And Still They Elected John

In order to get the Constitution ratified, they had to promise a Bill of Rights.  It was hotly contested.  

There were those who thought it not merely unnecessary but dangerous.  The Constitution created a government of limited powers.  Of course, there were all sorts of things it couldn't do.  But listing them, declaring these things, was to risk the faulty understanding that whatever wasn't listed wasn't protected. 

Trust, those who held that view said. And remember, these were some of the same men who signed off on the Declaration of Independence with its ringing endorsement of rights.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

But others, well, they didn't trust.  Give the government an inch and it'll take a mile.  We need specific limitations.  And then some stuff that says this isn't the complete list.

Anyhow, you put it all together, Constitution, Bill of Rights, and you've got the system the framers crafted and the states ratified.  We can (and do) argue forcefully about what it all means and how to apply its strictures, but it's our framework.

Here's part of it.

Amendment VIIn 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.

I'm not gonna parse it all out for you.  But here's a piece of it.  Everyone (by which they really do mean everyone) accused of a crime for which being locked away, even for only a short period of time, is entitled to a lawyer.  And as they say on the TV shows (and it's actually true, by god),

if you can't afford a lawyer, one will be appointed for you.

That's fundamental.  If you don't believe in that principle, you don't believe in our system, in our Constitution.  You don't have to, of course.  Lots of people think our system sucks.  But it's the one we have, the one we agreed to when we ratified the Constitution in 1787 and the Bill of Rights in 1791.

And if you happen to be a government official, it's also the one you swore an oath to uphold.  For richer for poorer. For better for worse.  In sickness and in health.  (Ooops, wrong oath, but the same idea, really.)

Which brings me to the United States Senate, where 7 Democrats joined the Republicans to defeat Debo Adegbile's nomination to head the civil rights division at DOJ.  They should be ashamed. 

Actually, they should be removed from office for violating their oath.

They didn't, after all, vote against him because he doesn't have the qualifications.  He's more than qualified.  They didn't vote against him because they think he's a crook.  They voted against him because

Mumia Abu-Jamal

Because Adegbile was litigation director of the NAACP Legal Defense and Educational Fund during the time it was representing Mumia, and he worked on one of the appeals.  And because Mumia killed Officer Daniel Faulkner.  

The NY Times reports that Bob Casey, Democratic Senator from Pennsylvania, put it this way.

I respect that our system of law ensures the right of all citizens to legal representation no matter how heinous the crime. At the same time, it is important that we ensure that Pennsylvanians and citizens across the country have full confidence in their public representatives — both elected and appointed. The vicious murder of Officer Faulkner in the line of duty and the events that followed in the 30 years since his death have left open wounds for Maureen Faulkner and her family as well as the City of Philadelphia.

Got that?  Everyone deserves a lawyer.  But lawyers who represent people we hate are scum and we sure as hell can't trust them.

There are, of course, lawyers who are scum.  (One thinks of the Fish or of the David Martin who represented Cameron Todd Willingham.)  But it's not because they represented bad people.  That's what we do some of the time.  We aren't our clients.  We can be good folks or not, but it's because of who we are and how we do our jobs, not because of who we represent.

John Adams, you may recall, represented British soldiers who fired on a mob of colonists at the Boston Massacre.

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.

Despite the "Anxiety and Obloquy," Adams somehow managed to get himself elected President. 

Today he wouldn't stand a chance.  

Gideon Lives

When last we dropped in on Richard Sybrandy and Morgan Witt who were the public defenders in the cities of Burlington and Mt. Vernon, Skagit County, Washington (here).  As it happens, that was also when we first dropped in on them.  At the time, they were explaining (or at least Sybrandy was) that they were each providing absolutely extraordinary (they meant it in a good way) representation to 1000 indigent misdemeanants and 1000 other alleged baddies every year.  That Oh, sure, they didn't go to the jail to see their clients and they didn't actually try the cases and they didn't hire investigators or do research or . . . . But they pled 'em out.  

And really, what more could you ask of your lawyer?

As it happens, Joseph Jerome Wilbur, et al., asked more.  And they asked it in a lawsuit brought by the ACLU of Washington, Wilbur v. City of Mt. Vernon, et al., which went to trial back in the Spring before the Honorable Robert S. Lasnik, U.S. District Judge for the Western District of Washington.  Long before the trial, back when the lawsuit was filed and I wrote about Sybrandy and Witt, right about that time, they gave up their PD gigs and the defendant cities hired Mountain Law to provide indigent defense to the alleged misdemeanants. 

Nothing significant changed other than the personnel.

And so, today, the good judge ruled.  The cities lost.

