Sunday, November 28, 2010

Hawkeyes Win at the Buzzer

It shouldn't be news to anyone that there's a crisis in indigent defense. 
We've seen the problems in New York where an underfunded public defense system denies indigent criminal defendants their basic right to effective counsel.  The courts are at least looking at the systemic issues there.
We've seen the problem in Missouri where public defenders have refused to take more cases because they cannot do their job competently with excessive caseloads and insufficient resources. Prosecutors there want to shut down the public defender system and replace it with something that costs less and the hell with competent representation.
We've seen Colorado where elected prosecutor Marty Beeson figures that public defenders are abusing the system because they aren't sufficiently supportive of the his efforts to get their clients convicted.
We've looked in on Georgia where capital prosecutions languish because the state can't pay the lawyers.  In the Jamie Weis case, the prosecutor suggested that the judge remove appointed counsel and give Weis over to the public defender.  Competence and defendant rights be damned.  We need to get on with the business of getting this guy killed and the prosecutor and judge are all too happy with dumping counsel and providing cheapo representation to ensure it happens sooner.
Money's a problem in California, too.  Out there, death row inmates wait an average of 10-12 years while the state tries to find lawyers willing to represent them in state post-conviction.  The problem?  Not enough money to pay and provide resources for counsel to do a competent job.  And those damned lawyers keep wanting to do it right.
It's an issue here in Ohio, too.  And in your state.
The short of it is that criminal defendants are entitled to counsel, and if they can't afford it - and they mostly can't - the government has to pony up the money to pay for a lawyer.  Except that criminal defendants don't have a great lobby and money for the accused never seems to be a budget priority.
So it's defense on the cheap.  Or it is as often as possible.
Which is why we now turn to the Hawkeye State (Iowa) and the case of Simmons v. State Public Defender.  
Kent Simmons, a lawyer, was appointed to represent Millam in a post-conviction appeal of of two counts of sexual abuse.  Arguing that trial counsel was ineffective, Simmons convinced the Iowa Supreme Court to order a new trial.  Simmons was also appointed to represent Cromer on sex abuse charges, this time on direct appeal.  Again, he convinced the Iowa Supreme Court that trial counsel was ineffective and that his client should get a new trial. 
His contracts with the PD for the cases said he would be paid
for reasonable and necessary legal services performed by the Contractor under this Contract, pursuant to administrative rule adopted by the State Public Defender.
But when Simmons applied for fees, it turned out that the relevant administrative rule capped fees for appellate work, except in extraordinary cases which these were not, at $1,500.
So Simmons sued.  The district court sided with the public defender.
According to the district court, the flat-fee limitations in the administrative rules were valid and not contrary to the statute. On the constitutional question of whether the flat fee violated an indigent client‘s right to counsel, the district court, citing United States v. Dillon, 346 F.2d 633 (9th Cir. 1965), held that an attorney has an obligation to represent indigents in criminal cases without payment of a fee, except as may be provided by statute.
The Iowa Supreme Court took a different view.  After extensive review of the right to counsel and of counsel's duties and of standards and guidelines for criminal defense and indignet defense, it turned to the case before it.
Based on our review of the case, we conclude that the plaintiff has shown that if Iowa imposes a hard-and-fast fee cap of $1500 in all cases, such a fee cap would in many cases substantially undermine the right of indigents to effective assistance of counsel in criminal proceedings under article I, section 10 of the Iowa Constitution. In reaching this conclusion, we look at the facts of this case from three different perspectives. All point to a profound chilling effect of the fee cap in this case that, in effect, establishes a hard $1500 limitation on counsel.
