- Anthony Lewis, author of much more than Gideon’s Trumpet passed away one week after the 50th anniversary of Gideon v. Wainwright. Read this piece by Andrew Cohen at The Atlantic first; also here‘s a nice piece by the ACS; NPR; Boston Globe; The Daily Beast; Washington Post; The Atlantic. His song has ended; will his music live on?
- Yet another prisoner education program, this one by Cornell University, reaps dividends.
- Unsurprisingly, Congress’ plan to “fix” the Computer Fraud and Abuse Act actually makes it much, much worse. Also see Kerr at Volokh.
- Miami Beach ordered to pay man $100,000 because he was arrested by a copy for dressing poorly in a very rich neighborhood.
- Prosecutor makes paralegal pretend to be student taking survey at office of defense lawyer to..I don’t know what, but it was a stupid idea anyway.
We put a lot of trust in juries. We pluck every day people, with varying backgrounds and varying life experiences and education levels and skills and throw them into a courtroom where were bombard them with “evidence” and legal arguments and ask them to sift through it all and determine the “truth”, all without giving them any training or a dry run.
And then we trust in their decision, no matter how absurd or inconsistent or strange it is. And that trust – that finality – in their decision is revered, put on a pedestal and those that dare to approach it or question it are roughed up at the pointy end of a bayonet.
But sometimes things happen that made you think: do they really know what they’re doing? Are their decisions really worthy of this level of reverence? (Spoiler: the answer is yes and no.)
As I’ve said before, I’d love to know what a jury is thinking while they’re deliberating and even after they’ve deliberated. I want to have a dialogue with them, to explain why they were wrong or see what I didn’t see. But we never get that chance. We never know if the jurors went home secure in their decision, or if they had a doubt but weren’t sure if it was a reasonable doubt, because who the hell knows what that means. Given the chance, would they undo what they did?
A jury in Los Angeles seemed to want to do just that, yesterday. In an absolutely remarkable turn of events in the “Bell 6″ trial (they’re city council members on trial for embezzling or some nonsense; that’s not important). They’d been charged with several counts and as best as I can understand it, the jury reached verdicts on some of those charges on Wednesday. There were some guilty verdicts and some not guilty.
Then came Thursday. And with Thursday – and the resumption of deliberations – came this note from a juror:
“Your honor after you asked us yesterday to go back into the deliberation room, I had time to think until now,” the note began.
“I have been debating in my own mind that due to the pressure and stress of the deliberation process, the jury may have given an improper verdict of guilty on the Solid Waste Authority,” the juror wrote to Superior Court Judge Kathleen Kennedy. “It is better to be certain beyond a reasonable doubt to give a verdict of guilty than send someone innocent to prosecution. If possible, I request to remain anonymous.”
That’s absolutely stunning. There are anecdotes of jurors changing their mind when they’re polled during the verdict (and there’s even this tale of a defense attorney polling a jury that acquitted and having a juror reverse their position), but for a juror to send a note to the judge saying he/she wanted to change their vote? I haven’t heard of anything like it.
But wait, there’s more:
It was not clear if the note was from a different juror than No. 7, who sent a similar note on Wednesday. Defense attorney Alex Kessel asked to find out who the juror was and demanded further inquiry. “Are we dealing with multiple jurors who believe there is possible pressure going on?” he asked.
In another note, Juror No. 10 said that she believes the jury is “getting away from your instructions” and possibly misunderstanding a law on “several levels.” Defense attorney Stanley Friedman, who represents Hernandez, said the comments raised the possibility of jury misconduct.
The defense attorneys, of course, wanted to question the jurors, but Judge Kathleen Kennedy refused the request. Because of that finality thing and the verdicts were in and recorded. She did grant, however, that “It seems all hell has broken loose in the jury deliberation room.” No prizes for understatement of the day. (See also.)
Yes, this certainly gives fertile grounds for appeal, but isn’t it just a bit damn unfair to let these verdicts stand when at least one juror has explicitly said that they are unsure that they rendered the right verdict?
Isn’t that, in essence, doubt? Yet here we have this arbitrary cut-off that since the verdict has been accepted, it’s out of the trial judge’s hands? What’s the difference between investigating now and waiting for a motion for new trial 3 months down the road? When time has passed, wouldn’t it be less shocking and troubling to the juror?
This also highlights the fact that as practicing lawyers, we need to make things as simple and clear to the jury as possible. More than that, taking a page from capital defense work, we need to arm jurors to stand their ground and make them realize that their vote is an individual vote and that they can and should remain firm and, most importantly, that hung juries are a legal verdict and an acceptable outcome in a case.
