An Obvious Truth

[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.

So wrote Supreme Court Justice Hugo Black, speaking for a unanimous court, and holding that the states are required to provide a free lawyer to anyone charged with a serious crime who cannot afford to hire one. The case was Gideon v. Wainwright, brought to the Court on a petition for writ of certiorari, hand written, on lined paper, in pencil, by drifter and sometime thief Clarence Gideon from his prison cell in Florida.  

Gideon was charged with breaking and entering with intent to commit petty larceny at the Bay Harbor Pool Room, a pool and beer joint in Panama City, Florida.  He asked the judge to appoint him a lawyer for his defense at trial.  The judge said no.

I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

And so he defended himself.  And got the maximum sentence: five years in the pen. And still without counsel, he kept at it.

When the case got to Washington, and when the Supremes agreed to hear it, that changed.  They weren't going to force this guy to represent himself in their court.  So they appointed this lawyer, Abe Fortas (later Associate Justice of the Supreme Court Abe Fortas, later still disgraced-former-Associate . . . ), to represent Gideon.  Fifty years ago, on March 18, 1963, the Court recognized that "obvious truth."

The rule now is, in every state, that people charged with serious crimes who can't afford counsel are entitled to have lawyers appointed for them.  Which is quite something.

Until you peek under the covers.

Gideon had no lawyer to help him ask the Supreme Court to hear his case.  The court's decision didn't change that.  Nothing in the last 50 years has.  The accused has a right to an appointed lawyer at trial and on a first appeal.  If the state offers two levels of appeal (most do in most cases) he doesn't have a right to a lawyer at the second.  He doesn't have a right to a lawyer to pursue a collateral attack on his conviction through state or federal habeas corpus procedings.

And the right to counsel at trial and on first appeal?

Every state has its own system of providing counsel for the poor.  In some states, it's not one system but many.* In every state it's a struggle. The problem, of course, is funding.  Poor folks don't have much of a lobby.  For obvious reasons, they don't make large campaign donations to governors and legislators.  The criminally accused and convicted don't have a particularly good lobby, either.  Nor do they generate a whole lot of sympathy.

I've talked about public defenders and public defense before.  Despite what some of their clients think, they're real lawyers.  They are, for the most part, among the most dedicated, competent, hard-working, committed lawyers you'll find anywhere.  They are also underpaid, underresourced, and overworked.

In too many places, they can do little more than process cases.

Here, I'm a lawyer, I can tell you that the prosecutor is offering this and even though I just met you ten minutes ago and know nothing about your case, you should take the deal.

In too many instances, no matter what they'd like, they haven't the time or the support to investigate, explore, work a case, try a case.  Because the budget.  And the staffing and the investigators and the overhead and 

I'm sorry.  There's just not enough money to put enough lawyers on the ground.  And really, that one part-time investigator for 30 lawyers and 1500 cases is all we can afford.

The situation for independent appointed counsel is often worse. Paid on an hourly basis, often at a rate lower than office overhead, she may well have reached the fee cap before the case even goes to trial.  Is there a disincentive to try the case? An incentive to urge the client to plead guilty to something regardless?  Does the work get shoved aside, to be done hurriedly because the stuff that actually pays the bills has to be done first - and more carefully, more diligently, more thoroughly? 

And if there's need for an investigator? An expert? Ask the judge, who's deeply concerned about the budget and really, what's the point?  The client's guilty anyway.  OK, maybe.  Get someone cheap and local.  No stars, nobody from out of town.

I'm not paying travel time.

Like the money comes out of the judge's own pocket.

There are, of course, plenty of lawyers who understand that once they agree to do the case, they don't get to take shortcuts.  They'll pay for the expert, for the investigator, out of their own pocket.  Because it's what they agreed to do when they agreed to take the case for too little money.

There are, of course, also the others.  The bottom feeders.  The incompetent.  The ones two weeks out of law school.  The ones who get appointments because they make campaign contributions to the judges or because they won't actually file motions or make the judge go to trial.

And don't even get me started talking about all the folks who need lawyers for their civil cases (some of which can get them locked up) but aren't entitled to them.

The truth may be "obvious."  But what to do?

It's "obvious" that the indigent accused is entitled to a guy with a law degree.  For a while.  But someone with the resources to do the job? With the incentives to do it right? With the means to do it right? With the competence? With sufficient sleep?

Clarence Gideon gave us one of the great landmark rulings in the 226 years of the United States Supreme Court.  Its promise is great.  The reality, far too often, falls woefully short. 
A judge once told me that law students would often ask him what area of law they should go into in order to defend the Constitution.  "Don't go to law school," he said he'd tell them.  "Go to DC and become a cop and roust Rhenquist [this was back when he was alive and Chief Justice] and Scalia for no reason."  He didn't add, but could have, "Make them use an overworked, underpaid, underresourced, public defender."

One more time, public defenders are, for the most part, among the most dedicated, competent, hard-working, committed lawyers you'll find anywhere.  They are also underpaid, underresourced, and overworked.  And court-appointed counsel are frequently men and women of competence and integrity who'll do whatever  they can for the client, regardless of the fact that they may have to fund the case themselves.

