An Adversary System, If You Can Keep It

One day soon we'll go back and catch up on what's happening in Missouri where the prosecutors are trying to redesign the public defender system to ensure that clients will receive inadequate representation.

But for the moment, let's put them aside and drop in on Martin Beeson, elected prosecutor for Pitkin, Garfield and Rio Blanco counties in Colorado.  Beeson's been asked to cut his budget by 5%.  Instead, according to Aspen Daily News Online, he was in Aspen asking the Pitkin County Commissioners for $600,000.  (The article isn't clear about whether that's maintaining the status quo or a significant increase from the current funding level, but it does say he's likely to get the 600K.)

Thing is, and what got me writing this, is that Beeson's prosecutors make a whole lot more money, and have a vastly bigger budget, than the local public defenders.  Frankly, that's not unusual.  I haven't run the nationwide numbers, but parity is the exception, not the rule.  Still, the public defender budget for those same three counties is roughly 20% of Beeson's.  Then again, Beeson has cops and government labs and the state police and the FBI that he doesn't have to pay.  The public defender has . . . whatever it can scrape out of its budget.  So that 20% is probably something more like 10-15% in real dollars.

But from Beeson's point of view - that's way too much.

Asked about the public defender’s budget after his Aspen meeting on Tuesday, Beeson criticized the office for abusing the 6th Amendment right to a defense counsel by needlessly frustrating the DA’s efforts and using legal loopholes to suppress incriminating evidence against their clients.

“Public defenders are not defenders of the public,” Beeson said. “They are not serving the public good. They are taxpayer-funded attorneys for criminals.”

I hardly know where to begin.

Yes I do.  I begin where Beeson says he does, with the 6th Amendment.  Here's the text.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

It's that last item on the list, "the Assistance of Counsel for his defence" to which Beeson must be referring.  And within that, there are a few rights to consider.

You can quibble about the details, since having the right to counsel might mean no more than that the accused can't be denied the right to retained counsel.  Still, it's well settled by now, and Beeson doesn't object here, to the current standard.  In any serious offense, the 6th Amendment means not just that the accused can't be denied counsel, it means that the accused is entitled to counsel and if he (it's mostly he) hasn't the money to be able to retain counsel, then counsel "for his defence" will be provided at taxpayer expense.  See Gideon v. Wainwright.

And Beeson doesn't suggest that counsel just means advice.  Real, honest-to-god licensed attorney.  Graduate of a law school and passed the bar.  I guess Beeson's OK with that.

Then there's the thing about effective assistance of counsel.  See Strickland v. Washington.  The standard is low.  I've reproduced the basic test before.

If a mirror is held up to the lawyer's nose and it fogs up, the lawyer was effective.

That may sound harsh, but it's the Supreme Court that explained that demanding more of lawyers would make it harder for clients to trust them.  Really, I'm not making it up.  Here's what they said in Strickland.

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.

OK, I don't think Beeson thinks there's anything wrong with demanding effective assistance of counsel if it means no more than that counsel breathes.

But then Beeson goes off the rails.  Because he quite clearly thinks that the right to counsel does not mean the right to have a lawyer who'll make it harder for the prosecutor to get a conviction. That's because it's an abuse of the right to counsel for the lawyer to be "needlessly frustrating the DA’s efforts."  You know, by cross-examining witnesses, say.  Or even endorsing a Not Guilty plea.  And especially not by "using legal loopholes to suppress incriminating evidence against their clients."  

• The lawyer objects that the client wasn't given Miranda warnings before confessing?  Lawyer's being abusive.
• The lawyer says the cops should have had a warrant before breaking down the door?  Lawyer's being abusive.
• The lawyer says the Constitution confers rights on the accused?  Lawyer's being abusive.

The lawyer stands there mute?  Ah, now that's what the 6th Amendment supports.

If you think all that seems harsh, well, you're missing a fundamental point that Beeson gets even if the 6th Amendment doesn't.  Those clients?  The folks public defenders represent?  They're all criminals.

Forget that weasel word "accused" in the 6th.  Listen to Beeson.  Public defenders "are taxpayer-funded attorneys for criminals."  And since they're all criminals, what's the point?

Maybe Marty missed that class in third grade civics.  Maybe he just skipped that last word in the amendment, "defence."  Or maybe he was confused by the spelling (with a "c" rather than the good old American "s") and thought it meant "prosecution."

Because the right of the accused to counsel is the right to counsel for his defense.  (Spelling it now with an "s" to make it easier.)

Because he (or she or even it) is "the accused," not the convicted.  And the idea of our system is that the accused will be acquitted, which means be not guilty, unless the government, the prosecutor, Marty Beeson or his minions, proves by properly admissible evidence that is tested and challenged by a vigorous and competent defense every element of the offense charged beyond a reasonable doubt.

Which is why Marty Beeson is not merely wrong.  He's fundamentally un-American in his wrongness.

He doesn't like or believe in our adversary system.

Look, the system ain't perfect, even in design.  And it certainly isn't perfect in practice.  

(If it were perfect, Anthony Graves wouldn't have spent the last 18 years in custody, most of them on death row, for a crime he didn't commit.  As prosecutor Bill Parham said Wednesday, as he declared Graves "innocent" and secured not just his release but a dismissal of the charges against him,

There is nothing that connects Anthony Graves to this crime. I did what I did because that's the right thing to do.

Credit to Parham, but 18 years is a damn long mistake.  And Graves could easily have been executed.  Mistakes, even the ones we eventually catch, don't show that the system works, they show it doesn't work.)

But even imperfect, the system is a hell of a lot better than the one Beeson wants.

• Arrest 'em.
• Give 'em a lawyer who'll assist the prosecutor.
• Plead 'em guilty.
• Lock 'em up. 

Maybe even waterboard 'em for a confession.  No problem.  They're criminals.  Nothing even for God to sort out.

Stalin might have been proud.

Adams, Jefferson, and Madison less so.  Even Roberts and Alito might have trouble with this one.

Marty Beeson.  Disgrace.

h/t to my friend Lisa F.