Posts tagged right to counsel
Enforcing the right to effective assistance of counsel
Nov 12th
The big news of the weekend thus far, for me at least, has been the announcement by the NYCLU that it is filing suit in New York, alleging Constitutional violations by the State for its failure to provide adequate resources to public defenders.
From the press release:
“Every day, in courtrooms throughout the state, New Yorkers are denied justice simply because they are poor. Justice should not depend on your ZIP code or the size of your wallet,” said Donna Lieberman, executive director of the NYCLU. “We filed this lawsuit today as a last resort, in response to the constitutional deficiencies identified by a commission appointed by Chief Judge Kaye to evaluate our public defense system, and the failure of lawmakers to compel the state to repair what is clearly a broken and unjust system.”
The class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York.
It is extremely annoying that it has to come to this. New York could have, at the very least, learned from Connecticut. It was a CCLU and ACLU lawsuit in Connecticut – Rivera v. Rowland – that forced the legislature to increase funding by millions and double the number of positions in the system. The settlement of that lawsuit led to a wholesale revamping of the public defender’s system in CT, with better pay, more positions, more training, lower caseloads. This was in 1999. Now, almost 8 years later, New York is facing the same crisis.
It is great, on the other hand, because this will undoubtedly force New York to take action. New York is one of only 6 states remaining that have no statewide responsibility or oversight mechanism for public defense and remains among a minority of states, including Alabama and Mississippi, that have failed to join the movement toward full state funding.
Make no mistake: this is not a panacea. Caseloads will still be high, public defenders will still be understaffed, berated and maligned. However, they will be in a better position to fight those charges and the charges brought by the State against indigent defendants.
For more, read the ABA’s report entitled “Gideon’s Broken Promise” and The Spangenberg Group‘s report to NY’s Indigent Defense Commission.
Gideon? What Gideon? Sixth Amendment be damned
Aug 18th
A public defender in Ohio was held in contempt and jailed on Thursday for asserting Gideon‘s mandate. After being appointed on Wednesday to represent Jordan Scott, the public defender Brian Jones told the presiding judge that he could not start trial on Thursday because, well, he’d had less than 24 hours to prepare for trial.
Jones correctly stated that he could not possibly prepare for trial and present an adequate defense in 24 hours. The public defender’s office has a written policy that it will not try cases in which it has been appointed 24 hours prior to trial.
Portage County Municipal Court Judge John Plough ordered a Portage County Sheriff’s deputy to remove Jones from his courtroom in front of his client, spectators and courthouse employees.
When Jones brought up the existence of that policy in court Thursday, Plough told Jones it wasn’t the time for “speeches” and asked if Jones wanted to make an opening statement. As Jones continued to explain the situation, saying he had a “pre-trial matter” to bring up, Plough interrupted him.
“What pre-trial matter? Trial is starting right now,” Plough said, refusing to hear Jones’ arguments about the matter and again asking him if he was prepared to move forward.
Monday morning jumpstart
Jun 18th
Here are some interesting stories to get your Monday started:
- SCOTUS to consider granting cert in Alabama right to counsel case
- “A Look Back, And Up” – a lengthy piece on former Gov. Rowland
- Sex offender laws have unintended consequences
- Should the prosecutor in the Amero case be the next Nifong? [My answer: no]
- Might Congress move ahead with sound sentencing reforms?
- A little police humor
- How ID reform bills became laws this year
Have a good day!
Casiano issued: law becomes slightly clearer
May 22nd
The CT Supreme Court issued State v. Casiano yesterday. Casiano was before the Supreme Court on a motion for review filed by the defendant.
Defendant sought to have counsel appointed to represent him in filing a Motion to Correct Illegal Sentence. The trial court denied the request. The defendant appealed (both on the merits of the Motion and the denial of counsel). The Appellate Court remanded to the trial court with an order to appoint counsel to file a motion for review which was transferred to the Supreme Court.
