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.

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.

and after the landmark decision:

HT: Tannebaum

Do you feel lucky?

I’m not quite sure how to introduce this story (and the case that it covers) in a pithy manner, so I’m just going to get to it: New Hampshire’s Supreme Court recently ruled that it’s okay for a police officer to testify at a criminal trial while wearing a ski-mask to protect his identity because he was working in an undercover unit at the time of the trial.

Yes, you read that right. In State of New Hampshire v. Jose Hernandez, a police officer who had conducted an interview with the complaining witness was permitted to sit there like a cat burglar, with a ski mask on his face. The State’s reasoning – bought by the trial court – was that the officer’s identity needed to be protected. Nevermind the fact that the jury viewed the interview with the complainant in which his face was uncovered and that everyone knew his name. Oh and that pesky Confrontation Clause thing.

Let’s look at that. The Confrontation Clause provides that:

In all criminal prosecutions, the accused shall enjoy the right to [...] be confronted with the witnesses against him.

Federal court decisions have interpreted this to mean eyeball-to-eyeball confrontation. The confrontation clause affords the criminal defendant two types of protections: “the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39 (1987). And there’s a reason for this. The accuser, or any other witnesses on the accusers behalf, should have to face not only the defendant, but the jury that is deciding the defendant’s fate. The jury should have the opportunity to observe the witness and the witnesses reactions and demeanor.

The Connecticut Supreme Court has not yet considered (that I could find) whether a witness testifying in disguise violates the Confrontation Clause. It has, however, considered whether an accuser can testify outside the presence of the defendant and not in court. In State v. Jarzbek, the Court permitted the videotaping of a minor who had accused the defendant of sexual abuse. While the court in Jarzbek ultimately permitted the introduction of videotaped testimony instead of live testimony at the trial, the jury had the opportunity to observe the demeanor of the complainant. Jarzbek, however, emphasized the importance of having the ability to look the accuser (or by extrapolation a witness) in the eye and having that witness face the jury:

As the United States Supreme Court has asserted, a defendant’s “literal right to `confront’ the witness at the time of trial … forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157 (1970); Delaware v. Fensterer, supra; Davis v. Alaska, supra, 315; Dowdell v. United States, 221 U.S. 325, 330 (1911). The clause was originally conceived as a safeguard “to prevent depositions or ex parte affidavits … being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-43 (1895); see also 5 J. Wigmore, Evidence (3d Ed. 1940) §§ 1365, 1367.

The court, in a subsequent case analyzing Jarzbek, engages in a thoughtful analysis of the Confrontation Clause and the need for the jury to be able to observe a witness:

Our law is well settled that it is a jury’s duty to determine the credibility of witnesses and to do so by observing firsthand their conduct, demeanor and attitude. See, e.g., State v. Morgan, 274 Conn. 790, 800 (2005). Some of our older cases indicate that fact finders properly may consider not only a witness’ demeanor during his testimony but also his spontaneous reactions in the courtroom, as a whole, provided these considerations are limited to assessing credibility. See Kovacs v. Szentes, 130 Conn. 229, 233 (1943); State v. McLaughlin, 126 Conn. 257, 264-65 (1939). A jury’s assessment of a witness’ credibility also naturally and rightly may include observations of his reaction to having to confront the defendant physically and to testify in an open and public forum. See State v. Jarzbek, supra, 204 Conn. 683, 692-93 (1987) (confrontation clause “finds its modern justification in the perceived role that physical confrontation plays in the truth-seeking process”), cert. denied, 484 U.S. 1061 (1988).  We have observed that the confrontation clause was conceived as a means of providing the accused with “an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” (Emphasis added; internal quotation marks omitted.) Id., 692. Therefore, we conclude that, to the extent that the jurors formed opinions as to Ford’s credibility by observing his demeanor on the stand and his spontaneous reactions in the courtroom, they acted properly. Such observations and the rational inferences drawn therefrom are not prejudicial. See State v. Porter, 241 Conn. 57, 120 (1997) (“forming impressions and intuitions regarding witnesses is the quintessential jury function”), cert. denied, 523 U.S. 1058, (1998).

