Friday, February 17, 2012

They Care, Really, They Do. It's Just That There Are So Many Problems and They Need To Get Their Toenails Clipped

It's not news that there's a crisis in indigent defense.  It's not even new that there's a crisis in indigent defense.
It's true now that budgets are tight.  It was true then when budgets were, um, less tight.
The poor don't have much of a lobby.  The criminally accused (and convicted) don't have much of a lobby.  The poor and criminally accused (and convicted) really don't have much of a lobby.
But damn, they're entitled to lawyers.  And lawyers make a difference.  Just ask Gideon. No, sorry, not that Gideon though he could tell you a thing or two also.  I mean this guy.
Clarence Earl Gideon

The Gideon of Gideon v. WainwrightThe one who sent a pencil-written cert petition to the berobed ones in the nation's capital and established the principle that the Sixth Amendment guarantees a right to counsel.  The one who was then represented in that Court by Abe Fortas because the Supremes knew that he needed a lawyer to speak for him there.  The one who then got a new trial, and this time, with the assistance of counsel, was acquitted.  That guy.
But like I say, the money's tight.  And really nobody much except a few bleeding hearts and criminal defense lawyers actually gives a shit about them.  Yet they're entitled to counsel.  Not just any old counsel, either.  They're entitled to competent counsel, to the effective assistance of counsel.
But it costs money.  And nobody has much, and the little there is, well, there are so many more worthy causes.

  • Cops
  • Prosecutors
  • Prisons
  • Multi-district and agency task forces
  • SWAT Teams
  • The Lenco Bearcat (for which your local cops can get a grant) 

Really, there's no end of stuff to spend money on.  Public defense?  Not so much.  Consider New Orleans where things are a mess.  According to a report by John Simerman in the Times-Picayune (and is there a better name for a newspaper anywhere?) there are some 543 indigent defendants in New Orleans without counsel.  Meanwhile the public defender staff is shrinking.
The layoffs at the public defender's office, which took effect Wednesday, include 21 lawyers and six other employees, many of them experienced veterans.
According to Judge Arthur Hunter, it's a "constitutional emergency."
This is not, however, another post about the effort to cut funding for public defenders.  (You can find those by searching the archives; I've written several.)  No, this is a post about someone who's trying to do something about the problem.
Judge Arthur Hunter
It's that same Arthur Hunter, and while he won't exactly explain, it's pretty clear he knows what he's doing.
Aiming to cast a spotlight on heavy bloodletting this month at the Orleans Parish public defender's office, a judge this week ordered some big names in New Orleans politics, media and legal circles to represent dozens of poor people left without free lawyers.
Criminal District Judge Arthur Hunter declined on Wednesday to explain his hand-picked choices of lawyers for 32 criminal defendants, but the list obtained by The Times-Picayune makes clear he wants to spread the word over what he called a "constitutional emergency."
The roster includes state Sens. Jean Paul Morrell, Karen Peterson and Edwin Murray; Times-Picayune publisher Ashton Phelps Jr. and Gambit co-owner Clancy DuBos; Metropolitan Crime Commission President Rafael Goyeneche; and frequent media legal commentators Robert Jenkins, Dane Ciolino and Joseph Raspanti, among others.
Hunter assigned each of them cases and ordered them to appear in court next week. Nearly all are lawyers, although Hunter appears to have mistakenly picked at least one who is not. Some on the list have little or no criminal court experience. 
You get the idea.  Make it so that the people who have the means to address the problem feel it personally.  Judge Hunter can't make them into indigent defendants, but he can make them deal with the problem.  At least he's trying to.
Which doesn't mean it's going smoothly.
Senator Karen Peterson
Consider, for instance, Karen Peterson (D. 5th District, just elected to be chair of the Women's Caucus).  Hunter appointed her to represent Kayla Brignac.  Kayla's 22 and facing charges of possessing marijuana, possessing alprazolam, and possessing hydrocodone with the intent to distribute it.  Peterson's a lawyer all right, but not one to get her hands dirty on this sort of thing.
Simerman reports.
Peterson immediately filed a motion to withdraw from the case because of work for the upcoming legislative session, she said.
"And secondly, I've never, ever appeared or represented anyone in criminal court," she said. "I practice commercial transactions."
Never ever.  Can't be more never than that.
Now, I don't want to impugn the integrity, passion, commitment, or anything else of Senator Peterson or anyone else whose legal practice is exclusively commercial transactions and about whom I know essentially nothing but what I just read on her senate website and in Simerman's article.  I believe her "never ever."  And I suspect that she would have said last week, and will say next week, that indigent defense is really important but that so is highway infrastructure and the need to maintain the dykes that keep the Gulf of Mexico out of New Orleans and maybe there's some tax incentives that will bring new business to the French Quarter and have you seen what our public schools look like, and the price of a gallon of milk and then there's the Affordable Health Care Act which she does or does not support.  I mean, gee, there's so much to do.  And so little money.  But really, indigent defense is very important and an obligation I'm sure she has always taken very seriously.

