Indigent defense news, delivered fresh daily

If you find yourself feeling jaded or discouraged by the grind of your caseload, pause for a moment and take a look at your job and your profession through the enthusiastic eyes of newly-minted PD Not for the Monosyllabic who says being a public defender is pretty much the coolest thing ever:

My job kicks so much ass it’s unbelievable.

It’s ridiculously awesome. If I had to rate it on a scale from 1 to insanely awesome, I’d have to go with insanely awesome.

Remember when you were that excited to be a public defender? No? Well, then, go read the entire entry; you’re clearly needing a reminder. Remind yourself how great it was to have your first very own office, your first very own office chair, and your first job where you actually had the freedom to make your own schedule (more or less). Sure, it’s true that big desk can quickly shrink under piles of work you have to do, that chair can become the place you feel you never leave, that freedom to make your own schedule can disappear under a caseload whose looming deadlines dictate your every move…. Yes, that can happen. Still, it’s good to remember the joys of those first days. Thanks to NftM for the pleasant reminder.

Here are the new public defender blog posts:

a public defender
A Public Defender’s Life in Alaska
A Year in the Life
Abolish the Death Penalty
Arbitrary and Capricious
Between A Laugh And A Tear
Cook County Public Defenders Blog
Demonstrative Evidence
the Dream Antilles
Fifth Circuit Blog
Go West Young Tex
the imbroglio
Indefensible
Infinity Ranch
lawbabeak
Ninth Circuit Blog
PD Jay
Preaching to the Choir
Rabid Sanity
Second Circuit Blog
Swan Lake Samba Girl
Tales of a Public Defender Investigator
Tenth Circuit Blog
The Rural Bus Route

From BRAND NEW public defender blogger Not for the monosyllabic:

I GOT THE JOB!!

I’m officially an assistant public defender! I’m starting on March 4th!

I’ll post more info about it later–I’ve got to call about a bajillion people at the moment!

HOOOOOOOORRRRRRAAAAAAAAAAAAAAAAYYYYYYYYYYYYYY!!!!!

Hooray indeed!

From the MinnPost:

Michael Kunkel’s work was done. For the moment.

The young lawyer with the Joe Mauer sideburns was trying to relax. His hearing before the Minnesota Court of Appeals, including rapid-fire, rugged questioning from the three justices, was over.

But his day was not.

Kunkel, 29, was gathering his belongings for a parole hearing in Anoka County 25 miles. He has another 30 or so cases on his desk back at the State Public Defender’s Office at the less-than-glamorous Griggs Midway Building on University Avenue in St. Paul.

Just so happens Kunkel’s venue today was Courtroom 200 of the Minnesota Judicial Center.

It’s directly beneath Courtroom 300, the daily venue for the Norm Coleman-Al Franken recount trial.

…

Coleman’s and Franken’s lawyers are making — what? — an average of $500 an hour? They’re big hitters from Washington, Seattle and the Twin Cities. Sounds like as much as $20,000 a week per lawyer, give or take a grand or two.

…

The state public defender’s office, already reeling from 53 layoffs this year, could be in further danger if state budget cuts whack the justice system. Kunkel, who has been with the PD’s office for three-and-a-half years, could be laid off.

Meanwhile, three state district court judges, supported by their state-paid clerks, sit in Courtroom 300, and a Ramsey County courts clerk administers proceedings that drag on in the Franken-Coleman case.

Read the entire article

From the Lansing State Journal:

Today, the Campaign for Justice, a coalition of Michigan legal groups and human rights and faith organizations, launched an effort to reform Michigan’s system to prevent further miscarriages of justice.

The effort builds on a report issued in June that found the state’s system of providing court-appointed attorneys for indigent defendants, now funded through counties, is flawed and failing. The report, offered by the National Legal Aid and Defender Association and the State Bar of Michigan, found that defense attorneys had little time or resources to prepare their cases.

Forty-three states spend more per-capita on indigent defense than Michigan.

Based on this report, the coalition issued a “report card” today for Michigan’s defense system that offered Ds and Fs in nearly every category.

Read the entire story

From the Columbus Ledger-Enquirer:

Georgia’s cash-strapped public defender system, which already struggles to pay a growing backlog of legal fees, could be faced with a new round of bills stemming from a case under review by the state’s top court.

