sixth amendment
SCOTUS in giving mood; grants another capital habeas
Jun 20th
SCOTUS today granted Rompilla v. Beard [majority opinion] by a 5-4 vote, holding that that even when a capital defendant’s family members and the defendant
himself have suggested that no mitigating evidence is available,
defendant’s counsel is still bound to make reasonable efforts to obtain
and review material that counsel knows the prosecution will probably
rely on as evidence of aggravation at the sentencing phase of trial. The Court granted the petition finding both prongs of Strickland had been met. Writing for the majority, Justice Souter explains:
Counsel knew that the Commonwealth intended to seek the death penalty by proving
Rompilla had a significant history of felony convictions
indicating the use or threat of violence, an aggravator under state law.Counsel further knew that the Commonwealth would attempt to establish this history by proving RompillaÂ’s prior conviction for rape and assault, and would emphasize his violent character by introducing
a transcript of the rape victimÂ’s testimony given in that earlier trial. There is no question that
defense counsel were on notice, since they acknowledge
that a “plea letter,” written by one of them four days prior
to trial, mentioned the prosecutorÂ’s plans.It is also
undisputed that the prior conviction file was a public document, readily available for the asking at the very courthouse where Rompilla was to be tried. It is clear, however, that defense counsel did not look at
any part of that file, including the transcript, until warned by the prosecution a second time.
On the performance prong, the Court concludes:
Without making
reasonable efforts to review the file, defense counsel could
have had no hope of knowing whether the prosecution was
quoting selectively from the transcript, or whether there
were circumstances extenuating the behavior described by
the victim. The obligation to get the file was particularly
pressing here owing to the similarity of the violent prior
offense to the crime charged and Rompillas sentencing
strategy stressing residual doubt. Without making efforts
to learn the details and rebut the relevance of the earlier
crime, a convincing argument for residual doubt was certainly beyond any hope.
The prejudice prong wasn’t seriously contested by the State of PA and the Habeas was granted. SCOTUSblog has detailed analysis and commentary. An AP story here.
Florida PD seeks to end “meet, greet and plead”
Jun 6th
David Feige reports that Florida’s Chief P.D. is seeking to end [registration might be required] the "meet, greet and plead" system, whereby defendants routinely plead guilty at their arraignment.
In January, [Chief P.D.] Finkelstein told his staff to contact
any defendants who haven’t gotten out of jail within 48 hours. He also
created an early representation unit, and staffed it with three lawyers
and four interviewers."In the past, we did nothing until the time of
arraignment, and that’s 4 1/2 to six weeks after arrest," Finkelstein
said. In that time, perishable evidence can be lost, witnesses can
disappear and lives can fall apart. "You can lose your job, your
apartment, even your family," he noted.The second part of Finkelstein’s initiative
is to end the practice at arraignment of "meet, greet and plead."
Typically, those deals help defendants get out of jail immediately but
stain them with a felony conviction and set them up for consequences if
they have future encounters with law enforcement.
To those of us practising in the Northeast, this seems rather odd. Most clients are arraigned within 48 hours of arrest and meet with their attorneys soon thereafter. One would not dream of pleading a client guilty at arraignment (unless it involved something like community service – and even then…).
A brief history of "meet, greet and plead":
Pleas at arraignment began to occur about 20 years ago in Broward in
response to jail overcrowding and federal court mandates to reduce the
number of inmates, said Chief Assistant Broward Public Defender Bob
Wills. "What started as a system issue has snowballed into a case
management issue," he said. "It shouldn’t be that way."But the desire of judges to move cases
expeditiously is now at odds with the Sixth Amendment right to the
effective assistance of counsel. The first rule of the American Bar
Association’s model rules of professional conduct says "competent
representation" requires "the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation."
There is some reaction from Judges and prosecutors, but you’ll be surprised:
[O]ne Broward criminal court judge acknowledged that
judges are concerned about the new policy. "Judges may be upset that
their dockets will be clogged by cases that would otherwise be resolved
at arraignment," said the judge, who did not want to be identified.
"Everyone is concerned about their case numbers."The judge also warned that the move could hurt
Finkelstein’s clients. "Prosecutors may say we aren’t offering pleas at
arraignment anymore," the judge said. "The people that would penalize
are the clients. The best plea you get is at arraignment."
