An Adversary System Without Adversaries

It's a ritual, played out with slight variations in appellate courts throughout the country every day. We get out turn, they get theirs.  From the back and forth, after hearing and considering both sides, out of the conflict, comes what passes for justice.  It's how the system, imperfect though nobody's figured out a better one, works.  In the words of a 1969 opinion by the Ohio Supremes (and probably most other courts at one time or another),

Ours is an adversary system of jurisprudence.

And so, there was a death penalty case in the Ohio Supreme Court.  As counsel do, we filed the notice of appeal.  we made sure that the record, papers and transcripts, was sent down from Toledo to Columbus for timely filing.   We wrote our brief made umpteen copies, one of us loaded it in the car and drove down to Columbus to deliver it personally.  And we sat back to wait for the state to file its brief.  

Which was rejected.  The prosecutor counted the days wrong, the copier broke, the package got lost in the mail.  At this remove, I don't honestly remember.  And it doesn't matter.  Because it's the Ohio Supreme Court where deadlines is deadlines by god.  Where you're not even allowed to ask for more than a single, 10-day extension of time to file a brief. 

The prosecutor asked the court to reconsider.  Nope.

And since the rules say that a party that doesn't file a brief can't participate in oral argument, the prosecutor asked the court for special permission to speak at argument.  Nope.

And so I had 30 minutes to myself, to argue, to make my case.  With nobody on the other side. Which of course isn't supposed to happen.  After all,

Ours is an adversary system of jurisprudence.

It wasn't a one-off.  2013, State v. Pariag, Pariag had been charged with low level offenses.  The charges were dismissed.  He wanted the record of the dismissed charges sealed.  The trial court said sure.  The state appealed.  The court of appeals sided with the trial court.  Pariag went home.  The state asked the Ohio Supreme Court to hear the case.  Pariag was done.  His lawyer was done.  It's not even clear that Pariag knew.  It's certain he didn't respond.  The Ohio Supremes agreed to hear the case.  Only the prosecutor filed a brief.  Only the prosecutor appeared for argument.  The Ohio Supremes interpreted Ohio law just as the prosecutor wanted them to.*

Yesterday, State v. Brown, a case asking whether a probate court had authority to issue a search warrant.  Trial court said no and suppressed the evidence.  State appealed.  Court of appeals said no, but golly, the cops certainly acted in good faith, so the evidence comes in.  Supreme Court agreed to hear the case.  Court of appeals was right.  Probate judges do not have authority to issue search warrants so the search was unconstitutional.  

As for good faith?  Well, nobody asked that the ruling reconsidered, so the evidence, derived from an unconstitutional search, comes in.  But wait, why didn't anyone ask?  Because there was nobody on the other side.  Brown wasn't there.  No lawyer for his side.   No brief.  Nothing.

Of course,

Ours is an adversary system of jurisprudence.

Except when it's not. 

For the most part, the Ohio Supreme Court can cherry pick the cases it wants to hear.  It's supposed, by its own rules, to pick cases of "public or great general interest."  That is, it's supposed to be deciding stuff that matters.  That's true, also, of the categories of case it's required to hear.

You might think that the court would say, something like

We can't make those decisions, can't decide whether to hear a case, unless both sides weigh in with their views about why we should or shouldn't.  And we certainly can't decide important questions of public or great general interest in this, "our adversary system of jurisprudence," with no adversaries.

You might think that.  You'd be wrong.  

The court could appoint counsel to argue the other side.  It doesn't.  it's perfectly content to hear from only one side and then rule.  It shouldn't.  It's fundamentally wrong.  Regardless of the whether it gets the case right, that's not our system.  The one we believe in because it's the best way to get the right result.

But hey, they make the rules.  And they're apparently happy.

Law of Rule.

--------------------

*Disclosure:  After the opinion came out, and working with other organizations, we tracked Pariag down, he agreed to representation, and the Ohio Supremes were asked to reconsider.  They refused. I was counsel on an amicus brief in support of reconsideration. 

An Adversary System without Adversaries

Some background:
Ohio law says that the Ohio Supreme Court must review every death sentence on direct appeal.  A rule of the Ohio Supreme Court, a rule crafted by the Ohio Supreme Court, says that no brief can be filed after the date it is due.  Another rule prohibits asking permission to file a brief late.  Yet another rule says that if a party doesn't file a brief, it cannot participate in oral argument.  There is no rule prohibiting asking to waive that rule.  (Confused yet?  Welcome to the Buckeye State's Supreme Court where they refuse to file documents unless that don't comport with the rules and where they don't give you additional time to fix screw ups.)