The point here is that the system is broken to such an extent that confidential attorney/client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned. Advising a client to take a fantastic plea deal in an obstruction of justice or domestic violence case may appear to be effective advocacy, but not if the client is innocent, the charge is defective, or the plea would have disastrous consequences for his or her immigration status. It is the lack of a representational relationship that would allow counsel to evaluate and protect the client’s interests that makes the situation in Mount Vernon and Burlington so troubling and gives rise to the Sixth Amendment violation in this case.

See, the problem wasn't Sybrandy and Witt.  Well, actually it was.  

[I]ndigent criminal defendants in Mount Vernon and Burlington are systematically deprived of the assistance of counsel at critical stages of the prosecution and that municipal policymakers have made deliberate choices regarding the funding, contracting, and monitoring of the public defense system that directly and predictably caused the deprivation. The period of time during which Richard Sybrandy and Morgan Witt (hereinafter, Sybrandy and Witt) provided public defense services for the Cities was marked by an almost complete absence of opportunities for the accused to confer with appointed counsel in a confidential setting. Most interactions occurred in the courtroom: discussions regarding possible defenses, the need for investigation, existing physical or mental health issues, immigration status, client goals, and potential dispositions were, if they occurred at all, perfunctory and/or public. There is almost no evidence that Sybrandy and Witt conducted investigations in any of their thousands of cases, nor is there any suggestion that they did legal analysis regarding the elements of the crime charged or possible defenses or that they discussed such issues with their clients. Substantive hearings and trials during that era were rare. In general, counsel presumed that the police officers had done their jobs correctly and negotiated a plea bargain based on that assumption.  The appointment of counsel was, for the most part, little more than a formality, a stepping stone on the way to a case closure or plea bargain having almost nothing to do with the individual indigent defendant. To the extent that “adequate representation” presumes a certain basic representational relationship, there was a systemic failure in the Sybrandy and Witt era. Adversarial testing of the government’s case was so infrequent that it was virtually a non-factor in the functioning of the Cities’ criminal justice system.

Still, Sybrandy and Witt were little more than henchmen, the willing but hapless participants in the cities' refusal to provide constitutionally mandated counsel to the people they charged with crimes.  They enabled the policy of violating the Constitution. Hell, they profited from the policy.  But they didn't cause it.  And when they were done, Mountain Law was there to pick up the mantle of spear-carrier for the oppressors prosecutors.  Because it was the policy.

Plaintiffs have shown that the constitutional deprivations at issue here were the direct and predictable result of the deliberate choices of City officials charged with the administration of the public defense system. Intentional choices made while negotiating the public defender contracts and allocating funds to the public defender system left the defenders compensated at such a paltry level that even a brief meeting at the outset of the representation would likely make the venture unprofitable. And the Cities knew it.

The words are Lasnik's, the italics are mine.

Of course, it's not done.  Judge Lasnik ordered remedies and put on plaintiff's counsel the duty of oversight.  Are the remedies adequate?  Will the cities comply?  Inquiring minds want to know.  One hint may be in a comment by Andrew Cooley who represented the cities.  According to Gene Johnson in the Bellingham Herald, Cooley said that

the cities have doubled their public-defense budget since the lawsuit was filed, and it remained unclear whether officials could stomach spending any more. Instead, Burlington and Mount Vernon might simply disband their municipal courts, leaving Skagit County District Court to handle those cases.

Read more here: http://www.bellinghamherald.com/2013/12/04/3354095/judge-wash-towns-fail-poor-defendants.html#storylink=cpy

See, here's the thing.  If the government wants to prosecute people, it needs to come up with the money. Can't stomach the cost of providing for the constitutional rights of people you prosecute?  Then prosecute fewer people.  Or, if you're in Washington State, dump the cost on someone else.  You know, 

Let George do it. 

In the meantime, one win for Gideon.

  Wilbur v. City of Mt. Vernon, et al.

Effective Assistance? Fuck You.

Allow me to vent.

50 years ago, in Gideon v. Wainwright, the Supremes said that the 6th Amendment guarantees that a person charged with a crime is guaranteed the services of an attorney for his defense.  29 years ago, in Strickland v. Washington, the Supremes had a good laugh over what they'd done.

What Strickland says is that the 6th Amendment doesn't just entitle people charged with crimes to the assistance of counsel.  It entitles them to the effective assistance of counsel.  Which sounds pretty good.

Hey! I'm not just entitled to a lawyer.  I'm entitled to an effective lawyer.  You know, one who's gonna defend me, do it right.  That's cool, man.

