The Constitution Project presents this documentary “Defending Gideon”, narrated by Martin Sheen. It’s fun hearing Martin Sheen say my name over and over again.
The Constitution Project presents this documentary “Defending Gideon”, narrated by Martin Sheen. It’s fun hearing Martin Sheen say my name over and over again.
I could quote, as I have done before, Ammianus Marcellinus and his tale of Delphidius and Caesar. I could quote Martin Luther King, Jr., and his admonition that injustice anywhere is a threat to justice everywhere. I could even quote my namesake, but I’ve already written about him once today. Instead, I quote Jonathan Rapping, former training director of Public Defender Services and current something of Gideon’s Promise, a program dedicated to training and resurrecting crumbling public defender offices in the South.
Expectations for what poor people deserve have fallen so low that people in the system have come to accept these low standards. They have lost sight of justice and the role they are supposed to play in promoting it.
While limiting caseloads is certainly one part of the solution, if we expect to change America’s public defense system, we must change its culture. We must teach public defenders to resist the low expectations of a broken system. And we must prepare the next generation of public defenders to improve those systems.
Perhaps being fortunate to practice in a public defender system that has most everything one could ask for* has blinded me to the obvious realities of practicing in other jurisdictions where we are barely funded at all.
But the charge that it is the dedication of the public defenders that needs examining that gives me pause. Is it, like I want to think, that those public defenders who have accepted the low expectations of the broken system are few and far between, or is it like Rapping teaches it: an infestation that has taken root in a discordant system in states where there is little or no attention paid to indigent defense?
The latter, while probably true, seems absurd to me because of this: I believe this is a job one does not come lightly to, nor is it one that someone can do without having once had a strong sense of pride and almost feverish belief in.
You’d have to have that sort of blind idealism, because otherwise, this job kills you. You don’t understand; I’m not exaggerating. This job – criminal defense – sucks the life out of you. It makes you age 3 years for every one in natural time. It disturbs your sleep; it distorts your sense of humor, it takes every ounce of sensitivity you have and bludgeons it with a very large, blunt hammer. You make jokes that would get you instantly fired in any other workplace, it instills a paralyzing fear of being alone with children and it makes you take to the bottle.
It takes you into the very dark recess of the worst of humanity and then shoves you back into the normal parts every evening and expects you to recover fully in time for tomorrow’s horror show. You interact with the mentally disabled, the mentally ill, the arrogant, the foolish, the entitled, the power-hungry and the power-mad. You stand next to the pain of a thousand losses and the ghosts of memories that never will be. The stench of ruined lives permeates your clothes and your skin and your very soul. There is always a reek of futility to all that you do. A beggar has more luck than a public defender. Saddled with the Herculean task of giving a voice to those that no one cares to listen to, you are stuck in between the disdain of your clients and the irrelevance of your spot in the courtroom.
It is a job that makes you lose faith, too. Lose faith in humanity; lose faith in justice; lose faith that good prevails over bad; in the order of things; it makes you lose faith in God and brings you one step closer to existentialism and an almost gleeful belief in the absurdity of life.
It makes you a cynic, perhaps too much of one. It makes you mean, it makes you grumpy, it makes your suits not fit and the time between each haircut get longer and longer.
And yet we put up with it all. And the reward for putting up with turning into a less likeable version of yourself must be tremendous. It is.
Despite that overhanging gloom and that inescapable feeling that you’re one denied bond motion away from really losing it and saying things that can never be taken back, I wouldn’t practice any other kind of law. Being a prosecutor? Too easy. Being a judge? Too boring. Being a public defender? Just right.
Does that make me crazy? Quite possibly. But I’ve always been a bit of a dreamer and a fool and this job allows me to let both those qualities flourish.
What other job allows you to contribute to society, directly, every day? What other job lets you touch so many lives – some repeatedly – and always in a way that tries to better those lives? What other job allows you to play David and gives you the opportunity to slingshot Goliath? In what other job lets you stand between the immense power and the purported moral authority of a governmental regime and the puny, individual, inconsequential freedom of one and say “not today; not on my watch”.
Is it grandiose? But of course. And it takes grandiose acts and grandiose thoughts to protect a document as grandiose as the Constitution of the United States of America.