A true story:
The prosecutor in one of my death penalty cases blew the deadline.  A clerk at the court, who wasn't paying sufficient attention, filed his brief anyway.  A week or so later, the court, on its own, struck the brief from the record.  When they scheduled oral argument, the prosecutor wasn't invited.  After all, he hadn't filed a brief.  He asked to participate anyway.  They said no.

And so, I had a death penalty case in the Ohio Supreme Court where the state did not present a written or oral argument.  I was unopposed.  I had the brief.  I'd made the arguments in writing.  I had 30 minutes to address the court, answer their questions, be thoughtful and eloquent and persuasive.

AND LOSE THE FUCKING CASE.*

Another true story:
M.P. was stopped by the highway patrol for a traffic offense.  The cops charged him with that, but also with a couple of misdemeanor drug offenses.  After he pled guilty to the traffic offense, the prosecutor dismissed the drug offenses.  So P. asked to have the drug charges expunged. After all, they weren't important enough to pursue.

The trial court said 

Sure. Expunge 'em.

The prosecutor appealed.  

The charges may not have been important enough to pursue, but by god P. needs to have them on his permanent record so that they can screw up his life.  

The court of appeals told the prosecutor to pound sand.  It agreed with the trial judge.  

Expunge.! 

Life is good.  P. paid his lawyer and left Ohio.  And the prosecutor said 

This cannot be.  We have to fuck with this guy and make sure he can't get on with life.

So he asked the Ohio Supreme Court to hear an appeal.

P?  He was living in another state.  Didn't know the case had been appealed.  Had no real interest in it, anyhow.  And his lawyer?  He'd been paid.  he was done.  The supremes agreed to hear the state's appeal.  Only the state briefed it.  Only the state argued.

ONLY THE STATE WON.

Yet another true story:
After the Supreme Court (US this time) decided Miranda v. Arizona (You have the right to remain silent, etc.), they enacted a statute attempting to overrule it.  For a couple of decades, nobody paid any attention to that statute.  Then a guy named Dickerson robbed a bank.  He confessed to the FBI, but they didn't give him Miranda warnings.  The court threw out his confession.  The court of appeals reversed citing that statute.  Dickerson asked the berobed ones in Washington to hear the case.  They agreed, but they had a problem.  The government wasn't willing to defend the statute.  Dickerson said the statute was worthless.  The government didn't disagree.  

And so the Supremes appointed Paul Cassell (who never met a defendant he didn't hate or a victim he didn't think should be able to be a second prosecutor - and get paid by the defendant for her trouble) to argue that the statute was constitutional and did, in fact, overrule Miranda.  

Because no party to the underlying litigation argued in favor of § 3501's constitutionality in this Court, we invited Professor Paul Cassell to assist our deliberations by arguing in support of the judgment below.

As it happens, Dickerson won (Dickerson v. United States).  3501 returned to the dustbin where it had been languishing.

* * * * *

The distinctions here matter.  

The U.S. Supreme Court, for all its faults, knows that because it resolves only real cases, it needs to hear arguments from both sides.  If the party on one side isn't interested in participating, it will appoint someone to argue that position.  

The Ohio Supreme Court, like the one in Washington, is supposed to hear and resolve only real cases. Unlike the one in Washington, the Ohio Supreme Court doesn't think it's necessary to hear from both sides.  One side doesn't show up?  Lack of interest? Lack of money?  Lack of a good calendar?  Hey, they don't care.  A real case or controversy where there's only one party?  Welcome to Ohio.

* * * * *

And so we come to the case of Jalal T. Sleibi.  

He's a lawyer and he screwed up.  The Board of Commissioners on Grievances and Discipline recommended that his license to practice law be yanked for two years but that he should be on probation for the second of those years.  Sleibi thought that was a reasonable sanctio. The local bar association thought it wasn't enough.  Take his license away indefinitely, they said.