Nine men in Washington saw an "obvious truth."  It was a wonderful ruling.  But without the teeth needed to make it work as it should.

It did for Gideon though.  He got a new trial.  He had a lawyer this time.  The jury said Not Guilty.
 

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* Ohio has a state-wide public defender office that does mostly (but not entirely) post-trial work.  Each of the 88 counties in the state has its own separate system for providing trial counsel.  Some rely entirely on appointments.  Some have public defender offices that do some percentage of some of the cases.  Some use contract attorneys. Some have various combinations and permutations.  Some even have branch offices of the state office.  Private counsel are paid on fee schedules set separately by each of the 88 counties.  The balkanization of indigent defense in Ohio is part of the reason I've said, on more than one occasion, that it's barely a state, it's more like a collection of fiefdoms.

In Our Culture But Not in Our Genetic Code

“Freedom demands a certain risk,” David Shipler wrote last year in The Rights of the People: How Our Search for Safety Invades Our Liberties. It’s a risk, he argued, we are too rarely prepared to take. To make that point Shipler examined breaches in what he called the physical boundary between the individual and the state, guarded by the Fourth Amendment. But Shipler was after more.  He knew that the Fourth wasn't the only Amendment jeopardized by the insistence that safety and security were more important than liberty. So he knew from the start that the "landscape [was] too vast."  So The Rights of the People was just the first volume.

The second volume is Rights at Risk: The Limits of Liberty in Modern America. It's out now, and it's as powerful as the first. This time Shipler focuses his attention on the First, Fifth and Sixth Amendments

Shipler understands the value of a good story, and he tells lots of them. He talks about the Chicago police torturing often innocent suspects to extract confessions from them and send them to prison or better yet (from the point of view of the cops) to the gurney.  And he reports on torture from wherever it was that John Yoo said it was cool for federal agents to waterboard Khalid Sheikh Mohammed because torture isn't really torture unless you're dead at the end and, besides, he was a bad guy and safety and security and who gives a shit about those sorts of niceties anyhow?  Oh, and he looked funny.

In his chapter on false confessions (what? you don't think they happen?), he notes that some two hundred people confessed to kidnapping the Lindbergh baby, and tells how the Central Park Five were essentially gulled into confessing to the rape of jogger Trisha Meili, a rape they didn’t commit.  And then he talks about the Reid technique, a manipulative method of interrogation that has a great track record for getting the innocent to admit guilt.

Clarence Earl Gideon

He begins a chapter on the rights to counsel and especially to effective assistance with the tale of Anthony Ray Hinton who’s been on Alabama’s death row for some 26 years since his trial counsel hired as a firearms expert “a one-eyed retired engineer who couldn’t operate a comparison microscope [and] had jurors laughing in ridicule.” And of course he talks about Gideon.

But it's not just the path breaking cases, the ones that make the headlines. It’s the ordinary, the quotidian. The path is worn now, but ill-tended. It buckles. It gets overgrown with weeds. You can follow the trail, but you may trip and stumble. And you're apt to ask why bother because it's just there and doesn't look all that much different from the surrounding terrain. Because these things really do happen every day. Maybe there's a lawyer, but barely because he's asleep, which is maybe dramatic enough to get noticed (see here, for instance), though sadly it happens often enough that the press often doesn't bother covering it and the courts too often blow it off).  And maybe there was a confession to what he didn't do and maybe he was convicted (or not or got really lucky and had the charges dismissed or really really lucky (following a run of awful luck) and got post-conviction exoneration. Or not.

Mary Beth and John Tinker

So while Shipler tells us about the famous (at least to lawyers and their hangers on), there are the others. Along with Gideon and Mary Beth Tinker, he speaks of people you’ve likely never heard of: Clemente Zavaleta and Mohammed Maddy and Barry Reingold, for instance. Theirs are the more typical stories of ordinary men and women. Some committed crimes. Some offended sensibility. Some seem to have been random victims of happenstance.

Of course, stories are not proof, and Shipler knows better than to pretend they are. Instead, he uses the stories to animate the argument, to provide the examples that show not only what can happen but what does. They are tied to the executive, legislative, and judicial decisions that spawned them. And their very ordinariness is part of the point.

Shipler makes that explicit when talking about the oppressive caseloads and lack of resources facing too many public defenders and appointed counsel.

The problem is even more insidious than the dramatic cases convey. The defects are nourished not just by individual malice but by systemic failure, an uncaring set of priorities that unbalances the adversarial process.

It’s not, after all, that in the aftermath of 9/11Shrub told Ashcroft that he hated the Fourth Amendment and wanted it ignored. (Really, that's not what he said.)  It’s that W simply didn’t consider the Bill of Rights when he said, “Make sure this never happens again.” The effect on the Fourth Amendment was consequential, but not precisely intentional. Similarly, when the courts allow police like Detective Tom McKenna, “to use guile and ruse," they probably expected (if they gave it even a moment's thought) that he’d do that (“and we do,” he added). But it's unlikely that expected that he'd use them to get false confessions from the Central Park Five. The courts were just thinking, if they were thinking at all, about how to get the bad guys.