And frankly, if I were Kayla Brignac I wouldn't be all that excited about having her as my lawyer.  I mean, aside from the glory of being represented by a state senator, there's the whole thing about competent representation, and my guess is that Kayla'd rather have a lawyer who knew what the hell alprazolam is - or at least how to find it in the drug schedules - than a lawyer who knows how to draft a lease agreement for a big box store.  More, I'd guess that Kayla'd rather have a lawyer whose focused on her case than on the really important stuff like the "upcoming legislative session."
But that's OK.  I don't imagine most of these folks will actually be doing any real representing.  They'll be allowed to withdraw, or they'll hire, as at least one did (perhaps for the price of a good bottle of cognac) an actual practicing criminal defense lawyer to take over assist with the case, or they'll throw some legislative cojones around and get charges dismissed or hell, I don't know. 
Hunter's point, in any case, surely isn't to force these folks to learn how to defend criminal cases.  It's to make them realize in a visceral way that the indigent accused - men, women, boys, girls - are real people with real needs.  And that there's a real obligation, a constitutionally mandated obligation, to see to those needs.  It's personal for them.  Make it personal for these upstanding citizens.
Which is a fine and noble idea.  And probably none of the folks getting the high-powered but low-skilled representation will be hurt.
And, sadly, probably nothing will come of it.
Senator Jean Paul Morrell
Consider Senator Jean Paul Morrell (D. 3rd District) a former public defender.  It is, he says on his website, an 
honor to have the opportunity to represent the citizens of District 3 in the Louisiana Senate and I look forward to working with you to build a better Louisiana.
Good for him.  Of course, that construction project doesn't seem to entail doing much for the indigent accused.  He told Simerman.
If this is an attempt to embarrass people into acknowledging the indigent defense issue, it's kind of a poor one.  I guess it's great for press. I don't know if it's great for the people who he's getting involved. We're already aware of the problem.
So. It's not "great" for the folks like Morrell who are being dragged into the courtroom.  How sad.  My guess is that it wasn't intended for their enjoyment.
And really, what's the point?  After all, they're aware.  Which is all you can ask, isn't it?  I mean, really, what more is there?
Besides, some police department might want a tank.
Let them eat cake.

H/t - Elie Mystal at Above the Law


  1. As much as I appreciate you and Elie writing about this, I am deeply troubled by the image created by your title. Please don't do that again. Let's keep clipped political toenails out of it, for everyone's sake.

    1. Glad to see you're still dropping down here to slum with the rest of us.

  2. Mr. G., all toenails aside - regarding this Sixth Amendment I keep hearing about.

    In the great state of confusion aka: Texas, the Harris County District Criminal Courts allow 'Divorce & Estate/Will' specialist to dabble in criminal defense for a day or two, do little or no work at all and walk away with no consequences.

    I had the opportunity to be represented by one (for almost 120 days) that told my poor-ass mother that he was, "one of the best & would fight to the end". We found out (years afterwards while in P.I. school) that all of his Motions were filed 30 days prior to trial and none of them had the last pages (Court Orders) filled out or signed by the judge. Not Approved or Denied.

