A public defender's office is a strange bird. It's created and funded by the same entity that is doing its damndest to restrict the liberty of the citizenry. Its lawyers are often idealistic and dedicated to the notion that everyone is entitled to a vigorous defense - yet its administrators must answer to county or state officials.
If a PD's office is "too good" at doing its job, many will walk free thanks to their efforts; but that won't sit well with government officials who must oversee the office. All it takes is a little less funding her and a smidge less over there and suddenly the work load is too much for the attorneys.
If the courts have any say in the matter they damn sure don't want more cases clogging their dockets. Judges want to move cases so they can get out of the courthouse in time to make cocktail hour before dinner. The last thing they want is the prospect of more cases going to trial.
To find out what happens when a public defender takes his oath, and his duty, seriously, all we need to do is look to Couer d'Alene, Idaho, where John Adams has been told that his services aren't needed anymore. Apparently providing a vigorous defense to those charged with criminal acts up there isn't part of the new job description drafted by county officials.
And, as if to add insult to injury, the decision to tell Mr. Adams to take a flying leap was made after he informed county officials that he had cancer and would need to take off one day a week for chemotherapy.
You see, that's the way to emphasize the point that the public defender's job isn't actually to defend the accused who can't afford to hire an attorney - the job is all about making it appear as if the county is abiding by the Fair Defense Act. For, while Gideon says that everyone accused of a crime in which jail time is a possibility is entitled to a lawyer, it certainly doesn't say how competent or effective that attorney must be.
That's why every jurisdiction around this country has sought ways to reward those who do the bidding of the local masters. Whether that be by hiring contract attorneys to handle indigent cases or by bidding contracts to the lower bidder; whether that be by ensuring that the "wheel" spins to those willing to move cases by the bucket or by cutting funding and staffing in PD's offices - state and local governments want their convictions on the cheap.
The sad thing is there is no solution to the problem. So long as indigent defense is provided and funded by the state, there will always be an inherent conflict of interest. The same government that arrested and locked up a defendant has no interest in seeing that defendant released from beneath the state's thumb. Unfortunately there is no alternative method of funding indigent defense. We should look with suspicion at the indigent defense plans of every jurisdiction in this country because that conflict cannot be made to vanish with the waving of a wand or a print out of a case.
See also:
"John Adams, meet John Adams," Gamso - For the defense (March 24, 2013)
Showing posts with label Gideon v. Wainwright. Show all posts
Showing posts with label Gideon v. Wainwright. Show all posts
Tuesday, March 26, 2013
Wednesday, March 20, 2013
The reality of Gideon
If there is one thing we like to do in this country it's celebrate numbers. This week marks the 50th anniversary of Gideon. Of course the problem with Gideon is the Supremes didn't specify what kind of representation the indigent would get and it left it up to local jurisdictions to figure out how they would comply with the mandate.
Gideon also failed to address what relief a defendant would have should he not feel his court appointed lawyer was providing competent and effective representation. What it means is that beggars can't be choosers - in other words, those who can afford to retain counsel can switch attorneys at the drop of a hat but that indigent defendant sitting behind bars is stuck with the one the court appointed to dance with him.
The decision also left us with a patchwork quilt of methods for appointing counsel. In Harris County alone there are some courts who appoint private attorneys to represent the indigent off a list. Other courts contract out their indigent defense. Still others utilize the services of the public defender's office.
Yesterday on Talk of the Nation was the current crisis in indigent defense. The guests were Stephen Bright of the Southern Center for Human Rights and Colorado state public defender Douglas Wilson. The clip below is from the show and is quite enlightening about the failures of our criminal (in)justice system in the 50 years following Gideon.
For those of y'all who've never practiced criminal law in Harris County, the reality of Gideon is jarring to the conscience. Each and every day in the misdemeanor courts up to two dozen men, mostly black and Latino, are placed in a holdover cell behind the courtroom. Generally each court has two attorneys designated to handle the indigent cases each day. The basic definition for indigence in Harris County is not being able to post bond prior to the initial settings (generally 48-72 hours after arrest).
The attorneys grab their files and shuffle through the paperwork. Then, sometimes before even going back to talk to their clients, they sit down with the prosecutor and try to work out pleas on the cases. Then the dog-and-pony show begins as they try to sell their "client" on the deal. There's no investigation. There's no thought to challenging the state's case. It's all about trying to get the client out of jail in the shortest amount of time.
Now I don't mean to impugn anyone's reputation and I certainly don't mean to imply that this is how every court appointed attorney in the misdemeanor courts acts. But this is the reality of Gideon.
Then, once all the pleas are agreed to and the paperwork is signed, it's time for the parade. Defendants are brought out into the courtroom, all handcuffed to one another. There are generally at least half a dozen defendants standing before the judge - though I have seen them lined up in two rows before. The judge then begins the assembly line process and each defendant dutifully admits guilt and accepts his punishment.