And it is, indeed, the law.  That's what you're entitled to if you're charged with a crime.  You have a right to that.  From that right, it follows that if you don't have that sort of lawyer, you must have a remedy.  Back in 1803, the great Chief Justice John Marshall explained in Marbury v. Madison.

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

So, of course, if you're lawyer proves to be an incompetent bozo, you get a new trial. I mean, that's the whole idea.  

Right?

Wrong.

Because, you see, ours may have been

emphatically termed a government of laws, and not of men

but them's just words.  And that measure?  So 1800s.  Simply, we do not, in Marshall's own formulation,

deserve this high appellation.

You have to go back to Strickland where the Court actually explained about that effective assistance of counsel thing.  It works this way.  A person who's been convicted of a crime can complain on appeal that she was denied the effective assistance of counsel, that she didn't get what she's entitled to.  The court will (in theory at least) examine the claim.  

The problem is what happens.

The lawyer doesn't have to have been good, doesn't even have to have been average.  Less than average, way less than average, is "effective."  The test is whether the lawyer's actions or inaction fall below an "objective standard of reasonableness."  And that's determined by whether there's some rational reason, some barely rational reason for what the lawyer did.

Actually, that's not even right.  The test isn't whether the lawyer had an at least barely rational reason.  It's whether the court, with an assist from the prosecutor, can think of one the lawyer might have had.  But let's say it can't.  Then the poor shlub with the actually brain dead lawyer gets a new trial.  Right?

Well, maybe if the lawyer was technically brain dead.  A true flat line on the EEG.  After all, a majority of the judges on the 5th Circuit Court of Appeals held in Burdine v. Johnson (reversing a decision made by a three-judge panel of that court) that when a lawyer sleeps (that's literally, with snoring) through major portions of his client's death penalty trial, the client did not have effective assistance of counsel and is entitled to a new trial.  (Of course, some of the judges disagreed, which really tells you all you need to know.)

But the basic rule is that you're only entitled to that even barely functioning lawyer (judges in Burdine observed that courts haven't given new trials as a matter of course to lawyers who were drug addicts at the time of their clients trials, or who were drunk, or who were suffering psychotic breakdowns or from Alzheimers) in theory.  Because if you ended up getting less than that, well, gee, too bad.  Unless you can show that if the lawyer was sentient you'd have done better.

You know, based on the old adage that if there's some reason to think you might be guilty, nothing else matters.  I mean, what's the bitchin' about?  So you had a lawyer who wasn't quite brain dead and who really did nothing for you?  You might be guilty and we can't just give new trials to everyone whose lawyer makes the chair I'm sitting on look like a genius. 

'Cause we said so.

Gideon be damned.

Law of Rule.

I'm done venting.  Thanks.

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.

---

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.

---

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. Wainwright.  The 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

And a Little Child Shall Lead Them - Unless the Judge Won't Let Her

A Connecticut judge will hold a hearing later this month to determine whether a 9-year-old girl can testify about her father -- who has called a "monster" in newspaper headlines -- in an effort to save him from being sentenced to death. 

So reports Anne-Marie Dorning for ABC News.   Which raises the basic question:

What the fuck?

It's maybe relevant that the father here is Joshua Komisarjevsky who, along with Steven Hayes, raped and pillaged and burned and killed in the home invasion of the Petit family.  No, really it isn't relevant who the father is except that by all accounts he loved his daughter.  

OK, the kid is 9.  In Ohio, that would mean that the judge ought to determine whether she's competent to testify.  That's because of Ohio Evidence Rule 601 which says 

Every person is competent to be a witness except:
(A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.

The Ohio Supreme Court said that to decide whether a child is competent to be a witness, the judge must hold a hearing and then consider

(1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. 

I'm not a Connecticut lawyer and don't know whether Connecticut has a similar rule.  But whether it does or not, the girl's competence apparently isn't the issue the judge will be taking up. Instead, the judge will be trying to decide, or so it appears from Dorning's report, whether letting her testify will be in the child's best interest.

An attorney hired to represent the girl, Raymond M Hassett, would not say whether or not he is in favor of the girl testifying, although he has submitted a motion to quash the subpoena. But Hassett told reporters outside the courtroom today that they "shouldn't read too much into that" because he would "leave it up to the court to weigh all the factors."
Those factors would no doubt include the psychological impact on the girl of testifying and the type of questions she would have to answer. Blue is expected to hear testimony from a mental health professional during the closed door session on Nov. 14.
. . .
A number of studies have been done on the effects of testifying in a trial on children. "Criminal court testimony is associated with fear and anxiety for a substantial subset of children," according to a study done in the 1990's at University of California, Davis. "The adversarial, formal, and possibly even hostile court environment during a hearing and especially a trial is a source of a child witnesses' fear and distress."