This is not a job; this is not just a paycheck. This is a way of life. This is a calling. Okay. I can’t resist. Does this:
Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.
set your heart racing? If it doesn’t, why are you still a public defender?
(*I say ‘most everything’ because I have yet to be denied a request for an expense that is not frivolous, but I recognize – as we all must – that our funding, while generous, is nowhere near adequate to ensure that each client is effectively represented, especially in our larger lower courts.)
Clarence Earl Gideon, of Florida by way of many state’s penitentiary systems, was a thief. He was a rather poor one too. Gideon, whose name I have adopted and which I shroud myself in on a daily basis, was also a dreamer. And like most dreamers, he was also a fool. A thief, a dreamer and a fool, and in the end, he and his legacy have done us all in.
50 years ago today, Clarence Earl Gideon the man, the thief, was vindicated. Writing for an unanimous Supreme Court, Justice Black opined that
reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.
Obvious in principle, obvious in necessity but hardly obvious in execution. Clarence himself bought into the lofty ideal idealized in his namesake decision, going so far as to put some grandiose on his tombstone:
And yet, somehow, here we are. There is no joyous celebration of the 50th anniversary. There are no pats on the back or accolades, let alone a sense of satisfaction of a job well done.
There is only a moment of attention that has drawn the pleas for help out into the open, as the world, for this instant and only this instant, has muted every other noise to pay perfunctory obeisance at the altar of indigent defense, because it is the right thing to do. So in these few fleeting moments, take note of the near-universal message of “dear God please help us we are drowning”.
In this moment, I am reminded of another favorite quote of mine:
In all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defence.
While the meaning of the phrase “shall enjoy the right” may have been up for debate prior to Gideon v. Wainwright, that decision left little room for its continuation. What the Constitution (and by extension Gideon) did not provide is the will to enforce that right.
That will comes entirely from the people. And the people for about 49 years now, haven’t given a shit.
Oh, don’t get me wrong. The people – you – care very deeply about the criminal justice system. The people – you – have very strong senses of right and wrong. The people – you – have very strong opinions about what should be a crime and how swiftly, quickly and severely that crime should be punished. This hasn’t changed. Just remember Justice Black:
Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society.
Law & Order, DAs, cops, FBI agents, rogue cops, the triumph of good over evil are staples of our modern imagination. They are woven into the fabric of our existence and color the lens through which we view the world.
Every person arrested is guilty and those that are not are rare exceptions that don’t alter the perception of the system. We don’t care if the people who get arrested get good defenses; we assume they’re guilty. What we really need to do is pay the people who catch criminals. And prosecute them. And guard them. The guys who defend them? Scumbags. Criminals themselves. Government fatcats.
It’s not so much a funding problem (it is that too) as it is an attitude problem. The funding drought is merely a symptom of the greater issue with indigent defense: no one gives a shit.
The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
How many reading this today would agree that it continues to be true? Maybe it did when Justice Black wrote it in 1963. But I don’t know. I wasn’t conscious then.
Do these principles still matter in a Honey Boo Boo world? Are we still obsessed with being the best in the world at everything? The most noble? Is that even on the radar?
Imagine, if you will, a world without a public defender. What would this world look like? Do you know that in Connecticut [PDF], we handle over 80% of the criminal cases every year? That means approximately 81, 500 cases last year were handled by public defenders.
Yes, that’s 81, 500. In one year. I think the public defender system in Connecticut employed 214 attorneys in the last fiscal year. Any time you get arrested and face jail time, we represent you. Doesn’t matter if it’s because you shoved your girlfriend in a fit of rage or because you broke into a house and murdered the occupants because they interrupted you while you tried to steal their PS4.
Eighty-one thousand. In one year. And that’s in Connecticut, one of the smallest states.
We’re like your neighborhood mechanic who works on your car for free, whether it’s an oil change or a transmission.
But there are 81, 500 cars and only 214 mechanics. We need more mechanics.
The avalanche of cases and politics come together to present a formidable obstacle to alleviating some of the problems that afflict the system in some states. Politicians do not like asking voters for money for indigent defense.
“Arguing for more money to defend criminals is not the easiest way to win a close election,” said former Vice President Walter Mondale. As Minnesota’s attorney general in the early 1960s, Mondale recruited 21 other states to join in a brief urging the court to rule as it did and rejected a plea from Florida to support limits on states’ responsibilities to poor defendants.
