Indigent defense news, delivered fresh daily

If you haven’t seen this cartoon of a defense attorney cross-examining Officer Jackboot, you really should. I laugh harder every time I see it. It has it all the greatest hits officers recite religiously nearly every time they take the stand: welfare check, experience and training, officer safety, etc. We all know officers use these phrases like they are magical talismans that can make anything legal; unfortunately, courts too often view them that way as well.

Just priceless. The best legal cartoon since the Hearsay Exception Legomation. Srsly.

It’s good to have a post here every six months or so, don’t you think? In that spirit, and in case you missed these, here are a handful of great public defender stories from, oh, well, the last couple of months:

• Pubic Defender cited for contempt in Rochester, MN, for being unable to appear in two courtrooms at the same time. Many defense attorneys have experienced the friction that arises when judges decide to get in a snit because theirs is not the only court in the country, but this is taking it a little far. Does anyone have any idea how this turned out?
• There’s a lot of litigation in Missouri about whether public defenders can refuse new clients when caseloads get too high. It sounds like the debate is ongoing, but the Missouri Public Defender Commission is getting a new leader, so that’s something.
• The city of Chicago told its cops a couple of months ago that they weren’t writing enough tickets because the city needs more money. Yeah, let’s balance the budget with traffic tickets. Really?
• Peter Neufeld, co-founder of the Innocence Project, gave a great interview to Slate about how wrongful convictions actually happen. It will come as no surprise to public defenders that the fallibility of eyewitness testimony is a key, but he also makes a great point that many people are wrongly convicted simply because police and prosecutors (and witnesses, sometimes) just can’t admit they’re wrong.
  

  I think generally speaking it’s difficult for people to admit they’re wrong, and the higher the stakes, the more difficult it becomes. So what you really want to do is educate people that it’s OK to be wrong. It doesn’t mean you’re a fool. It’s not going to be the end of your life.

  So true.

• In Montana, critics (including some public defenders) say the 5-year-old statewide public defender system is still not working because of high caseloads and poor management. As a former Montana public defender, I can tell you — those people are working their asses off!
• Finally, for all of you PDs who feel like you don’t make enough money there’s news that “beyond household income of $75,000 a year, money “does nothing for happiness, enjoyment, sadness or stress,” and we know PDs all make at least that much so that must explain why we’re all so happy, right? Right? (-;

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U.S. Attorney Eric Holder spoke today in Wilmington, NC, about the need for more resources for public defenders and more substance in the Sixth Amendment right to counsel:

“Today the Sixth Amendment right to council is quite simply, not a right at all. Not to the extent that it should be. The right to council is the right of every citizen and it must be the concern of every citizen,” he explained.

Holder told the group that many people waive their right to legal council without any idea of what that means for their rights. He urged judges and others to push for higher professional standards so that more people can have access to equal legal rights.

Holder’s comments follow the announcement earlier this year that his Justice Department would be launching the Access to Justice Initiative, “a new program to help low-income people receive legal help.” Laurence Tribe is heading that Initiative, and he said yesterday that the Initiative “will work with federal officials and chief justices on the state level to raise pressure for changes public defense programs. He also expressed approval for lawsuits and private action through Section 1983 in cases of ineffectual counsel.”

While it’s great to hear politicians talking this way — recognizing the problems and promising improvements in indigent defense and access to justice — there’s little evidence of any substance behind the nice words. Here’s hoping all of this buildup has some substantive change before Holder and the Obama Administration no longer have that bully pulpit.

Minnesota Judge Gregory Galler clearly doesn’t understand the criminal justice system:

When criminal defense lawyers cross-examine police officers on the witness stand in court, its not unusual for the questioning to becomes aggressive and testy.But in Washington County earlier this month, District Judge Gregory Galler decided that defense attorney David McCormick went too far when his questions suggested an officer was being less than truthful.Galler ordered McCormick to write an apology to the police officer for “impugning the officers integrity,” according to court documents.

McCormick has not apologized and probably won’t, to which I say: Mr. McCormick, I salute you!

A person who doesn’t understand that cops lie, or that defense attorneys must press police officers hard in cross-examination to be sure they are not lying or to expose their lies, fundamentally misunderstands the adversarial nature of the criminal justice system. But don’t worry; the defense attorneys practicing in front of the misguided Galler clearly do understand the system:

Joe Friedberg, a criminal defense lawyer for 45 years, said, “If a judge ordered me to do that, I would tell him to go have intercourse with himself.”

Friedberg said he has often called cops liars and says Galler is “so far out of line, I can’t believe it. He should apologize for asking for an apology.

Carry on, counselors.