The arguments before the Georgia Supreme Court on Monday focused on who should pick up the tab for a Burke County death penalty case. But the public defender system solemnly warned that the court’s ruling could lead to more fees that could end in “financial jeopardy.”

“This case could have a much broader impact,” said Mack Crawford, the system’s director, after the arguments.

It’s the latest challenge facing the beleaguered public defender network, which has been a target of frustrated legislators almost since it took effect in 2005.

The gaudy defense bills for the trial of courthouse gunman Brian Nichols - which may have topped $2 million - became a rallying cry for deep cuts even before the state grappled with a $2.2 billion deficit.

Now the department, like other state agencies, is bracing for a new round of cuts as it seeks to shed about 10 percent of its budget. And the outcome of this case could determine whether the system is on the hook for a slew of bills it hasn’t budgeted.

The case stems from the trials of Willie Palmer, who was convicted of murder in the 1995 deaths of his estranged wife and 15-year-old stepdaughter. An appeals court ordered a new trial in March 2005, and the council’s former director said the state would pick up the tab.

Palmer was again convicted and sentenced to death in 2007. But his attorneys, Michael Garrett and Randolph Frails, were told the county should pay the costs when they submitted their $68,000 bill to the council.

In court on Monday, council attorney Judson Turner warned the judges it is only authorized to pay for new death penalty cases after it was established in 2005, not existing or past cases.

Read the entire story

From the Kingman Daily Miner (AZ):

A new plan is in the works to take some of the confusion out of indigent defense at the County Superior Court.

The County Public Defender’s and Legal Defender’s offices will present a plan during Tuesday’s Board of Supervisor’s meeting that will create an Office of Indigent Legal Services. The Board will meet at 9:30 a.m. Tuesday in the County Administration Building, 700 W. Beale St.

The office, according to material provided to the Board, will reorganize how indigent defense cases are processed.

Currently, if a defendant cannot afford to pay for an attorney, a judge assigns the case to the PDO. If the PDO has a conflict of interest in taking the case or currently does not have an attorney that can take the case, the case is then assigned to the LDO. If the LDO has a conflict of interest or does not have an attorney who can take the case, it is sent back to the PDO, which then assigns it, via a contract, to an outside attorney. Outside attorneys are paid a set hourly wage per case.

If approved, the director of the new Office of Indigent Legal Services would determine which indigent defense cases will go to the LDO or PDO, and which ones will be contracted to outside attorneys. The office will also oversee the use of investigators, experts, interpreters and other services used by attorneys in order to keep costs down.

Read the entire article

From Kansas Defenders, an appellate victory:

Sarah Morrison and I won in State v. Gracey, No. 99310 (Kan. Feb. 6, 2009), holding that Jessica’s Law defendants are eligible for probation when their crime was committed before July 1, 2008. The court held, “[f]or defendants convicted of certain sexually motivated or sexually violent crimes committed before July 1, 2008, and sentenced pursuant to K.S.A. 21-4643(d), a departure sentence includes both durational and dispositional departures.” The court reversed Gracey’s sentence and remanded for resentencing consistent with the opinion.

The court also held that the 55-month sentence ordered at the original sentencing hearing was not illegal, even though the sentence was less than the presumptive range on the guidelines grid. So, for an off-grid Jessica’s Law offense, the sentencing court can durationally depart to the KSG, and once on the grid, the court can depart below the presumptive grid box (as well as give probation if the offense was committed before July 1, 2008).

From public defender Doubtslinger:

Okay I just lost a trial last week. Here is a fair statement of the evidence, see if you can guess what charge my client was convicted of:

1) My client has no prior criminal history
2) The “victim” gave over seven different versions of the story (and never told the same story twice. Not one version made logical sense.
3) It would have been physically impossible to accomplish what my client is said to have done
4) The “victim” was caught in a lie on videotape
5) A witness sitting inches away from the victim did NOT see the crime occur.

Read the entire post

From The Gainsville Times:

Faced with a growing indigent defense bill where costs were once much lower, Hall County State Court officials want to improve how they provide lawyers for the poor in 2009.