The Supreme Court finds that there is a right to counsel to determine whether meritorious claims exist and if such claims exist, then right to counsel to file the Motion exists. If there are no meritorious claims, then there is no right to counsel in filing the Motion (Shouldn’t this be obvious?)
In doing so, the Court finds that a “Motion to Correct an Illegal Sentence” fits within the statutory requirement of “any criminal action”.
In light of the nature of a motion to correct an illegal sentence, we conclude that, under our expansive interpretation of the term ‘‘any criminal action’’ in Gipson, that language is sufficiently broad in scope to encompass such a motion and any direct appeal from a denial of the motion. A motion to correct an illegal sentence under Practice Book § 43-22 constitutes a narrow exception to the general rule that, once a defendant’s sentence has begun, the authority of the sentencing court to modify that sentence terminates.
This does clear up an area of law that was causing some confusion; but how this will impact habeas corpus petitions remains to be seen. Another opinion recently issued held that there was no right to counsel when filing a Petition for a New Trial.
No right to appellate counsel to challenge denial of petition for new trial
May 9th
Today, the Appellate Court issued Small v. State [pdf], holding that the trial court did not abuse its discretion in denying appointment of counsel to appeal its decision to deny a petition for new trial. It is interesting for two reasons:
- It unequivocally holds that a petition for new trial is not a criminal proceeding; rather it is a civil proceeding
- There is currently an unresolved question as to whether there is right to counsel in another collateral proceeding – a Motion to Correct Illegal Sentence. [P.B. 43-22]
The petitioner also asserts that § 51-293 permits a trial court to appoint a special public defender in appropriate cases. Assuming, without deciding, that those statutes provided the petitioner an avenue for requesting court-appointed counsel, we determine that the court did not abuse its discretion in this case because the petitioner is neither statutorily nor constitutionally entitled to court-appointed counsel.
There are statutory exceptions to the rule, however. The biggest being habeas corpus cases. However, as the Court explains,
‘‘[I]ndigent persons accused of a crime must be provided appointed counsel, Gideon [v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)]. But the Sixth Amendment [to the United States constitution] only applies to a defendant’s trial and first appeal as of right, not to appeals afforded on a discretionary basis, collateral proceedings, or civil proceedings . . . .’’ (Emphasis added.) Bourdon v. Loughren, 386 F.3d 88, 96 (2d Cir. 2004), citing Pennsylvania v. Finley, 481 U.S. 551, 555–57, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987).
What this means for right to counsel on Motions to Correct remains to be seen. There are several other criminal opinions issued today, but none piqued my interest quite like this one. They can be found here.
Technorati Tags: petition for new trial, right to counsel, connecticut
An abomination – AL execution sans representation
Mar 26th
It’s true. Alabama does not provide indigent death row inmates with representation (that link is to a TimesSelect article, so it’s not free. You could just sign up for a trial membership). It is the only state in the country to (not) do so. In Alabama, there is no statutory right to counsel in petitions for writ of habeas corpus, which, as everyone knows, are the last avenue for a death row inmate seeking to challenge his/her conviction.
Alabama’s attitude? To disregard the landmark provisions of Gideon v. Wainwright and basically shrug. I cannot believe that in 2007, there is still a state that doesn’t think it needs to provide representation to indigent defendants.
Inmates filed a class action lawsuit, which was rejected by the 11th circuit in 2006 [Barbour v. Haley (.pdf)]. Now they are seeking cert. to SCOTUS. Hopefully SCOTUS accepts cert and stomps down hard on this bizarre practice.
Thankfully, in CT, there is a statutory right to counsel for habeas petitioners and death row inmates.
HT: Prof. Berman, who thinks this will (and should) create a blawgosphere storm and CapDefWeekly.
Technorati Tags: right to counsel, alabama, barbour v. haley
His rights are our rights
Mar 18th
Normally, I don’t watch Court TV. My impression of Court TV has been colored by my opinion of Nancy Grace. So when I stumbled upon the blog of Jami Floyd, a Court TV newscaster, I expected the same vitriol toward defendants and defense attorneys.
