Transcript Slide 1

The Role of Defense Lawyers and the
History of the Right to Counsel
Why Lawyers Matter: Indigent Defense in Crisis
University of Illinois College of Law
March 3, 2011
Robert C. Boruchowitz, Professor from Practice
Director, Defender Initiative
Outline of Discussion
Brief history of Main Developments in Right to
Counsel
Some of the major problems in misdemeanor
courts representation
Why lawyers are needed
How lawyers can make a difference—both in
individual cases and systemically
Before we get started…
What is the glaring error in the following
advice of rights that used to be read to
defendants in a Washington State
municipal court?
What issues are
presented by the
following case?
October 16, 2006 Transcript Snohomish
County
Misdemeanor
Court
Start Time: 9:46:35
Judge:
“S J”
Prosecutor: “Mr. J is represented (inaudible). You are or you’re not
represented?
Defendant: “No, uh-uh.”
Prosecutor: “I just need to find your file here (inaudible). Case #
C74829. Defendant is present without counsel. What did I talk to you
about doing (inaudible)?”
Defendant: (Inaudible)
Prosecutor: “You want to enter your plea. Uh, Your Honor, my
understanding from the defendant is he wishes to enter a plea on the
charge and the state offers no jail time and $150 fine.”
Judge:
“Well alright, Mr. J, how do you plea to Driving While
Suspended third degree?”
Defendant: “Guilty, sir.”
Judge:
“All right. Twenty-four months unsupervised probation, ninety
days jail, all suspended, $1000.00 fine, $850 suspended with $150 fine to pay
plus the $150 monitoring fee and a $43 assessment. Conditions: no driving in
the next twenty-four months unless you have a valid license and insurance and
no moving traffic violations or criminal charges are to be filed against you in
the next two years. Exonerate bond.”
End Time:
9:47:52
Total Time: 1 minute, 17 seconds
What is the source of the right
to counsel?
Sixth Amendment
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.
Illinois Constitution Article I
SECTION 8. RIGHTS AFTER INDICTMENT In
criminal prosecutions, the accused shall
have the right to appear and defend in
person and by counsel; to demand the nature
and cause of the accusation and have a copy thereof; to
be confronted with the witnesses against him or her and
to have process to compel the attendance of witnesses
in his or her behalf; and to have a speedy public trial by
an impartial jury of the county in which the offense is
alleged to have been committed. (Source: Amendment
adopted at general election November 8, 1994.)
History
What are the key US Supreme Court
cases on right to counsel?
Key cases
Powell v. Alabama (1936)
Gideon v. Wainwright (1963)
In re Gault (1967)
Argersinger v. Hamlin (1972)
Faretta v. California (1975)
Alabama v. Shelton (2002)
Rothgery v. Gillespie County (2008)
“Scottsboro Boys” and Lawyer
Powell v. Alabama
during perhaps the most critical period of
the proceedings against these defendants,
that is to say, from the time of their
arraignment until the beginning of their
trial, when consultation, thoroughgoing
investigation and preparation were vitally
important, the defendants did not have the
aid of counsel in any real sense, although
they were as much entitled to such aid
during that period as at the trial itself
. The right [*69] to be heard would be, in many cases,
of little avail if it did not comprehend the right to be heard
by counsel. Even the intelligent and educated layman
has small and sometimes no skill in the science of law.
If charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good
or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel he may be put on trial
without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the
issue or otherwise inadmissible. He lacks both the
skill and knowledge adequately to prepare his defense,
even though he had a perfect one. He requires the
guiding hand of counsel at every step in the
proceedings against him. Without it, though he be
not guilty, he faces the danger of conviction because
he does not know how to establish his innocence. If
