While the United States Supreme Court has held that the indigent are entitled both to representation when charged with a crime and to the services of certain experts, those guarantees ring hollow to the middle and lower-middle classes.
Ake v. Oklahoma, 460 U.S. 68 (1985), held that when the sanity of a defendant is at issue, the state must provide an indigent defendant with the means to retain a psuchiatrist to evaluate him. The Supreme Court's language is moving: "This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake."
Why limit the holding to the indigent? Few Americans have the means readily at their exposure to meet head on the calamity of a criminal prosecution.
In Connecticut, for example, the eligibility for the services of a public defender for a person with three dependents is $44,100 if the charge is a felony. (The state's per capita income is among the highest in the nation, at $56,248 for 2008. The national average was $39,751 that year. The figure is computed by the federal BEA by dividing a state's total personal income by the number of inhabitants.)
Suppose a married man with two kids is charged with a felony in Connecticut, but makes $45,000. He is above the eligibility threshold. Let's say the charge is manslaughter, and arises from a motor vehicle collision on the way home from a Super Bowl party. The state charges him with reckless manslaughter for driving while intoxicated.
What's the man's budget look like, assuming his spouse is not working. The gross monthly income is $3,750. If his mortgage is $1,200, phone and utility payments are another $200 per month the famiy's groceries are $150 per week or $645 per month, and his car payments and insurance are $400 per month, he is left with about $1,300 to pay state and local taxes. What's left after taxes goes to clothing and the other incidentals necessary to living. Let's say he manages to save $200 per month.
My sense of the market in Connecticut is that lawyers called to defend this case will quote a fee for legal services of somewhere between $5,000 to $25,000 for pre-trial work, with a separate fee of $10,000 to $50,000 for a trial. (My source for this information is largely anecdotal and comes from speaking to folks on the phone day in and day out.) Where does this client come up with the legal fees? And where does the client come up with money for a toxicologist to review the state's work? Or for an accident reconstruction expert to review the police reports? These fees will cripple a middle class family if the family is lucky enough to be able to raise them.
Ake's guarantee that a person can seek state funding for an expert once they become indigent is cold comfort for the family forced to their knees by a criminal prosecution. And while Ake speaks of the need for expert testimony to defend a claim that the defendant lacks the intent necessary to commit a crime -- the grand daddy of all defenses -- it is a holding rarely applied in the state courts for such things as handwriting experts, toxicologists and forensic interviewers. Ake is, in my view, mere window dressing.
Requiring the state to pay the full cost of defense for all those accused of a crime would avoid impoverishment of middle class families trying to vindicate the presumption of innocence. It may well be that such funding would have to come from a separate state agency, perhaps one that budgeted resources for both the defense and the prosecution so as to assure some rough parity of resources. Focusing the attention of lawmakers on the total costs of prosecution each offense might force lawmakers to make tough cost-benefit decisions about whether some offenses are worth the expense.
Monday, February 15, 2010
Lawyers Can Choose; Can The Middle Class?
One thing that attracts me to the criminal law is the sheer romance of it all. Just me and my wits standing between my client and catastrophe. "Bring it on," I say, although in the well of the court, a judge's steely eyes replace the glare of high noon, and thinking fast is more important than shooting fast. I love going to court, and I love trial.
But I am not at all sure that I love it for the right reasons, and as Aristotle once oberved, virtue consists of doing things for the right reason, in the right way, to the right degree, at the right time. When I am crushed bby a defeat there is something like vanity at work. I nurse my sorrows in the comfort of my home; my client goes to prison. Of all the sins, pride can be the most deadly.
I was reminded of this while reading a piece in Simple Justice this morning. Scott wonders whether a universal public defender service, a new mission of mine, might work a disservice to the quality of defense. Will government control or entanglement yield mediocre standards? Will public defenders for all accused of a crime result in a further stratification of legal services, with the rich capable of paying for dream teams and the rest of us settling for waking nightmares? Won't we all be "working for the man" in such a system?
I am not persuaded Scott's suspicions are well placed.
I am defending a man in a capital felony in Connecticut. Jury selection started January 4, 2010 and we are now in evidence. There have been about four weeks of court proceedings during this period. As a result of this commitment, I have been unable to try other cases. I am doing this a special public defender appointed by the State of Connecticut.
I do not do enough appointed defense work any more. Several years ago, I quit the federal Criminal Justice Act panel in protest over the impossible delays and procedures in submitting vouchers. A paralegal of mine was nearly in tears one day when a form had been bounced back from the federal court for a third time. It made no sense to spend dollars of staff time to chase dollars of federal reimbursement. "Take these forms and shove 'em," I said. It felt good saying that. But I was probably wrong to react so.
In the Connecticut case, I am paid the sum of $100 per hour. That may seem like a lot to the non-lawyers out there, but when you consider the staff whose wages I pay, the rent, the insurance, the dues and all the other miscellany that it takes to run an office, the truth is that I lose money at this rate. But it is the top government rate in Connecticut, and, more to the point, the Office of the Public Defender has not yet even winced when I have requested additional funds for investigators or experts. There is no way my client could have afforded to pay a fee and the costs of investigators and experts.