Not so. The first clue was this statement at the end of a recent post:
Not exactly efficient. Florida is just one of 39 states that have the death penalty — 39 examples (40, if you count the feds) of a system that doesn’t work.
Huh. Okay….that could mean a lot of things…so let’s scroll further down. Which is what I did when I came across this entry. This is a clip of something called “The Last Word”.
In this video, she makes a final statement; something akin to when Jerry Springer sits on the stool at the end of every episode and spews wisdom at us through the TV.
In this clip, she was responding to a number of e-mails she had received criticizing the defense attorneys that represented John Couey. She says they always get those e-mails.
She then says some very smart things:
“Those who complain are missing the point, because it’s not about the client but the client’s right to counsel and a fair trial… because his rights are our rights. If you love this country, you’ve read the Constitution and if you’ve read the Constitution, you know defending the accused is the most sacred role a lawyer can play.”
What she has done in those two sentences is sum up my two most frequent responses to the question: “How can you defend those people?”. The Constitution and the reality that not much separates “us” from “them”. Color me impressed.
ps: I just discovered that the video might not work from the page linked to above. If it does not, go to the main page and scroll down till you find the entry. It is on March 13 at 3:52pm.
There, but for the grace of God…
Mar 16th
Supervisory State’s Attorney Mark Hurley has resigned amidst a probe into his alleged theft of money from a crime victim’s fund and the prosecutor’s union. By most accounts, Attorney Hurley was a good prosecutor and easy to work with (or against).
The title of this post? It just serves as a reminder that any one of us can be caught in circumstances that lead to criminal activity. My second most frequent response to “the question” is that there is no “us” and “them”. What happens to “them” could easily happen to any of “us”.
This furthers my conviction about my job; everyone – be it a gangbanger or a supervisory prosecutor – has the right to counsel and we must protect the rights afforded defendants. Because tomorrow it could be you (or me).
ACLU suing Michigan over PD System
Feb 22nd
A Michigan coalition, called The Michigan Coalition for Justice is suing over the state of the public defender system.
Vanita Gupta, ACLU Attorney: “It’s the system, it’s absolutely failing defendants at this time.”
The group is calling for changes through a lawsuit. They want the state to provide funding and oversight of trial level public defense services. They are also calling for an overhaul of the public defense system, to ensure everyone has a right to counsel.
Vanita Gupta: “We are asking the court to declare the current system unconstitutional. It’s not meeting standards, and once that declaration is given, the state legislature should step up and figure out solutions.”
The Governor is reviewing the allegations.
Update: PD Stuff has more (as always).
Revisiting indigence
Aug 17th
A post at Prawfsblawg highlights an article in the Indiana Law Journal titled "The Invisible Pillar of Gideon", arguing that there should be a Constitutional floor for Indigency.
[This] piece illustrates the discrepancy among states in determining who is indigent for purposes of Gideon’s assurance of a right to counsel. He observes that what counts as indigent in one state (e.g., Scott Peterson in CA) would not count as indigent in another (Larry McVay in South Carolina). I would add that, in light of the various states that have fuzzy guideposts for determining indigency, the discrepancy exists not only across states but within states too regarding who is entitled to appointed counsel.
As to the solution to this problem, [the author] (whom I’ve not yet met) doubts Congress and the states could do something to establish the constitutional floor that Gideon is supposed to furnish on an equal basis; he therefore proposes that the Supreme Court adopt a framework that would "equalize the right to apponted counsel across the fifty states." Specifically, the Court should adopt a rebuttable presumption that says: if you’re below 200% of the federal poverty guidelines, you should get appointed counsel. This use of flexible benchmarks is similar to the Court’s State Farm jurisprudence in punitive damages.
A few months ago, there was plenty of discussion on this matter of indigency here and on Mr. DA’s blog. The discussions centered around the meaning of indigence, who defines indigence and how. [I think Tom might've gotten involved too.]