Why is that so? Who is to blame? It is the height of cheek for politicians to say that seeking funding for criminals is an untenable platform when they themselves have made it so. ‘Tough on crime’ was a political policy, not an intrinsic way of life. Politicians have made careers on ruining lives of those arrested and now lament the lack of popular will to fix the broken system.
Or is it our fault for letting them? How many times have you said: “why don’t they just find them guilty already and sentence them?” How many times have you disrespected the Constitution?
And what will happen when it is you, facing a judge, standing next to a public defender with 25 files in his hand? Or your son? Or your grandfather?
Funding indigent defense isn’t funding criminals. Funding indigent defense isn’t paying incompetent lawyers to do nothing. It’s funding something far more important. It’s funding the protection of the Constitution.
Do you know what happens every day in the criminal justice system? The law is followed, changed or challenged. And that happens in the brightly lit, heavily populated courtrooms on which no light is shined. Public defenders (and other defense attorneys) are playing a long, complicated chess game with the government. At stake: your individual freedoms.
Tomorrow, when you wake up and wonder why there needs to be a debate about whether the President has the authority to order drone strikes to kill American citizens on American soil without due process, it’s because every incremental battle leading up to that preposterous proposition has been lost. Tomorrow when you get pulled over and the cop looks through your cell phone or pulls you out of your car and frisks you or lies to you and gets you to admit that you committed a crime that you didn’t, realize that those battles have been fought and lost.
These battles aren’t won or lost in cases of innocent people. Name every single case that you might know. They were all guilty. Ernesto Miranda? Guilty. Clarence Gideon? A criminal. Michael Crawford? Stabbed a dude. Ferdinand Oquendo? Killed a dude.
And it may be that those battles were well fought and would’ve been lost anyway. But you’d have known about them, if you paid attention. And maybe you’d have cared and demand differently of your legislators and lawmakers and governors who appoint judges who make these decisions.
Because, whether you realize it or not, you have entrusted your rights to me. I am their guardian. My black-or-Hispanic-lives-in-a-shitty-neighborhood-has-a-criminal-record-was-probably-robbing-a-bank-client’s Fourth Amendment rights are the same yours. Or rather, your rights are the same as his. If you want the government to truncate his rights because you judge him as “the other”, then realize that you’re giving the government full license to truncate your rights too. Don’t worry, I’ll fight just as hard when you’re standing next to me, but it might be too late then.
So decide today, America. What is more important to you: liberty, freedom and justice or just the idea of it?
I’ll be here either way.
Other reading (will try to update continually through the day):
Image of Clarence Earl Gideon’s tombstone credit Diane L. Wilson/Associated Press taken from this NYT article.
You may or may not have been aware that my birthday is coming up on Monday, March 18, 2013. I will turn 50 on that day. I am ramping up my celebration efforts in advance of Monday, most of which include putting bandages on myself and drinking copious amounts of alcohol to deal with the pain, which then leads to further injuries and more alcohol and on.
So, if you wish to pay tribute to Gideon Day, write a short essay, not exceeding 1000 words and post it on your blog. Then send me the link and on Gideon Day I will admonish you to hug a public defender (any public defender, not ‘a public defender’) and then I will compile the links into a Gideon Appreciation Day post where your appreciation can be appreciated.
Get on with it.
In all criminal prosecutions, the accused shall enjoy the right [...] to have the Assistance of Counsel for his defence.
It’s sad that in the 50th Anniversary year of Gideon v. Wainwright, we still do no more than pay lip service to one of the most important rights bestowed upon the people (it’s included in The Bill of Rights for a reason). It’s sad that the system has remained so overburdened that it is nothing more than an assembly line that must be kept moving at all costs. And if that cost is the rights of the defendants, so be it. Because in order for any criminal justice system to function, there must be turnover, because there is always volume. And you don’t get turnover if you don’t have attorneys who can “move” cases: plead ‘em out, convince clients to take deals, sell what the prosecutor is selling. To do anything else would be to tax the system and those who tax the system get punished.
