements and layoffs, Nachmanoff said.  Nationwide, federal public defender offices currently face between 15 and 20 furlough days and have had to consider declining work from indigent clients.  Nachmanoff said his office has had to turn down death-penalty cases, international fraud cases and other resource-intensive cases because of the cuts.  “And that’s just going to get worse in the year to come,” he said.

Aside from the financial hardships, the dangers of further unbalancing an already uneven playing field cannot be overstated. The DOJ and their AUSAs have suffered no such corresponding financial hardships. They haven’t had to lay off workers and cut budgets for training and experts. There are real people out there, whose lives are on the line, who will not get Constitutionally adequate defense because of the sequester. [See also this detailed and moving letter by the Federal Defender of Connecticut, which highlights the same problems.][Prior posts on pd systems here.]

His alleged point that there isn’t adequate funding is a valid one, but there’s more that he could have spent his time on: how the Government has all the power; how the purse strings are controlled by ‘tough on crime’ types, how judges and prosecutors are two big parts of the criminal justice system and we are but bit players. The “blame” doesn’t lie with us; most public defenders, as far as I know, are doing the best they can with the resources available to them.

If George Zimmerman had a public defender and lost because of the lack of resources available to him and his lawyers, then a greater injustice would’ve been done.

But that’s not worth writing about.

Breaking news: things cost money

In a sure to be groundbreaking series of articles, the Hartford Courant’s Jon Lender has discovered that the business of government – the every day practice of running a State – costs money.

This heretofore undiscovered concept works in this way: people work for the State. They get paid. Shocking and novel, I know. I wonder what the repercussions for society will be? I shudder to think of the fallout from this breathtaking expose that you know, people like to get paid for the work that they do.

Take his latest revelation, for example: that lawyers hired to defend death row inmates were paid money. Ingrates, right? Bastards should work free for the honor or something.

Gideon’s Army: part of a whole

Last night, HBO aired the much-awaited documentary “Gideon’s Army“, which focused on the plight of public defenders in The South, aka Georgia. It really is great to see the spotlight being shone on the struggles on indigent defense especially in the 50th anniversary year of Gideon itself.

Judging by the reaction on Twitter, there seem to be a fair number of people who were rather surprised to learn of public defenders’ existence or of the problems faced by those who decide to represent the indefensible.

But there’s also a fair number of people whose reactions seem to suggest that they weren’t even aware that there is an “underclass”, so to speak, of people who are poor and steamrolled by the State. Whose lives are in the balance on an uneven playing field.

To all those people, I say welcome to the real world. Now, there’s more to know.

The documentary is moving, eye-opening, enlightening and a bit ho-hum. Yes, I said that. It is because it isn’t new – at least not new to those who know – and I was left feeling a bit lost at its message after the fact.

The reasons for that, I think, are two-fold: one is the necessity of the medium itself and the constraints placed. You can’t very well have a 6 hour documentary and there is a desire, on some level, to tell a good, happy story even in this context. Two, the problems spread throughout the justice system are so vast, that no one documentary can tackle it all.

So what did I get from this documentary? That a lot of public defenders are passionate, hard working, underpaid lawyers who do their best for their clients against some odds?

But we never really get a sense for just how overworked they are; or how poor their funding is; or just how overwhelming the system can be.

We don’t see the “meet and greet pleas”; we don’t see the failure to investigate because there’s a lack of funding; we don’t see plea negotiations where prosecutors play hardball because there are mandatory-minimums; we don’t see suppression hearings where the police officers violate Constitutional rights.

We are told that a client in the film has decided to accept a plea, but we don’t see it: isn’t that the real tragedy of this system? To see the balancing that people have to do in order to come to the point where they abandon their hopes and desires because they are faced with certain doom?

Isn’t that the failure of this system: that we punish people for exercising their Constitutional rights? That the presumption of guilt is so strong that in almost all circumstances the risk-benefit analysis is not in your favor? That jury selection brings a parade of people all too eager to convict?

Public defenders contribute – some voluntarily; most not – to the problems in the system. But our plight needs to be told in the context of the bigger picture. Discovery violations, harsh judges whose every whim and fancy can bring great differences in resolution between two identical cases. The crushing numbers of clients that necessitate cutting corners. At one point, we’re told that one of the public defenders has a caseload of 120. Is that a lot? Depends on whom you ask. Here, in CT, in the busiest courts, public defenders carry caseloads of 200-300.