Before they made their argument to the Ohio Supreme Court, they took by agreement with Sleibi's lawyers, the one single, allowed extension of time they could get, an additional 20 days to file. Sleibi's lawyer  miscounted.  He thought he had 20 days to file a response.  Proud of himself, and in violation of most legal practice, he filed early, sent his response by UPS overnight on the 16th day, so that it arrived before 10 a.m. on the 17th.  Three days early.

Ooops.  He actually had 15 days to respond, not 20.  He was late by something like 36 hours.  His response, naturally, was rejected.  Can't file it when it comes in late, after all.

But there's no rule that says he can't ask to participate in oral argument.  Which he did.

Typically, parties failing to file merit briefs are deemed to waive oral argurnent. See S.Ct.Prac.R. 13.04(B)(2). However, there is no rule saying that this Honorable Court may not waive the foregoing rule as there is with seeking extensions of time after the expiration of the prescribed time. In consideration of the general interests of fairness and equity to Respondent Jalal Sleibi as it relates to his license to practice law and ability to support his family, and who personally is not at fault for the untimely submission of his Answer and Brief to Relator's Objections, Respondent's counsel respectfully requests that this Honorable Court extend to Mr. Sleibi the reasonable courtesy, exception and accommodation to permit his counsel to appear at the oral argument (yet to be scheduled) in the instant matter to argue his position in advocating the acceptance of the Board's Amended Findings and to reject the extreme recommended sanction of Relator.

This motion is not made for purposes of delay, harassment or to burden Relator or this Honorable Court, and the granting of the instant motion will not cause any prejudice to any party. This position rests not only on the facts as set forth herein, but also on the proposition that given the nature of these proceedings with exclusive jurisdiction before this Honorable Court, Mr. Sleibi deserves to be afforded the opportunity to be heard and to have this matter decided upon the merits. Again, and while the substance of these proceedings, from an equitable perspective, would all-but-dictate some manner of an opportunity to be heard, counsel, for this same reason, requests that this Honorable Court allow an exception to S.Ct.Prac. R. 13.04(B)(2) and based upon principles of fairness and equity, permit counsel to argue Mr. Sleibi's position relative to those posited in Relator's Brief.

Which seems, when you think about it, pretty fair.  Just give us a chance to be heard.  Which is, after all, about the minimum of due process.

Unless, of course, you happen to be in the Ohio Supreme Court.

  Sleibi Order

------------------
*In a later proceeding, we got the guy's death sentence reversed.  His sentence has been reformed. He'll come before the parole board in October 2038, just before he turns 82.  Of course, there's no reason to think he'll get parole, should he happen to live that long.  But it's a theoretical possibility.

An Adversary System, If You Can Keep It

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

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

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

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

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

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

I hardly know where to begin.

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

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

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

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

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

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

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

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

Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stalin might have been proud.

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

Marty Beeson.  Disgrace.

h/t to my friend Lisa F.

What's an Adversary System? Voices from the Show-Me State

Really, they shouldn't even be allowed to make suggestions.  OK, OK, there's that pesky First Amendment thing.  But why in the world would the Springfield News-Leader think them worth printing?

"They" in this case is prosecutors, specifically Jeffrey Merrell and Christopher Lebeck of Taney County, Missouri (Merrell is the chief prosecutor and Lebeck his chief assistant).  And the suggestions are about how best to provide counsel for indigents at cut rate prices.

Here's the backstory as M & L tell it.

In the late 1970s, Missouri found itself paying too much for private attorneys appointed to represent indigent criminal defendants, and, in some instances, paying for substandard representation. So, along came the creation of the Missouri State Public Defender.

This month the MSPD informed our local justice system that they would begin refusing the cases of indigent defendants in Greene, Christian and Taney counties due to an "overwhelming caseload crisis." As a result of this refusal, the state of Missouri has a $39 million state-supported public defender system that refuses to do what it was mandated to do: represent indigent defendants.

See some slanting there?  Maybe prosecutorial overreaching?  Assuming they've got the plot right, let's look at this from a different angle.

Missouri realized that an independently operated, professionally staffed, public defender office, properly funded, could provide trained experienced lawyers, paralegals, and investigators and do a better job, for less money, than relying on a judge-run, system of court-appointed cronies counsel.

But as case loads increased the public defender office came to recognize that it could not continue to provide competent representation without a concomitant increase in resources.  And because the public defender has a duty, both ethical and statutory, not just to process cases but to represent indigent clients competently, it was forced to say, "enough."