So am I now working for the man? Hardly. I am compensated, but not enough, and my client has an experienced lawyer supported by folks who know their business. No one is telling me how to defend. No one is placing restrictions on what I can and cannot do. As always, I am limited only by the evidence code and my imagination.
I realize the fallacy in my argument thus far: a capital felony is different. What about run of the mill felonies and misdemeanors. Would I be free to defend as I imagine necessary there? The truth, I suspect, is that non-marquee crimes yield non-marquee treatment, and the purse-strings might be a little tighter in such cases.
But shouldn't clients have the right to choose whether they want to be defended at the government's expense? Why do all the choices belong to the lawyers? I don't begrudge the white-shoe types in upscale markets, where big fees can and are paid. I simply don't see those sorts of clients. I live in a small state, where most folks struggle to pay their bills, as do I. There are a few high-rolling lawyers in Connecticut, who are rumored to require that clients take home equity loans and place liens on the property of clients. Both lawyer and client are free to do this if they like. Nothing in a universal public defender system would require people to forego that choice.
It remains my conviction, however, that all Americans should have the right to counsel at government expense when the government charges them with a crime. Prosecutors have virtually unlimited discretion to bring charges, and they are armed with staffs that include not just investigators, but experts from state forensic labs and the efforts of law enforcement at the local, state and national level. Few defendants faced with this arsenal are as well equipped. Were O.J. Simpson a member of the middle class, and not a member of the sporting pantheon, I have my doubts about whether he'd be free today.
Having a unviersal public defender service does not mean conscripting all members of the bar and making them government employees. It means that all members of the bar can apply to be appointed off a list of qualified defenders. It also means that making your way onto that list, and remaining there, requires demonstrating minimal competence in the difficult work of defending the accused.
Not all lawyers will seek such appointment. Those who don't want strings attached to what they do can compete for the private dollars swirling in the wake of the arrests of the affluent. But the middle class, those folks not indigent but without the means to hire a full defense team, won't be facing the resources of the state armed only with the wits of the lawyer they could afford.
Scott's undoubtedly a great lawyer. His services will no doubt remain in demand. That won't change, and neither will his ability to take whatever cases he likes at whatever fee he can afford to accept. The right to counsel for all isn't about the lawyer. It's about clients and the forcing the government to bear the costs of the decisions it makes.
But I am not at all sure that I love it for the right reasons, and as Aristotle once oberved, virtue consists of doing things for the right reason, in the right way, to the right degree, at the right time. When I am crushed bby a defeat there is something like vanity at work. I nurse my sorrows in the comfort of my home; my client goes to prison. Of all the sins, pride can be the most deadly.
I was reminded of this while reading a piece in Simple Justice this morning. Scott wonders whether a universal public defender service, a new mission of mine, might work a disservice to the quality of defense. Will government control or entanglement yield mediocre standards? Will public defenders for all accused of a crime result in a further stratification of legal services, with the rich capable of paying for dream teams and the rest of us settling for waking nightmares? Won't we all be "working for the man" in such a system?
I am not persuaded Scott's suspicions are well placed.
I am defending a man in a capital felony in Connecticut. Jury selection started January 4, 2010 and we are now in evidence. There have been about four weeks of court proceedings during this period. As a result of this commitment, I have been unable to try other cases. I am doing this a special public defender appointed by the State of Connecticut.
I do not do enough appointed defense work any more. Several years ago, I quit the federal Criminal Justice Act panel in protest over the impossible delays and procedures in submitting vouchers. A paralegal of mine was nearly in tears one day when a form had been bounced back from the federal court for a third time. It made no sense to spend dollars of staff time to chase dollars of federal reimbursement. "Take these forms and shove 'em," I said. It felt good saying that. But I was probably wrong to react so.
In the Connecticut case, I am paid the sum of $100 per hour. That may seem like a lot to the non-lawyers out there, but when you consider the staff whose wages I pay, the rent, the insurance, the dues and all the other miscellany that it takes to run an office, the truth is that I lose money at this rate. But it is the top government rate in Connecticut, and, more to the point, the Office of the Public Defender has not yet even winced when I have requested additional funds for investigators or experts. There is no way my client could have afforded to pay a fee and the costs of investigators and experts.
So am I now working for the man? Hardly. I am compensated, but not enough, and my client has an experienced lawyer supported by folks who know their business. No one is telling me how to defend. No one is placing restrictions on what I can and cannot do. As always, I am limited only by the evidence code and my imagination.
I realize the fallacy in my argument thus far: a capital felony is different. What about run of the mill felonies and misdemeanors. Would I be free to defend as I imagine necessary there? The truth, I suspect, is that non-marquee crimes yield non-marquee treatment, and the purse-strings might be a little tighter in such cases.