The law is, at least formally, solicitous of what it grandly refers to as "the best interests of the child."  (That's the law, not necessarily judges, as anyone who's seen the horrible video of a judge beating his 16-year-old daughter, like Mark Bennett I couldn't watch the whole thing, can attest.)  And I suppose it might be hard on a 9-year old girl to get on the witness stand, look at a dozen jurors and a courtroom filled with haters and reporters and Dr. Avenging-Angel Petit and they all think her dad is, well, monster is probably too positive a term, and say to them 

Please don't kill my daddy.

Sure that might be tough on the kid. Dorning reports that

[a]lthough it is becoming more common for children to testify in court, it is almost unheard of for a child to testify in a death penalty sentencing hearing. 

Almost, perhaps.  But not unheard of.  We did it in a case about 10 years ago, though only after serious debate and with great care.  It's the sort of thing that can easily backfire.  If the jury thinks it's a cheap trick at the expense of the kid, that's just one more reason to think the father deserves to die.  On the other hand, it can be, and was in the case where we did it, incredibly moving testimony.

But all of that is, ultimately, beside the point.

Here's the point.  Komisarjevsky has a right, an absolute right, to provide the jury with any evidence relevant to whether the death penalty is appropriate in his case.  As the Supreme Court explained in Lockett v. Ohio, at a capital sentencing proceeding, the defendant must be allowed to present and the jury allowed to consider

as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

And of course the Sixth Amendment assures him the right

to have compulsory process for obtaining witnesses in his favor

Really, there's no question that the law allows him to call the child as a witness.

But what about what's good for the child?  Doesn't that matter?  What about this story reported by Dorning?

In 2001, in Los Angeles, four children were called by a prosecutor to testify against their father, Marco Barrera, who had been convicted of killing several of his other children. The situation caused outrage among child advocates.

Yeah?  What about it?

First, the prosecutor doesn't have a constitutional right to put on whatever evidence it might like that the guy should be killed.  Second, and really this shouldn't be hard to grasp, there's a difference between asking a child to urge the jury to save her father's life and asking it to kill her father.  Damn right that those advocates were outraged.

But even if they'd be outraged by Komisarjevsky calling his daughter, it shouldn't matter.  The law really is clear that he has a right to do it.

I said before that I'm not a Connecticut lawyer.  I also have no inside information about the defense strategy.  And I haven't read any of the filings in the case.  I don't know, except what I can glean from the press reports, why the judge has called for a hearing, what's on his mind, or what issues have been raised regarding the child's possible testimony.  What I know is that the law on the subject is remarkably clear.

Komisarjevsky's aunt testified that his execution "would not be good for his daughter."  

And so I have to tell you about Brian and Barbara Siler and their son Nathan and the Honorable Jeffrey Runyan.

In 2001, Brian Siler brutally murdered his estranged wife Barbara.  During the investigation of the crime, police took statements from the couple's three-year-old son Nathan.  

an officer testified to those statements at trial, and they pretty much assured Brian's conviction of aggravated murder with death specifications.  The jury said Siler should die, but Judge Jeffrey Runyan thought otherwise. 

In sentencing Siler to death in prison (LWOP), the judge explained in thorough and moving detail, why the aggravating circumstance did not outweigh the mitigating factors and how it is that a death sentence would disserve the memory of Barbara Siler.

Then he said this.

The final and determinative mitigating factor is Nathan Siler. Nathan is the one party here who bears no responsibility whatsoever for his mother's death.
The court must inquire objectively what sentence is in the innocent Nathan's best interests?
At some point in his future, Nathan will undoubtedly begin to blame himself for his mother's death. Is there something I could have done, he will say. That's human nature. But there is nothing young Nathan could possibly have done to save his mother.
Now young Nathan's words through the testimony of an officer have convicted his father. But today this court stands between young Nathan and the thought that he has caused his father's death as well. That would be a result of this case that is unthinkable.

Interpreting the Constitution - Part VI - The Fear of Too Much Fairness

It was just a single comment by Justice Scalia during oral argument yesterday.  He serious.  He wasn't being sarcastic or ironic, wasn't poking fun.  Still, I'm not sure that he really meant what he said - or at least what it implies.  But it gets at a major problem with how we think about the Constitution, the closest thing we have to a sacred text.

A bit of context.

The case is Missouri v. Frye.  You can find the entire oral argument transcript here. Here's the plot.

Galin Frye was charged with driving without a license, a felony.  The prosecutor offered a plea bargain.  to a misdemeanor with 90 days in jail if he accepted the deal promptly.  Frye's lawyer didn't tell him about the offer, and after it had expired, Frye entered a guilty plea to the charge and was sentenced to three years.  While he was in prison serving that 3-year sentence, Frye learned about the 90 day misdemeanor offer.  

