Fight ‘Em ‘Til We Can’t

Picking up on my offhand comment in the last post that the SCOTUS recently said the right to counsel begins at initial appearance: The decision came down in June in Rothgery v. Gillespie County. I haven’t yet been ambitious enough to read the full decision, but according to the lengthy summary from SCOTUSblog, all that case said is that the right to counsel attaches at initial appearance. What that means, e.g., how quickly after initial appearance a person must have access to counsel and for what types of hearings or purposes, remains unclear. However, it appears the case does not say that a person has a right to have an attorney present at initial appearance. That sounds like bullshit to me, but there you have it. Your right “attaches” there; what “attaches” means in practice remains open to interpretation, apparently.

Here’s what the test should be: Are you in jail? If so, you have a right to an attorney at any and all appearances before a judge and at any and all interactions with law enforcement (other than jail staff; that would be unworkable). Of course, you can waive that right, and many people do, but that’s a nice bright line. If you’re not in jail but have been ticketed or given a notice to appear, you should be informed of your right to counsel along w/the citation/notice and given instructions for contacting the public defender for advice prior to initial appearance. This could be handled nicely by making sure there a public defender was present at all initial appearances, but I won’t be holding my breath for that one.

The Montana Federal Defenders just joined forces with Montana Association of Criminal Defense Lawyers the State Public Defenders to put on the first ever joint defender CLE in Fairmont, MT. It was an very good two days of seminars and discussions, especially for those in attendance who practice in the federal courts. Here are a few (mostly superficial) things you might have learned if you had been able to attend:

1. Lawyers and depression: If you fight and struggle to be a high-paid big-firm lawyer you’ll only work your ass off and be miserable. Depression is the result of a disconnect between what you’d like your life to be and what it really is. If you’re a public defender (state or federal), you’re less likely to have this problem. Maybe.
2. The best description of depression ever comes from Hamlet:
   

   I have of late — but wherefore I know not — lost all my mirth, forgone all custom of exercises; and indeed it goes so heavily with my disposition that this goodly frame, the earth, seems to me a sterile promontory, this most excellent canopy, the air, look you, this brave o’erhanging firmament, this majestical roof fretted with golden fire, why, it appears no other thing to me than a foul and pestilent congregation of vapours.

3. “Desperado” by the Eagles can be a great song if you change the words to “Free Attorney” and take it from there. Thanks to North Carolina Federal Defender Louis Allen for that, as well as a very entertaining version of “Can’t Stand the Jail” sung to the tune of “Can’t Buy Me Love.”
4. If you’re a criminal defense lawyer and a reporter asks you about a case, “no comment” is telling the reporter and his/her readers that you’re hiding something. Always comment if the press asks, even if it’s to explain why you really can’t say very much. Balance the story. If you say nothing, the story will be whatever the prosecution wants it to be.
5. In Montana, you might have an ethical duty to report another lawyer who somehow misuses the media to influence a case. Very murky waters there.
6. Blood spatter can tell you many very important things about a crime. if you have a crime involving blood, make sure you get all available photos and have them analyzed by an expert for anything that might help your client. And if law enforcement did not take proper photos or preserve the scene, you might have something to litigate…
7. AquilaVision would like to convince every sheriff and judge in Montana that many many people awaiting trial should be released w/a shackle that tracks their every move in real time, updating every thirty seconds. And defenders should welcome this because then when your clients are accused of doing something they weren’t supposed to have done, they can prove their innocence!Super! Why don’t we all just get the shackle strapped on at birth and carry it for the rest of our lives!? Then we could all prove our innocence whenever we’re accused of a crime! Hooray for utopia and paradise!
8. The immigration consequences of any criminal conviction can be drastic and hard to minimize. If your client has no status and no way of getting status, he’s going to be deported if convicted of most crimes so your goal is just to minimize his sentence. If your client has status (e.g., a greencard or visa) or a way of potentially getting status, be very careful of the kind of sentence you get. Often a sentence of 364 days suspended rather than 1 year suspended could make the difference between deportation and not.
9. Federal terrorism prosecutors are all about precrime: If they wait for a crime to happen and then prosecute, they have failed. They instead will follow suspects and plots to let them go as far as they can and then arrest the suspects on whatever charges they can in order to disrupt the plots. This is why these prosecutors love “pocket charges” and why the fact that we don’t see more terrorism prosecutions doesn’t mean the feds are not doing anything to stop domestic terrorism. Hmph.
10. The Adam Walsh Act is about to affect federal sentencing guidelines for child pornography and other sex cases in dramatic and draconian ways. Some crimes will go from mandatory minimums of zero to 30 years overnight when the changes go into effect on November 2, 2007.