First, we examine what the fee cap would mean for a full-time attorney providing representation in criminal appeals. Under the NLADA standards, a lawyer who handles appeals should limit his or her workload to twenty-five appeals per year. Standards for the Defense, Standard 13.12. Under this standard, a full-time lawyer working pursuant to the appellate defender‘s rule could receive a gross income of $40,000. See id. From this figure, the attorney must pay for overhead which, according to the Iowa State Bar Association survey offered into evidence in this case, was, for the average Iowa lawyer, in excess of $70,000. Even assuming that a criminal defense lawyer working on appeals would have less overhead than the average Iowa lawyer, it seems clear that it would be very difficult for a lawyer working under the state public defender‘s rule to earn a living.
Second, we look at this case by considering the hourly rate paid to Simmons for what the record establishes were reasonable and necessary services. His hourly rates for the cases amount to $12.56 for Millam‘s appeal and $12.27 for Cromer‘s appeal. Over the long run, payment of such hourly rates to appellate counsel will have a chilling effect on qualified lawyers taking this work and would discourage thorough appellate preparation.
Third, we use our own expertise in considering the impact of a $1500 fee cap for appellate work. State v. See, 387 N.W.2d 583, 586 (Iowa 1986) (stating that courts are experts in determining reasonable fees); Smith, 394 A.2d at 838 (stating "it is peculiarly within the judicial province to ascertain reasonable compensation" for court-appointed counsel). No one can dispute that competent appellate representation requires thorough mastery of the underlying facts, communications with the client, research into applicable legal issues, consideration of which issues to present on appeal, and then careful writing and rewriting. A hard-fee cap of $1500 simply cannot provide adequate compensation in many cases, including the two cases at issue here.
Were that all, the opinion would be extraordinary.
  • Lawyers doing appointed appeals with a $1,500 cap could barely make a living.
  • A $1,500 cap for appointed appeals would discourage qualified lawyers from taking the cases and would lead to inadequate prepared appeals.
  • It just ain't fair.
But that wasn't all.  There was, also, this careful explanation.
The implications of the inadequate compensation framework on the provision of effective assistance of appellate counsel are multiple. First, inadequate compensation will restrict the pool of attorneys willing to represent indigent defendants. See State ex rel. Friedrich v. Circuit Ct., 531 N.W.2d 32, 29–30, 35 (Wis. 1995); see also Coonrad, 362 N.W.2d at 201 (Schultz, J., concurring). Second, the low level of compensation threatens the quality of indigent representation because of the perverse economic incentives introduced into the criminal justice system. See, e.g., Makemson, 491 So. 2d at 1112 (noting inextricable linkage between compensation and defendants‘ rights to effective assistance of counsel); Stephan, 747 P.2d at 831 (observing inadequate compensation causes inherent conflicts between attorney and client); Jewell, 383 S.E.2d at 544 (stating it is unrealistic to expect appointed counsel to remain insulated from economic reality when losing money). Low compensation pits a lawyer‘s economic interest (recall Lincoln‘s metaphor that a lawyer‘s time is his stock in trade) against the interest of the client in effective representation. See Adele Bernhard, Take Courage: What the Courts Can Do to Improve the Delivery of Criminal Defense Services, 63 U. Pitt. L. Rev. 293, 321 (2002) (declaring conflict of interest between attorney and client in fixed-fee cases as "real"); see also Smith, 681 P.2d at 1381 (holding fixed-price contract to represent defendants in county unconstitutional for, among other things, failure to take into account time that the attorney is expected to spend representing defendants, failure to provide support costs, and failure to take into account the complexity of each case); Olive v. Maas, 811 So. 2d 644, 652 (Fla. 2002) (stating mandatory fee caps create "economic disincentive[s] for appointed counsel to spend more than a minimal amount of time on case").
Of course, in high courts, timing can be everything.  
According to now-retired Supreme Court Justice John Paul Stevens (in the December 23 issue of the New York Review of Books and as reported by Adam Liptak for the NY Times), for instance, timing is responsible for much of the worst in our death penalty jurisprudence. 
In Payne v. Tennessee in 1991, for instance, the court overruled a 1987 decision, Booth v. Maryland, that had banned statements from victims at sentencing because of their tendency to inflame juries.

