Fight ‘Em ‘Til We Can’t

Today we celebrate the Declaration of Independence and the freedoms it eventually led to. As public defenders, we know how precious and fragile those freedoms are. So here’s to independence, here’s to freedom, and here’s to the brave and dedicated people who work tirelessly everyday to defend the public from excessive and unconstitutional uses of force by the government. In other words, here’s to Public Defenders! Let freedom ring!

Today’s Monday Musings on PD Stuff features Scott Henson of Grits for Breakfast. The highlights are Scott’s recommendations for improving the criminal justice system in Texas:

The three big ticket items I’d fund with such power and budget are training 10,000 teachers to deal with dyslexic kids and illiterate adults, dramatically expanding community-based mental health treatment, and focusing evidence-based programming on children of incarcerated parents. The reason: those are the biggest categories where funding would make a difference to prevent crime rather than react to it. Dyslexics are three times as likely as others to enter prison, children of incarcerated parents 6-8 times more likely, and the mentally ill are being warehoused in Texas prisons in huge numbers – the state estimates 30% of inmates are past clients of the indigent mental health system. If you can stop people in those categories either from committing crimes or immediately entering prison when they screw up, it would do more to improve public safety than the current lock-em-up approach.

Scott’s observations are supported by some shocking stats from the April 2007 “Harper’s Index”:

• Percentage of American adults held in either prisons or mental institutions in 1953 and today, respectively: 0.67, 0.68
• Percentage ofthese adults in 1953 who were in mental institutions: 75
• Percentage today who are in prisons: 97
• Estimated amount that U.S. adults who grew up poor cost the economy each year through increased crime: $170,000,000,000
• Estimated amount they cost the economy through higher health care costs: $160,000,000,000

Oh what a wonderful world.

Comes Now Fight ‘Em ‘Til We Can’t (hereinafter FETWC), pursuant to logic, reason, and basic consideration for others, and humbly moves the Honorable Montana Supreme Court to move its annual Swearing In session to a Friday or Monday in the fourth week of September or as soon as possible after the announcement of bar exam results.

FACTUAL BACKGROUND

1. Each year, the Montana Bar Association announces the results of the July sitting of the Montana Bar Exam on or about the third week of September.
2. In 2006, the Montana Bar Association mailed the results of the July bar exam to examinees on September 18. Nearly all examinees knew their results by mail as of September 20, and those results were published online on September 25.
3. The Montana Supreme Court scheduled a special session to accept new members into the Montana Bar on October 18, 2006. This was a full month after the Bar Association announced the results of the bar exam.
4. October 18, 2006 was a Wednesday. Wednesday is in the middle of the week.
5. Successful bar examinees cannot actually practice law in the state of Montana until they are sworn in.

BRIEF ARGUMENT

First, in the future, this Honorable Court should plan to hold its Swearing In session as soon as possible after bar results are announced in order to allow successful examinees to get to work. The current month-long delay between passing the bar and being sworn in is especially onerous for new public defenders and criminal defense attorneys who must sign motions, briefs, and other court documents on an almost daily basis.* This delay is entirely unnecessary and eliminating it would greatly benefit new attorneys who are ready to dedicate their energy and efforts to defending those accused of crimes.

Second, this Honorable Court should also hold its Swearing In session on a Monday or Friday to make it easier for the families and friends of successful examinees to travel to Helena for the event. Many family members or friends of successful examinees live far enough away that they must drive or fly a long distance to get to Helena. Holding the event in the middle of the week forces those people to take time off from work for travel on a Tuesday and then return travel on a Thursday in order to attend the event. If the event were held on a Monday or Friday, at least one of those travel days would not be a working day; therefore, it would be easier for friends and family to attend the event.

CONCLUSION

This Honorable Court should reschedule its Swearing-In session to occur as soon as possible after bar exam results are announced and to occur on a Monday or Friday because such a rescheduling will simply be more convenient for everyone involved.

Wherefore FETWC prays this Honorable Court will grant this motion and/or any other appropriate relief.

Respectfully submitted this 21st day of October, 2006.

* Yes, FETWC knows a new lawyer does not have to participate in the Swearing In at the Supreme Court, but FETWC respectfully wonders why people should have to choose between being sworn in the nice way and being sworn in quickly when It would be so simple to accomplish both by simply rescheduling the Supreme Court swearing in session.

Who decides whether a defendant qualifies as “indigent” for purposes of being appointed a public defender under Montana’s new Public Defender Act? That was the question the MT Supreme Court recently decided in Rios v. Harris. In brief, the Court granted a Writ of Supervisory Control saying that the Office of State Public Defender (OSPD) decides who qualifies according to the criteria specified in Title 47 of the Montana Code.

The Court said that §47-1-111(1), MCA, calls for appointment of counsel as follows:

1. The court appoints counsel to any accused person facing jail time (and also in dependent/neglect and a few other matters). See also §47-1-104(4), MCA.
2. The Office of State Public Defender (OSPD) begins representation but also determines whether the defendant meets the indigency criteria.
3. If the defendant is not eligible, the OSPD must notify the court so that the court may rescind its order appointing counsel. However, OSPD must remain as counsel until the court issues such an order.
4. The court may review the OSPD’s determination of eligibility, but only in cases where one of the parties requests such review. Under no circumstances my a court initiate such a review sua sponte.

Justice Jim Rice dissented, claiming that the majority erred in holding that a court cannot initiate the indigency determination on its own.

Does anyone have any thoughts on this opinion? Did the majority get it right or was Rice more on target? And how common is it for the Court to issue a Writ of Supervisory Control?