Fight ‘Em ‘Til We Can’t

John McFadden, a Billings bail bondsman, has begun what has the makings of a campaign to reform the way muni court judge Mary Jane Knisely sets bail and other pre-trial conditions of release. Last November, McFadden first wrote a letter to the editor of the Billings Gazette criticizing pre-trial supervision as more or less a form of blackmail that encourages defendants to plead guilty in order to avoid or end the onerous fees involved. McFadden is equally critical of the fact that private companies are making substantial profit from the misery of these defendants, as well as what appears to be the “I’ll scratch your back” way Judge Knisely doles out the business to these companies.

Last week McFadden wrote another letter to the editor listing eight flaws in the way Billings’ municipal court operates, including:

1. Ordering citizens to pay to be “supervised” by supervisors who have committed fraud (DV 05-1199).
2. Collecting “bond” payments and then converting these “bonds” into “fines” without a hearing.
3. Leaving citizens in jail for hours, days and even weeks after posting bond.
4. Jailing minorities because they are unable to pay “supervision” fees while waiting for their day in court.
5. Forcing citizens to submit to 24-hour unannounced searches and urine analysis before trial.
6. Routinely employing individuals who are not elected to act in Judge Knisley’s stead, at taxpayers’ expense.
7. Giving citizens no choice in determining from which company they must purchase court-ordered services.
8. Responding with an adversarial attitude toward complaints.

McFadden’s letters have produced a vocal response in the newspaper’s comments section, and he is following up on his own website by asking for stories and comments from concerned citizens.

A few critics have questioned McFadden’s motives, suggesting he is bitter about something and is therefore attempting to strike back at the court. They may be right: many of the things McFadden criticizes (pre-trial supervision, time-pay bonds rather than secured bonds, etc.) probably do not help a bondsman’s bottom line. On the other hand, the problems McFadden identifies remain problems, regardless of his motives for speaking out.

How are things in your jurisdiction? Does your misdemeanor court routinely set bonds at 5-10 times the amount of the largest fine allowed by statute for the alleged crime? Are your misdemeanor bonds frequently higher than the bonds set in your felony courts? Are people accused of misdemeanors in your jurisdiction coerced into pleading guilty by onerous pre-trial “supervision” fees (for electronic monitoring, drug testing, etc)? Do the cost of those fees vary as much as 100% depending on which “supervision” company you’re assigned? Is Billings municipal court the source of the problems, or is this sort of thing pervasive statewide?

A Florida city has agreed to pay $35,000 (17,900 pounds) to a teenage girl who was forced by a policeman to perform jumping exercises while topless in order to avoid arrest on an indecency charge. ⇒

In U.S. v. Ramirez, Judge O’Scannlain tolerates a search where a narcotics sergeant had facts relating to probable cause, but didn’t relate any of those facts to a completely unrelated traffic cop who actually did the stop. ⇒

State prison inmates, particularly blacks, are living longer on average than people on the outside, the government said Sunday. ⇒

Sen. Dick Durbin (D-IL) is expected to introduce a bill soon to ease the financial burden for law school graduates who work in the public sector. The measure would provide up to $10,000 a year to help repay student loans for prosecutors and public defenders who commit to remain in their jobs for at least three years. ⇒

Courts are increasingly prepared to say that police can be sued when they don’t arrest the bad guys fast enough. ⇒

Extensive evidence suggests that police interrogators are poor lie detectors, often disbelieving innocent suspects, even when they have been trained to identify signs of guilt. “The assumption that ‘I’d know a false confession if I saw one’ is an unsubstantiated myth,” says Saul M. Kassin, co-author of the study. ⇒

Infinity Ranch points to an op-ed in yesterday’s NYT in which Morris Hoffman, a Colorado judge, reveals that a recent study in which he participated showed that defendants who retain private counsel end up with less jail time—three years less, on average—than those who rely on court-appointed counsel. When the researchers “controlled for the seriousness of the crime” they found that “public defenders performed relatively worse, not better (five years more incarceration versus three years more).”

When we examined the seriousness of the cases handled by each type of lawyer, we discovered not only that private lawyers tend to handle more serious cases, but also that as the seriousness of the case increases, the chances that a private lawyer is handling it also increases. What in the world could explain such a result?

Hoffman’s answer is that there’s a sizable group of “marginally indigent” defendants who can afford to retain counsel if they really really want to. These defendants are “rational actors”: those who know they’re guilty don’t pull out all the stops to hire private counsel because, well, why bother? They know they’re guilty. Those who are innocent do pull out all the stops to hire counsel—by borrowing from friends, family, whatever—because no expense is too great when you’re really innocent.

That theory may have something to do with the different outcomes achieved by private vs. court-appointed counsel, but what about other variables? What about the resources most public defenders have at their disposal—investigators, access to or money for experts, etc? What about caseloads? If the average public defender has 80-100 cases at any given time while private counsel has 20-40, I’m thinking that could easily explain a difference of 3-5 years for average sentence.

Finally, I wonder if the study considered how many private counsel start their careers in PD offices in order to learn their craft and become better defenders. Once they feel they’ve learned the tricks of the trade, these people hang shingles and start making money. Perhaps this means that the average private defender has had more years of experience than the average public defender? I have no idea if this is true, but it would be interesting to explore.

Whatever the case, prominent articles like this that speak to a national audience and say that public defenders aren’t as “good” as private counsel are bound to fan the flames of PD-critics who claim we’re not “real lawyers.” On the side of the silver lining, let’s hope this study encourages states and counties to invest more in their PDs to try to reduce caseloads and improve outcomes for the truly indigent defendants who really don’t have a choice of counsel.

“MCI is currently charging these family members a 630% markup over regular long distance consumer rates to receive a collect call from their loved ones, the only method of calling from a DOCS institution. ⇒

The votes have been counted and the winners have been named in the first annual Public Defender Blogger Awards. Congrats to all the winners and thanks to PD blog readers everywhere for making this blog a runner-up in the category of “Best Title of a Blog That Reflects Something About The Job.”