Same plot, different viewpoint.

In any event, M & L aren't primarily concerned with the underlying problem.  They're looking for a cheap fix.  (The real fix is for Missouri to provide adequate funding for indigent defense.  The same fix every state needs.)  Because they're prosecutors, or bean counters, or something, M & L have recommendations.

First, shut down the Missouri Public Defender.  Look at the millions you save immediately.  No more offices, no more staff.  And those administrators!  Used to be that administrative overhead was 5% of the budget.  Although there's no current information to base it on, M & L offer their "best guess" that it's now 25%.  You know all that's waste.  It's why prosecution is done without administrators or overhead.  Because prosecutors are all about saving money.  (Oh, wait, that's not true; M & L themselves are administrators.)

Of course, when you eliminate the public defender, you do need to put something in its place.  That annoying Supreme Court did say indigent defendants are entitled to counsel paid by the government.  So M & L offer their ideas for providing cheapo criminal defense.  Convictions R Them.  So here's the ideas.

Option 1:

We should return to the appointment model of volunteer private attorneys. This is a system that already works in other states, and currently works in the Missouri federal court system. Provide these attorneys with annual training, similar to that provided to attorneys who agree to take juvenile appointments, to ensure the attorneys appointed will provide constitutionally sufficient representation.

There's a plan.  There's only one way to make that cheaper though.  Underpay the private counsel even more.  The federal courts don't do that.  They pay appointed counsel far more than most states do.  And they often provide far more funding for experts and investigators.   Fortunately, you won't have a problem of the lawyers doing a bad job despite the financial disincentive to work because with a bit of "training" they'll all be "constitutionally sufficient."  What training will "ensure" that?  Let's remember that six judges on the 5th Circuit thought Joe Frank Canon provided Calvin Burdine "constitutionally sufficient" representation by sleeping through "significant portions" of his capital trial.  So maybe sleep therapy?

Option 2:

A voucher system, whereby defendants are able to use vouchers to choose from a list of private attorneys who volunteer to accept the cases of indigent defendants. At the conclusion of a case the voucher is turned in for a flat fee. There will be an obvious incentive to close cases efficiently that does not currently exist for many public defenders. Furthermore, it gives indigent defendants a choice in selecting an attorney that best meets their needs. This consumer choice will create competition amongst private attorneys competing for appointments, which will ultimately promote efficiency and better representation.

Ah yes, the "obvious incentive to close cases efficiently."  The less work you do, the better your hourly rate of pay.  Plead 'em guilty as soon as you're hired and you make decent money.  Go to trial?  Whoo.  There's a financial mistake.  But hey, I tend to forget that the job of defense counsel is to get cases finished "efficiently."  My mistake.

Option 3:

Put the operation of local defender offices up for competitive bidding to all attorneys interested in representing indigent defendants. This annual free-market bidding would ensure the most-efficient and cost-effective management of the defense of indigent defendants, and would keep the offices local - eliminating mileage and other administrative overhead.

Simple test:  Who'll represent the most people for the least money?  There isn't even the fig leaf of pretend service to the client in this one.

Option 4:

Return to the apprentice model of the practice of law in Missouri. Require new lawyers to volunteer 40 hours per year of their time to the representation of indigent defendants. Make this requirement mandatory for the first five years. The resulting court experience, along with the required annual training for these new attorneys, will put young lawyers miles ahead of where many of us were at year six of our legal careers.

Mark Bennett used to tell young lawyers and prospective lawyers who wanted to go into criminal defense that they should open a solo practice right out of law school.  A couple of months ago he concluded that it was bad advice.

I wanted to believe, because society is better served by having those who are dedicated to freedom serving that cause (rather than the State) from the start of their practices, and because here in Harris County the only way for a lawyer to serve freedom from the start of her practice is to start her own practice.

Forget all that. You can't do it. Those few who have managed to build practices from scratch right out of law school are aberrations. Take my word for it: you don't have what it takes. Not on your own.

M & L go Mark's bad advice a step further.  Make every lawyer do it.  Oh, sure, you never wanted to go into a courtroom, your only interest is mergers and acquisitions, you're working for a prosecutor.  No problem.  Put in your 40 hours a year defending poor people charged with serious crimes.  Don't know what you're doing?  That annual training thing again.  Besides, they're criminals.  How hard can it be to plead them guilty?

