Thursday, March 4, 2010

Show Me The Money

So Eric Holder has taken on the cause of indigent defense.
As we all know, public defender programs are too many times under-funded. Too often, defenders carry huge caseloads that make it difficult, if not impossible, for them to fulfill their legal and ethical responsibilities to their clients. Lawyers buried under these caseloads often can’t interview their clients properly, file appropriate motions, conduct fact investigations, or spare the time needed to ask and apply for additional grant funding. And the problem is about more than just resources. In some parts of the country, the primary institutions for the delivery of defense to the poor – I’m talking about basic public defender systems – simply do not exist. 
I continue to believe that if our fellow citizens knew about the extent of this problem, they would be as troubled as you and I. Public education about this issue is critical. For when equal justice is denied, we all lose. 
As a prosecutor and former judge, I know that the fundamental integrity of our criminal justice system, and our faith in it, depends on effective representation on both sides. And I recognize that some may perceive the goals of those who represent our federal, state, and local governments and the goals of those who represent the accused as forever at odds. I reject that premise. Although they may stand on different sides of an argument, the prosecution and the defense can, and must, share the same objective: Not victory, but justice. Otherwise, we are left to wonder if justice is truly being done, and left to wonder if our faith in ourselves and in our systems is misplaced. 
But problems in our criminal defense system aren’t just morally untenable. They’re also economically unsustainable. Every taxpayer should be seriously concerned about the systemic costs of inadequate defense for the poor. When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals. Poor systems of defense do not make economic sense.
Good for him.  It's about time the Executive Branch got serious about indigent defense.  And serious it is.  Holder calls for "ongoing dialogue."  And "rais[ing] awareness" which he hopes would create "advocates for change." And for "meetings" and "conferences" and "panels" at which public defenders would be included.  Oh, and there's an "initiative."  (Or should that be "Initiative" with an uppercase "I"?) 

Can't get more serious than that.

Besides, the "Initiative," called "Access to Justice," will have a major constitutional scholar leading it.  Laurence Tribe has taken a leave of absence from the faculty at Harvard to be its "senior counselor."  NPR described his charge.
He will coordinate with judges and lawyers across the country with the goal of finding ways to help people who cannot afford a lawyer — a circumstance known in legal terms as indigent defense.
As he tries to improve indigent defense, Tribe will also look to programs outside of the criminal justice system, such as drug courts and mental health courts. He will work on issues related to criminal, civil and family courts.
Norm Pattis, spearhead of the Universal Public Defender movement, saw through the happy talk.
I think we need more than a high-octane cheerleader to make sure that all Americans have an adequate defense when accused of a crime. Professor Tribe can use all the moral suasion he possesses, but what's needed are dollars and a commitment of resources. The Government gets a Department of Justice, the Federal Bureaue of Investigation and the coordinate efforts of hundreds of local, state and federal law enforcement agencies. The defendant gets exhortation?
I'm all for anything that government does to address the problem of indigent defense.  Even admitting that there is a problem is a something.  But it's really not much.

Most of those charged with crime have no money.  They have to rely on what are mostly vastly underfunded, overworked public defenders or on appointed counsel who agree to work for substandard wages and in a system that rewards them for processing cases rather than representing clients.  The financial incentives are, alas, for taking a quick deal rather than for investigating and examining, don't even mention trying the case.  It is, of course, the clients, those poor people about whom the Constitution and Eric Holder care who suffer.  And it will take a sea change, not merely fresh pieties, to make a difference.

It's not just money.

The Supreme Court has set the bar way too low.   The Sixth Amendment guarantees not just the right to counsel, but also the right to the effective assistance of counsel.  That should mean something like actual quality representation.  It doesn't.  The Supreme Court set out the test of effectiveness in Strickland v. Washington.  It started from a premise close to integrity.
An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.
And then it eviscerated it.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, 690 The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 343 (1983).
That's all a fancy way of saying that pretty much anything that can be imagined to be strategy or tactics, however ill-conceived (a nice way of saying "stupid") or inadequately accomplished (a polite way of saying "performed incompetently"), will suffice.  The basic test: If a mirror is held up to the lawyer's nose and it fogs up, the lawyer was effective.

But even if not, the lawyer wasn't ineffective unless there's a reasonable probability that the outcome would have been different.  Got that?  The Court offered several formulations of that rule, but here's the starkest.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.
And you know, it has to be that way.  Because if we actually demanded that counsel do their job properly, then the criminally accused would have a hard time finding lawyers.  And they might not trust the incompetent ones.
Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.

(You really can't make this stuff up unless you sit on the Supreme Court.)

OK, I'm being harsh.  So is the law.  But here's the point;  When our system for providing indigent defense virtually guarantees that significant numbers of people will get a defense that is seriously deficient, and when the courts won't step in to remedy it then moral suasion isn't going to be the answer.

Former White House counsel Gregory Craig described the federal courts as "an emergency room for our criminal justice system" and declared that how that ER functions "determines the credibility and the legitimacy of the entire system."

That's powerful stuff.  Stronger than anything Holder said.  Craig didn't mention that the states are, by and large, worse.  

So here's step one for Holder.  Put your money (actually, ours, the taxpayers') where your mouth is.  Push  Congress, to fund indigent defense.  At a level equal to the funding of prosecution.  

And get your buddy Barak to veto any budget that doesn't.


  1. And, of course, let's not forget that you don't have the right to assistance of counsel when making your claim that you did not have effective assistance of counsel. In Kansas, you can get appointed counsel after you file your state habeas petition, but appointed counsel can't amend that petition at all. Clearly, we care about protecting that fundamental 6th Amendment right.

  2. In Ohio, you're entitled to appointed counsel for filing the petition only if you're under sentence of death. And if you're not under sentence of death, you have no right to appointed counsel for the state habeas at all.

    But, and just to make it fun, if you happen to have counsel for your state habeas, and even if it's appointed counsel in a death penalty case who must be specially certified, you aren't entitled to have the counsel be effective. So says the statute - and of course, the court's agree.