that be true of men of intelligence, how much more true
is it of the ignorant and illiterate, or those of feeble
intellect. I
Justice Frankfurter
Sworn in on Sunday, January 29, 1939
.
Gideon
Right of one charged with crime to counsel
may not be deemed fundamental and
essential to fair trials in some countries,
but it is in ours.
What happened after Gideon
got a lawyer?
Requirements of Waiver
(Faretta)
Knowingly and intelligently forego
benefits of counsel
Be made aware of the dangers and
disadvantages of self-representation
Record must establish that he knows what
he is doing and his choice is made with
eyes open
Argersinger v. Hamlin(1972)
Counsel is needed so that the accused may know
precisely what he is doing, so that he is fully aware of
the prospect of going to jail or prison, and so that he is
treated fairly by the prosecution.
Alabama v. Shelton (2002)
Courts cannot impose suspended sentences on indigent
defendants without providing counsel at trial or finding
a waiver of counsel.
Rothgery v. Gillespie County (2008)
This Court has held that the right to counsel guaranteed by
the Sixth Amendment applies at the first appearance
before a judicial officer at which a defendant is told of
the formal accusation against him and restrictions are
imposed on his liberty.
In re Michels 150 Wn. 2d 159(2003).
The rights of the poor and indigent are the rights
that often need the most protection. Each county
or city operating a criminal court holds the
responsibility of adopting certain standards for
the delivery of public defense services, with the
most basic right being that counsel shall be
provided. …Disregarding our most basic and
important principles weakens the legal system
as a whole. In light of this, we again find it
necessary to reiterate that this court will not
tolerate short cuts to due process.
Problems
No counsel at all in many cases
– Systemic unavailability at arraignments and
first appearances
– Court denial of counsel to eligible defendants
Excessive caseloads
– One lawyer doing 1700 cases a year in
Lynnwood, Washington—and in Champaign
– Atlanta, Miami, Chicago, New Orleans—
defenders with more than 2000 cases per
year each.
Inadequate compensation for attorneys
Racial Disparity
The crisis in America’s public defense
system has a much more acute impact on
communities of color. The dramatic underfunding and lack of oversight of America’s
indigent defense services, described at
length above, has placed people of color
in a second class status in the American
criminal justice system.
The Terrible Toll of America’s Broken
Misdemeanor Courts, p. 47
These problems present ethical
issues
RPC RULE 1.1 COMPETENCE
A lawyer shall provide competent
representation to a client. Competent
representation requires the legal
knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.
American Bar Association and
American Council of Chief
Defenders
Ethics opinions on not taking excessive
caseload
Guidelines on what to do when too many
cases
AMERICAN BAR ASSOCIATION
STANDING COMMITTEE ON ETHICS AND PROFESSIONAL
RESPONSIBILITY
Formal Opinion 06-441 May 13, 2006
Ethical Obligations of Lawyers Who Represent
Indigent Criminal Defendants When Excessive
Caseloads Interfere With Competent and Diligent Representation
If workload prevents a lawyer from
providing competent and diligent
representation to existing clients, she
must not accept new clients. If the
clients are being assigned through a
court appointment system, the lawyer
should request that the court not make
any new appointments.
Defense lawyers are
constantly forced to
violate their oaths as
attorneys because
their caseloads make
it impossible for them
to practice law as
they are required to
do according to the
profession’s rules.
April 14, 2009
Portion of a
closed case
report from a
Washington
city contract
defender
What
stands out
here?
• Why Misdemeanors Matter
• Why Counsel is Required
• What Counsel Should Be Doing at These
Hearings
• Progress of Open Society Project
• How to Persuade Funders
Shackled Defendants on Their Own
High Volume—Courts Where
Most People Go to Court