But while “improvement of delivery of indigent defense services” is a stated goal for state court this year, it’s likely to be more of a fine tuning than a wholesale revision of the system.

Hall County’s Public Defender Office was created in 2005 to represent poor defendants in felony cases prosecuted in superior court, but state court judges still appoint lawyers from a panel of about 30 area criminal defense attorneys who are paid by the hour. In recent years, their workload and billing both have gone up dramatically.

Six years ago, 848 cases in state court had court-appointed attorneys paid by taxpayer money. In the wake of a U.S. Supreme Court decision and a loosening of indigent guidelines, that number increased at a greater rate than the rise in criminal case loads, peaking in fiscal year 2006-07 with nearly 3,000 cases with attorneys appointed for indigent defendants charged with misdemeanors.

In fiscal year 2007-08, Hall County spent $742,000 paying attorneys to represent people in 2,377 misdemeanor criminal cases.

The right of poor criminal defendants to have an attorney provided at taxpayer expense was once largely reserved for felony cases or serious misdemeanor crimes that carried a real threat of jail time.

But in 2002, the Supreme Court’s decision in Alabama v. Shelton reaffirmed the constitutional right to counsel for all criminal defendants facing even a remote possibility of jail time. Now, officials say, defendants facing such minor charges as speeding or failure to yield in a traffic accident are applying for, and getting, court-appointed attorneys who are paid $60 an hour in court and $50 an hour outside of court, with a $1,000 cap.

The average cost for representing an indigent defendant in state court in fiscal year 2007-08 was $312.

One change that has been seriously considered is shifting the duties of state court indigent defense to the public defender office, which might get the job done cheaper and more efficiently. But that would require hiring more lawyers and providing more office space.

In the current economic climate, Forrester said, “I don’t think we could recommend to anyone creating another level of bureaucracy to support government.”

Proponents of the current appointed attorney system note that state court provides a good training ground for young members of the criminal defense bar that would not exist if the public defender’s office moved in.

Said Wynne, “While we certainly try to improve upon the system we have, there are a lot of good things about it. We have a lot of good attorneys interested in doing defense work who do a good job. Yes, there are costs associated. They are subject to going up with the case numbers and with the revenue going up.”

Read the entire story

From the Post-Bulletin (MN):

A 10 percent cut budget cut would result in the elimination of 300 to 400 positions statewide.

The justice system includes prosecutors, public defenders, law enforcement and people who provide legal services to the poor.

John Stuart, chief public defender in Minnesota, said his department cut 53 public defender positions last year because of budget woes. Another 100 public defenders would be lost under a 10 percent budget cut, he said. These are the attorneys who represent people unable to hire lawyers.

“I love living in a country where people have rights. Everyone has the right to a fair trial, but that does not happen automatically,” he said. “People have to be there to do the work, to provide the service.”

In Rochester, he said, there are public defenders with 200 active cases. Stuart said there will be delays.

“No one gets a fair trial if he has to wait one or two years for his trial,” Stuart said.

If cases are delayed, security is jeopardized, Stuart said. Jails will become more overcrowded because defendants will be held longer waiting for trials and hearings, increasing the cost to counties.

Olmsted County Sheriff Steve Von Wald said crime usually goes up in times of economic crisis.

Magnuson said courts collect $200 million in revenue annually for state and local governments. Much of that would be gone.

He said the state’s justice system is stretched to the breaking point and further cuts would jeopardize the system. And that, he said, will affect just about every Minnesotan.

Read entire story

This job ain’t easy, and no one can tell you that better than the public defender whose client gets screwed unjustly. Just ask Ipse Dixit:

I had a client who got royally FUCKED at a probation violation hearing. I called 3 wits, all of whom were incredibly believable. I cited caselaw DIRECTLY on point saying I win. The prosecution’s only wit (the cop) was such a huge liar even the court staff knew it. The prosecutor later told me she was embarassed by his testimony.

And how was justice served? My client got a year.

Hooray justice! I have to go slit my wrists.

There is nothing quite like doing everything within your power, and doing it well, and having it not matter one fucking bit.

Or ask Gideon:

In this line of work, I don’t think there’s anything more heart wrenching that sitting across from a likely innocent client and having to tell him that there’s no way to prove that innocence and then watching him hold back tears and decide between two morbid choices: accepting the plea offer and spend the next 15 years locked up or go to trial and risk 60 years.