The court, however, has applied the rationale of permitting unmasked out-of-court testimony to cases of sexual abuse of minors and only on the rationale that the State has a compelling interest in protecting child victims and encouraging their participation in the criminal justice system. Even then, it is a determination to be made on a case-by-case basis. The New Hampshire Supreme Court in Hernandez seems to buy into a similar compelling need to protect the identity of undercover officers, but in my opinion, at the grave expense of the Confrontation Right. That court relies on Coy v. Iowa and Maryland v. Craig and crafts another case-by-case test for permitting witnesses to testify in disguise. But Coy dealt specifically with the defendant’s absence from the presence of the accuser and again in a child-sex case. The Supreme Court in Craig did hold that the right to face-to-face confrontation was not indispensable and that the requirements of the Confrontation Clause:

may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.

In doing so, according to the NH Supreme Court, the Craig court focused on four factors:

(1) physical presence; (2) oath; (3) cross-examination; and (4) observation of demeanor by the court, defendant and trier of fact.

In holding that permitting the police officer to testify in disguise constituted harmless error in this case, but may be permitted in other cases, the NH court seems to explicitly ignore (4) above. Who knows if the detective is smirking under that ski-mask, knowing that he’s lying through his teeth and the jury is unable to observe that. Again, it is important to note that Craig again dealt with the physical presence of a defendant and the impact and trauma that might have on a child victim. None of these cases speak to permitting a witness to testify, in court, with his or her face hidden.

Given my reading of Jarzbek, Coy and Craig, I think the Connecticut Supreme Court would be hard pressed to agree with New Hampshire’s august tribunal, but I’m usually wrong when it comes to things like this.

Two side notes: The newspaper story covering the NH decision includes the usual quotes from law enforcement about how the primary focus should be the safety of the officers, not the Constitutional rights of an accused. So make sure you read it if you want to get all indignant.

Second, the dissent by Scalia in Craig is certainly worth the time it would take to read it. Here’s a sampling:

According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” Ante, at 849-850. That is rather like saying “we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment’s guarantee of the right to jury trial.” The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated “face-to-face confrontation”) becomes only one of many “elements of confrontation.” Ante, at 846. The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for — “face-to-face” confrontation—but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for — “face-to-face” confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was “face-to-face” confrontation. Whatever else it may mean in addition, the defendant’s constitutional right “to be confronted with the witnesses against him” means, always and everywhere, at least what it explicitly says: the “`right to meet face to face all those who appear and give evidence at trial.’”

Sometimes, he’s so good that it hurts.

how did I end up back here?

One interesting piece of information in this OJ Simpson brouhaha is the revelation that he may have rejected a plea offer for a sentence as low as 3 years. The first word came from a friend of The Juice and it was later confirmed by his lawyer.

Sanders, in the post title, refers to a CT Superior Court decision: Sanders v. Warden¹. Obviously, OJ wouldn’t get the benefit of this particular case, because, as much as Mohegan Sun wants it to be, this is not Vegas. The principle Sanders stands for is borrowed from a 1996 Second Circuit decision: Boria v. Keane.

The essence is this: A lawyer must meaningfully convey a plea offer to the client and must explain the consequences and ramifications of taking the offer and rejecting it.

Plain English: Make absolutely damn sure that your client knows every reason for and against taking the offer. Double check it. Triple check it. Write him a letter and then another. Try talking to him at night. Talk to him in the morning. Leave absolutely no doubt in your mind that the client fully understands the consequences of rejecting an offer.

In both Sanders and Boria, the Courts ordered that the defendant be permitted to accept the previously rejected plea offer because, in both cases, the offers were not meaningfully explained. [All right, so in Boria the Court ordered him released because accepting the prior offer wouldn't have meant squat.]

The Court in Boria explored the underpinnings of this principle:

The decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in any criminal case. This decision must ultimately be left to the client’s wishes. Counsel cannot plead a client guilty, or not guilty, against the client’s will. But counsel may and must give the client the benefit of counsel’s professional advice on this crucial decision.

