Tag Archives: right to counsel

Enforcing the right to effective assistance of counsel

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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.

IAC during plea bargaining

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In an exciting move, SCOTUS today granted cert. in a capital habeas case [petition here, opposition here] to decide whether someone can receive ineffective assistance during the plea bargaining process. The actual facts are slightly more complicated, but as Scotusblog notes, the basic question (which was added later by the Court) is what is:

the remedy that [is] available for ineffective defense lawyer’s efforts during plea bargaining, if the individual was later convicted at a fair trial.

Most of the commentary and discussion in the blawgosphere has centered around whether ineffective assistance during the plea bargaining process is a valid IAC claim, where the defendant then goes on to receive a fair trial. The answers that I have seen thus far have been no. I will respectfully disagree. The answer should be: “yes”.

For example Crime and Consequences says:

The fact that a better lawyer might have gotten him a windfall is not a miscarriage of justice if the final result is a just verdict for the crime he actually committed. Habeas is about correcting injustices, and justice is not a game. Plea bargaining is something we barely tolerate out of necessity. It is not a right to which defendants are entitled, and not getting a deal is not an injustice.

There are several problematic things about that paragraph, but today I’ll deal with just the last. Yes, there is no Constitutional right to plead guilty, but the SCOTUS has held that there is a Constitutional right to effective assistance of counsel at a critical stage of the criminal proceedings. Strickland, 466 US at 686. The plea bargaining process is and must be a critical stage of the criminal proceeding.

plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.

Blackledge v. Allison, 431 U.S. 63

Then we come to Hill v. Lockhart. In Hill the Court held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel”, relying on McCann v. Richardson, 397 U.S. 759, 771 (1970) (all defendants facing felony charges are entitled to the effective assistance of competent counsel). Really, there cannot be another conclusion.

In this case, the attorney misadvised the defendant about taking an offer. Consider a situation where the attorney fails to inform the defendant of an offer that he would have taken. Regardless of whether the ensuing trial was fair or not, the defendant was not informed of the availability of a plea bargain. How can he be said to have provided effective assistance if he failed to inform the defendant of a favorable resolution of the criminal prosecution? How can you say that the trial would have occurred in the first place?

So what then, is the remedy, if it is found that the attorney was ineffective? It has got to be specific performance. But for the ineffective assistance of counsel, the defendant would have taken the offer. He must be put back in the position he was in when the offer was made and given the option to either take the offer or reject it and proceed to trial.

“Poor lawyering” in the pre-trial process cannot be negated by an otherwise fair trial. Maybe I’m just spoiled by CT law. See Copas v. Commissioner of Correction, 234 Conn. 139.

Gideon? What Gideon? Sixth Amendment be damned

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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.

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Monday morning jumpstart

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Here are some interesting stories to get your Monday started:

Have a good day!

Casiano issued: law becomes slightly clearer

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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

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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:

  1. It unequivocally holds that a petition for new trial is not a criminal proceeding; rather it is a civil proceeding
  2. 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.

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An abomination – AL execution sans representation

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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.

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