United States: Estimated 8-10 million cases
per year.
“Courts of limited jurisdiction serve as the
window to the judicial branch for many
people who do not normally have contact
with the judicial system.” In re Michels,
Washington Supreme Court,150 Wn.2d
159, 174, 75 P.3d 950, (2003)
Illinois Courts

The great bulk of criminal court filings are
misdemeanors
2008
350,015 Misdemeanor Court filings
90,466 Felony filings
Misdemeanor Courts
Problems
 “Waiver”
of counsel—you cannot do a
thorough inquiry in 60 seconds.
 Unrepresented defendants talking with
prosecutors without valid waiver of counsel.
 Guilty pleas by unrepresented defendants
who do not understand the disadvantages
of proceeding pro se or the direct and
collateral consequences of the plea.
 Excessive defender caseloads result in
ineffective representation.
Why counsel is required at first
appearances
Accused persons generally cannot without help
understand the elements of the charge, possible
defenses, or the full nature of the consequences
of a conviction.
Accused persons generally cannot without
challenge a finding of probable cause.
Accused persons generally cannot without help
advocate effectively for personal recognizance
release or reduced bail.
Accused persons generally cannot without help
advocate effectively for sentencing alternatives.
Because of all of the foregoing...
Accused persons generally
cannot without help make a valid
decision about waiving counsel or
waiving trial.
The fairness of the proceedings
and the integrity of the court are
at risk.
News conference
April 28, 2009
10 a.m.
Seattle University
School of Law
The explosive growth of misdemeanor cases is placing a
staggering burden on America’s courts. Defenders
across the country are forced to carry unethical
caseloads that leave too little time for clients to be
properly represented.
As a result, constitutional obligations are left unmet and
taxpayers’ money is wasted....
Legal representation for misdemeanants is absent in
many cases. When an attorney is provided, crushing
workloads often make it impossible for the defender
to effectively represent her clients. Counsel is
unable to spend adequate time on each of her cases,
and often lacks necessary resources, such as
access to investigators, experts, and online
research tools.
These deficiencies force even the most
competent and dedicated attorneys to engage
in breaches of professional duties. Too often,
judges and prosecutors are complicit
in these breaches, pushing defenders
and defendants to take action with
limited time and knowledge of their
cases. This leads to guilty pleas by the
innocent, inappropriate sentences, and
wrongful incarceration, all at taxpayer
expense.
Why Misdemeanors Matter
Huge Commitment of Resources When All
Governments Are Struggling To Make Ends
Meet.
Fairness—Fundamental rights are being
denied to millions of people in the places
that should protect them the most.
Perception of Justice—Most people who
actually go to a court go to these courts.
Their respect for American justice is
shattered when they experience the
problems we describe in the report.
Economic Penalties
Increasing fines, costs, and other fees have
become staggering. Cumulative impact of all of
the economic obligations a significant problem
for most defendants.
“Courts have demonstrated an almost total
disregard for the ability of the defendants to
afford the amounts assessed.”
Criminal convictions diminish employment
prospects and eligibility for housing and other
benefits.
McCormack, “Economic Incarceration”, Windsor
Yearbook of Access to Justice, 2007.
Consequences
The collateral consequences that can result from any
conviction, including a misdemeanor conviction, have expanded
significantly.
These consequences can be quite grave. The defendant can
be deported, denied employment, or denied access to
a wide array of professional licenses. A person convicted
of a misdemeanor may be ineligible for student loans and
even expelled from school. Additional consequences can
include the loss of public housing and access to food
assistance, which can be dire, not only for the misdemeanant
but also for his or her family. Fines, costs and other fees
associated with convictions can also be staggering and too
frequently are applied without regard for the ability of the
defendants to pay the assessed amounts.
...” No criminal conviction should be regarded as minor or
unimportant.”
1968: UW Professor John M. Junker Wrote
[A] large majority of the [people] annually
charged with non-traffic misdemeanors
must, if they are financially unable to hire
an attorney, face the bewildering,
stigmatizing and (especially at this
level) assembly-line criminal justice
system without the assistance of
counsel. The misdemeanor prosecution is
the “Appalachia” of the criminal justice
system.
 “[I]t’s
easy for judges to let their
 frustration get the best of them and look for
ways to move the calendar along.”
—
then Judge Michael Spearman,
 King County, Washington, speaking at an
ABA hearing on public defense.
What Counsel Should Be Doing at
These Hearings
• Challenge probable cause
• Talk with client about rights, silence, ability to post
bail, residence, work, references, time in community;
assess any immediate needs of client
• Advocate for release
• Confirm appointment process beyond first
appearance
• Consider appellate review and pursue as appropriate
• Begin investigation and research
ABA Ten
Principles
Of A Public
Defense
Delivery System
Defender Initiative's
Misdemeanor Right to
Counsel Project
To implement the right to counsel in
misdemeanor courts in Washington State,
and create a model for application in other
states. Working now in Kentucky and New
Hampshire
Funded by The Foundation to Promote Open Society
Methodology
 Observe
courts, listen to recorded
hearings
 Write to courts explaining deficiencies and
proposing change
 Meet with judges, defenders, others
 Follow up
 Discuss possible litigation
Progress on the Open Society
Project
 Sunnyside
Municipal Court—added lawyer
at arraignment
 Spokane District Court—added lawyer to
the DUI arraignment calendar that did not
have one
 Pasco Municipal Court—changes in court
procedures, promised change in advice of
rights form, agreed to provide counsel at
arraignments
And....
 City


Added attorney at first appearances for incustody defendants
Developed new diversion program
 City

of Spokane
of Yelm
Agreed to provide counsel at arraignments
Ways to Cut Caseload and Costs
Diversion of Suspended Driver License
Cases
Re-Licensing programs
Diversion of Marijuana Possession Cases
Diversion of Minor in Possession of
Alcohol Cases
Diversion of Shoplifting Cases
Decriminalization of Offenses Such as
Sleeping on Sidewalk
Working for Systemic Change-Media Coverage Examples
.
Don’t send kids to court alone
The Olympian

Published April 21, 2008
Most troubling is the finding that 17 counties
never or only sometimes make public defense
attorneys available to children and teenagers
during their first appearance in juvenile court.
 A child or teen’s constitutional right to an attorney
has been well established in a 1967 court case and
reinforced in state law since then. It’s
unconscionable to think that juvenile offenders
still fend for themselves in court at the critical first
stage of a legal proceeding when decisions are
made that could affect their lives forever.....
 And the practice of sending alleged juvenile offenders
to their first court appearance without an attorney must
stop.
Santa Clara County defendants face
misdemeanor Hobson's choice: Plead guilty
or wait longer in jail