The alternative is this:
Image via. License details there.
You know I love Gideon and indigent defense and the problems of funding. But what happens when the budget cuts affect the other side? This just in: I don’t care as much and actually find it amusing. In Detroit Wayne County, Michigan, the county executive (whatever the hell that is) is having a fight with the county prosecutor because the former has laid off 22 prosecutors.
So their response in the administration of justice? Just don’t show up.
Worthy [Wayne County prosecutor], who had 26 of her employees — including 22 lawyers — laid off last week, told the Free Press Monday that she now doesn’t [have] enough people to cover all the cases and said she can’t fulfill her constitutional duties on the budget she’s been given.
She has said prosecutors will determine on a day-by-day basis whether they can cover the misdemeanor domestic-violence docket – cases that she said could turn into murders if they aren’t followed properly. Today, that docket included felonies, not misdemeanors.
So, umm, what exactly happens in these courts? ANARCHY! No, sorry, just kidding. The judge just dismisses some cases, the most noteworthy of which seemed to be a couple of DUIs.
Detroit’s 36th District Court Judge Ronald Giles said he dismissed about a half-dozen misdemeanor cases this morning including two drunk driving cases that were set for trial and an assault case because no attorney from the prosecutor’s office came to court.
Even after writing this post, I can’t get myself to care about this. It’s still amusing, though.
Calm down, the talky part of the day is over. Miranda (the original one) recommended I set up some polls to get to the truth of the matter. So here, I present 3 polls to you. Votes are anonymous. I don’t care who you are. This is informational only. Participate, feel like a community, make fun of others, I don’t care.
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):
- Oyez Project (listen to the oral argument).
- Gamso: An Obvious Truth
- Greenfield: The Silence of Gideon
- Bobby G. Frederick: Happy Birthday Gideon
- Windypundit: 1-800-LAW-REP-4
- NYT: Gideon’s Muted Trumpet
- The Guardian: Why it’s one law for the rich in America and McJustice for the rest
- Stephen B. Bright and Sia M. Sanneh: Fifty Years of Defiance and Resistance After Gideon v. Wainwright [PDF].
- Second Class Justice: 50 years after Supreme Court declares lawyers are constitutionally required, the right to counsel is violated every day in criminal courts
- Connecticut Law Tribune: Public Defender Resigns Over Lack Of Resources
- The Atlantic: How Americans Lost the Right to Counsel, 50 Years After ‘Gideon’.
- HuffPo: Is the right to counsel for criminal defendants a myth?
- NYT: The Right to Counsel: Badly Battered at 50.
- USA Today: You have the right to counsel. Or do you?
- The Atlantic: In Texas, From a Chief Justice, Welcome Candor About Unequal Justice
- ABA Journal: Fifty years after Gideon, lawyers still struggle to provide counsel to the indigent
- NYT: Right to Lawyer Can Be Empty Promise for Poor
- Billings Gazette: 50 years after Gideon, public defense promise unfulfilled
- Monterey Herald: Gideon’s promise: 50 years after landmark case, public defenders worry about their future
- Washington Post: Indigent clients suffer as public defenders struggle to keep up with caseloads
- The Atlantic: Eric Holder: A ‘State of Crisis’ for the Right to Counsel
- Atlanta Journal-Constitution: Landmark Gideon ruling marks 50th anniversary
- CNN: ‘Gideon’ at 50 and the right to counsel: Their words
- U.S. News: A ‘nobody’s’ legacy: How a semi-literate ex-con changed the legal system
- Vanita Gupta and Ezekiel Edwards (ACLU): Too Many Still Wait to Hear Gideon’s Trumpet
- Colorlines: On ‘Gideon’s’ 50th, a Crisis in Public Defense Deepens Racial Inequality
- The Tennessean: Leonard Pitts: ‘Gideon’s’ promise still unfulfilled
- National Law Journal: Gideon’s promise still unfulfilled
- Karen Houppert in the Washington Post: Indigent clients suffer as public defenders struggle to keep up with caseloads
- Andrew Cohen (again) for the Brennan Center for Justice: The Lies We Tell Each Other About the Right To Counsel
- Milwaukee Journal Sentinel: Commemorating the right to counsel
- Duluth News Tribune: Our view: A good effort here could be improved
Image of Clarence Earl Gideon’s tombstone credit Diane L. Wilson/Associated Press taken from this NYT article.