Category Archives: pd system

The C__stit___io_ State

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The judicial branch today announced its list of proposed cuts to services to make the monetary savings required by the Governor’s new budget proposal. As feared, lots of people are going to be laid off, courthouses will close and services will be drastically compromised. You can read the full list of cuts here [PDF] and here‘s a Capitol Watch post on the proposed cuts. I’ve listed the most significant (to me) proposed changes below, but first, a quote from the Chief Justice’s press release [PDF] today:

Our state Constitution in Article I, Section 10 states: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

…

With these cuts, however, I am not certain that we can adequately meet the requirements of Article I, Section 10. Access will be limited and we also anticipate that the resolution of civil, family, housing and small claims cases will be delayed. The end result is that our ability to administer justice as required by the Constitution may very well be compromised.

Now, onto those cuts. First, four criminal courts will either physically or functionally close:

  • Enfield (GA13) will shut down the entire building and transfer criminal cases to Manchester (GA12) and Hartford (GA14).
  • Derby (GA5) will move its criminal and motor-vehicle matters to the Milford (GA22/JD) court.
  • Bristol (GA17) will move its criminal and motor-vehicle matters to New Britain (GA15).
  • Norwalk (GA20) will move its criminal and motor-vehicle matters to the Stamford Judicial District court.

In addition, juvenile court operations in several courts will also close/move:  Danbury (moved to Waterbury/Stamford), Rockville (moved to Willimantic/Hartford) and Torrington (moved to Waterbury).

119 Temporary Assistant Clerks (affectionately called “tacks”) will lose their jobs. I believe that’s a large majority, if not, all of them. These are, most often, the clerks you see sitting in courtrooms, taking notes, marking exhibits and doing clerk-y things.

But there’s more dire stuff: the only three operational drug courts in CT: New Haven, Bridgeport and Danielson will close. Drugs courts were introduced as a very useful and effective way to combat the high incidence of minor drug-related offenses. If you ask about its success, YMMV, but undoubtedly it was an attempt to recognize that drug offenders need help and treatment, not incarceration.

The cuts also mean that some important services like “Building Bridges” which helps provide housing for homeless people who can no longer stay in shelters, is completely eliminated.

Finally, in more devastating news for the state’s poor and needy, the amount the Judicial Branch provides to Legal Aid organizations in the State will be reduced by 33%: from $1.5 million to $1million. For those organizations who are constantly struggling to find funding, $500,000 is a lot of money and sadly this only ensures that their ability to provide needed services just got more challenging.

It’s already pretty clear from this brief summary that it will be the poor, underprivileged and needy who will most feel the effects of these cuts and closings. But that’s not the end of it. The public defender’s office also has to reduce its budget by some $4.7 million dollars, which only means layoffs, increased caseloads and – unfortunately – an adverse impact on the ability to effectively represent – yet again – the underprivileged and poor among us. I have no actual details about the public defender cuts, nor would I be stupid enough to actually say anything about that even if I did, so instead I’ll just point you to this piece in the New Britain Herald, which has some information.

Wherever you stand on the political spectrum, it’s a sad day in CT for not only the thousands of employees who stand to lose their livelihoods and who knows what else as a consequence, but also those who rely on the State for the support that they are unable to provide themselves. One can only hope that there’s a way to avoid all of this becoming reality.

 

Wrong time, wrong battle

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There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go. I get that, even in the relative nirvana of Connecticut, we are severely understaffed in most of our public defender offices. And I get that it’s worse in places like Georgia and Florida and South Carolina.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights. And that time isn’t at a critical stage of a criminal proceeding. So it irked me to read Bobby G.’s post today, about a seemingly office wide policy of the public defender’s office in Horry County, SC, to automatically waive all preliminary hearings for clients who are entitled to them.

South Carolina is an odd place to people from the Northeast, like me. They use terms like “general sessions courts” and “solicitors”. They still utilize a grand jury, and – although he doesn’t use it in his post – I bet they have something mechanism whereby cases are “bound over” to some other place.

But the commonality in the language we use this: Continue reading →

Guilt by convenience

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[I was going to go with the far more catchy title "If you're innocent and you know it and you really want to show it, plead guilty" sung to the tune of - you know what? Stop that. Don't judge. You try writing funny and interesting blog posts every day. Sheesh. Nowadays everyone's a damn critic.]