Nobody seriously disputes that his lawyer should have told Frye about the offer.  It's an absolutely basic rule:  The lawyer conveys every offer (civil case, criminal, doesn't matter, every offer) to the client.  Why?  Because it's always the client's call whether to take it.  We can advise.  We can browbeat.  But we can't decide.  That's for the client.  So the lawyer fucked up.  Then what?

The Missouri courts concluded that Frye was denied his Constitutional right to effective assistance of counsel and that he should be allowed to withdraw his plea and have a trial or plead again (though not to the misdemeanor plea which is long since off the table.

Here's the legal mess.

Missouri says that however much his lawyer screwed up, Frye entered a lawful and proper plea to what he did.  Since he can't show that he didn't know what he was doing when he entered the plea - or that it was somehow involuntary - he really can't complain about it now.  Frye says that he should be able to get that misdemeanor plea that he would (presumably) have jumped on if he'd known about it at the time.

So what to do?

That original plea offer is long-since off the table.  And if you let everyone take back a plea (or undo a trial, for that matter) when they realize that they passed up a chance at a lesser sentence, well, there's no stopping place.  (Or so says Missouri.)  Which led to this exchange between Scalia and Frye's lawyer, a man with the Dickensian moniker Emmett D. Queener.  (In fact, I have to start with Justice Ginsburg to have this make any sense.)

       JUSTICE GINSBURG: But you are -- you are leaving out of the picture the prosecutor's prerogative to withdraw or flip. You said that the court, that it lacked authority to order the State to offer any bargain, but also the court said, I'm not going to require the prosecutor to renew an earlier offer.
One thing is clear in this case; the prosecutor did nothing wrong. The wrong was on the part of defense counsel. So why should the judge disarm the prosecutor, take away the prosecutor's right to change his mind?
       MR. QUEENER: The -- this is a remedy for the Sixth Amendment violation, and that is to put the defendant back into the position as nearly as possible as he would have been in at the time; and at the time the offer was open -- this is not a situation where the prosecutor is being ordered initially or the first instance to make an offer; it -- this is being viewed as the offer that was originally made is still available and open to the defendant.
       JUSTICE SCALIA: Yes, but at the time that offer could have been withdrawn by the prosecutor. And you are saying now it can't be withdrawn. So you are really not putting him back in the situation he was in.
       MR. QUEENER: There -- there is never going to be a perfect remedy for any of these violations, I don't believe.
       JUSTICE SCALIA: I think that's right.
       MR. QUEENER: Right.
       JUSTICE SCALIA: And that's one of the things that causes us to be suspicious of whether there is a constitutional violation -
       MR. QUEENER: Well -
       JUSTICE SCALIA: -- because there really isn't any perfect remedy.

In 1803, in Marbury v. Madison, Chief Justice John Marshall, for a unanimous Supreme Court, wrote this.

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the 3d vol. of his Commentaries, p. 23. Blackstone states two cases in which a remedy is afforded by mere operation of law.

In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, when ever that right is invaded."

In fact, Marshall held that Marbury's rights were, in fact, invaded but that he couldn't sue.  That is, Marbury said that if there's a right there must be a remedy except that there doesn't have to be, proving that the law could be as incoherent and disingenuous and outright dishonest in 1803 as it can be today.

It was probably 15 or more years ago that I was arguing a case in the court of appeals.  The judges agreed with me that what the trial judge did was wrong.  But they couldn't find (and frankly, neither could I) any way to even hint at its having made a difference in the trial.  

What can we do?  We can't tell the judge he was wrong without reversing and we have no basis to reverse?

Which was just silly.  As I told them, they do it to me all the time.

Yeah, you're right, but the error was harmless so live with it.  Do it this time.  You want the judge to stop doing this, but the only way tell him to stop is to say it was wrong.

Which makes perfect sense.  Except the court wouldn't do it.  And to this day, I should add, the judge is still doing the same damn thing.  Because the court took the same position.  No remedy, therefore no error.

Anyway, what I'm interested in today is Scalia's claim that if there isn't a perfect remedy, then it seems there must not have been a constitutional violation.  That feels intuitively wrong, and I think it is.  I think (as I suggested at the beginning) even Scalia wouldn't really buy it.  For while his statement seems to channel Blackstone's (and Marshall's) formulation of the rule (if not Marshall's application of the rule), it doesn't.  The problem is that you can't work backwards that way.

To see why, it's necessary merely to offer a more generalized rule.  Here are two versions.