* * * * *

Look, it's easy to make fun of such ostentatiously bad ideas (though it's frightening to realize that they might get adopted).  But there are a couple of underlying serious points.

All of these suggestions are built on one of two implicit postulates.

1. Criminal defense is assembly-line work, that anyone can do it because it benefits from neither talent nor skill nor commitment nor interest.
2. Criminals defense is a worthless activity, something we undertake only because a bunch of guys with wigs a couple of hundred years ago were silly enough to think those accused of crimes had a right to contest the accusation and had a right to have lawyers help them do it.  So we have to go through the motions.  But since we know better, that's all we need to do.  Since the idea of the criminal justice system is just to get people locked up, any option that makes it less likely that cases will be  investigated or tried is a good one.

But, and this takes me back to the question I asked at the beginning, why would we take such tripe seriously?  Why would anyone publish it?

I've done two posts in the last couple of weeks about the breakdown of the adversary system excoriating those courts that permit prosecutors or statutorily defined victims of alleged crimes to participate in decisions about how cases are defended..  And a couple of months ago I wrote about Jamie West.  Jamie's the guy in Georgia whose appointed lawyers balked at continuing to work with no hope of getting paid.  When the court was stumped, the prosecutor suggested how to get Jamie's case moving and who should represent him - a plan the court readily accepted.

Well, here we are again.

There's one question.  It's not an idle question, not rhetorical.  It is one I never used to think I'd have to ask.  But it turns out I was wrong.

WHAT THE FUCK GIVES THEM ANY RIGHT TO SAY ANYTHING ABOUT THIS STUFF?

Sorry.  I lost my composure there for a moment.

You see what this is.  Prosecutors, whose idea of a good defense is one that folds quickly, think they know how to save taxpayers money on defense.  Sure, do what they say and you might save a few bucks up front.  But you'll guarantee a few things:

• Appellate reversals.
• Costly post-trial litigation.
• Routine violations of constitutional rights.
• Conviction of more innocent people (and as a necessary corollary, more guilty people left free to roam the streets.

And you'll achieve those results by abandoning the very notion of the system we've chosen: The adversary system.

Because, and I don't know how to put it more simply than this, when the prosecution establishes and controls the defense, there is no adversary system.

Public defenders, and appointed counsel too, know all too well that their clients often wish they could have a "real lawyer."  They see that the defense lawyer is paid by the same people who pay the prosecutor and wonder how they can get a fair shake.

The answer (and sometimes we can't make them see it) is that defense counsel, whoever pays them, are independent of the prosecutor's office.  But when the prosecutors design the system, or when the try to control how it works . . . .

No, they have no say.  No voice.  No right to be heard.  No worthwhile suggestion to make.  

Why would we think otherwise?

Thanks to my friend (and committed public defender) Lisa F who partly vented her anger at M & L over this by sending me a link to what they wrote.

That Adversary System? It's Worse in Arizona - with Update

A week and a half ago, I wrote about Asuncion Avila-Villa.  She's facing a death penalty prosecution in Butler County, Ohio, and the prosecutor there is trying to control her defense. 

But before we get back to that (and we will), I need to fill you in just a bit about Butler County.  In particular, I want to tell you about Spotlight Jones.

His given name is actually Richard, and he's the Sheriff of Butler County.  He's known as Spotlight because he seeks it, and of course, he finds it.  His hero, it's said, is John Wayne, and I'm told he has a life-size cardboard cutout of the Duke in his office.

But he's a technological John Wayne.  He's managed, for instance, to put mug shots of all the inmates at his county jail on line.  Along with the charges that they're facing.  Sort of a permanent perp walk.

He doesn't do the pink underwear thing or have a chain gang, but he does have inmates commit suicide at an alarming pace.

And then there's the immigrant thing.  Here's Spotlight now.

The arrow, of course, points to the jail.  And here's one of the billboards he's put up around the county.

He specializes in raids on Hispanic businesses and on places that employ Hispanics. Not surprisingly, Spotlight  isn't particularly interested in tracking down undocumented Canadians.  Equally not surprisingly, U.S. citizens who happen to be Hispanic have been leaving Butler County for less threatening places.