So the system seeks out those who are compliant and rewards them. Rewards them to the tune of 3.5 cases for every business day in the calendar year. Rewards them for being one of the boys by assigning a fuckton of cases to them: 920 in the whole year.
Think about that for a second: 920 individuals are represented by one lawyer in one year. That means if he (and Geraldo Acosta of Harris County, Texas is a he) started 2013 with no clients, today he’d have 98 of them. 98 individuals relying on him for their liberty. 98 individuals relying on him to further their best interests.
What do you think happens? Do you think he manages 920 cases a year by rigorously investigating and defending each one? Do you think he spends every waking moment doing everything that is reasonably necessary for each client? Do you think he can?
And why does he get 920 cases a year? Because he’s so good? Or because he’s so good at moving them along?
Just for comparison’s sake, the “overburdened, overworked, underpaid, not a real lawyer” public defender in CT was assigned to an average of 462 cases last year [PDF - Appendix Table 12] in the busy low courts. The highest per attorney appointment was 653: 267 cases short of Acosta by himself.
This is the state of your criminal justice system. This is the state of justice.
Our priorities have gone askew. Never has this been clearer to me than today, viewing from afar the circus surrounding an apparent once-in-a-decade event gathering steam: the utterance of words out loud by a Supreme Court Justice. Yes, he spoke. Yes, he said something incomprehensible. Yes, he and Scalia were making fun of Yale and Harvard. And that, apparently, is newsworthy. That, apparently, has been the impetus for hundreds of posts and BREAKING NEWS items and thousands of wasted pixels speculating exactly what he meant. Has the streak been broken, the L.A. Times – which I thought was a reputable newspaper, but apparently not – asks of its readers and also somewhat funnily has this sentence in the same article:
It’s a slow news day at the U.S. Supreme Court when the biggest story is whether an overheard, offhand comment by Justice Clarence Thomas means he has broken his nearly seven-year streak of silence.
It’s a slow news day if you don’t really care about the issue of the massive funding crisis that is threatening indigent defense across the country; it’s a slow news day if you’re too fucking stupid to realize that everyone’s due process rights are about to take it in a most impolite way if it’s okay for the State to hold someone for 5 years without giving them a trial. It’s a slow news day if writing about Justice Thomas uttering half a sentence at the Supreme Court is what you do when you’re waiting for Lindsay Lohan to fire another lawyer.
I’m amazed at the number of articles that keep popping up in my feed reader about Thomas and his words of wisdom. Hell, the New Yorker got into it to remind us that, in their opinion, Thomas really hates Yale. Liptak engages in a Zapruder film like frame-by-frame analysis of what this man might’ve uttered. I could go on and on with links, but you get the point.
You know what’s missing in every single one of these articles? A mention of Boyer. Who’s Boyer, you ask? Boyer, of Boyer v. Louisiana [SCOTUSBlog preview; oral argument transcript here]. Boyer, who sat in jail for 5 years facing the death penalty because the State could afford to only pay one of his lawyers – one that wasn’t qualified to represent him in a death penalty case. Boyer, in whose case witnesses died while he was waiting for the political football of indigent defense funding to stop getting punted around from endzone to endzone like it was a Browns vs. Cardinals game. Boyer, whose egregious delay the state of Louisiana seeks to shrug off as not really important and certainly not their fault.
The State of Louisiana which had the gall to argue before Justice Thomas and the rest of the Court that using funds to pay prosecutors to prosecute crimes but not defense lawyers to defend against those crimes is not a “deliberate choice”. It’s the same State that will argue that it’s the fault of the poor, jailed defendant with an 8th-grade education that he wasn’t tried for 5 years after arrest. It’s the same State that thinks it’s okay for him to proceed to defend a death penalty case with counsel who is ineffective.
You want a story? I’ll give you a story: this is the 50th anniversary of Gideon v. Wainwright. That the decision trumpeted the arrival of an era of equal justice for all, but that era has never materialized. That states still woefully underfund indigent defense; that access to justice isn’t equal and that people get screwed. Every. Single. Day. And it’s this Court – Thomas and others – who have the authority to change that, to alter that reality for hundreds of thousands of Americans. Today for all my clients; tomorrow, perhaps for you.
