Category Archives: sixth amendment

The other Michigan bailout

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Much has been written over the last two years or so about bailouts: bailouts of Wall Street, banks and of course the auto-industry, formerly of Detroit, Michigan. This blog has also focused on bailouts, but those of a different kind: the bailouts of public defender systems which are not forthcoming.

As I’ve mentioned before, we are approaching a tipping point in the fight against constitutionally inadequate public defender systems across the country. The ‘sphere has been atwitter over the news that 14 public defenders in Minnesota have filed a labor grievance over excessive caseloads.

Yet the internet has been oddly silent about a battle on another front  in nearby Michigan. In 2007, the ACLU of Michigan filed suit against three counties and sought to have their indigent defense systems declared unconstitutional and to have the state provide funding.

On April 14, 2010, the Michigan Supreme Court heard oral argument in an expedited appeal on the state’s motion to dismiss the lawsuit.You can view the oral argument here [and really, even if you ignore this entire post, make sure you watch the oral argument], and the briefs and other related documents are available here.

The oral argument, despite its premature stage, beautifully frames the core issues at play here: can defendants sue the State to ensure that they receive constitutionally adequate representation; whose duty is it to provide that representation; and just how difficult a task is it to prove that there is a systemic 6th Amendment failure?

[The oral argument is also noteworthy for other things, such as the Attorney General's complete butchering of Cronic and the conflation of the Strickland standard with the civil "injury" and of course, the proffer of the idea that any and all 6th Amendment violations can only be asserted after a conviction.]

The idea of a systemic failure, of course, is not difficult to grasp.  States that leave the funding to individual local counties are bound to have an indigent defense system that is arbitrary and inconsistent.

It must be the State’s obligation to provide effective assistance of counsel to all defendants at all stages of a criminal proceeding. That is the only way to ensure that Gideon’s mandate is fulfilled.

Whether this lawsuit will achieve that goal remains to be seen. I suspect, however, that the ACLU and those bringing suit have another motive in mind: to force the state to legislate more funding, as has been done in other states and is currently being done in others still.

It seems that the strategy may be paying off already, at least in Michigan.

Going back to what I wrote earlier, it doesn’t matter what the mechanism employed is, as long as states are forced to confront the reality that their public defender systems are woefully inadequate and that the first step to fixing them is greater funding.

The battle has begun, the war will be won.

Skakel loses the battle, but the war looms?

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In a mind bogglingly long opinion released earlier this week, CT’s Supreme Court upheld the denial of Kennedy cousin Michael Skakel‘s motion for new trial. There is a concurrence and a dissent as well.

The decision is long and I don’t care enough to dissect it. Except to state that despite the court shooting down all his claims, there is still hope for Skakel. And that rests entirely on the claim that Mickey Sherman, celebrity lawyer extraordinaire, rendered ineffective assistance of counsel.

Normally, our appellate courts are quick to shoot down future hypothetical claims of ineffective assistance. Not so in this case:

The trial court concluded that efforts to locate the three witnesses prior to and during trial did not satisfy due diligence. The court further  concluded that these witnesses could have been located using the same methods that ultimately were used after trial to locate them. Therefore, the  court concluded that the evidence was not newly discovered within the meaning of § 52-270. We agree.

It is highly significant that this evidence is  not newly discovered in the sense that the petitioner did not know of the existence of these witnesses prior to trial. Coleman had identified these  witnesses years before trial. Moreover, the petitioner should have known that Coleman’s testimony, if credited, could be a key piece of evidence in  the state’s case.

Sherman apparently concluded, however, that cross-examination of Coleman at trial would be sufficient to discredit him, as he  justified his lack of direction to Colucci about locating these witnesses by the fact that he ‘‘didn’t anticipate that . . . Coleman would be dead at the  [time of] trial . . . [and] believed that the jury would see [him].’’ Sherman had James’ contact information in the spring of 2002, but could not  ‘‘connect’’ with him. No effort was made to locate Simpson or Grubin prior to or during the trial. Therefore, we fully agree with the trial court’s  conclusion that Sherman had failed to exercise due diligence to locate the three witnesses.

and: Continue reading →

Equal justice for all

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...and Gideon cry

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. Continue reading →

Face-to-ski mask: a defendant’s right to confront his cat burglar

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Do you feel lucky?

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: Continue reading →

Might OJ Simpson have a Sanders claim?

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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. Continue reading →

Selection, naturally

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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: Continue reading →