The accusations of profiling are rife, and there's a whole lot of serious documentation to indicate that the complaints don't just come from a few disgruntled folks.

Anyway, Avila-Villa, you'll recall, asked the court for funds to hire a forensic psychiatrist.  She asked that she be allowed to have the request heard ex parte (in front of the judge alone, without the prosecutor there).  But the prosecutor objected.
No, the prosecutor argued, you have no right to tell the judge privately what your defense theory will be and what things you're investigating.  We can keep that stuff secret because we have a government funded budget.  But since you have to ask for money from the county, we get to know how you plan to use it and why.  (OK, that's not how the prosecutor put it, but that's the essence of the argument.)

But the prosecutor wasn't done.  You want a really good expert.  Nope.  Judge, don't let them have that.  All Avila-Villa is entitled to is a barely passable expert, and you shouldn't let her have more.  If she wanted a better expert, she should have been rich.  (OK, they didn't put it exactly that way, either, but that's the essence of the argument.)  Hell, read it for yourself.

Avila-Villa - State Response  

And as we know, the judge agreed.

What I said when I wrote about this before is still right.

The prosecutor has no right to weigh in on the question of how much the defense may spend or who the defense may hire.  No right.  None.

The judge must authorize necessary expenses, which means that if Avila-Villa's counsel have shown they need Dr. Resnick, and if he's available to them, the judge must authorize the money.

And the prosecutor has nothing to say about it.  

Nothing.

Because, really, we're not all in this together.

So, you ask, if Gamso thinks he was right then, and if nothing's changed, why is he writing about it again?

Maricopa County, Arizona, naturally.

OK, I'll back up.

William Miller is on trial for his life in Maricopa County.  He's accused of killing five people, two of them children, in March 2006.  In July 2007, in a jailhouse interview, he told Jim Walsh of the Arizona Republic that he killed one of the five but that an accomplice (someone he refused to name) killed the others, including both children.

"I'm confessing to being responsible for them, yes," Miller, 30, said from his cell at the Fourth Avenue Jail.

"It's a loss of life. I sit there before I go to bed every night. I think about what could have been done differently."

At the time, he was intending to plead guilty.  And he was content with the prospect of a death sentence.   Apparently, that's all changed.

In April this year (if I'm reading the on-line docket correctly), Miller filed a motion asking for an ex parte hearing to address "defense investigation into mitigation matters."  Family members of the dead objected.  They claimed that under the Arizona Constitution and also under Arizona statutes, they have an absolute right to attend any hearing the defendant can attend.*  The trial court didn't buy it.  The rights of statutory "victims" can't trump the rights of a criminal defendant, the court said.

So the "victims" went to the court of appeals.  On Thursday, the court ruled.

Oh, sure, a defendant has a right to an ex parte hearing on mitigation matters.  But not a right that trumps the all important right of victims to be present.  Yeah, the court said, we know that if there's a conflict between the defendant's rights and the rights of victims a defendant should win.  But the Miller didn't say on the record what it is that he doesn't want to reveal (i.e., he didn't announce his secrets publicly), so really, there's no conflict. Victims win.

Morehart v. Barton  

And so we return from Maricopa County, Arizona to Maricopa Butler County, Ohio, where about the best thing you can say is that the victim's rights provisions of Ohio law are not so deeply offensive as the provisions of Arizona law.

And that Avila-Villa has an appeal pending.

UPDATE
I've seen the documents now. The pending appeal in Avila-Villa's case is not over the ex parte and funding issues.  So that ruling will stand, at least for now, in Butler County.

----------------------

*The so-called victims have, in fact, filed memoranda opposing many of the defense motions.  The already wobbly adversary system, one designed (though not applied) to favor criminal defendants, comes close to total collapse when the accused must defend himself against both the government and the vengeful bereaved.

An Adversary System, If You Can Keep It

Her name is Asuncion Avila-Villa.  Her five-week old son, Israel Santos, was murdered.  His body was discovered in a trash can.  She is charged with aggravated murder and death specifications for killing the boy.  She's also been charged with gross abuse of a corpse, tampering with evidence, and unlawful sexual conduct with a minor (the alleged father of the boy).  (See here, for instance.)

She is scheduled to go on trial in September.  The grand jury appended death specifications to the aggravated murder charge, so her life is at stake.