But no. Let’s continue to be cute and write funny stories about what an odd man that Justice Thomas is that he hasn’t asked a question in 6 years and well, was he making fun of Harvard or Yale? Because, really, who gives a fuck about Boyer, right? Stupid Constitution getting in the way, just like Thomas always said.
TL;DR: Thomas mumbles, internet creams itself, Boyer sits in jail, Gideon weeps.
[Update: Sorry, couldn't resist this update. After my rant above, I stumbled across this stunningly bizarre, tone-deaf, self-important post by Tom Goldstein of SCOTUSBlog, who, apparently, chides the internet not for taking a serious issue and making light of it like I do, but almost the opposite: for taking the joke too seriously. That's some fucking serious level of meta that even I haven't been able to get to in all my years of internet trolling. Well played, TG, well played.]
Connecticut adopted the public defender system in 1917. Public Acts 1917, c. 225. Under this act, the judges of the Superior Court annually appointed a member of the bar who had practiced at least five years to represent persons accused of crime. By chapter 129 of the Public Acts of 1921, the original act was implemented so that it assumed substantially its present form. Rev. 1958, §§ 54-80 and 54-81. Under it an accused who lacks funds is assured of representation by experienced counsel, who, subject to the court’s approval, are able to incur whatever expense is necessary for the proper protection of the rights of the accused, not only in the trial court but also on appeal.
State v. Reid, 146 Conn. 227 (1959). And so, since 1917, have public defenders been called agents of the prosecutor, public pretenders and have had their educational qualifications besmirched. While I have often argued on this blog and in real life that these charges are false and nothing more than urban legends, I cannot escape the reality that there are, of course, public defenders (and private attorneys) who are just terrible lawyers who either care nothing about their clients or, as these things go, are hideously incompetent.
Having accepted that it is inevitable that some public defender clients will experience warranted dissatisfaction with their “court-appointed” lawyer, the interesting question is what should they be permitted to do.
But to get there, we have to start at another beginning.
The Sixth Amendment, as you all should know, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” That has further been explained to mean that “the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice” Powell v. Alabama. In the seminal case on the right to counsel of choice, Wheat v. United States, the Rehnquist court wrote:
In United States v. Morrison, 449 U. S. 361, 364 (1981), we observed that this right was designed to assure fairness in the adversary criminal process. Realizing that an unaided layman may have little skill in arguing the law or in coping with an intricate procedural system, Powell v. Alabama, 287 U. S. 45, 69 (1932); United States v. Ash, 413 U. S. 300, 307 (1973), we have held that the Sixth Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime. Gideon v. Wainwright, 372 U. S. 335 (1963). We have further recognized that the purpose of providing assistance of counsel “is simply to ensure that criminal defendants receive a fair trial,” Strickland v. Washington, 466 U. S. 668, 689 (1984), and that in evaluating Sixth Amendment claims, “the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.” United States v. Cronic, 466 U. S. 648, 657, n. 21 (1984).
As Justice Scalia noted so forcefully in United States v. Gonzalez-Lopez, the Sixth Amendment right to counsel of choice “commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause.”
In other words, a defendant should have the right to choose the person he wants to represent him during his criminal proceeding. This makes sense. After all, the stakes in a criminal trial are extremely high, usually involving the liberty and freedom of the accused. The ability to choose counsel will determine the amount of trust that the defendant places in his lawyer, his receptiveness to advice given by the lawyer and the reliance on that advice. Criminal defense lawyers will attest that there is nothing more important to the relationship between them and their clients than the trust that must exist.
And yet. And yet this “particular guarantee of fairness” is qualified. It is limited and circumscribed. This right is freely given to those that can afford to hire their own counsel, yet withheld from the overwhelming majority of criminal defendants, who do not have the financial resources to do that. The poor and the indigent have no such right to choose the lawyer that will represent them as they undertake the arduous and perilous task of navigating the ferocious and choppy waters of the modern day criminal justice system.
Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them. As the dissent too discusses, post, at 3, the right to counsel of choice does not extend to defendants who require counsel to be appointed for them. See Wheat, 486 U. S., at 159; Caplin & Drysdale, 491 U. S., at 624, 626.
(More on this assertion later, but for now, let us take it at face value.) If this is a right that is so valued and so important, what is the justification for limiting it to only that minute percentage of the criminal defendant population: the one with money?