“I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the court,” Justice Stevens wrote. “That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions.”

Justice Stevens did not name those new justices. One was Justice Anthony M. Kennedy, lately the court’s swing justice, who replaced Justice Powell.

The other was Justice Souter, who replaced Justice Brennan and in other cases generally voted with Justice Stevens and the rest of the court’s more liberal wing.

Justice Stevens also had harsh words for the 5-to-4 decision in 1987 in McCleskey v. Kemp, which ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not violate the Constitution. He said the decision effectively allowed “race-based prosecutorial decisions.”

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” Justice Stevens wrote.
Here, too, Justice Stevens wrote, the decision turned on changes in the court’s membership. Justice Potter Stewart “surely would have voted with the four dissenters,” Justice Stevens said. Justice Stewart was replaced by Justice O’Connor, who voted with the majority. 
And so it is that three members of the Iowa Supreme Court were just voted out of office.  Simmons may be the final piece of their lasting legacy.  If it is, they'll have done a great service.


  1. I think those Iowa Supreme Court Justices were defeated over an abortion issue.

    Saw your comments over on SJ. Very good discussion over there, but I have to differ on several points. Among them, that you can reach or persuade judges. You can't. We've known this for centuries. That's why we do the jury thing.

    I've been reviewing a few Posner writings on "what judges think", and it's pretty appalling. His major influence was Ollie Holmes, of course.

    He basically just maintains that judges want to be fat, dumb and happy like everyone else, with a little more prestige than most, and rule accordingly. Ruling for the underdog makes their lives more difficult, so they don't. There's no way around that by arguing with them.

    Those lesser of us, lawyers, are supposed to go to law school, learn the rules and then "transcend" them so we can function in the system, under judges. That is, look at it like judges do: "pragmatically".

    When is it "pragmatic" for a judge to rule in favor of a criminal defendant? Easy answer. Never.

    As an undergraduate my impression of the law as an intellectual discipline was that it was pedestrian. I could never have imagined how true that really is in practice.

    The Wikipedia page on him describes Posner as the most quoted jurist of all time, and I think they may be right. How awful. At least he's not as famous as Holmes. Yet.

    As a group, judges are primarily characterized by very low character. Remember that, Jeff.

  2. ...that you can reach or persuade judges. You can't.

    Sure you can. I speak from personal experience here, and I know good and well that judges can be persuaded to do just about anything you'd like. In some cases there isn't any 'just about' - judges can be corrupted just like anyone else.

    That's why we do the jury thing.

    As a sort of lesser (lessor? Ha!Ha!) of two evils? I've seen some of these juries, and out of 12 people half of them are going to be below average. I've even seen jurors fall asleep during a trial.

    Getting back to the original point, since most people who are arrested for a felony can't pony up $100,000 or more for their defense, the State has to cover the cost. If the State caps the expenses at $1,500 I honestly do not know anyone who would be foolish enough to take the case, as the whole thing is a dead loss no matter which way you look at it. I'm not sure $1,500 would cover a DUI, let alone a manslaughter case or armed robbery.

    I'm reminded of the O.J. Simpson trial, when more than one person remarked that all OJ needed was a hung jury, as the State of California could not afford a second trial.

    I don't have a reasonable solution for this particular deficiency in our legal system, but I'm open to suggestions.

  3. Once in a great while a judge will rule for a disfavored litigant, but it's still self interest. If he always, every single time, sided with the state it would all be too obvious. So for the sake of his longer term interests he throws a bone every once in a while. It's largely random and unpredictable.

    Judges generally will overturn even the most obviously wrongful conviction only when the prosecutor basically agrees to it or otherwise signals he's not opposing it. They don't want to take the heat all by themselves.

    The fee caps say all anyone would want to know about balance in the criminal justice system. Defense opposition is presumed to be token, if not a farce, like the Washington Generals playing the Harlem Globetrotters.