• If it can't be fixed, it isn't broken.
• If it can't be undone, it didn't happen.

You know immediately that those are wrong.  Lots of broken things cannot be fixed.  (Consider Humpty Dumpty.)  And lots of things that can't be undone did indeed happen.  (Princess Di is, in fact, dead.)

Yet if those counter-examples demonstrate why Scalia is wrong, they don't exactly say how to solve his dilemma:

What do you do when the Constitution is violated but there seems no quick and dirty remedy?

Start by looking at it in the context of Frye's case.  The Sixth Amendment says that he had a right to effective assistance of counsel, which means a lawyer whose performance was not objectively deficient.  That was violated.  His lawyer was objectively deficient in not reporting the plea offer to him.

The Supreme Court says that there is no relief for a Sixth Amendment violation unless there is a reasonable probability of a different outcome had counsel's performance been adequate.  OK then.  On that test, Frye would have to prove that if his lawyer had told him (in time) about the misdemeanor plea offer, there's a reasonable likelihood he would have taken it.  That is, he'd have to show that he isn't just suffering buyer's remorse from the sentence he got after his plea but that he ended up entering this plea because his lawyer was incompetent and didn't tell him about the earlier one.

Ah, but that might open a mess.  People who got sentences they don't like might claim that they would have taken deals if they'd known they were offered or if their lawyers had pushed them harder or something.

Damn.

Breyer suggested that maybe there could be a special test for these cases just to avoid that problem.  Nobody asked why it was a problem.  Because, I suppose, and this is deeply distressing, all nine of the Justices were wary of inflicting too much fairness on the system.

The risk of too many people asking to have their rights vindicated.

But of course, that's what we're supposed to be about.  We embrace that risk.

Unless we're the Supremes (or your local trial, appellate, or supreme court much of the time).  If we're them, we think of floodgates.

The remedy crosses the board.  If someone's constitutional rights have been violated, there really is a remedy.  Put the person her back as close to the position she'd be in if they hadn't been as possible.  Will the remedy be imperfect?  Sure.  Most of the time.  But it's something.

The alternative is to assert that only some constitutional violations - ones that lend themselves to congenial remedies - count.  But that's the cafeteria, not the Constitution.

Back to Galin Frye.  If he can show that he'd likely have taken the deal if he'd known of it (and apparently the Missouri courts were convinced), then do what the Missouri courts wouldn't do and  give him the deal he would have taken.  It's not perfect now.  But it's the best that can be done.

Because Blackstone was right, and Scalia wrong.

And either way, bitch slap his lawyer around some.

Tennessee Supreme Court Considers Sponsoring a Race to the Bottom

I've written about the problems with indigent defense before. 

I've talked about  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.  I've talked about  Georgia where capital prosecutions languish because the state can't pay the lawyers.  About California where death row inmates wait an average of 10-12 years while the state tries to find lawyers willing to represent them.

And of course about 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.

Here and there I've found good signs.

There was Eric Holder and the Access to Justice Initiative which was something even though it seems primarily to have involved calls for meetings and discussions and a public pronouncement that 

Something's got to be done.

There was the mess in New York that began to be addressed in Hurrell-Harring v. New York.  And Iowa where the high court actually said that it was unconstitutional to put an arbitrary cap in the fees that appointed appellate counsel could earn.

Now we turn to Tennessee where, as Brandon Gee writes in the Tennessean, the Tennessee Supreme Court is considering a switch from underfunded public defense offices to providing indigent defense by "a highway contract-style bidding process."

To rein in the state’s fast-growing indigent defense fund, the court has drafted an amendment to its rules that would allow the cash-strapped state Administrative Office of the Courts to solicit bids and award contracts to lawyers or firms “to provide legal services to indigent persons for a fixed fee.”

Oh, they're not cold-hearted about it.  The court figures that there are only some kinds of cases where screwing the indigent accused with low-bid defense is appropriate.

“With the economy the way it is, we’re just trying to be good stewards of taxpayer dollars,” said Laura Click, spokeswoman for the state courts.
Click said the Supreme Court intends to use contracts only for two types of relatively straightforward cases: contempt proceedings resulting from the non-payment of child support and hearings on whether a person should be involuntarily committed to a mental health institution.
“There are situations where it does and doesn’t make sense,” Click said. “We recognize that. The idea is that when it does make sense, we’d like to put it in place to streamline the process.”

Gail Kerr in the Tennessean gets to the heart of what's wrong with this.