They are then marched back to the holdover and the whole process repeats itself the next day. And the day after that. And the day after that...
In practical terms what Gideon has become is the gloss we use to cover up the imperfections. It's a show. There's no effective representation. It's a game to see who can clear the most cases and who can get out of jail the quickest.
The judges don't mind because it clears their dockets. The county administrators don't mind because it's cheap. And, hell, the plea papers the defendants sign already state that the defendant is satisfied with the representation he received. It's a complete fucking sham.
Over at Sentencing Law and Policy, Doug Berman had an interesting piece (well, he quoted extensively from someone else who wrote an interesting opinion column) asking whether Gideon ushered in the new era of the drug war and mass incarceration.
Now the argument strikes me as an almost doctrinaire libertarian approach to government involvement in anything - government steps in to solve a social problem, creates a moral risk and the world goes to hell in a handbasket because of it. Who's to say if these things wouldn't have happened anyway. Whether Gideon enabled them is neither here nor there. What Gideon has done, however, is put a shade of legitimacy on our government's continued war against the poor and minorities.
As a result of Gideon, our criminal (in)justice system resembles the storyline of one of the myriad of movies detailing the social breakdown in suburbia (American Beauty comes to mind). Everything is all glitzy and beautiful at first glance - but god help you if you take a closer look.
Gideon also failed to address what relief a defendant would have should he not feel his court appointed lawyer was providing competent and effective representation. What it means is that beggars can't be choosers - in other words, those who can afford to retain counsel can switch attorneys at the drop of a hat but that indigent defendant sitting behind bars is stuck with the one the court appointed to dance with him.
The decision also left us with a patchwork quilt of methods for appointing counsel. In Harris County alone there are some courts who appoint private attorneys to represent the indigent off a list. Other courts contract out their indigent defense. Still others utilize the services of the public defender's office.
Yesterday on Talk of the Nation was the current crisis in indigent defense. The guests were Stephen Bright of the Southern Center for Human Rights and Colorado state public defender Douglas Wilson. The clip below is from the show and is quite enlightening about the failures of our criminal (in)justice system in the 50 years following Gideon.
For those of y'all who've never practiced criminal law in Harris County, the reality of Gideon is jarring to the conscience. Each and every day in the misdemeanor courts up to two dozen men, mostly black and Latino, are placed in a holdover cell behind the courtroom. Generally each court has two attorneys designated to handle the indigent cases each day. The basic definition for indigence in Harris County is not being able to post bond prior to the initial settings (generally 48-72 hours after arrest).
The attorneys grab their files and shuffle through the paperwork. Then, sometimes before even going back to talk to their clients, they sit down with the prosecutor and try to work out pleas on the cases. Then the dog-and-pony show begins as they try to sell their "client" on the deal. There's no investigation. There's no thought to challenging the state's case. It's all about trying to get the client out of jail in the shortest amount of time.
Now I don't mean to impugn anyone's reputation and I certainly don't mean to imply that this is how every court appointed attorney in the misdemeanor courts acts. But this is the reality of Gideon.
Then, once all the pleas are agreed to and the paperwork is signed, it's time for the parade. Defendants are brought out into the courtroom, all handcuffed to one another. There are generally at least half a dozen defendants standing before the judge - though I have seen them lined up in two rows before. The judge then begins the assembly line process and each defendant dutifully admits guilt and accepts his punishment.
They are then marched back to the holdover and the whole process repeats itself the next day. And the day after that. And the day after that...
In practical terms what Gideon has become is the gloss we use to cover up the imperfections. It's a show. There's no effective representation. It's a game to see who can clear the most cases and who can get out of jail the quickest.
The judges don't mind because it clears their dockets. The county administrators don't mind because it's cheap. And, hell, the plea papers the defendants sign already state that the defendant is satisfied with the representation he received. It's a complete fucking sham.
Over at Sentencing Law and Policy, Doug Berman had an interesting piece (well, he quoted extensively from someone else who wrote an interesting opinion column) asking whether Gideon ushered in the new era of the drug war and mass incarceration.
Now the argument strikes me as an almost doctrinaire libertarian approach to government involvement in anything - government steps in to solve a social problem, creates a moral risk and the world goes to hell in a handbasket because of it. Who's to say if these things wouldn't have happened anyway. Whether Gideon enabled them is neither here nor there. What Gideon has done, however, is put a shade of legitimacy on our government's continued war against the poor and minorities.
As a result of Gideon, our criminal (in)justice system resembles the storyline of one of the myriad of movies detailing the social breakdown in suburbia (American Beauty comes to mind). Everything is all glitzy and beautiful at first glance - but god help you if you take a closer look.
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