The best plea you get is at arraignment? What? Is this how they’ve been representing clients for the past 20 years? This makes absolutely no sense. How can you get your best plea at arraignment, when you have no bargaining chips – no knowledge of the case whatsoever – in fact, I’d be willing to bet, with almost no contact with the client him/herself!
What do the prosecutors think?:
Broward County State Attorney Michael Satz is
backing Finkelstein. "We’re supportive of anything that makes the
criminal justice system better," said Satz spokesman Ron Ishoy. "The
new public defender has identified a problem on the defense side and
has set out to fix it. We’ll do our part to help make it work."
Aah! See, I told you. Well, we must applaud Finkelstein for taking the right step towards effective assistance of counsel. Were this CT, I’d be under a flood of habeas claims.
How much does a lawyer cost?
Jun 6th
Mister D.A. has this excellent, excellent post on what a lawyer would normally cost and whether the average middle-class defendant could afford one. He goes into great depth constructing a hypothetical, with average salaries and lawyer’s fees:
Looking at it dispassionately, if Danny wants to go to trial, he
probably should not waive the probable cause hearing (who knows, he
might get lucky and the magistrate will ash can the case) and will
probably need two or three pre-trial motions to try and get rid of his
statements and limit the testimony of Bernard and any other witnesses
from the club. Figure pre-trial practice, including a half-day on the
PC hearing (not that it will take that long, but’s that how long you’ll
have to be in court, waiting) and another half-day (if you’re lucky) on
the motions, the time to prepare the motions, the time spent talking to
the prosecutor, the time spent reading police reports and witness
statements, client hand holding at $125 an hour, you’re likely looking
at $1,000-$1,500 just to get to the day before trial. And that’s if
you’re happy with the police investigation and the local courts’
dockets aren’t too messy.As for the trial itself – many attorneys cap
their daily fees at some set multiple of their hourly rate. Let’s
assume Danny’s prospective attorneys all cap trial days at $600 a day
or any portion thereof. This is probably a three day trial from voir
dire to the return of the jury’s verdict. $1,800 bucks there. Let’s
call the attorney fees $3,000 at this point. That’ll probably cover any
post trial stuff if there is a conviction. Now, let’s take a wild guess
at filing fees (if you retain counsel, most places require the same
fees for court filings as in a civil case), transcripts of any
hearings, especially the PC hearing, copying costs, paralegal costs. .
. heck, let’s just call it another $1,000 and say $4,000 as a ballpark.[Add another $1000 for a polygraph and w]e’re up to $5,000 without really trying. So that’s the retainer Danny has to come up with. $5,000. Can he do it?
He then analyzes standard middle-class incomes and cost of living and determines that
Danny and Gina do not have $5,000 to give an attorney. $5,000 is the
amount of money this couple would scrimp and save and sacrifice to
accumulate as a down payment on a house. Or to buy a decent used car.This is where the idea that the State should shoulder some of the
burden of defending people charged with criminal offenses comes from.
A fascinating read and a great follow-up to the recent coversations regarding the right to appointed counsel and who should pay for indigent defense.
Should we shorten criminal trials? The UK seems to think so.
Jun 5th
Have opinion, will travel asks if we should put the 6th Amendment up for bid. He talks of a story from England that the Lord Chancellor is cutting down criminal trials in order to save costs.
By having an agreed statement of facts, he explained, lengthy fraud
trials could be made much shorter. If cases over-ran, lawyers – rather
than taxpayers – would absorb the extra costs.
So the question is: would this work in the U.S.?
A couple of things jump to mind – one is that the state has to prove every element beyond a reasonable doubt. If parties in a criminal trial were to stipulate to certain facts, that would eat into that hallowed principle. It then leads into issues of due process and equal protection that I’m just not willing to discuss on a Sunday.
The other thing that pops into mind is that if the lawyers are going to be forced to pick up the tab for lengthy trials, there will be greater incentive to pressure their clients into taking deals that might not be favorable. The state would have the incentive to be hard-lined about their offers and defense attorneys, knowing that they’d have to pony up money, would perhaps not go all the way.
It must be noted that it seems that in England, trials last far longer than they do here, so perhaps the motivation might not be as strong in the U.S. A standard trial here could last anywhere from one day to three weeks. You’d be hard-pressed to find a trial that goes on for over a year. The percentage of cases going to trial is also minute as compared to cases that end up in pleas.