It’s the idea of paying a flat fee per case that makes this so distasteful. What that means is the ambulance-chasing-type lawyers could load up their plate with low-bid cases, collect their payment, and do as little work as possible for their client. Heck, they’re going to get paid the exact same amount if the client cops a plea or goes all the way to a jury trial and through the appeals process. There would be no incentive, other than a strong moral compass, to offer a client the strongest defense possible.

And despite the court's announced intention to limit the categories of indigents the court believes don't deserve adequate, conflict-free defense, the rules the court proposed don't do that.  Gee again:

The language of the proposal, however, is not limited to these types of cases, and many lawyers fear the rule change would open the door to additional cases being awarded to contract attorneys — and preclude other lawyers from pursuing the court-appointed work that is the cornerstone of many practices.

Sadly, this sort of idea isn't unique to Tennessee.  Indigent defense is routinely a poor stepchild.  If criminal defendants generally have no good lobby, impoverished criminal defendants fare even worse.  All they have is the Sixth Amendment.  Even when times are good, that's rarely much.  When times are tough, it's less.

* * * * * * *

One solution, of course, would be for lawyers to decline participation in the sorts of bidding wars that the Tennessee supremes are considering.  After all, we have a duty to represent the clients zealously within the bounds of the law, and that requires time and effort and a commitment to do what the case requires rather than what the low bid permits.  We are, as Scott Greenfield and Brian Tannebaum and Mark Bennett and others regularly and eloquently remind us, a profession.  We have an obligation to refuse the race to the bottom.

Don't hold your breath.

Here's the first substantive paragraph of Kerr's column.

The truth is, members of the bar are a mostly impressive, ethical bunch. But, as in journalism or any field, there’s always a basement layer. There are lawyers who run icky ads to draw clients with few resources and high hopes. Unfortunately, these are the type of attorneys who would jump on a proposal to sell some criminal defendants to the lowest bidder.

See that word lawyers in the third sentence?  In the on-line version of the column, it's a hyperlink (no, I'm not reproducing it here) to Lawyers.com where you can find lawyers hawking themselves like carnival barkers.  (Yes, there are far more offensive services; it doesn't matter; I'm making a point here, not specifically attacking Lawyers.com.)

Kerr, of course, isn't responsible for the hyperlink.  That's a bit of paid advertising.  In context, though, the irony is telling.

* * * * * * *

Justice Brennan, dissenting alas, in McCleskey v. Kemp reminded the Court (a majority of which chose to ignore him) and the public (which mostly has no idea what he wrote) why effecting those rights should matter in words that ought to be prominently tattooed into the DNA of all our legislators and executives and judges.  Members of the bar, too.

Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. 

30 Minutes and Counting

The Times, the other day, ran an article about LawyerUP, a service designed to get the newly accused or arrested a lawyer in just 15 minutes.  You know, in half the time that Domino's no longer guarantees it will get you a pizza.  Carolyn Elefant thought it was an idea worth taking seriously.  Scott Greenfield and Antonin Pribetic not so much.

Me, I'd endorse any plan that actually got people competent lawyers when they needed them.  LawyerUp doesn't fit that bill, which is too bad, but not particularly surprising.

Frankly, for most of those who need a criminal defense lawyer, the lawyer is going to be a public defender or someone serving a variation on that role (court-appointed counsel, contract attorney, conflict attorney, whatever the local vairant).  That's because most people who need criminal defense can't afford a lawyer.  (In Ohio it's roughly 75%, or was a few years ago when I last looked at the numbers.)  And that raises a related but different problem.

Because, you know, and with exceptions, PDs are seriously overworked and underpaid.

I've dipped into those issues before.  (See, for instance, discussion of the situation in New York, Missouri, Colorado, and in a related but slightly different vein Louisiana.)  Today we turn our attention to the Evergreen State and the euphonously named Skagit (pronounce that with a soft "g," please) County.

Richard Sybrandy and Morgan Witt are the Skagit public defenders and they have a lot of public defending to do.  Sybrandy, at least, represents about 1,000 alleged misdemeanants a year.  That's more than double the case load the state bar says is reasonable.  But for Sybrandy that's only about half his docket since he also represents each year another 1,000 or so alleged criminals who retain him.  (I don't have figures for Witt, though I'd assume they're similar, because he decided that being interviewed by the Seattle Times's Jonathan Martin for this article wasn't on his to-do list.)

Sybrandy thinks that caseload is too high.  (No shit.)

But not so high that he doesn't do a spectacular job for each of his 2,000 clients a year.  Just listen to him.

"I've been frustrated to the point of tears" when faced with five trials in a single week, he said. But he vigorously disputed the lawsuit's allegations that he hasn't returned clients' phone calls or investigated their cases. "I've worked really hard for an outstanding reputation," he said.