Sometimes I feel overwhelmed.

We all have bad outcomes and bad days, but days like these can be among the worst. In my first real legal job interview I was asked, more or less, if I understood how difficult this job was. I answered something to the effect that I understand it’s a game of inches and we have to scrape and claw and battle for every one we can get.

On the plus side, it’s situations like these that make every win that much sweeter. They also remind us of why we do this job and why our work is so important. As Scott Greenfield points out, moments like this break through the shell of steely resolve we must have to do this job and, in a sort of twisted way, inspire us to keep going, to work harder, to do whatever we can to try to prevent this from happening again. Of course, we know it will happen again. As Greenfield writes:

we don’t always know who is truly guilty and who is truly innocent, or where along the spectrum in between a defendant might truly fit. But we do know when things have gone horribly wrong and when we were ineffective to stop it. We are brutally aware of the limitations of the system, and our own limitations in making magic happen when it’s needed most.

Somewhat paradoxically, this knowledge, this pragmatism, is what keeps many of us going. It may not make sense to those on the outside looking in, which may be why some people think of public defenders as Don Quixotes tilting at windmills.

To them I say: Come on Sancho Panza! We have clients to defend.

Here are the new public defender blog posts:

a public defender
A Public Defender’s Life in Alaska
A Year in the Life
Accident Prone
Arbitrary and Capricious
Between A Laugh And A Tear
Blonde Justice
Cook County Public Defenders Blog
Defense Newsletter Blog
Doubtslinger
the Dream Antilles
Fifth Circuit Blog
Five Borough Defense
Fourth Circuit Blog
Go West Young Tex
the imbroglio
Indefensible
Infinity Ranch
Indignant Indigent
Ipse Dixit
Jay
Kansas Defenders
lawbabeak
Ninth Circuit Blog
PD Jay
Petition for Review
Preaching to the Choir
Public Defender Dude
Rabid Sanity
Second Circuit Blog
Scoplaw
Sixth Circuit Blog
Swan Lake Samba Girl
Tales of a Public Defender Investigator
Tenth Circuit Blog
The Rural Bus Route
The Underblawg
Third Circuit Blog
Woman of the Law

In a bit of a shift from her usual everyday (well, never that frequent) musings on work, pop culture, friendship, and life in general, the blogger we all know and love as Blonde Justice has spent the first weeks of 2009 developing a terrific series titled simply, How to Prepare for Trial: Step One, Two, Three, and Four. The series is a practical, hands-on, step-by-step tutorial, just like she’d probably give you if you were lucky enough to work in her office and she was assigned as your mentor. This is especially valuable help for attorneys preparing for their first trials, but it contains lots of suggestions, tips, and insights that even an experienced defense attorney might find helpful. Why pay for top notch legal education when Blonde Justice is handing it out for free?

Now we just need to figure out how to get CLE credit for this…

This week’s Wednesday What Do You Think*: Is it ethical for a prosecutor to reveal to a jury after trial that the person they just convicted or acquitted had prior criminal convictions that were excluded from evidence?

As defense attorneys we more often than not represent clients with prior criminal records. Of course we always move to exclude those priors as irrelevant, more prejudicial than probative, etc., and probably most of the time we win those motions. Yet, whenever a court excluded priors it seems common for prosecutors to go out of their way after the trial to make sure the jurors know that fact — either to make the jurors feel good about convicting or to make them feel awful about acquitting. A juror who convicts and then learns the defendant had priors gets confirmation that his/her decision was correct and will be more likely to convict in the future because he/she will assume that there are bad things he/she is not learning about in evidence at trial. A juror who acquits and then learns the defendant has priors will feel awful about his/her decision and will be more likely to convict in the future.

Advocates of such practices argue that counsel for both parties (prosecution and defense) have every right to talk to jurors after the trial. Critics argue that this is an unethical ploy to poison that pool of jurors for the future.

So, people, it’s Wednesday, What Do You Think!?

*I’m just making this up.

(Apologies if this post appears twice in your feed reader. Wordpress and I are not getting along well today. Also edited to add “trial” in first sentence.)