We’ve all been there: You walk out of court seething with anger and frustration over what just happened to your client. The prosecutor just misrepresented something to the court or snuck in a devastating line of questioning over your objections or a thousand other possible dirty tricks and you’re so angry you just want to punch that prosecutor! But you don’t, right?

Well, you don’t, but allegedly someone else did:

A Cook County public defender and boxer has been charged with two felonies after he allegedly choked a county prosecutor at the 26th and California criminal courthouse, authorities said.

Why? Allegedly, “the two disagreed over when to set the next court date on a post conviction hearing for convicted murderer Derrick Neal.”

The public defender has counsel who is now telling the media that his client will absolutely plead not guilty. This could be one heckuva trial.

What did you miss in criminal defense blogging this week? Probably a lot. With that in mind, here’s a very limited (I only have so much time!) selection of the best the blawgosphere has to offer:

Not for the Monosyllabic is running out of pens to jam into her eyes because of too much madness at work, starting with her interesting caseload: “Fishing without a license, harm caused by dog, in a park after hours, first degree murder. Yep, that seems good.” But, hey, at least she didn’t get laid off! Bonus: she knows Elena Kagan is gay and now you do, too.

Grits for Breakfast is predicting prison closures in Texas because of huge budget cuts. GfB also reports on the shocking news that the drug war is a colossal failure, including this closing gem:

Drug policy arguably is the only issue in Washington on which there’s a near-complete bipartisan consensus: Everybody agrees current tactics aren’t working and also seems to agree to spend ever-more money on them.

Not Guilty gives us a peek into the wisdom of the fun people on her listserve commenting on the video (courtesey of Simple Justice) showing MO police officers executing a search warrant and shooting a dog in the course of firing seven shots inside the home where the warrant was three days stale and they did not appear to face any opposition. Wow.

Not Guilty also links to Something for Mother’s Day by Norm Pattis, a brilliant open letter that expresses what all criminal defense attorneys have probably wanted and needed to say to a client’s mother at one time or another. Not Guilty also shares the response from a mother.

While you’re checking out Pattis’s mother’s day post, don’t miss his sad tale of a client who was told by the judge that his plea would not require him to register as a sex offender, only to later be ordered to register — forever. As Pattis puts it, “Only the State can rape you and then send a bill for its services.” We see it every day, but not always this blatantly.

On a similar note, Indefensible explains how it really goes down when judges get criticized for being soft on crime:

1. A judge makes a perfectly reasonable (and legal) decision.
2. The post criticizes the judge for being soft on crime.
3. The Judge, bowing to political pressure, finds an excuse to seem like a bad-ass after all and sends a guy to jail for almost a year because he was a day late for court.

Sentencing Law and Policy discusses the latest opinion on Ohio’s ongoing project of tinkering with the machinery of death. Jeff Gamso is Overwhelmed by the News Cycle, but manages to provide more good info about Ohio’s attempts to kill Michael Beuke, as well as thoughts on Elena Kagan as Supreme Court nominee and Attorney General Eric Holder’s position that terrorist suspects don’t need to be informed of their rights. So what if they’re U.S. citizens… !?!? On this Gamso also helpfully links to Orin Kerr who points out that Miranda law is a constitutional principle that probably can’t be changed by legislation. Not that the Court won’t be willing to make this “terrorist” exception on its own, given the right case. Grrr.

SCOTUSblog fills us in on the Obama administration’s arguments that the SCOTUS doesn’t need to review that dirty little rendition program that started under Bush and which Obama apparently wants to keep as an option. Tom Goldstein also provides succinct insight on Kagan’s nomination to the Court.

Finally, it wasn’t this week but it is worth your attention:
Blonde Justice updated her “How to Prepare for Trial” series with a tip to stop procrastinating.

Trial Theory, described as a group blog written by trial lawyers on the subject of trial practice and creative trial preparation, is calling it quits due to lack of participation. There were many great posts there, so if there were any you’d like to save for posterity, head over and do a few control-c’s before everything disappears.

Jeremy Pippenger at McSweeney’s says your client is thinking “This really nice suit is going to get me acquitted.

Yeah, I could have gone with black, but purple just has so much style. Remember when Mario Van Peebles wore one in New Jack City? He didn’t? Oh well. Who cares. That movie sucked anyway. Oh, and check this: The guy at Burlington Coat Factory told me that purple is the color of royalty. And nobody royal has ever been convicted of Home Invasion, Indecent Exposure, Animal Cruelty, 1st Degree Assault, and two counts of Felony Arson. Smart, right? See, that’s how I think.

