Can be autonomous or be run by an individual appointed by the governor
appointed by board of directors, court of governor and can choose subordinates
New York- legal aid society- outside board- handles about ½ our cases, other ½ go to assigned counsel.
pg 67- 76% of inmates in state correctional facilities were represented by a public defender or assigned counsel.
Majority of criminal defendants in this country receive their attorney through a public defenders office. (85)
Can also be contract attorney systems: agreements with private firms, etc. to handle indigent defendants for a certain amount of time. (We have this in NY as well)
ABA discourages these based on a fixed price for a time period. They like contracts to have specifications of attorney qualifications, workloads, and amount of support systems.
Without this, there is incentive to plead out cases- more cases handled, less time spent on each
State v. Leonard Peart
held that the services being provided for indigent defendants in New Orleans were so inadequate that defendants who must depend on them were unable to receive the effective assistance of counsel as guaranteed by the constitution.
allowed those inmates making effective assistance of counsel claims to have a rebuttable presumption that they are not receiving adequate counsel
Factors considered: **high number of cases public defender handles at a time, number of trials assigned to, no investigative support, no expert witnesses, poor library, etc.
Ct says that reasonably effective assistance of counsel means that the lawyer not only possesses skill and knowledge, but also that she has the time and resources to apply that skill and knowledge to the task of defending each of her clients.
ABA standards say that defense counsel should not carry a workload that interferes with rendering quality representation. Set recommendations for the number that each can take- 440 misdemeanors/year, 150 non-capital felonies. (86)
When effectiveness is challenged of the system, the caseload of the attorneys is always the key variable. (85)
2. State v. Delbert Lynch
2 attorneys bring claim that they are not adequately compensated for their work- for death penalty case, they would only be receiving between 9- 15$/hr.
Ct states that the maximum statutory fee is inadequate compensation. States that there should be a hearing for the attorney to show cause why can not accept the a appointment to represent an indigent defendant.
reasons why they shouldn’t represent an indigent defendant: not qualified, conflict of interest, so repugnant that lawyer would not be able to do the job
Idea is that this should be the state’s burden- and not one of the private bar
Ct sets guidelines for compensating these appointed attorneys- equaling their pay to the salary range paid to the assistant district attorneys- also these attorneys should be compensated for out of pocket expenses.
dissents focus on that this in not a taking of property without due process, doesn’t like the solution the majority comes up with- concurrence states that the legislature needs to address this
Book states that layers raising these types of challenges have met with modest but consistent success- it is considered a due process or takings clause violation. Challenging the system of appointments as a whole usually fails (87)
3. Problem 1-4: Flat Fee for Services
Pay attorneys a flat fee regardless of how many events the attorney must participate in.
This will speed up the docket- attorneys will pressure clients to plead guilty.
Problem 1-5 Neighborhood Defender
Shifts focus from trial prep, to the investigatory stages of the proceedings.
Each client is represented by a team of attorneys, and not just one.- use a lot of non-lawyers
Total resources available for investigation and prosecution of crime are greater than those available to the defense. These resources for prosecution and police are increased, without increasing for defense. Society has no great desire to fund these services.
Casper’s study- 30% of defendant’s with public defenders spent less than ten minutes with their attorneys.
Betts v. Brady: (1942) held that counsel would be constitutionally require only under special circumstances.
here, the defendant was not appointed counsel. Elected to plead guilty, and no jury trial.
He examined his own witnesses, didn’t testify and was convicted. Court held that this was not a violation of his due process rights.
Gideon v. Wainwright (1963)
Defendant was denied counsel, and therefore presented his own defense- convicted 5 year sentence
Already been the practice that in federal courts counsel must be provided for indigent defendants- unless they waive that right Johnson v. Zerbst (17)
Ct holds that the right to counsel is a fundamental right- lawyers are necessities, not luxuries- holds that 14th Amendment incorporates 6th Amendment to states
Concurrence believes that Betts should also be overruled, yet just showed how courts continually eroded the special circumstances test
In re Advisory Opinion to the Governor
cites Argensinger: clarifies Gideon- says that the logic applies to any criminal trial where the defendant could be deprived of his liberty
Scott v. Illinois- Supreme Court - held that the right to counsel requires only that no indigent defendant be sentenced to prison unless he has counsel.
Nichols v. United States- Sup. Ct decided that sentencing court may consider a defendant’ s prior uncounseled misdemeanors when determining sentencing- even if enhances sentence
Some states have gone the other way- remember- states can go further in interpreting rights than federal court
Florida Rule of Crim. Pro- 3.111: codifies the idea that counsel shall be provided in all prosecutions for offenses punishable by imprisonment.