Wait, lawsuit?  What lawsuit?

Oh, the class action case brought against the Skagit County PDs (that's Sybrandy and Witt) for providing ineffective assistance of counsel because their case load is just too damn high.  Because, if you do the math . . . .  No, don't bother, it's been done.

Seattle's municipal court limits public defenders to 380 cases, but most other cities don't. The caseload limits make sense, said Bob Boruchowitz, a Seattle University law professor and former director of a King County public-defense organization.
"There are 1,600 to 1,800 billable hours a year, so if you are doing 900 cases, you've got 2 hours per case. If you are doing 900 cases part time, you've got one hour" or less, he said. "When the bulk of your cases are resolved in a half-hour or hour you are not being able to do the work that needs to be done to represent someone."
. . .
Based on documents from the two cities, submitted with the lawsuit, Sybrandy and the other contracted public defender, Morgan Witt, document spending 30 minutes to one hour per case. Defendants have complained to the cities that the attorneys do not return phone calls, and Sybrandy and Witt combined visited the Skagit County jail only six times in 2010, seeing seven clients.

Not shockingly, I suppose, Skagit County found a whore lawyer who would defend the 30 minute/case approach as perfectly reasonable.

Caseload limits in municipal courts, however, ignore the fact that many of those cases, such as suspended-license infractions, are simple and can be handled expeditiously, said Andrew Cooley, a Seattle attorney representing Mount Vernon and Burlington in the lawsuit.

Sure.  Quick look.  Quick plea.  Maybe do a dozen in an hour.  Maybe two dozen.  Or three.

Witt did not respond to a call, but Sybrandy said during an interview this week that he rarely visits the jail because his clients are rarely there. He said he has not hired an investigator to look into the facts of a case for at least two years but accused Marshall, the attorney pressing the class-action lawsuit, of being ignorant of criminal law.
"The question is, who is Richard Sybrandy," Sybrandy said. "Why don't we call 5,000 of Richard Sybrandy's past clients and see how many say, gosh, Richard Sybrandy saved my butt. ... For someone who doesn't know what he's talking about to say otherwise is really disgusting."

There are a few things to say here assuming that Martin's story is essentially accurate.

Skagit County has been getting away with inadequately funding public defense, and providing inadequate defense, for too long.

Toby Marshall, a Seattle lawyer whose firm filed the lawsuit, said based on the volume of criminal cases, Mount Vernon and Burlington need five attorneys, not two, and need to spend about $300,000, not the current $180,000.
"The Constitution does not say you get an attorney if the city can afford it. The Constitution says you have a right to counsel, period," he said.

Sybrandy is either delusional or an idiot if he actually believes that he can effectively defend a couple of thousand people a year - or that 30 minutes is all the typical misdemeanor case needs.  Clients have to be interviewed.  Reports have to be examined.  Cases have to be investigated.  Phone calls to clients and cops and prosecutors.  Visits to the scene.  Examine.  Consider.  Sometimes for godssake go to trial.

Sure, there's often not a lot to investigate and probably not a lot of witnesses when the charge is driving on a suspended license.  But there are times when the police only discover that as a result of an unconstitutional traffic stop.  You don't no if you don't look into it.  And maybe file a motion.  And maybe have a hearing.  And maybe do some research and file a post-hearing memorandum.  Or maybe you just plead the case out because at 30 minutes per, that's all you can do.  And even that may be a stretch what with the client having all those legal rights to waive.

The truth is that Sybrandy (and I'm assuming Witt), knows perfectly well that all he's doing is processing cases and maybe plucking one a month that he really makes some effort to defend.  What else can he do?  

That he can't/won't admit that to the press isn't surprising.  It's hard to own up to however many years of not really doing the job you're inadequately paid to do.  Even when it's impossible to do.

But see, here's the question.  Do you go public with the denials or keep your head down because you know they're right and if the lawsuit succeeds it inures, ultimately, to your benefit? You get to do the job for which you went to law school.  The job which, presumably, you want to do properly.

Which takes you to the question of who those couple of thousand cases are really about.  The clients or the lawyer?

I've never met Sybrandy or Witt.  I never even heard of them before today.  Hell, I never heard of Skagit County before today.  I don't know if Jonathan Martin got even one fact right in his article.  (I searched around but couldn't find any documents from the lawsuit on line.)  So I don't know what's true.  

Here's what I know:  It's never about us.  It's always about the client.  Even when we have to take the heat.  And even if we're underpaid and overworked.  

There are PDs who've refused to take more cases because they can't do the job properly with the caseloads and resources they're given.  There are lawyers who have stood up and said, "No more."

And there are lawyers who haven't.