Good to know. (Via @ScottGreenfield)

Carol D at Public Defender Revolution is setting the gold standard for public defender advocacy and activism — at least in the blogosphere. I don’t want to demean or give short shrift to all those great activists and advocates out there about whom I know nothing, but one of Carol D’s great innovations is simply that she’s taking the fight online, putting it out for all of us to see and for all of us to join in. That, quite simply, is awesome.

If you’re a public defender, you really should read everything at Public Defender Revolution. You may not agree with all of it, but whether you agree or not you should comment and contribute to what Carol D is trying to do, which is (at least from my perspective), to speak honestly about the challenges and difficulties of being a public defender, and to encourage her colleagues to stand up for themselves, for all of us, and for our clients, to try to improve indigent defense in this country.

Nowhere is this effort more obvious or helpful than in Public Defender Revolution’s “How to Be a Public Defender Revolutionary” series, which begins with a discussion of ABA Formal Opinion 06-441. That opinion discusses the ethical duties of overworked public defenders, and, as Carol D explains, gives public defenders “the authority and ammunition to end the wide-spread reality of untenable caseloads.” And she’s right, but only if public defenders all stand up together. The opinion states:

If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients. If the clients are being assigned through a court appointment system, the lawyer should request that the court not make any new appointments. Once the lawyer is representing a client, the lawyer must move to withdraw from representation if she cannot provide competent and diligent representation. If the court denies the lawyer’s motion to withdraw, and any available means of appealing such ruling is unsuccessful, the lawyer must continue with the representation while taking whatever steps are feasible to ensure that she will be able to competently and diligently represent the defendant.

Thus, public defenders have the ABA’s support (based on the ABA’s interpretation and application of the Model Rules of Professional Conduct) to stand up and say they have too many cases and can’t take anymore. The problem comes when the court or your supervisors just don’t care — you complain, you cite this opinion, and they say “tough luck.” That situation is addressed on page 6 of the opinion:

If the supervisor fails to provide appropriate assistance or relief, the lawyer should continue to advance up the chain of command within the office until either relief is obtained or the lawyer has reached and requested assistance or relief from the head of the public defender’s office.

Finally, if you get no satisfaction from the top of your chain of command, your last result is to move to withdraw (which is also your remedy if you’re working in a court-appointed system rather than a public defender office where your supervisors assign your cases). But again, if the judge says “tough,” you’re stuck. At that point, you have a duty to your clients and if you’re truly overloaded, it’s a duty you won’t be able to fulfill. What do you do then?

We all know public defenders should never reach that point; they should stand up and say “enough” long before they’ve reached that breaking point. But we don’t, and that’s exactly what Carol D’s “How-To” series is meant to address: we all have to know the rules and we have to use them — together — or they won’t work for us.

Most of the time overworked public defenders don’t stand up and refuse to take more case because if we do we’ll be in trouble; we’ll be the “bad guy” or the “lazy lawyer” because we’ll be acting alone. We stand up, and we’re singled out as the bad guy, and who knows what the consequences will be? And it’s that feeling of isolation that keeps the system functioning because so long as there are public defenders who will work themselves to the bone and sacrifice everything else in their lives to stay on top of massive and inhuman caseloads, supervisors and judges everywhere will use those “superstar” public defenders as examples, their measuring sticks for what’s possible, so that when one of the rest of us complains they can point to the “superstar” and say, “She’s not complaining and she has more cases than you do. What’s *your* problem?” Thus the problem continues.

In How to Be a Public Defender Revolutionary Carol D discusses the rules and tools we need to stand up together, around the country, to say to excessive caseloads:

You can’t make me.

So far, the series has four parts: Part I, Part II, Part III, and Part IV. Read them all and join the revolution.

How would you like it if this. landed on your desk Monday?

?Jacoby Laquan Smith says he will turn himself in to St. Paul police this week for what must be the most unmanly crime on record: domestically abusing his armless, legless girlfriend.

Yeah. That could be a tough one.

We all work hard, but sometimes, no matter how hard we work, we can’t keep up with the avalanche of new cases. That’s where public defenders in southeastern Minnesota apparently find themselves; they filed a union grievance over excessive workloads:

A legislative audit report issued in February said public defender workloads in Minnesota are too high and exceed state and national standards.

The study took into account how much time cases took to defend, with one case unit in the average misdemeanor, and more case units for more serious offenses.

The report said that state and national standards call for public defenders to carry no more than 400 case units per year.

In this district, there were 31 full-time-equivalent public defenders in 2007. Each had a weighted caseload of 689. In 2009, there were 27 full-time-equivalent public defenders carrying 745 case units each.

The evaluators for the legislative report said that during their site visits, they saw public defenders under such time pressures that they often had about 10 minutes to meet each client for the first time, evaluate the case, explain the client’s options and the consequences of a conviction or plea, discuss a possible deal with the prosecuting attorney and allow the client to decide how to proceed.