Rule is- Provision of counsel is required for any defendant charged with a felony, or for any defendant charged with a misdemeanor that results in imprisonment- even if less than 6 months
State statute can expand the range of cases in which counsel is necessary
Trial judge determines indigency- factors include debts, assets and employment status
Jacobs says we do it on an honor system- they fill out some forms
Federal standards- person financially unable to obtain adequate representation
a. But what is indigency? Do we consider income alone? Or assets?
Ake v. Oklahoma- state must provide indigent defendant with access to psychiatrist once defense has made showing that sanity is a significant issue at trial- this right is guaranteed through due process, and not through 6th Am.
Non -psychiatric experts- only when indigent defendants have made a particularized showing of the need for assistance.
When does the right to counsel Attach?
5th Amendment right to counsel- recognized in Miranda v. Arizona- right to counsel arises whenever the police conduct a custodial interrogation. Often arises before 6th Am. Right to counsel.
The rule: The Constitutional right (to counsel) applies only after the initiation of an adversarial proceeding, and only at a critical stage of those proceedings
arrested for DWI- not allowed to contact her attorney before intox. Test
Court cites federal precedent- guarantees the right to counsel at those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel. (US v. Ash)
these points are called critical stages- found that the submission to a chemical test is a critical stage- triggers right to counsel- because it produces substantive evidence that can be used against the defendant at trial
Said that the defendant was confused, looked for advice- that is counsels job- not cops
Dissent says that the language of the 6th Amendment only applies to criminal prosecutions, not pre-trial proceedings. 5th Amendment rights might have been implicated here. Also, thinks that the court is giving DUI arrestee’s privileges, that other defendants subject to search don’t get
The rule: The Constitutional right applies only after the initiation of an adversarial proceeding, and only at a critical stage of those proceedings.
this right includes representation at preliminary hearings (Coleman v. Alabama) Does not begin with arrest or probable cause hearing
State constitutions usually allow for counsel at first appearance before magistrate- once the right attaches, it applies to every stage of the criminal proceedings
Not usually entitled to counsel for providing handwriting samples, blood sample submission. Courts are mixed on when and if psyh. Exams are considered critical stages and thus mandate provision of counsel
6th Amendment apply to postconviction sentence hearings as well (Mempa v. Rhay)
The right does not attach to appeals!!Due process and equal protection grant defendant the right to the first appeal. Also no right for counsel for habeus corpus.
The right can be waived- must be knowing and voluntarily waived (Johnson v. Zerbst)
Most states provide no counsel at the time of bail. Supp 152
Selecting and Rejecting Counsel
The 6th Amendment right to counsel includes the right to self representation (Faretta v. California)
State v. Joseph Spencer
appointed counsel over defendant’s objection- wanted to represent himself
precedent allows the appointment of standby counsel- even if defendant objects- so judge doesn’t have to explain all the rules to the defendant
Even if the standby gives bad advice, conviction can be upheld- most decisions severely limit standby counsel’s duties
This case exemplifies that the judge in our system is passive- we could have a much more active judge- lawyers would be less important
Ct says that the appointment was proper, because it was like standby counsel: cited factors like defendant had first hired counsel, who withdrew
Dissent says- defendant wanted to represent himself, he was competent, he should have been able to do it. He made clear requests to represent himself- he should have been able to control his own defense, not the standby counsel. Should have known what the appointed counsel was limited to.
Cts say that can waive counsel and represent self if defendant is told the risks of such strategy, knows the dangers. Jacobs asks- is this ever a good idea?
An indigent defendant may not choose his appointed counsel.. If close to trial, court can even deny request to switch counsel.
To replace an appointed attorney, the defendant has to prove that the attorney is incompetent in a constitutional sense- to replace retained attorney- you just fire- nothing that you have to show
most states let law students represent indigent attorneys as long as the defendants are aware that their counsel is a student.
Should we have a system that is so complicated that the average person can not represent themselves?
Why are private attorneys so desirable? You pay them, more attentive, lower case load, worried about reputation and getting new clients
Public defenders- worried about moving cases
18 b lawyers- worry about making cases- moving them quickly to get more money
What if they didn’t allow private lawyers? No longer would be a service for the poor- no stigma- socialization of the system
Remember the constant conflict with public defenders- who do they work for? client, or their supervisor. They are judged by moving cases.