Quoting Anthony G. Amsterdam, in Trial Manual 5 for the Defense of Criminal  (1988)§ 201 at 339. Indeed, SCOTUS has said something similar:

Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist. Such a duty is imposed for the salutary reason that ‘prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.’

Von Moltke v. Gillies, 332 U.S. 708, 721 (1948). That counsel is you.

This is prudent for several reasons. First, it is your duty to do so. Your primary and only responsibility is to the client and the client’s interests. Explaining thoroughly the consequences of rejecting an offer will reassure you and the client that the decision the client is making is a voluntary, informed one. Let’s be honest, any pre-trial offer will usually be significantly lower than any sentence imposed after trial. Frankly, why would you want it any other way?

This also ensures that your client receives the Constitutionally mandated effective assistance of counsel and doesn’t end up doing something stupid, like going to trial when he had no business to do so, just because you believed your duty was not to tell the client what to do.

You’re correct. It isn’t your job to tell the client what to do. It is your job (and mine) to give the client all the tools the client needs in order to make a very informed decision. Clients sometimes labor under the misimpression that they are innocent or that the State doesn’t have enough to convict them. It is our job to explain the State’s evidence in realistic terms, not idealistic terms:

“Sure, it would be nice if the State could produce Witness F, but they don’t need Witness F.”

“Juries don’t like to see these types of crimes, or someone with your record.”

“The only way to defend this is for you to testify, and frankly my dear, you’ll do that over my lifeless carcass.”

Don’t half-ass it. Explain to the client everything you’d be considering if it was you making that decision.

So what about OJ?

The fallen idol’s pal Thomas Scotto said prosecutors made the offer in the last stages of his trial for armed robbery.

But Scotto added: “OJ and his sister told me the prosecution offered him a deal but he and his lawyers turned it down.”

Scotto said that Simpson had been adamant he would not serve time and made that point clear to his lawyers.

He added: “He may have given it more serious consideration if he’d known what was coming.”

The offers were confirmed by Simpson’s lawyer Yale Galanter.

He said: “There were ongoing discussions throughout the case but nothing came of them.

“If he’d known what was coming” may mean several things. It may mean “in hindsight” or it may mean “if he’d been told how realistic it was that he’d be convicted”. Really, how many of you thought he was walking out of that courtroom without a single conviction?

This is one of the things I’m confident that most of you don’t do. I’m still writing about it because it interests me and because I’ve heard stories. Oh yeah. I’ve heard things.

Some clients have odd notions of justice and what is right and wrong in their case. It is our job to bring them back to Earth.

[Please don't misconstrue this post as advocating coercing the client to plead. That's just dumb.]

1. 2003 Conn. Super. LEXIS 174

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:

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.

The State attempts to use the transcription of the tape of that conversation as evidence against the defendant. Clearly, the co-conspirator had no idea that he was talking to someone acting for law enforcement or that his words would be used at trial. The question, though, is whether the informant’s questions testimonial under Crawford and thus inadmissible?

The CT Supreme Court recently faced this question in State v. Smith [pdf]. The Court notes:

In the present case, we view Williams’ recorded statements as falling into three separate categories: (1) nonassertive vocalizations, e.g., ‘‘mm-hmm’’ or ‘‘yeah’’; (2) questions Williams directly posed to Estrella about the crime; and (3) statements Williams made that directly implicated Estrella or the defendant in the  commission of the crime.

The Court is quick to decide that the first category is non-testimonial. Deciding whether those that fall into the second category is a matter of context, the Court writes. Despite some leading questions, the Court finds that most of those questions about the crime were to provide context to other questions and were not assertions of fact.

In addressing the final category, the Court finds that the informant was clearly aware that this entire conversation was being taped with an eye to a prosecution. In fact, it was the informant who approached the authorities to obtain favor in his cases. The Court does not hesitate in finding those statements testimonial and since the informant was unavailable at trial, a violation of his Confrontation Clause right.

