Gideon Alert: New Mexico Voters Approve Independence of Public Defender
Among the recent election results, the passage of a Constitutional Amendment in New Mexico stands as a significant milestone in public defense reform. The state is now in compliance with Principle #1 of the ABA Ten Principles of a Public Defense Delivery System – that the “public defense function, including the selection, funding, and payment of defense counsel, is independent.”
Gideon Alert: Prof. Lefstein points way to securing reasonable caseloads
“Our nation’s public defense systems in state courts, with few exceptions, should be a source of great embarrassment for all of us: judges, bar associations, lawyers, public officials, and all other citizens,” states former Director of the Federal Bureau of Investigation and former United States District Court Judge, William Sessions, in the foreword to Professor Norm Lefstein’s new book, Securing Reasonable Caseloads: Ethics and Law in Public Defense. The source of that embarrassment is the simple fact that, across much of the country, indigent defendants count themselves among one of several hundred who are all vying for the attention of a single lawyer -- a lawyer who lacks the time, resources, and independence to adequately advocate on their behalf. States neglect to provide any type of meaningful supervision or accountability for the representation provided by these overworked public defense lawyers. And, far too often these public attorneys are beholden to the trial judge or the county administration for their pay check, creating a direct conflict between the lawyer’s own personal financial well-being and his ethical duty to advocate solely on behalf of his client. As Judge Sessions notes, “[t]his undisputed and sad state of affairs undermines, indeed vitiates, respect for the rule of law both here at home and abroad and makes a statement to the world about who we are as a people and a society, a statement that we must no longer tolerate.”
Gideon Alert: State-sanctioned commission finds Pennsylvania defaulting on the Sixth Amendment
On December 8, 2011, Pennsylvania’s Joint State Government Commission issued its report, A Constitutional Default: Services to Indigent Criminal Defendants in Pennsylvania, concluding that public defense providers labor “under an obsolete, purely localized system,” and that the structure of services “impedes efforts to represent clients effectively.” Echoing the 2003 report of the Supreme Court Committee on Racial and Gender Bias in the Judicial System, the new report states:
Final report of the Pennsylvania Joint State Government Commission's Task Force and Advisory Committee on Services to Indigent Criminal Defendants: "While recognizing the difficult fiscal environment the Commonwealth faces currently, the advisory committee urges the General Assembly to perform its duties under the U.S. Constitution and as a civilized society by finally addressing the deficiencies that undermine its indigent criminal defense system by reforming the system to comply with national standards."
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Gideon Alert: Prosecutorial interference in Utah
On November 15, 2011, the Emery County Progress reported that the county attorney -- the same office that prosecutes crimes in the county -- not only plays a major role in selecting opposing counsel, but also controls the budget of the local indigent defense system. Though this column has reported on undue prosecutorial interference in Utah before (click here to read about Utah district attorneys involved in the selection and oversight of public defenders), this is the first documented instance in which there is a direct financial conflict of interest between the two adversarial components of the court system.
Gideon Alert: Pittsburgh symptomatic of Pennsylvania’s right to counsel problems
"[D]ysfunctional family life is rarely observed by individual family members, who are so entrenched in the process that they cannot really see it for what it is." Thus concludes Allegheny County Office of the Public Defender Assessment, a report by the Institute for Law & Policy Planning (L&PP). The study, commissioned by Allegheny County (Pittsburgh), explains why it is that public defense attorneys within deficient systems cannot understand the depth and breadth of the on-going, chronic right to counsel problems in their own jurisdiction. Because of that, public defense attorneys often cannot fix their own systemic problems. The L&PP report remained hidden from public view for over two years and only came to light through the committed effort of the American Civil Liberties Union of Pennsylvania (ACLU-PA) to get it released under Pennsylvania’s freedom of information laws.
Gideon Alert: Michigan takes first steps to fulfilling Gideon’s promise
On October 13, 2011, Michigan Governor Rick Snyder issued Executive Order No. 2011-12 establishing an Indigent Defense Advisory Commission (Commission). The Commission is charged to make recommendations to the Governor and Legislature for statewide “improvements to the system of providing legal representation for indigent criminal defendants.” The recommendations from the 14-member, bi-partisan Commission must ensure that: “indigent defense is free from undue political interference and conflicts of interest;” “the right to counsel is delivered by effective counsel at each critical stage of the proceedings in a manner that is consistent throughout the state;” and, “government-funded criminal defense lawyers are sufficiently trained and supervised, appropriately qualified, and adequately compensated.” The Commission must meet their charge in a manner that is fiscally responsible and cost-effective, while being “responsive to jurisdictional variances and local community needs.” Findings and recommendations are due to the Legislature and Governor no later than July 15, 2012.
David Carroll's statement regarding the news of Michigan Gov. Snyder's Executive Order 2011-12 creating an Indigent Defense Advisory Commission.
Items contained in the NLADA Library do not and are not meant to constitute advice of any kind. Content in the NLADA Library is contributed by users. If you believe this material infringes your or any other person’s copyright or if you feel that the material is inappropriate, please report this to NLADA Staff by clicking below.
Gideon Alert: Undue prosecutorial influence on the 6th Amendment in Utah
In Polk County v. Dodson, 454 U.S. 312 (1981), the United States Supreme Court found that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages,” noting that a “public defender is not amenable to administrative direction in the same sense as other state employees”. In fact, the Court noted, a “defense lawyer best serves the public not by acting on the State's behalf or in concert with it, but rather by advancing the undivided interests of the client.” A new report by the American Civil Liberties Union of Utah (ACLU-Utah) finds that the state of Utah fails to uphold this constitutional obligation. In “most” of the nine counties studied by the ACLU-Utah, the local prosecutor “routinely” is responsible for hand-selecting opposing defense counsel and often helps to negotiate the terms of defender contracts. Worse, the report highlights that in several counties defense attorneys must request trial-related expenses from the county attorneys.
Gideon Alert: Tennessee Supreme Court proposes rule change allowing flat-fee contracting
“When it comes to balancing the scales of justice for the poor with the expense, there simply are no easy answers,” concludes the Knoxville News Sentinel on August 21, 2011 in part of an in-depth, three-part series. The Tennessee Supreme Court proposed a new rule change that attempts to find an easy answer to controlling indigent defense costs by allowing flat-fee contracting for right to counsel services, but the Court has neglected to provide institutional safeguards that would protect the adequacy of representation. If implemented, this move will buck the trend of other state Supreme Courts, in places like Iowa and Washington, that have recently banned these types of low-bid contracts because they create a direct financial conflict of interest between the attorney and each client. Tennessee’s high court is accepting public comment on their proposed rule until September 1, 2011.