Some of the public defenders in this district have refused to accept new case assignments.

It sounds a little dire. The “smart-ass, sailor-mouth public defender” at not for the monosyllabic should know — she’s one of the PD’s who filed the grievance.

The bottom line is that when we’re overloaded, we can’t do our jobs, and if we can’t do our jobs, the Constitution gets trampled. Good luck, brothers and sisters! We’re with you!

This news is already everywhere, but in case you haven’t heard, the SCOTUS held yesterday in Padilla v. Kentucky that criminal defense attorneys must give correct advice to clients about the immigration consequences of pleading guilty. Failure to do so will be ineffective assistance of counsel. See NACDL’s press release for more.

Obviously, this is something we should all have been doing already, but as Mark Bennet points out, some people don’t because they either don’t know the immigration consequences of a plea, or because “it’s much easier to get the Padillas of the world to plead guilty if you gloss over those nasty consequences.”

Don’t be that PD who gives us all a bad name! If you’re not already, get familiar with the immigration consequences of criminal convictions (also here and many other places).

In more great news yesterday, warrantless wiretaps are still illegal. Hooray!

Public defender blogs seem to come and go. PDs are always busy, plus, there seem to be so many risks. Some namby pamby biglaw lawyers claim that blogging demands “herculean efforts.”

Yet, you can’t keep a great PD pundit down. Consider, for example, Skelly at Arbitrary and Capricious. His blog might be on hiatus, but he’s still tapping out daily gems on Twitter, such as his link to this great story about Vincente Vigil, an exemplary public defender in Colorado. And, of course, he still has his sense of humor:

Come a long ways since the time I told a client how hard I was working to get him out of jail for Xmas, only to be told, “I’m Buddhist.”

Skelly’s not the only PD tweeter. I’ve created a list of those I follow which I know does not even come close to being complete. (My list includes people who aren’t public defenders but who tweet about topics that are likely to be of interest to public defenders.) Who are your faves? Inquiring public defenders want to know!

Happily, Blonde Justice blogs boldly on, continuing to generously share both her serious and provocative thoughts on the very real difficulties of this work, as well as her lighter fantasies about pool parties at her new (dream) house. As a bonus, she continues to lead her readers to the best new blogs for crazy people like us.

Let me join Blonde Justice in welcoming Public Defender Revolution to the PD blogosphere. Public Defender Carol D. appears to have started the blog just this year, with one post in 2009, that explains The Power of Yep, and the mission of the blog:

I’ve come close to stopping being a public defender, which for me probably means stopping being a lawyer. But then I see, with the clarity of experience, young, enthusiastic public defenders going through some of the same things I did–municipal judges yelling at a lawyer for setting a case for trial, or describing a passionate female lawyer as “too much like a social worker,” etc. And I think, it is not enough for me to just run away. And then I think, where are we? Where is our organized force? We need a group that will advocate our interests and ours alone—not our bosses’ interests, not private lawyers’, not the bar associations’. We need a group that will say, If you fuck with one of us, you fuck with all of us.

This is PDR’s mission: To foster a national organization that advocates for the rights of public defenders and our clients. If you want to join, email me, and you can be a member of PDR. And since membership is totally free, you can afford it on your public defender salary.

Does that sound completely awesome? Yep! PD Revolution even has a very active Facebook group. Join the revolution today!

SCOTUSblog has the story, but in sum:

He was convicted in 1995 and sentenced to death for the slaying of his live-in girlfriend and her two mentally retarded, adult sons, in their home in the small town of Pampa, Texas, on New Year’s Eve in 1993. He was in the home during the murder rampage, but has contended repeatedly since then that he was unconscious from using drugs and alcohol earlier in the evening. He also has contended that new evidence, about the physical nature of the killings, indicates that in his condition he had neither the strength nor clarity of mind to commit the crimes.

For ten years, his lawyers have said, he has sought access to DNA evidence that was never tested by prosecutors. He filed his federal civil rights claim only after those efforts had failed, his counsel has said. Although prosecutors arranged for some DNA tests on some of the evidence, and used the results to help convict Skinner, his attorneys contend that prosecutors only sought selective testing of crime scene materials.

In his petition for review, Skinner contended that he has a constitutional interest under state law in seeking to use evidence that would help prove his innocence, but that he has been frustrated in trying to vindicate that interest in state proceedings. In addition, the petition argued that the conflict among lower courts on whether a DNA access claim can be pursued under civil rights law, or only under habeas law, has intensified since the Supreme Court agreed to examine that issue in the Osborne case last Term. Thus, it said, the need for Supreme Court guidance is now “more urgent.”

Via Trial Warrior.