By Sean Webby [email protected]
Posted: 12/29/2009 06:27:00 PM PST updated: 12/30/2009 11:50:11 AM PST

For thousands of people charged with
such crimes as public drunkenness or
resisting arrest, Department 42 is their
first and last legal stop.
In this Hall of Justice courtroom, a
stream of defendants arrive from jail for
their first chance to have a judge review
their case — without any attorney in
sight.
There, many are given a legal Hobson's
choice: Plead guilty and go home, or ask
for a lawyer and spend longer in custody.
It is a choice offered to people who at
times appear not to understand the legal
consequences and who, in the worst
cases, may not even be guilty of the
crimes.



An unidentified in-custody defendant
plead guilty to an unspecified charge in
the courtroom of Commissioner Deborah
Ryan inside Santa Clara County Superior
Court, Hall of Justice, on Dec. 24, 2009 in
San Jose. (Dai Sugano/Mercury News) (
Dai Sugano )
Editorial: Santa Clara County should
provide lawyers for misdemeanor
court
Mercury News Editorial
Posted: 01/17/2010 08:00:00 PM PST

If you're arrested for shooting someone in Santa
Clara County, you'll get a lawyer, even if you
can't pay for one. But if you've had a relatively
minor scrape with the law and end up in
misdemeanor court, chances are you'll go to
your arraignment without legal advice. If you do
ask for a lawyer when the judge explains your
right to be represented, it can mean going back
to jail to wait for an indefinite period of time until
the public defender gets to your case.



Some misdemeanor defendants are crooks. But some —
especially those accused of unpremeditated crimes such as
public drunkenness — are just people who've made a mistake.
Still others may have been arrested for no good reason, or hit
with a sledgehammer charge when what they deserve is a slap
on the wrist. They may feel helpless to dispute the word of the
arresting officer. Some see a guilty plea, even with jail time, as
the quickest way out.
Those defendants' perception of the legal system from that
day forward will be colored by what happens in the
courtroom. If they feel railroaded — or later find that a
rushed guilty plea has changed their lives forever — the
lasting effect will be bitterness. Making legal advice readily
available can ensure that people who just made a mistake
leave the system chastened but more likely to respect the
system. Helping them should be as high a priority as
making sure felony defendants get proper representation.
If county officials saw it this way, they'd find the money to staff
misdemeanor courtrooms.
City of Seattle Law (2004)
Council Bill Number: 114900
Ordinance Number: 121501

The City hereby reaffirms the caseload standards
established in the 1989 Budget Intent Statement. The
1989 Budget Intent Statement, the American Bar
Association's Ten Principles of a Public Defense
Delivery System and the provisions of Section 1 of this
Ordinance shall collectively constitute "standards for
public defense services" as that term is used in RCW
10.101.030 until such time as the City Council may by
ordinance adjust those standards. Consistent with the
1989 Budget Intent Statement, City agreements with
indigent public defense service providers shall require
caseloads no higher than 380 cases per-attorney peryear. The City also affirms the Washington State Barendorsed supervision standard of one full-time
supervisor for every ten staff lawyers.
Helpful to Remind Local
Governments
Reflections
William Hellerstein: The Importance of the
Misdemeanor Case on Trial and Appeal 1970
…the criminal court, the misdemeanor
court, is such an abomination that it
destroys any myth or notion that I ever had
about the realities of American criminal
justice. Only a reappraisal of the
importance of what transpires in that court
by defender agencies and efforts
consistent with that reappraisal can
provide some improvement.
William Hellerstein
As presently constituted, our courts do not even
have the appearance that justice is dispensed
within them.
….it is time for all of us working in defender
agencies to turn our energies, forcefully and
immediately, towards improvement of the
criminal court process and towards the effective
representation of persons faced with short terms
of imprisonment but for whom the criminal
process may prove far more traumatic.
William Hellerstein
It is not enough for us to shuffle our feet
into the courts, go through two-minute
arraignments and seven minute trials, and
go home at night calling ourselves
attorneys.
Making a Difference
Innocence Project Northwest (IPNW)
Clinics
The Innocence Project Northwest (IPNW)
Clinic grew out of a volunteer effort aimed
at freeing inmates who have been
wrongfully convicted of crimes. Since
IPNW's inception in 1997, volunteer
students and attorneys have overturned
the convictions of 15 innocent people in
Washington state.
Work Together
Never doubt that a small group of
thoughtful, committed citizens can
change the world. Indeed, it is the
only thing that ever has.
– Margaret Mead