Option to provide more services to fewer defendants- we could say no lawyers for misdemeanors- only for felonies
Adequacy of Counsel
Strickland v. Washington
defendant claims ineffective assistance of counsel
Ct details that the attorney spoke with respondent about background, his wife and mother and also got his rap sheet excluded
Standard: defendant must show that counsels performance was deficient and that this deficient performance prejudiced the defense. (see page 44)
counsel’s performance must be reasonably effective and cannot fall below and objective standard of reasonableness and the defendant must show a reasonable probability that the outcome would have changed due to the deficient performance
Find that the attorney’s performance was reasonable- omitted evidence would not have changed the outcome of the case- very deferential standard of review
dissent: disagrees with using the objective standard of reasonableness- not specific enough- thinks that every defendant deserves a capable and zealous lawyer- finds that the attorney didn’t do enough discovery, etc. and would have improved defendant’s chances: with a cold record this is hard to be proven
As Jacobs highlights- fair trial fair procedure is an end in itself- every defendant deserves a fair trial- even if guy is clearly guilty. Jacobs likes the idea that we have one trial- and that we do it right
State v. Leslie Palmer
agrees to plead guilty, get death penalty- no negotiations. (open plea) Later claims ineffective assistance of counsel
Cite the Strickland standard as to prove claim, must fall below objective standard of reasonableness and so prejudiced the defendant as to deny him a fair trial: notes the strong presumption to finding an attorney’s strategic choices O.K.
Jacobs questions if this standard is too low- yet cites a 2nd Circuit case in which there was ineffective assistance of counsel in which the defense attorney tells client about plea offer, yet offers no recommendation (Says this is a stretch)
Note the decision to not pursue negotiations might be a trial strategy- counsel stated he expected mercy by the prosecution
What happens in these ineffective assistance claims? Have a hearing with new lawyer and defendant, and essentially the prosecution is representing the old lawyer
Forces the old lawyer to be the star witness, and the prosecution to work with former adversary
Ct says that this is a matter of trial strategy./professional judgment- this is not incompetence even though it proved wrong in retrospect
People v. Hattery: conceding client’s guilt in hopes of lesser sentence can not be deemed strategic or ok without client’s consent
dissent: thinks that this represents total breakdown of the adversarial system- what did counsel do to protect client here? This can not be strategy- this was just stupid!
United States v Cronic: Ct rejects a presumption of ineffectiveness when an inexperienced lawyer was appointed shortly before a complex case. (57) but denial of counsel at critical stage of trial, or if counsel fails to subject the prosecutions case to meaningful adversarial testing can build such a presumption.
Also presume prejudice when there is a conflict of interest (Holloway v. Arkansas)- if the judge didn’t hold a hearing on it
People v. Benevento
defendant attacks a woman on Bleecker and confesses to police
defense concedes assault but argues that defendant lacked requisite intent to deprive complainant of property: says defendant was too drunk for requisite intent
defendant is convicted. CT holds that that defendant must show an absence of strategic or legitimate explanation for defense’s shortcomings
Ohio attempt to set standards for effectiveness of counsel
requiring certain level of experience- ex: set number of trials for felonies, etc. before letting counsel be appointed to try murder cases
same for felonies, so that assigned counsel have experience, that they have assisted counsel in other cases, etc. participated in training, etc.
New York rejects the Strickland test
The Ethics of Defending Criminals
Speeches of Lord Erskine: advocate needs to defend, if not, he is assuming the character of the judge- sits in judgment. Ex: see 157 Supp. McVeigh’s lawyer says the same thing!
The American Lawyer: makes the point that you as a lawyer doesn’t know if client is guilty until it has been determined so by the court
ABA opinion: Totes value of adversary system which keeps us from judging before we know all the facts. Also the need for people to represent unpopular defendants
Defending Guilty People: Idea that with representation of defense, improve truth finding process. Making sure that the state is playing fair, (also mentioned in class) we are a society that cares about individual’s rights and protects them.
Is a lawyer bound to support and unjust cause?: you argue not your own opinion, but that of your client. Also, there is the dual role- you are still an officer of the court. Don’t bring suits to harass, mislead that judge, etc.
Also- a lot of these ethics of defending criminals turn on the possibility that the defendant might be innocent.
Random Jacob’s policy
How workable is the Strickland test? IS every lawyer’s performance in a guilty plea deficient? See Palmer for example
Jacobs thinks that alternatives to this passive judge method is more supervision by the trial judge during trial. Does not think that the Bar mechanism is a good one for keeping attorneys in line. Maybe a checklist for judges to ask attorneys- attorneys don’t like this- they argue, it’s an art, not a science
additional strategies: prophylactic measures- not appointing incompetent counsel- second seating, CLE, etc.
1) Not able to assist defense in locating witnesses, etc.
These people loose incomes, jobs, family ties. Support release on own recognizance
determine their community roots, length of residency in city, criminal record family ties, job- verify defendants answers- these factors are supposed to ensure that defendants will appear in court
Some serious offenders were not eligible for such release
Follows the Bail Reform Act of 1966- which also stated that persons should not be needlessly detained before trial- non-capital cases, as long as there is reasonable assurance that the persons will return, they should be released. Considered factors such as nature of offense, weight of the evidence, family ties, employment, financial resources, mental health, convictions, general character, record, failure to appear record