Further hidden within this right is the assumption that, barring a last-minute switch, defendants who have the funds to hire private attorneys are free to fire and hire as many as they want, usually for no reason whatsoever. Public defender clients are stuck with the luck of the draw.
Of course, I can’t realistically make the argument that indigent defendants should be able to pick and choose the public defender they want to represent them or force the State to pay for a private attorney to represent them. I’m not arguing for some sort of Bunny Ranch lineup at arraignment where the indigent defendant looks us all up and down and picks the one he likes the best. It would be a nightmare of epic proportions to have such a system and, of course, a publicly funded defense system should have some reasonable limitations for logistical purposes.
But inherent in the right to counsel of choice is the right to fire that attorney and no longer have him or her represent you if you feel that their representation doesn’t permit you to present your defense in the most optimal way possible. It is the substitution of counsel where I part ways – ideologically – with the courts.
The system as it currently exists makes it near impossible for indigent defendants to fire their court-appointed lawyers and have them replaced by other court-appointed lawyers with whom they might be more comfortable and in whom they might place greater trust. Why must this be so? Why must we thrust upon the poorest of the poor only two untenable choices: either proceed pro-se or proceed with a lawyer in whom they clearly have no trust?
And this brings me back to my original point: there are incompetent public defenders just as there are incompetent private attorneys. Yet those who are burdened with the incompetent private attorney have a much easier path to ridding themselves of that potentially dangerous attachment than those who have no financial resources. In essence, the courts are sanctioning a system whose motto might as well be “you get what you pay for”. And they pay nothing, thus, should expect nothing in return.
Certainly there is the potential for abuse, but just as there are safeguards built into the right to counsel of choice for rich defendants, there could be similar safeguards to ensure that indigent clients don’t just fire and ask for new assigned counsel willy-nilly. Yet the current standards are so high – and as can be seen from the language in Gonzalez-Lopez, entirely discretionary – that in effect we are placing a stamp of approval on a two-tier system.
Of course, mere displeasure with his options should never suffice to permit substitution, but why shouldn’t an indigent defendant request and receive alternate counsel if he can reasonably show that the lawyer is not communicative or dismissive or wishes to pursue defenses that the client wants no part of? [See quote from United States v. Calabro, below, for the current standard.] The public defender system doesn’t exist so I get to practice the art and skill of being a lawyer; it exists so that I may provide a much needed service to a large section of the community. Why must those that I purport to serve be saddled with my ineffectual representation merely because they are too poor to hire someone else whom they feel would benefit them more?
It certainly seems cumbersome, but unworkable it is not. While a rule such as the one that I have pondered above may increase the rate of substitutions somewhat, I suspect that there will be no astronomical rise in the number of public defenders fired by their clients, just as we don’t see a revolving door of private attorneys on a regular basis.
And isn’t the additional logistical quandary worth the lip-service we pay to these “fundamental rights” and worth dispelling the notion that there exist two criminal justice systems and two types of criminal defense lawyers? Isn’t faith in the system inimical to its continued viability?
While researching the relevant cases for this post, I went on a frolic to determine just where this distinction between substitution of private attorneys and public defenders comes from. I now invite you to join me on this invigorating journey into the bowels of Constitutional jurisprudence.
First, let us start with Gonzalez-Lopez. As reproduced above, it cites Wheat and Caplin & Drysdale for the proposition that indigent defendants have no right to counsel of choice. Caplin & Drysdale, in turn, cites Wheat. On this issue, Wheat states the following:
Similarly, a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant.
That’s it. There’s no attendant citation to any other case. That’s fine. Maybe Rhenquist got lazy and didn’t want to cite to every goddamn proposition already. So let’s try another tact. Here’s the most recent citation in a Connecticut case that I could find. In a footnote:
Moreover, it is well settled that “a criminal defendant does not have the right to have the public defender of his choice.” State v. Oliphant, 47 Conn. App. 271, 278-79, 702 A.2d 1206 (1997).
State v. D’Antonio, 274 Conn. 658, fn. 41 (2005). Okay, so let’s go to Oliphant:
[O]ur law is clear that a criminal defendant does not have the right to have the public defender of his choice. McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982); State v. Nash, 149 Conn. 655, 663, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962).