The erosion of civil liberty is gradual, a slow eating away at our rights, a point Shipler makes nowhere more clearly than in his chapter on free speech and press in schools. Justice Fortas gave us  sweeping words in Tinker.

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

But they give way when a high school student in Connecticut called her school principal and the superintendent “douchbags” and was punished by being denied the chance to run for senior class secretary. Then-mere-Judge, not-yet-Justice Sotomayor was part of the unanimous Second Circuit panel that ruled against her.

Shipler’s is, ultimately, an exhortation. 

The Bill of Rights is in our culture but not in our genetic code. . . . [Unless] taught and exercised until it becomes an intuitive ingredient of being American, it gradually succumbs to peer pressure, institutional hierarchy, and apathy.

And then, as he doesn't quite say, it dies.

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Thanks to the National Association of Criminal Defense Lawyers for sending me a review copy of Rights at Risk.  A version of this review will appear in The Champion, NACDL's monthly magazine, sometime this summer.

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In Case You Didn't Think It Matters

Not Guilty.

We in the criminal defense bar crave those words even, it sometimes seems, more than our clients do.  But if the words are always sweet, sometimes they have special resonance.  Yesterday, for instance, in Suffolk Superior Court in Massachusetts.

The case involved one Luis Melendez-Diaz, and if that name doesn't sound familiar, maybe it will if you skip the "Luis" part and just think Melendez-Diaz.  Or maybe if you think it in italics, you know, like the name of a Supreme Court case.  Melendez-Diaz v. Massachusetts.

If it still doesn't mean anything to you, that's the case where SCOTUS said that the Confrontation Clause of the 6th Amendment, 

In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ,

applies even to lab technicians who work for the government.  That seems self-evident, but only if you actually believe that the amendment doesn't include the word "sometimes."  The vote in SCOTUS was, after all 5-4, and the penultimate sentence of the dissent makes clear that the 4 (Kennedy, Roberts, Alito, and Breyer) think that "sometimes" is part of the Amendment.  That sentence reads,

Laboratory analysts who conduct routine scientific tests are not the kind of conventional witnesses to whom the Confrontation Clause refers. 

But I'm getting sidetracked here.  This isn't a post about SCOTUS or even about the 6th Amendment, except incidentally.  This is a post about consequence.

Consider, if you will, Ernesto Miranda.

You know, the guy whose conviction was reversed by SCOTUS because the cops didn't tell him that he had the right to a lawyer and that what he said to them could be used against him. and got sent back for a new trial, this time without his confession.  You know all that, and you know about Miranda warnings.  Maybe you don't know that he was tried again in the Arizona courts, without that confession.  And he was found guilty again.

Consider Larry Youngblood.

He was convicted of kindapping and repeatedly sodomizing a 10-year-old boy. Based on the boy's description and identification, Youngblood was arrested and then convicted by a jury.  The problem, his expert witnesses testified at trial, was that the biological evidence had been improperly stored and therefore it was degraded and unavailable for testing that would prove his innocence. That incompetence on the government's part, he said on appeal, corrupted the adversary system, deprived him of his constitutional rights, and required that he be freed.  Arizona courts agreed and cut him loose, but Arizona asked SCOTUS to intervene, which it did, sending Youngblood back to prison.  The Court (6-3) said that since he couldn't prove that the destroyed evidence would have shown him innocent (after all, it had been destroyed), and since he couldn't show that the cops acted out of malice rather than incompetence in allowing the evidence to be destroyed, he had no real beef with the system.

So Youngblood went back to prison.

And then, in 2000, new, sophisticated techniques made it possible to test that old biological evidence. Youngblood had been telling the truth. He was innocent. More, the testing revealed the actual bad guy, a fellow named Walter Cruise, who was convicted of the crime in 2002.

Consider Clarence Gideon.

Charged in Florida with a felony for breaking and entering a poolroom to commit a theft.  He had no money to hire a lawyer and asked the court to give him one.  The court said no, Gideon went to trial representing himself and was convicted.  His case went up to the Supreme Court on his own, handwritten, petition.  SCOTUS agreed to hear it and unanimously (though with several opinions), reversed.

Back for a new trial, this time Gideon had a lawyer.  And was acquitted.

Which brings us back to Luis Melendez-Diaz.  He just had his new trial.  This time, the state called as a witness the lab technician who tested the stuff that got him convicted before.  Martin Finucane in the Boston Globe reports:

On Wednesday, during Melendez-Diaz's retrial, a chemist from the state Department of Public Health testified that the substance allegedly found in the back seat of a police cruiser with Melendez-Diaz and two other men tested "positive for the presence of naturally occurring cocaine."

I don't know if that made a difference to the jurors.  I don't know what the cross-examination was like.  I don't know what the other evidence was.  

Here's what I know:  The Constitution said that a criminal defendant has a right to challenge the state's evidence and to confront the state's witnesses.  And when the state's witness actually testified, the jury decided that Melendez-Diaz was

Not Guilty.

With that special resonance.

H/t Brian Tannebaum