    I have suggested a solution to these and other issues consisting of lawyer strikes against particularly toxic judges, the idea being to give judges some counterbalancing force to be afraid of, so that they are not just afraid of the political consequences of their decisions from one side, but this idea has yet to gain any traction.

    One suggested target was a judge in New Orleans who held a defendant the prosecutors conceded was the wrong man, and when the defense lawyer got upset and made an issue out of it - as he should have - the judge had him beaten, forcibly arrested and jailed for nine days.

    If defense lawyers are going to take that kind of abuse and respond with a servile and hopeless plea for relief under section 1983 or some such, while their colleagues do nothing, I don't see what incentive the system has to change.

    Blog posts will not do it by themselves.

  4. No, blog posts won't change the world - or even my little corner of it. I don't know of any serious blogger who thinks otherwise.

    But I've been toiling in these trenches for a long time now, and while I'm thoroughly cynical about the legal system, I have to say that both the empirical evidence and personal experience demonstrate pretty conclusively that you're wrong, Atticus. It's not that judges are universally - or even mostly - disinterested and dispassionate legal minds. They're not.

    But they are, in fact, mostly decent people trying to do a decent job. They're influenced, of course, by things other than abstract legal reasoning. Some of those influences are pernicious. Most judges try, with varying degrees of success, to overcome their prejudices and self-interest and to rule as fairly and honestly as they can.

    But good judicial rulings - even those good for the disfavored - are not random and unpredictable. (Indeed, in some cases they're all too predictable; I may like being before a judge who's inclined to rule my way, but that's not the measure of a good judge.) Nor are they especially rare.

    Sure, most criminal defendants (and most poor people up against institutions or the government) lose most of the time. That's not because of judges. In criminal cases, that's because most of the accused are in fact guilty of something akin to the charges against them, and most appeals are, by rule (and it's generally a sensible rule, even if I don't much like it), forced to carry a burden they can't meet of showing not just that they didn't get a fair trial but that there's some reasonable likelihood that the unfairness made a difference. In civil cases, it's because the various legislatures write laws favoring the powerful over the powerless and government over individuals.

    Sure, the Supremes as they are constituted today are no particular fans of the poor or the criminally accused. And sure, they're too inclined to make sweeping changes in the law and gut the rights of the poor and the accused. But that's a majority of them. The poor and accused also win cases at SCOTUS (not at random and not unpredictably) and as personnel change so does the frequency and margin of victory.

    It's bleak out there. But those of us who actually practice law and care about the clients know that it's not nearly as bleak as you declare.

  5. All right. They're "decent people trying to do a decent job". I don't agree, and I know plenty of them, but let's not tarry on it.

    Do they succeed, assuming that's all true? No. That is not debatable.

    What's missing? The risk reward analysis favors what they do now. And what they do now is to walk all over you and your clients, because there's no cost if they do, and a high cost if they don't. That calculus needs to change, for their sake and yours, and your clients'.

    I know a judge who pissed off the police a few times, and they followed him around (without him being aware, this was discovered later) off and on for about two years, hoping to get him on this or that. That's part of what is going on.

    But the police do that, like they do a lot of things, because they think they can get away with it, and they can.

    And what about those times they arrest your witnesses or intimidate them, or threaten you, or the judge if he sides with you? What are you going to do about that? Make an argument?

    Twenty plus years practicing law ain't nothing. It's long enough, maybe too long, to see things as they are. Why do you imply that I don't care about clients? I could say the same about you. You're the one serving them up as fodder, 99% of the time. Not me. I'm done with that.

    But I don't. I know you give a shit. I know you're better than the judges, or you'd be one of them. You write well enough. You think well enough. You just have a much lower bullshit tolerance and you can't go along with wrongdoing even when it benefits you to do it.

    Bleak? That doesn't begin to capture it.

    I'm sorry that some capacity to harm has to come from the other direction. It's too bad. We should all listen to reason. But we're way, way past that point and you know it.