There was more, but those are some of the highlights. Thanks to all of the great speakers who presented and to the organizers for pulling it all together for us.

It seems the government of Perry County, Indiana, is looking for ways to cut and hold down the costs of providing defense attorneys for indigent clients. They call them “pauper-attorneys” which would be hilarious if it weren’t so insulting to both the clients who have a constitutional right to competent representation, as well as to the attorneys who provide that representation. But that insulting deisgnation—”pauper-attorney”—basically appears to sum up the Perry County government’s attitude toward indigent clients and their attorneys. As Perry Circuit Judge Lucy Goffinet put it, providing indigent defense is “a thorn in their side.” What about the cost of incarcerating and prosecuting indigent suspects? Funny how neither the good judge nor the county government mentions efforts to keep those costs down or seeing them as “a thorn in their side.”

Yeah. Funny.

On the other hand, some folks in Miller County, Arkansas, are singing the praises of public defenders:

“These lawyers practice 100 percent criminal law,” [Miller County Chief Prosecutor Brent Haltom] said of the attorneys with the state’ public defenders office. “You are getting a specialist in that field. It is by far the best way to represent indigent defendants.” Others tout the system too. “I believe the public defender system is far superior,” said Miller County Circuit Court Judge Jim Hudson. “First, you have specialized staff readily available. Second, they can establish both formal and informal protocols that ultimately result in better representation for all of the criminally accused.”

Hear hear! Of course, you have to wonder a little about the motives of a prosecutor who will praise public defenders, but hey, we’ll take what we can get.

As a regular reader pointed out, the U.S. House has passed a bill to create a Loan Repayment Assistance Program (LRAP) to help public defenders and prosecutors pay down their student loan bills. As the TaxProf Blog notes, the bill would:

• Establish a program of student loan repayment for borrowers who agree to remain employed, for at least three years, as State or local criminal prosecutors or as State, local or Federal public defenders in criminal cases.
• Allow eligible attorneys to receive student loan debt repayments of up to $10,000 per year, with a maximum aggregate over time of $60,000

The House bill is H.R. 916 (PDF), and you can track it on GovTrack. It sounds excellent, but now the Senate needs to pass something like this to take it the next step toward reality. The Senate version is S. 442, which appears to be waiting for debate. Contact your senator and tell him or her how important this bill could be to improving our criminal justice system. If you’re a Montana resident, here’s the info you need:

• Baucus, Max- (D - MT)
  511 Hart Senate Office Building, Washington, DC 20510
  (202) 224-2651
  Web Form
• Tester, Jon- (D - MT)
  204 Russell Senate Office Building, Washington, DC 20510
  (202) 224-2644
  Web Form

Need something to tell your senator? Take inspiration from Richard Goemann, director of defender legal services for the National Legal Aid and Defender Association, who said:

“Taxpayers have an interest in a fair and reliable criminal justice system,” Goemann said. “Without experienced, talented public defenders and prosecutors, the criminal justice system does not work.”

Or listen to Martin S. Pinales, President of the National Association of Criminal Defense Lawyers, who said:

“Because of high student debt and low pay, public defenders’ offices have a difficult time attracting and keeping qualified attorneys. . . . The constant influx of new, inexperienced attorneys undermines the reliability, fairness, and efficiency of the criminal justice system. The John R. Justice Prosecutors and Defenders Incentive Act would slow down the revolving door and improve the quality of justice for all Americans.”