So let’s start first with this statement a month and a half ago, from the Mayor of New Haven and the New Haven Police Chief:

“This is America.  Anyone can film anytime they want, including you, me and the PD while on duty,” Mayor DeStefano stated.

“Assume you’re being videotaped all the time when you’re out there,” [Chief] Limon said he has been telling his officers.

Limon said he has upcoming in-service training sessions for his rank and file will include an “update about legal procedures on interfering and videotaping issues.” He’s also looking into putting together a “policy to let officers know what are the exceptions” to when citizens can take video.

He was too slow with that training. Because this happened:

In the midst of swirling controversy about cops and cameras, Luis Luna was put under arrest for filming police in action—not by a rogue patrolman misunderstanding official department policy, but by none other than the assistant chief of police.

Luis Luna (pictured) [not here], a 26-year-old from Wallingford, was arrested on College Street early in the morning of Sept. 25 while he was using his iPhone to videotape police.

According to a police report, his arrest was ordered by Assistant Chief Ariel Melendez, who had told him not to film police breaking up a fight. Read the report here.

Luna said police took his iPhone from him and erased the video he had made. He was charged with interfering with police and spent the night in jail.

Oops. Now, I’m not going to get into the whole “police vs. cameras” angle on this story, because others have covered longer and more effectively. What I want to talk about is what happened on October 8: Continue reading →

The rotten peach? It’s in Washington now

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Maybe there’s nothing more than coincidence at work here and maybe I have my understanding of the philosophies of Supreme Court justices all wrong, but I find it noteworthy that on the first day in 35 (!!!) years that SCOTUS opened a term without a justice named Stevens sitting in one of the 9 chairs, and on the eve of the release of the biography of Justice Brennan, they also denied cert to Jamie Ryan Weis, that most unfortunate of Georgia defendants. Weis, of course, is the poster boy for the failed public defender system in Georgia, which was once heralded, but then crippled by, among other things, the unsuccessful capital prosecution of Brian Nichols.

Georgia’s Supreme Court, by a 4-3 vote, did not find any problem with Georgia’s public defender system or the lack of funding or the fact that his lawyers withdrew and a new set of lawyers asked not to be appointed or….sigh.

And now a system that provides little to no adequate representation to those charged with and convicted of the most serious crimes with the most serious attendant penalty receives no Federal review. SCOTUS just denied cert. No explanation, no dissents, nothing.The stench has spread to Washington.

For a while now I’ve argued that these individual claims in State courts in individual cases will do little to bring the issue of systemic failure into the spotlight. That the only way to adequately challenge the failure to provide counsel is through lawsuits against the State (and maybe this latest legislation will help do just that). With this latest rejection by SCOTUS, it seems that Jamie Weis (and others) may have run out of all other options.

We haven’t yet seen what Justice Kagan will do for the everyman and I’ve been told by many, including His Presidency that she’ll be just fine. Maybe. But maybe, just maybe, if Justice Stevens were still on the bench, we’d have had someone take an honest and critical view of the mess that is Georgia:

The U.S. Supreme Court in recent years has taken a close look at Georgia’s capital punishment procedures. Now-retired Justice John Paul Stevens in 2008 slammed the state’s high court for an “utterly perfunctory” review of a death penalty case.

But we’ll never know. Sorry, Jamie Weis. It seems that when it comes to capital murder, close enough for government work is better than you deserve.

Indigent defense on trial

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...and Gideon cry

The stereotype of the over-worked, under-paid public defender exists for a reason. Even though I’ve personally fought against the stereotype here on the blog and in real life, I must necessarily admit that in a lot of States, the caricature is not a caricature at all, but an accurate representation of the state of indigent defense. Often, the public defender is only as good as the resources and time available to her. The best lawyer may seem incompetent if overburdened and underfunded.