But shouldn't clients have the right to choose whether they want to be defended at the government's expense? Why do all the choices belong to the lawyers? I don't begrudge the white-shoe types in upscale markets, where big fees can and are paid. I simply don't see those sorts of clients. I live in a small state, where most folks struggle to pay their bills, as do I. There are a few high-rolling lawyers in Connecticut, who are rumored to require that clients take home equity loans and place liens on the property of clients. Both lawyer and client are free to do this if they like. Nothing in a universal public defender system would require people to forego that choice.
It remains my conviction, however, that all Americans should have the right to counsel at government expense when the government charges them with a crime. Prosecutors have virtually unlimited discretion to bring charges, and they are armed with staffs that include not just investigators, but experts from state forensic labs and the efforts of law enforcement at the local, state and national level. Few defendants faced with this arsenal are as well equipped. Were O.J. Simpson a member of the middle class, and not a member of the sporting pantheon, I have my doubts about whether he'd be free today.
Having a unviersal public defender service does not mean conscripting all members of the bar and making them government employees. It means that all members of the bar can apply to be appointed off a list of qualified defenders. It also means that making your way onto that list, and remaining there, requires demonstrating minimal competence in the difficult work of defending the accused.
Not all lawyers will seek such appointment. Those who don't want strings attached to what they do can compete for the private dollars swirling in the wake of the arrests of the affluent. But the middle class, those folks not indigent but without the means to hire a full defense team, won't be facing the resources of the state armed only with the wits of the lawyer they could afford.
Scott's undoubtedly a great lawyer. His services will no doubt remain in demand. That won't change, and neither will his ability to take whatever cases he likes at whatever fee he can afford to accept. The right to counsel for all isn't about the lawyer. It's about clients and the forcing the government to bear the costs of the decisions it makes.
Sunday, February 14, 2010
Welcome To Lawyers For All
Each year the criminal codes of both the federal and state government grows. The result is that increasing number of Americans face the devastating impact of a criminal prosecution. The burden of defending against a criminal charge falls most harshly on the middle class. Unable to qualify for a public defender, and lacking the means to hire a dream team, many Americans face trial without resources for experts, investigators the counsel necessary to meet the state's allegations head on.
The state, however, does not suffer a lack of resources to prosecute. And hence the great asymmetry in the criminal justice system: The state finances an expanding and expansive law enforcement machine with virtually unlimited resources. A young man accused, let's say, of possession of narcotics, might face not just the testimony of the arresting officer, but that of a toxicologist, and, perhaps, an expert on the characteristics of the narcotics trade.
Or consider the case of man accused of molesting a child a decade or more ago. The state will confront the man not just with the testimony of the alleged victim, but with experts on forensic interviewing, delayed disclosure of traumatic memories, incremental disclosure of crimes, and such other experts as it will. Many defendants meet these experts armed solely with the wits of their lawyer.
Appointed counsel, experts and investigators are available for those falling below the poverty line, and the wealthy can afford the counsel of their choice. Most Americans, however, are alone, and must negotiate a fee with the private bar. In many cases, the fee generated may be enough to cover legal fees but not experts. In other words, the middle class suffers a disadvantage at trial.
Why aren't all Americans entitled as a matter of right to the services of appointed criminal counsel, together with access to the services of experts and investigators equal in caliber and expense to those serving the prosecution? Isn't it the case that the public defender, able as it is to provide representation to the poor, is really but a first step in fulfilling the dream of equal justice for all?
This blog is devoted to building support for a universal public defender system for all Americans. Sure, it's a bold dream. But the fight for access to justice for all has already been won for the indigent; let's make the dream come true for all.
The state, however, does not suffer a lack of resources to prosecute. And hence the great asymmetry in the criminal justice system: The state finances an expanding and expansive law enforcement machine with virtually unlimited resources. A young man accused, let's say, of possession of narcotics, might face not just the testimony of the arresting officer, but that of a toxicologist, and, perhaps, an expert on the characteristics of the narcotics trade.
Or consider the case of man accused of molesting a child a decade or more ago. The state will confront the man not just with the testimony of the alleged victim, but with experts on forensic interviewing, delayed disclosure of traumatic memories, incremental disclosure of crimes, and such other experts as it will. Many defendants meet these experts armed solely with the wits of their lawyer.
Appointed counsel, experts and investigators are available for those falling below the poverty line, and the wealthy can afford the counsel of their choice. Most Americans, however, are alone, and must negotiate a fee with the private bar. In many cases, the fee generated may be enough to cover legal fees but not experts. In other words, the middle class suffers a disadvantage at trial.
Why aren't all Americans entitled as a matter of right to the services of appointed criminal counsel, together with access to the services of experts and investigators equal in caliber and expense to those serving the prosecution? Isn't it the case that the public defender, able as it is to provide representation to the poor, is really but a first step in fulfilling the dream of equal justice for all?
This blog is devoted to building support for a universal public defender system for all Americans. Sure, it's a bold dream. But the fight for access to justice for all has already been won for the indigent; let's make the dream come true for all.
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