Well, that’s just another citation. Okay, I’ll bite. First McKee:
It is settled in this Circuit that “[o]nce trial has begun … a defendant does not have the unbridled right to reject assigned counsel and demand another.” United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973).
You see where this is going now. Calabro:
The second branch of Leonard’s argument, closely entwined with the first, is that the court ought to have assigned new counsel once Leonard had dismissed Rosenthal. Once trial has begun, however, a defendant does not have the unbridled right to reject assigned counsel and demand another. United States v. Burkeen, 355 F.2d 241 (6th Cir.), cert. denied sub nom. Matlock v. United States, 384 U.S. 957, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); United States v. Paccione, 224 F.2d 801 (2d Cir.), cert. denied, 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788 (1955). A defendant with assigned counsel cannot decide for no good cause on the eve or in the middle of trial that he will have another attorney represent him. Cf. United States v. Abbamonte, 348 F.2d 700 (2d Cir. 1965), cert. denied, 382 U.S. 982, 86 S.Ct. 557, 15 L.Ed.2d 472 (1966)(retained counsel).
In order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict. Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970); United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968); United States v. Gutterman, 147 F.2d 540 (2d Cir. 1945). If a court refuses to inquire into a seemingly substantial complaint about counsel when he has no reason to suspect the bona fides of the defendant, or if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right. Brown v. Craven, supra. In the absence of a conflict which presents such a Sixth Amendment problem, the trial court has discretion to decide whether to grant a continuance during the course of trial for the substitution of counsel, and that decision will be reversed only if the court has abused its discretion.
(Emphasis added.) Hang on a second. Burkeen, Paccione and Abbamonte all stand for the proposition that you can’t just dick around with lawyers on the eve of or in the midst of trial. That standard’s no different for privately retained attorneys or public defenders! Look at that second paragraph, which states the standard for substitution of counsel, again during trial. The word “indigent” is missing as is the word “assigned”. So where does this general proposition that indigent defendants have no right to counsel of choice come from?
Okay, so I skipped over a case up there: State v. Nash. Let’s go see what that says. Nash is a fascinating case, least of all for the fact that it calls people “paupers” instead of indigent. Nash was a guy who was convicted in 1947 of murder or some such thing and then spent 19 years in jail without appealing. One day, apparently after he was unsuccessful in his bid to unseat Rip Van Winkle as the sleepiest man ever, he decided to you know what, file that appeal after all. A federal habeas was granted and the appeal restored in the CT Supreme Court. The court, now that he was a pauper, tried to get him a public defender to help him with the appeal. Nash, being the asshole-y type, instead sent the court a list of three private attorneys he wanted to be represented by. The Court, naturally, laughed heartily in their private chambers, smoking their pipes, while morse-coding each other salacious dots and dashes, or whatever it is they did back in the stone ages.
That case has little to do with the ability of an indigent client to fire one public defender and be represented by another. But there is another case that Nash cites: State v. Reid, which I opened this post with (now tell me I don’t pull things together!). Reid, unsurprisingly, is only marginally connected to that proposition, instead holding quite sensibly that a person can’t fire a public defender and then have the court pay a private attorney to represent him, just because.
But Reid is beautiful for one other reason:
A further claim, covered by no assignment of error, is that any public defender system, including that of Connecticut, wherein public defenders are appointed by the judiciary, must necessarily result in defenses which are at least potentially ineffective. This result is claimed in some way to flow from the fact that both state’s attorneys and public defenders receive their appointments from the same source and that this source is the judiciary. Of course, the main reason for appointment by the judiciary is to insulate these officials from improper pressures or influences from any source, political or otherwise, and to insure that they may fearlessly prosecute or defend, as the case may be, regardless of the public temper of the moment, or the power, influence or connections of the parties involved. The attack on our public defender system is too obviously lacking in merit to warrant discussion. Its best refutation is the work of the public defenders themselves in the more than forty years in which the system has been in effect in Connecticut.
The cockles of my heart, they are warmed.
So does this distinction really exist or have any basis in Constitutional jurisprudence? To be sure, a distinction is clearly stated in several cases, but the basis for that is non-existent. They are no more than assertions without reasoning or reliance on stare decisis. Should there be such a distinction? Are you awake? Are you alive? Hellooooo?