The defendant still lost on appeal, however, due to our good friend Harmless Error. The Court finds that the informants assertive statements were merely cumulative.

Still, it’s a good start and something to keep in mind in future cases. Where the transcript of any such conversation between the defendant and an informant is dominated by the informant, the CT Supreme Court can be fairly said to have ruled that those statements are testimonial.

That’s pretty close to the scenario that unfolded in U.S. v. Figueroa, in which the Second Circuit recently ruled that it was an abuse of discretion for the trial court to bar such cross-examination.

Judge Sack writing for a panel of the Second decided:

Inasmuch as the tattoos suggested that Wright harbored animus against racial or ethic minority groups and their members, they were relevant to and probative of Wright’s credibility, bias and a motive to lie when testifying against Figueroa

…

The fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, therefore would tend to suggest that he or she holds racial, religious or ethnic prejudices. That in turn suggests a basis on which the jury could find the witness’s testimony not credible.

It makes sense. The point of questioning the witnesses affiliation with any white supremacist groups is precisely to determine whether he had any motivation for fabricating his testimony. A lot of people who sport swastika tattoos make no bones (hah) about the fact that they consider themselves racially superior to others. And when you harbor such deep bias against another person on the basis of their skin color, it is a fair question whether that in of itself is sufficient to render the testimony incredible.

So why is there not a more excited tone in this post? Because the Second Circuit eventually ruled that it was harmless error. D’oh!

[The swastika, incidentally, has a long history that is not all Nazi-related. In some cultures, it is a revered symbol, which signifies good, as opposed to evil.]

photo credit: Mez Love

The report examines guidelines across the nation and determines that there is no one consistent standard for determining eligibility. People who really should get counsel don’t and people who shouldn’t, do. SCOTUS has never defined what the eligibility standards should be, so States have been free to set their own. I know CT follows the Federal Poverty Guidelines, but other states do not. Some states disqualify defendants if they own a home or a car. Given the cost of private counsel, it may not be feasible for even people with “equity” to hire their own attorneys. This results in them either hiring bad lawyers or representing themselves and taking bad deals.

The report makes several recommendations and offers guidelines for eligibility determination:

• Screen people seeking the appointment of counsel to ensure that they are financially eligible.
• Apply screening criteria and processes uniformly, and commit them to writing.
• Ensure that screening is performed by someone who does not have a conflict of interest.
• Ensure that counsel is provided to those unable to afford it.
• Streamline screening to speed up the process and save money.
• Ensure that required procedural protections are in place.

The third recommendation above is the product of some interesting findings. For example, in some jurisdictions, prosecutors make the initial eligibility determination. (!) In other jurisdictions, they can challenge a determination of eligibility.

The report also suggests that it is unethical for the public defender’s office itself to make eligibility determinations, because it creates a conflict of interest.

Defenders’ personal interests come into play in several ways when they are asked to screen their own clients. For example, in order to provide adequate representation to their clients, public defenders must maintain manageable caseloads. For salaried defenders, and defenders with a contract to represent all defendants in a given geographic area, this may create an incentive to conclude that potential clients are ineligible for representation. Thus, an assistant public defender in Schuyler County, New York, told investigators from the NAACP Legal Defense and Education Fund “that he uses eligibility requirements to limit the number of clients he will represent.” Defenders may also have an incentive to reject cases that are time-intensive, controversial, or undesirable in some other way. The Schuyler County defender exemplifies this risk, too – he reported “telling eligible defendants that if they are willing to work out a deal with the DA that day, he will represent them.”

This is interesting and I’m not sure I agree. In CT, usually it is the investigator from the public defender’s office who does the intake and determines eligibility. This job is also charged to the public defender’s office by statute. I’ll have to give this conflict angle more thought.

The report does recommend, however, that if public defenders are making eligibility determinations, such determination not be made by the attorney who will represent the client.

Overall, I think these are good recommendations and my experience in CT has been that we err on the side of caution and try to represent as many clients as possible. It’s not like this will get any easier. According to a new report, prosecutions are up.