    So there I sat in a jail jumpsuit wearing handcuffs during voire dire. None of my 5 alibis being allowed to take the stand. No receipt showing 'exactly' where I was during the time of the crime (floor-board of my dad's car). But yet the band played on, until they broke me during lunch recess. "Plea-bargain for 10 to avoid 99, your going to prison just for being arrested while on probation & it was revoked at time of arrest". Note: The Harris County Adult Prob. Dept. told me that it wasn't revoked until I signed the papers in the judge's chambers aka: Open Court.

    To add insult to injury, the HPD police incident report and mug-shot alone showed that 'his' client was 100% innocent. As of today, the self-touting 'Christian' judge is stuck at the pearly gates explainning himself to his God, the Lead HPD Detective sits on a bench in Harris County, the ADA is enjoying his forced retirement and the wannabe CDL is still playing plea-bargain games.

    Lesson learned, don't trust 'any' attorney/lawyer just because he comes highly reccomended or appointed. Check his/her background against the claims in the initial consultation. Check with the Clerk of Court monthly to see what Motions were filed. If on Probation, don't believe that it's revoked just for being arrested. Keep receipts daily/monthly in your wallet. Wave at any & all cameras, ATMs throught the day when you go out in public. The most important thing learned was that this so-called Sixth Amendment is one big ol friggin joke being played on the poor of all races from coast to coast. Thanks.

  3. When the courts have trouble deciding whether a lawyer who sleeps through the client's trial is constitutionally ineffective, hell, when they even have to debate the point, you know that the right to counsel is something of a chimera.

    There are, of course, charlatans and sleazebags and idlers and whores among those lawyers who do - or pretend to do - criminal defense. There are also superb, committed, honest, hardworking lawyers doing the work.

    There are also good, honest, fair prosecutors and judges. And there are the other sort.

    Unfortunately, the system tolerates the scoundrels and incompetents because, after all, the alternative would involve actually giving teeth to constitutional rights and that would mean the end of the republic. Or something.

  4. So, what do we do ?

    1. Vote the bastards out of office. Elect people who'll actually act. Elect enough of them. OK, not likely, at least not in the near term.

      But that's really the answer. Organize. Join with others who want to achieve the same thing. Work with the ACLU and the Center for Constitutional Rights and all the local groups (there are actually a lot of them in Louisiana) that are trying to effect change and give some force to the Sixth Amendment.

      Bad as it is, it's better now than it was 100 years ago. If the republic stands, it will be better still in 100 years. But count on 2 steps back for every three forward. And sometimes it's just a string of steps back for a while.

  5. So refreshing to read your post, even if late. My law partner is just wrapping up a felony murder case in Travis County District Court with a court appointed client. At the docket call, wrapping up all loose ends prior to starting the trial, the judge mentions that he should probably have a second chair for voir dire (God forbid he have one for the entire trial, of course). But then she catches herself... "but I'll have to cut the payment out of your voucher to compensate the second chair..." Seriously? I hate to be bitter or cynical, but the right to a fair trial is a farce if you are poor. The county is paying the judge and TWO assistant district attorneys VERY handsomely to slog through several days of trial, but there's not even enough pocket change to throw at a young lawyer to sit through jury selection without siphoning from the pittance that lead appointed counsel gets paid? So the result? A young lawyer sat in, for free. Maybe if the prosecutors and judges were paid on a case by case basis, with exceptional discounts in pay for prosecuting or presiding over the indigent, then it would get a bit more even-handed. And for God's sake, quit electing prosecutors to the bench!

    1. It's pretty much always all about the money.

  6. I remember reading somewhere long ago that the average cost of keeping a person in prison was around 40K a year. Indigent defense, on a per capita basis, probably costs just 1% of that. It seems odd that a State will continue funding the former, will lacking the funds to sustain the latter, especially when a well-funded criminal defense bar will probably save the Sate a lot of money by keeping the prison population low.

    1. Penny wise, pound foolish.

      We've also chosen, and this makes even less economic sense, that it's better to put resources into investigating, prosecuting, and punishing crimes than to put resources into fighting the root causes of crime and thereby preventing it.


    A program that was effective in reducing crime? That son-of-a-bitch had to go!