Also, Ken explores the question of indigent defense by contract.
Thoughts?
6th, 14th and right to appointed counsel
May 31st
The debate continues. So that you don’t have to click on various links, I’ll reproduce the gist of the debate. After my previous post, Seth commented as follows:
Your reading of the U.S. Constitution seems to imply that the purpose of the Sixth Amendment was to prevent the government from barring attorneys from trials; do you have any textual evidence to support the notion that that
was the fear of the Founding Fathers in 1789? Isn’t the more likely
interpretation of the Sixth Amendment that "right" means "right," as it
does in every other place in the U.S. Constitution? Was the application
of Gideon v. Wainwright to the states judicial
activism, or among the most commonsensical
consistent-with-the-Constitution no-brainers in the history of the
common law? Frankly, I had assumed the latter until I saw your post,
but see nothing whatsoever in your post which would dissuade me from my
view.Finally, given your absolutely remarkable view of the Fourteenth Amendment, do you disagree with the foundational legal principle that (in paraphrase) "the protections of the U.S. Constitution establish the floor for all state constitutions"? By that indisputable principle, the Fourteenth Amendment had to provide state-level defendants with the protections of Gideon v. Wainwright, unless that case had been based on administrative law rather than the Sixth Amendment (which it wasn’t).
What
am I missing here? This seems like a somewhat frivilous dialogue,
frankly. Sure, the states can choose to set their own levels for
"indigence," but a case like Bearden v. Georgia or (in New Hampshire) State v. Fowlie
makes fairly clear that to the extent those administrative regulations
do not reasonably protect the rights of the indigent accused to get an
attorney–a pretty simple calculus, if you think of it: "Does Joe have
enough money to hire the least-expensive criminal defense attorney
available, or not?"–I’m not sure this residual, rather esoteric
question makes this issue anything like a barn-burner.
Tom responds,
Seth: in reference to the purpose of the 6th amendment, and why it was
not until the activist Warren court that it was found to mandate
state-paid attorneys– Amazing as it may seem to us, at common law
there was not even a right to have an attorney if you wanted one, even
in capital cases!Thus, the purpose of the 6th was to guarantee counsel, not to mandate that it be provided by the state. Again,
if it’s a good idea to have the state provide counsel for the indigent,
the decision should be made by the people, not interpreted into the
constitution where it does not exist.As I mentioned before,
even the Warren court knew they could not honestly claim to "find" a
right to state-funded defense attorneys in the 6th amendment. Hence
their use of the 14th, which, just like the 6th, was not intended to be
a blank slate for 5 justices to write their policy preferences on to.As to the 14th, suffice to say, if "incorporation" was intended, it took a long time for the Supremes to figure it out
While I will have to agree superficially with Tom that the words "the state shall provide counsel for indigent defendants" are nowhere explicitly mentioned, I have to agree with Seth that this can be the only reading. While it may be true that there is no legal precedent prior to 1932, that does not mean the preceeding Courts were correct. The following is taking from a publication on the Dept. of State’s Website entitled "Rights of the People – Individual Freedom and the Bill of Rights" – Chapter 8 "Rights of the Accused":
We normally think of a trial by jury as one of the individual rights afforded to persons accused of a crime. It
is also, as we have seen, a right that is institutional as well — one
that belongs to the people as a whole as well as to the individual. But
jury trials, as has been all too evident in dictatorships, can be
meaningless unless that trial is governed by rules that ensure fairness
to the individual.A trial in which the judge allows illegally seized
evidence to be used, or in which the defendant has no access to an
attorney, is forced to testify against himself, or is denied the
ability to bring witnesses favorable to his cause, is not a trial that
meets the standard of due process of law. The men who drafted the Bill
of Rights knew this, not only from their experience during the Colonial
era, but also from the history of Great Britain, which ever since the
signing of the Magna Carta in 1215 had been committed to expanding the
rule of law.
Now, admittedly, it does not refer to "indigent defendants", but honestly – if it is described as a right, can it be understood to refer to rich people only and not poor people? (Note: I also recognize that this publication is no tome, but still – it’s published by the Dept. of State.) I think not (or rather, I hope not).