In the end, I was left with a sense of camaraderie but also the foolish notion that everything always works out in the end.

But it doesn’t. It never does. That’s the problem with the criminal justice system. And you wouldn’t know it from yesterday.

Scott has his review here. What’re your thoughts?

Meet and greet the right to effective assistance

Florida’s Supreme Court, in what can only be described alternatively as “remarkable” and “yeah, no shit”, just last week decided that being “overworked” is a state that can lead to ethical violations and public defenders who are so “overburdened” can be permitted to refuse appointments en masse.

The story started with the public defenders in the Eleventh Judicial Circuit of Florida being horribly overworked and overburdened with high caseloads – hello, welcome to the state of being – and decided to refuse appointments in all third degree felony cases, some 21 in all.

We’re overworked, they said, like you’ve always said. So now that chicken has come home to roost. We’re so overworked, they said, that we can’t possibly effectively represent all these clients. We can’t investigate, we can’t meet with the clients, we don’t have time to talk to each client. We have to “triage”, which means give priority to the oldest and most difficult cases first, which means, if you’re keeping track, that clients sit in jail for shitloads of time without meeting lawyers and without having any work done on their cases.

So, the Florida Supreme Court said [PDF], this is not tenable. Such representation puts defense attorneys in the position of having to provide representation below constitutional standards.

So we will allow defense attorneys to withdraw and perhaps appoint other attorneys.

Defense attorneys. The gatekeepers of justice. The benchmark for what is Constitutional and what isn’t. The overreliance on Gideon as a test for the efficacy of the system. The new mantra of Appellate Courts seems to be “if defense counsel didn’t object, it must’ve been okay”. Nevermind that defense counsel was frazzled, unaware, overburdened and overworked.

Then we come to this choice quote, sure to be repeated in every story about this decision:

Witnesses from the Public Defender’s office described “meet and greet pleas” as being routine procedure. The assistant public defender meets the defendant for the first time at arraignment during a few minutes in the courtroom or hallway and knows nothing about the case except for the arrest form provided by the state attorney, yet is expected to counsel the defendant about the State’s plea offer.

In this regard, the public defenders serve “as mere conduits for plea offers.” The witnesses also described engaging in “triage” with their cases – giving priority to the cases of defendants in custody, leaving out-of-custody defendants effectively without representation for lengthy periods subsequent to arraignment.

The witnesses also testified that the attorneys almost never visited the crime scenes, were unable to properly investigate or interview witnesses themselves, often had other attorneys conduct their depositions, and were often unprepared to proceed to trial when the case was called. Thus, the circumstances presented here involve – 34 – some measure of nonrepresentation and therefore a denial of the actual assistance of counsel guaranteed by Gideon and the Sixth Amendment.

Great stuff. You know what’s missing? Any acknowledgment that the defense attorney is but a bit player in this game. That a share of the responsibility and blame lies with the prosecutors and judges.

Meet and greet pleas? You know why they happen? Because judges and prosecutors make “arraignment only” plea offers. Because they say: “take this non-jail time offer today or you’ll never get it back”. The defense attorney, reading a police report for the first time, cannot refuse to tell his client of the offer, nor can any sane attorney counsel his client otherwise.

But that’s not the attorney’s fault, nor is it the fault of high caseloads. They know nothing about the case in these meet and great pleas. You know why? Because they’re given no discovery. The State doesn’t turn it over for a while and in some cases it’s always a fight. But apparently that’s the public defender’s fault.

Are we overworked? Yes. Are we overburdened? Yes. Is there a conflict of interest? Yes. But it would be nice to see that the system actually acknowledged all the problems instead of making us the gatekeepers of fairness, which is a neat trick, if you think about it, because when it comes down to it, we control nothing.

Maybe now the right to effective assistance of counsel will mean something in Florida. Time to pay attention to those other rights.

Compare and contrast the Connecticut Supreme Court which said, inexplicably, that there is no conflict when two members of the same office represent two co-defendants, one of whom was snitching on the other.

Also compare the FL Supreme Court’s cognitive dissonance when dealing with death row lawyers who are overworked and overburdened. Apparently death is different.