What’s your experience in other states?

A judge in Miami ruled today that the public defender system is so overburdened and crushed by caseload that they can stop accepting some cases until the situation improves.

Circuit Judge Stanford Blake found that Public Defender Bennett Brummer’s office has absorbed 12.6 percent in budget cuts over the last two years, while its criminal caseload has rocketed by 29 percent since 2004.

“The evidence shows that the number of active cases is so high that the assistant public defenders are, at best, providing minimal competent representation to the accused,” Blake wrote.

“While the court is concerned that there not be chaos in the criminal justice system, the court must also serve as the protector of due process and meaningful representation of the accused,” the judge added.

Starting mid-September, around 2000 cases a month will have to be shipped out to private counsel, because public defenders are unable to handle them.

The state (and state’s attorneys) of course hates being told what to do:

“This is a political matter that should have stayed in the political system,” Rundle said. “No one should create a constitutional crisis that jeopardizes the integrity of our criminal justice system.”

Maybe the funding of public defender systems is a political matter, but the representation of over 2000 defendants a month is certainly not. It is a legal and constitutional issue and every defendant should receive competent representation. If the political system that this prosecutor seems so fond of actually contributes to the situation that has resulted, then why should fixing this problem be left up to them? It’s like saying sentencing should be left up to defendants.

There was nowhere else for the public defenders to turn. The Court stepped in and did what it had to and what it should have.

Scoplaw, one of those hard-working public defenders in Miami, weighs in.

With almost 13% of all households in the US falling below the federal poverty line (and 20% earning less than $20K a year), the number of indigent defendants is astronomical. Connecticut public defenders alone were appointed to over 80,000 cases in ‘06-’07 (and that’s not including appeals and habeas corpus cases). Our public defenders represented over 75% of the caseload of Part A courts and roughly half the caseload of Part B courts.

That’s a lot of work and a lot of individuals who’d go without counsel if the Supreme Court were to roll back Gideon, as some have suggested in the last week.

The anti-appointed counsel position is one that I’ve never understood. And I don’t say this as a public defender, but rather as a lawyer and a citizen.  There is no logical reason for not having appointed counsel in a criminal justice system where almost everything is a crime with harsh penalties (or any other adversarial system, for that matter).

What would these anti-Gideonites have happen? That only the rich can afford counsel and the rest get railroaded? That the State have to put on its case with minimal – and often counterproductive – defense? That individuals who have no knowledge of laws, and often little education, have the responsibility of wading through intricate legislation in order to defend themselves? Imagine telling poor people that they have to diagnose themselves and perform surgery on themselves.

The result of any such ruling would be devastating. As if there aren’t enough cries already that the system is heavily prejudiced against minorities and the poor. As if there isn’t a perception already that you can buy justice. Imagine the resultant impact on the moral and social fabric of the country if the Court were to all of a sudden decide that the poor man (read: in most cases the minority) would now have to match up to the awesome power of the State all by himself. Nothing short of revolt, I tell you.

And such anti-appointed counsel positions have no basis in reality or the text of the Constitution. SCOTUS had already construed the Sixth Amendment to mean that the Federal government must provide counsel to indigent defendants, in Johnson v. Zerbst. The essence of this right is well-summed up by Justice Sutherland in Powell v. Alabama (which preceeded Betts):

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

Justice Clark, concurring in Gideon:

That the Sixth Amendment requires appointment of counsel in “all criminal prosecutions” is clear, both from the language of the Amendment and from this Court’s interpretation. See Johnson v. Zerbst, 304 U.S. 458 (1938). It is equally clear from the above cases, all decided after Betts v. Brady, 316 U.S. 455 (1942), that the Fourteenth Amendment requires such appointment in all prosecutions for capital crimes. The Court’s decision today, then, does no more than erase a distinction which has no basis in logic and an increasingly eroded basis in authority.

To end this post, I’ve uploaded the audio of the oral argument in Gideon v. Wainwright, which you can listen to after the fold below. Be warned, though, that oral argument lasted for over 3 hours!