Does the US Constitution require appointed counsel for indigent defendants?
May 27th
In the comments to this post, Tom McKenna submits that the Sixth Amendment does not require mandatory appointment of counsel for indigent defendants.
That "right" had to be invented by the Court by using that famous
refuge of activist judges, the 14th Amendment, which (unbeknownst to
its framers, who thought they were simply guaranteeing that whatever
procedures protected white citizens at law must also protect black
citizens) guarantees due process of law to state citizens. The 14th of
course has been used to "find" all kinds of hitherto unknown rights,
such as "privacy" (contraception/abortion) and sexual expression (sodomy
at least)
He then goes on to explain
the states can choose to vindicate this "right" by providing for
indigent defense in their own constitutions or statutes. It defies
common sense however, to suggest that the sixth amendment mandates
something that apparently no one (least of all its framers) imagined it
mandated until 1963.The framers meant what they said and no
more… that you have a right to counsel and cannot be tried and
convicted if you want to have an attorney; the court cannot deny you
counsel. That is different than saying the court must provide you
counsel. Even the Supremes realized they could not twist the 6th
amendment to include an affirmative duty to provide counsel, so they
had to turn the last refuge of judicial scoundrels, "substantive due
process" under the 14th.
I am no Constitutional Law expert, so bear with me while I do an analysis of Gideon and the cases it relies on.
First, I think one must admit that the Constitution (via the 6th Amd.) does require appointment of counsel in Federal Court. This was held in Johnson v. Zerbst, 304 U.S. 458 (1938). The plain text also leads to this conclusion:
In all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for his defense.
Mr. Justice Clark writes, 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).
Having established that, let us turn to whether the 14th Amendment requires it. Obviously, there is no language in the 14th Amd. that says "the states shall provide counsel to all defendants in criminal prosecutions who cannot afford to hire their own". But to use that to state that the "right" (and I put it in quotes sarcastically) was invented might be incorrect. A plain reading of the 14th Amendment makes it clear that there are very few specifically enumerated rights:
No State shall make
or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
So essentially, the 14th talks specifically about due process and equal protection. It also imposes these requirements on the various States. The Supreme Court initially considered this, not in ’62 in Gideon, but in 42 in Betts v. Brady. The Court stated that,
while the Sixth Amendment laid down "no rule for
the conduct of the States, the question recurs whether the constraint
laid by the Amendment upon the national courts expresses a rule so
fundamental and essential to a fair trial, and so, to due process of
law, that it is made obligatory upon the States by the Fourteenth
Amendment."
So it was certainly being considered. The Betts court refused to accept the contention that the Sixth Amendment’s guarantee
of counsel for indigent federal defendants was extended to or, in the
words of that Court, "made obligatory upon the States by the Fourteenth
Amendment." The Gideon court concluded
Plainly, had the Court concluded that appointment of counsel for an
indigent criminal defendant was "a fundamental right, essential to a
fair trial." it would have held that the Fourteenth Amendment requires
appointment of counsel in a state court, just as the Sixth Amendment
requires in a federal court.
So it wasn’t that this specific right wasn’t provided for in the 14th, but rather that this right wasn’t a "fundamental" right, rights which are provided for in the 14th. The Gideon court concluded it’s analysis by stating:
We accept Betts v. Brady’s assumption, based as it was on our prior
cases, that a provision of the Bill of Rights which is "fundamental and
essential to a fair trial" is made obligatory upon the States by the
Fourteenth Amendment. We think the Court in Betts was wrong, however,
in concluding that the Sixth Amendment’s guarantee of counsel is not
one of these fundamental rights.
In concluding this, the Court relied on Powell v. Alabama, decided 10 years before Betts.
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. Similarly, there are few
defendants charged with crime, few indeed, who fail to hire the best
lawyers they can get to prepare and present their defenses. That
government hires lawyers to prosecute and defendants who have the money
hire lawyers to defend are the strongest indications of the widespread
belief that lawyers in criminal courts are necessities, not luxuries.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.
Knowing the jurisprudence of the Constitution, one cannot reasonably conclude that while it mandated certain protections be afforded citizens from Federal Governmental action, it affirmatively declined to extend those same protections against actions by an individual state.
I would love to hear your views on this topic, including things I might have missed.
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