I noted a while ago that a battle was brewing on the state of indigent defense and two recent news items seem to validate that observation. First, via CrimProf, a troubling decision out of Florida, where the intermediate appellate court reversed a trial court’s ruling granting a public defender’s motion to withdraw from one particular case because he could not adequately represent the defendant due to his high caseload. Then, on July 7, the Third District Court of Appeal reversed the trial court, holding that the mere word of a public defender that he was unable to provide constitutionally adequate representation was not enough to establish that the defendant would suffer prejudice:

Our analysis of the record in this case, however, leads us to conclude that there was no evidence of actual or imminent prejudice to Bowens’ constitutional rights. If the trial court’s order stands, all that the PD11 must do to show prejudice is  swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the client’s speedy trial rights. This “prejudice” is not the type of prejudice that this Court referred to in State v. Public Defender. Prejudice means there must be a real potential for damage to a constitutional right, such as effective assistance of counsel or the right to call a witness, or that a witness might be lost if not immediately investigated. And this is the critical fact — the PD11 has not made any showing of individualized prejudice or conflict separate from that which arises out of an excessive caseload.

This conclusion is on the back of Florida statute that explicitly prohibits public defenders from withdrawing from cases because of excessive caseloads or inadequate funding:

(d)  In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.

Here’s a statute that so blatantly conflicts with the professional and ethical responsibility of a lawyer to withdraw from the representation of a client if he feels he is unable to provide adequate and competent representation. Court, making the determination of whether to permit counsel to withdraw, do so on a case-by-case basis, but to exclude a very real and prevalent reason for that inability to provide adequate representation seems to be problematic on many levels, not the least of which a violation of the separation of powers. Continue reading →

Paying for injustice

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Meet Manuel Hidalgo Rodriguez, arrested and convicted in 1995 for child sexual assault that he did not commit. Hidalgo spent 5 years out of a 5 1/2 year sentence before his conviction was reversed and the charges dismissed.

Meet Thomas White, also convicted for child sexual assault and who also spent 5 years in prison before a third jury finally acquitted him in 2005.

But Hidalgo and White have more in common that merely being falsely accused of terrible crimes for which they both spent long years in harsh conditions in prison. Both convictions were obtained by a failure of the system: in Hidalgo’s case, aided by the complete inexperience of his defense attorney in what amounted to a constructive denial of counsel; in White’s, horrifying misconduct by the police and prosecutors to hide exculpatory evidence. Continue reading →

Gideon stirs

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On Thursday, the New York Court of Appeals issued a 4-3 decision permitting, but narrowing, the NYCLU’s lawsuit [prior post] against 5 counties to proceed. The crux of the claim is not a violation of Strickland , but rather a violation of Gideon itself.

This complaint contains numerous plain allegations that in specific cases counsel simply was not provided at critical stages of the proceedings. The  complaint additionally contains allegations sufficient to justify the inference that these deprivations may be illustrative of significantly more  widespread practices; of particular note in this connection are the allegations that in numerous cases representational denials are premised on  subjective and highly variable notions of indigency, raising possible due process and equal protection concerns. These allegations state a claim, not  for ineffective assistance under Strickland, but for basic denial of the right to counsel under Gideon.

The argument was in two parts: 1) That the public defender system is so under funded that lawyers are provided in name only and that results in a de facto denial of counsel (the Cronic claim); and 2) That the public defender system is so underfunded that there is no way these lawyers provide effective representation of counsel (the Strickland argument).

The court permits the first to proceed while rejecting the second. The Court seems bent on ensuring that these particular plaintiffs don’t backdoor in their ineffective assistance claims, because that is necessarily a post-conviction, fact specific inquiry, whereas the institutional denial of counsel touches on the basic obligation of a State to provide counsel at all.

Collateral preconviction claims seeking prospective relief for absolute, core denials of the right to the assistance of counsel cannot be understood  to be incompatible with Strickland. These are not the sort of contextually sensitive  claims that are typically involved when ineffectiveness is alleged. The basic, unadorned question presented by such claims where as here the defendant-claimants are poor, is whether the State has met its  obligation to provide counsel, not whether under all the circumstances counsel’s performance was inadequate or prejudicial.

It is that last part that is truly noteworthy about this decision: that a court has finally acknowledged that Gideon‘s promise may be going unfulfilled and that states cannot prop up a warm body next to the defendant and be allowed to pass the blush test. Gideon did not make a hollow promise. Time to hold states to their obligations.