It shouldn't need saying, but Avila-Villa is indigent.

Of course, nearly (not quite, but nearly) all of those who face capital charges are indigent.  They get appointed counsel for trial and appeal (and except in Alabama, apparently, for at least one collateral attack on their convictions).  And they get, after a fashion, funding for necessary investigation and expert assistance.

For the most part, and to the surprise of nobody who really pays attention to these things, the funding for counsel - and for investigators and experts - is generally inadequate.  And it's a struggle.

Those represented by public defender agencies are at the mercy of the agencies' budgets - which are commonly determined in large part by state legislatures that are not particularly enthusiastic about providing money to help those the government wants to incarcerate or kill.  Those represented by appointed counsel are commonly at the mercy of a judge - who may run for election and doesn't get any great public support by paying out taxpayer cash to those who are trying to help those the government would incarcerate or kill.

When the money comes, it's a struggle.

You have to explain to the judge exactly why you need this investigator or expert.  You have to explain to the judge precisely what you expert the person to do, how much it will cost, and why it's necessary to your defense.

Across the aisle (metaphorically, anyhow) sits the prosecutor.  As I said the other day, the prosecutor has an office staffed with assistants.  The prosecutor has the police, the local crime lab, the state crime lab, the FBI crime lab, a comparatively unlimited budget for experts and outré testing and evaluation.  We have what the court in the spirit of fair play (and constant concern for the public's dissatisfaction with paying us out of its tax dollars) is willing to allot.  It's rarely fair, and pretty much never even.

But here's the thing:  We have a constitutional right to present a defense which includes the right to that which is necessary to put on a defense.  It's in the Sixth Amendment and in Section 10, Article I of the Ohio Constitution.

OK, that's the set-up.  Sorry it was so long.

Now, here's the thing, and it brings us back to Asuncion Avila-Villa.  Her lawyers know they need the assistance of an expert forensic psychiatrist.  They need someone who can examine her and explain to the jury just - well, it depends on what the expert learns.  But that's the defense case.

Let me repeat that, and you'll see why in a few paragraphs.  That's the defense case.

OK, one more time: The defense case.

You know, when the state says it wants to check your client's DNA, it doesn't ask you which lab you'd like it to use for the testing.  When it's looking for an expert on gangs (it's planning to use one in Avila-Villa's case), it doesn't ask who you'd recommend.  When it's trying to decide on the charges to bring, it doesn't ask whether you'd prefer a felony or a misdemeanor.

We have what's known as an "adversary system" which means the two sides face off against each other.  It doesn't mean that the state gets to choose the defense strategy - or the defense lawyers (though the state seems to have managed the latter in a Georgia capital case).  And it sure doesn't mean that the prosecutor can tell the judge which experts you ca and cannot hire.

And yet.

Janice Morse reports for the Cincinnati Enquirer.

Defense lawyers had lined up a nationally known expert to testify for a Butler County woman facing a possible death sentence if convicted of killing her infant.

But now they will have to find someone less expensive following a judge's ruling clamping down on funds Monday in Common Pleas Court.
After prosecutors objected to the additional expenses in the case of Asuncion Avila-Villa, 26, Judge Andrew Nastoff refused to grant funds beyond the $12,500 he already approved.

Defense lawyers have already spent some of that money - they won't say how much - on travel expenses to research their client's history in her home state of California and for an initial consultation with a local psychologist.
Nastoff's ruling leaves Avila-Villa's lawyers searching for a different, lesser known expert than Dr. Phillip J. Resnick of Cleveland.
Resnick has played a role in many high-profile court cases across the nation. He served as a prosecution consultant in the case of serial killer Jeffrey Dahmer and in the Oklahoma City bombing cases but worked for the defense in South Carolina's Susan Smith child murders case and in the drowning of five children by Andrea Yates in Texas. He is considered an expert in infanticide, the slaying of infants.

Let me be very clear and precise here.  No snarkiness.  No hyperbole for the sake of making a point.

The prosecutor has no right to weigh in on the question of how much the defense may spend or who the defense may hire.  No right.  None.

The judge must authorize necessary expenses, which means that if Avila-Villa's counsel have shown they need Dr. Resnick, and if he's available to them, the judge must authorize the money.

And the prosecutor has nothing to say about it.  

Nothing.

Because, really, we're not all in this together.