Or, from the other side, we have Mathias H. Heck, Jr., President of the National District Attorneys Association, who said:

“The ‘John R. Justice Prosecutors and Public Defenders Incentive Act’ is crucial to public safety. . . . This important legislation will ensure that prosecutor offices across this country are able to recruit the best and brightest attorneys and are able to retain those qualified and experienced prosecutors in their offices.”

If there’s anything on which criminal lawyers can agree, it’s that most all of us could have better lives and less stress if we didn’t have to worry so much about student loan bills. Please, write your senator and help get this legislation passed!

For more on this legislation, see:

• NPR’s coverage, including vignettes of public defenders and prosecutors trying to make it w/out such assistance.
• The comments to the idea of a federal LRAP on the Wall Street Journal’s Law Blog — an interesting mix of support for the idea and condemnation for the idea of giving privileged lawyers any more breaks.
• The ABA Op-Ed in support of the legislation.

[tags]pay, LRAP[/tags]

This is completely hearsay, but I was told last week that at a recent negotiation between the union representing public defenders in Montana and representatives from the state, the state put forward the proposition that, for purposes of pay, public defenders are not “attorneys” — we are public defenders. This is because “attorneys” employed by the state — e.g., as attorneys general, aka, prosecutors — get a certain pay range and the state doesn’t really want to have to pay its public defenders that much. Therefore, we are not attorneys, we are something else — public defenders, of course.

Like I said, this was just a story someone who was at the meeting told me, so I don’t know how serious anyone was about this or whether it might have been a joke or just an idea floated and quickly withdrawn. Regardless, it shows that at least some people in state government either have no respect for public defenders or simply don’t understand the fundamentals of the criminal justice system.

Can anyone who was at that meeting shed any more light on this rumor? [tags]union, contract, pay, public pretender[/tags]

In the latest installment of “Monday Musings,” the weekly interview series at Public Defender Stuff, the author of the blog entitled “A Public Defender” talks about his life in the criminal defense trenches, and why he loves his job:

there is nothing more important that one can do today than be a public defender (or criminal defense attorney). There is not a single more important document in this country than The Constitution and it is our job to enforce it and to protect the rights of everyone. For today’s public defender (or prosecutor) could be tomorrow’s criminal defendant.

“Gideon” also gives a good perspective on working in the Connecticut public defender system, a system from which it sounds like Montana might learn a thing or two:

From what I have seen and read (and obviously my own personal experience), Connecticut has one of, if not the, best public defender systems in the country. Last year, the budget was in the vicinity of $36million and there are about 200 attorneys hired full-time. There is a centralized Office of the Chief Public Defender and then various sub-offices at each and every courthouse. Most courts are split up into two parts: Part A and Part B (also called the Judicial District and the Geographical Area courts). There is a public defender office for each J.D. and each G.A. Each office has anywhere from 3-15 attorneys. On top of that, we have three specialized units that don’t operate out of a specific courthouse: The Legal Services Unit (Appellate), The Habeas Corpus Unit and the Capital Defense Unit. I believe either the PD system in general or the Capital Unit specifically received some sort of national recognition award a year or two ago. Almost all offices are more than adequately staffed.

According to “Gideon” and this history, the great system Connecticut has today has been a long time coming and is at least partially the result of an ACLU lawsuit that forced the state to improve its indigent defense system. (Scroll down to the history since 1995.) Sound familiar? Currently the MT legislature is threatening to slash the budget of its new statewide public defender system by $7.4 million. (What could possibly be left!?) Let’s just hope that 10 years from now the system has survived and grown to be as healthy as the Connecticut system sounds.

The February administration of the Montana Bar Exam starts today and runs through Wednesday. Good luck to all the brave souls sitting down today for that special form of torture. Remember that it’s only a three day (!) exam and it’s not like your whole future depends on how you perform.

Oh. Wait.

But, and so, if you find yourself frustrated by the bar exam, you could always challenge your grader to a little test of your own. For example, you could ask your grader to use calculus to find the identity of Batman. That’ll show ‘em!

Good luck test-takers! [tags]bar exam, humor[/tags]