To be honest, I didn’t read through the whole "constitutional floor" article. But Mr. DA made some of the very same points in his post:
The difference is not really all that significant. Look at that family of four with two kids under 18.The basic threshold figure is $19,157 (set aside for the moment the question whether this isbefore or after taxes) a range of 125% to 187.5% of that number is $23, 946 to $35, 919. Usingthe guidelines figure of $18, 850 the range is $23, 563 to $35,344.
Is this reasonable? And why do we have the multipliers? 125%, 187.5% — what’s that all about?Let’s look at that two adults, two kids under 18 number. $19,157. That’s not a lot of money for a family of four to live on. But consider – if both the adults are working full-time, at minimum wage jobs (currently that’s $5.15/hr) and put in a full 2080 hours a year, their gross income will be$21,242. Whoa! If we only used the threshold or guidelines numbers, these folks wouldn’t qualifyfor appointed counsel. And that’s just plain silly. But when we apply the 125% multiplier we find they do qualify. So if Dad has a couple of beers after work on Friday, and rolls through a stop sign on his way home, he’ll be eligible for appointed counsel to fight the drunk driving charge Officer Friendly dropped on him.
Which brings me back to the point I made then. Let the individual states decide what indigence is. Every state has different real estate values, standard of living costs. Let there be a basic guideline, something perhaps along on the lines of "If an individual makes $12,000 a year or less, then he/she will be declared "indigent" regardless of other economic factors. Then let the states decide if they want to up that figure for their residents.
As I argued back then (lamented is more like it), even with my salary, I probably couldn’t afford to hire private counsel, were I charged with a crime. However, I certainly would not qualify for the division’s services. So there is a gray area, but it’s impossible to lay down a fixed rule. Each state legislature knows it’s economy the best, knows the SOL best, knows median income levels the best. So if CT decides that all said and done, $18,000 a year is a good cutoff, then let it be so.
Incidentally, CT’s definition of indigency is outlined in C.G.S. 51-297. Cryptically, it states:
As used in this chapter "indigent defendant" means (1) a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation and (2) a child who has a right to counsel under the provisions of subsection (a) of section 46b-135 and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation.
From my knowlege, the cutoff is based on the Federal Poverty Guidelines. Here is the latest chart for CT. [pdf]
So what am I trying to say? Nothing, really. Just that we need to take indigent defense far more seriously. There are plenty of people in the country that fall below these guidelines and attorneys are not being properly compensated or given enough incentives to make this a career. Unfortunately, the poor masses lose out.
Texas disappoints again
Jun 20th
Injustice Anywhere (via GritsforBreakfast) reports that all the good criminal justice bills passed by TX’s legislature have been vetoed by the Governor. Among them, the written consent for vehicle searches bill, a probation reform bill and one that I had not read about before – prohibiting prosecutors from bullying defendants into proceeding without counsel.
Given my current job, this last one is of particular interest to me. H.B. 3152 [bill text]:
would
forbid prosecutors from attempting to "initiate or encourage an attempt
to obtain from an unrepresented defendant a waiver of the right to
counsel." That means prosecutors couldn’t request or get others to
request that a suspect waive their right to a lawyer. It also bars
prosecutors from communicating with a defendant who has requested counsel, unless a judge denied the request. If suspects choose to eschew a lawyer of their own volition, fine, but the state has no business pressuring folks to do so.
That is downright offensive and should not have been tolerated at any costs. I understand that sometimes there are charges that can be taken care of w/o counsel (such as a speeding ticket, or something that requires only a small fine), but to actively "threaten" defendants into giving up their right to counsel is abhorrable.
The Governor vetoed this bill because he says it would jeapordize convictions. However, the Gov. seems to be OK with convictions obtained in a sneaky and suspicious manner, while circumventing the protections of the Constitution.
Listen up, prospective defendants: Ask for a lawyer. State it simply and affirmatively. Say, "I want a lawyer" and then shut up.
Read GritsforBreakfast’s post for more knowledgeable commentary.
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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