No confidentiality in PD applications

Public defenders, pursuant to Gideon v. Wainwright, are provided to all indigent people accused of crimes. Seems simple enough in theory, but in practice, there has developed over the years a battle over what “indigent” means exactly. Some states, like CT, use the Federal poverty guidelines and set eligibility at 125% of that. Other states do… I don’t know what.

But the problem arises when people are borderline indigent or just above the line or far above the line. Remember, though, that the line is drawn very low: in CT, if you’re charged with a felony, you can’t be making more than $22,340 per annum. That’s the cost of sponsoring a starving child in Africa.

Some jurisdictions adhere to this strictly: if you make $22,345 you’re not eligible. Tough luck, Go find a bottom-feeding “defense” “attorney” or represent yourself. Some jurisdictions correctly recognize that if you’re charged with a serious felony, even if you make $70,000 a year you can’t afford to hire an attorney to properly represent you. That’s why they’re called guidelines. I’ve written about thisover and over again – and also about the conflict this causes between the private bar and the public defender’s offices. Are we taking food off their tables? I doubt it, but the point of contention still remains.

What I’ve never discussed, however, is what happens if an indigent person “lies” on their application of financial indigency. The indigency statute, 51-297(b) provides that:

(b) Any person who intentionally falsifies a written statement in order to obtain appointment of a public defender, assistant public defender or deputy assistant public defender shall be guilty of a class A misdemeanor.

I’m pretty certain that this has almost never happened, but it seems as though the indigency application is not confidential and open to investigation by the prosecution but I’m pretty certain it hasn’t been judicially tested. Which brings me to New Jersey.

Just a few days ago, the NJ Supreme Court held [PDF] in an opinion that the indigency application and the financial affidavit can, “in some circumstances” be open to the state to investigate “fraud”. This arose in the case of some mobster who:

Deputy Attorney General Mark Eliades had submitted affidavits listing Cataldo’s assets when he was charged in 2010, including a $659,600 house in Florham Park co-owned with his wife, Lorraine, for which he was paying off a $160,000 mortgage and a $100,000 home equity line; a $750,000 mortgage on a property in Readington and another home in Florham Park owned by his wife that was assessed at $484,300, the court said.

The prosecution also presented a car lease agreement in which Cataldo said he worked as a contractor for Cataldo Construction and his monthly income was $10,500, the court wrote.

Cataldo obviously applied for and was granted the services of the public defender. The Court reasoned that in order to investigate fraud of public services, the prosecution should have access to the financial affidavit form that is prepared by and kept by the public defender in the file of each client.

This, of course, would breach confidentiality. So how do we get away with what? Per the NJ Supreme Court, now the form has to include a statement that the information is not confidential and may be disclosed in “appropriate circumstances”. Voila! Magic wand waved; problem solved!

Except obviously not. The trend seems to be that if money is tight, the solution isn’t to reduce the number of prosecutions or provide more funding, but rather to cut funding to indigent services. While Cataldo may or may have tried to con the system into granting him the services of the public defender – and believe me, if I were ever arrested in CT, I’d give away all my assets too so I was indigent – the ruling has the potential to further damage the relationship between public pretenders and their clients.

I’m not sure what the NJ Statute says (I’m too lazy to go look it up), but I’m not sure if this would work in CT. The statute in CT makes no reference to what the income eligibility is. It simply states that someone is indigent if:

(f) As used in this chapter, “indigent defendant” means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation

That could – and should – mean different things in the contexts of different cases. Our job, as public defenders, should never to be to determine who is worthy of representation and who isn’t. The statute leaves it to us to determine who is indigent and we should have the freedom to do so.

To open up that process to the overzealous, prying eyes of the prosecutors could have disastrous consequences. As AmbImb at PD Stuff says:

In a jurisdiction where I once practiced, giving the state access to a client’s financial data became an incredible problem. For example, I once had a client testify in a speedy trial hearing that he’d suffered prejudice after years in prison awaiting trial because he’d lost his work tools and income. In response, the state trotted out his affidavit of indigence which was part of his application for a public defender. “Didn’t you swear here that when you were arrested you weren’t working and had no income?” they asked triumphantly. Needless to say, that was not a good moment for us.

What a ruling like this does it that it gives prosecutors yet another tool to go after clients and this makes us complicit in that process.


The madness of death

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

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

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

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

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

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

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

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

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

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

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

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

and this one:

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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