The Role of Defense Lawyers and the The Role of Defense Lawyers and the History of the Right to CounselHistory of the Right to Counsel

Why Lawyers Matter: Indigent Defense in CrisisWhy Lawyers Matter: Indigent Defense in Crisis

University of Illinois College of LawUniversity of Illinois College of Law

March 3, 2011March 3, 2011

Robert C. Boruchowitz, Professor from PracticeRobert C. Boruchowitz, Professor from PracticeDirector, Defender InitiativeDirector, Defender Initiative

Outline of DiscussionOutline of Discussion

Brief history of Main Developments in Right Brief history of Main Developments in Right to Counselto Counsel

Some of the major problems in misdemeanor Some of the major problems in misdemeanor courts representationcourts representation

Why lawyers are neededWhy lawyers are needed

How lawyers can make a difference—both in How lawyers can make a difference—both in individual cases and systemicallyindividual cases and systemically

Before we get started…Before we get started…

What is the glaring error in the following What is the glaring error in the following advice of rights that used to be read to advice of rights that used to be read to defendants in a Washington State defendants in a Washington State municipal court?municipal court?

What issues are What issues are presented by the presented by the following case?following case?

October 16, 2006 Transcript Snohomish October 16, 2006 Transcript Snohomish County Misdemeanor CourtCounty Misdemeanor Court

Start TimeStart Time: : 9:46:359:46:35Judge:Judge: “S J”“S J”Prosecutor:Prosecutor: “Mr. J is represented (inaudible). You are or you’re not “Mr. J is represented (inaudible). You are or you’re not represented? represented? Defendant:Defendant: “No, uh-uh.”“No, uh-uh.”Prosecutor:Prosecutor: “I just need to find your file here (inaudible). Case # “I just need to find your file here (inaudible). Case # C74829. Defendant is present without counsel. What did I talk to you C74829. Defendant is present without counsel. What did I talk to you about doing (inaudible)?”about doing (inaudible)?”Defendant:Defendant: (Inaudible)(Inaudible)Prosecutor:Prosecutor: “You want to enter your plea. Uh, Your Honor, my “You want to enter your plea. Uh, Your Honor, my understanding from the defendant is he wishes to enter a plea on the understanding from the defendant is he wishes to enter a plea on the charge and the state offers no jail time and $150 fine.”charge and the state offers no jail time and $150 fine.”Judge:Judge: “Well alright, Mr. J, how do you plea to Driving While “Well alright, Mr. J, how do you plea to Driving While Suspended third degree?”Suspended third degree?”Defendant:Defendant: “Guilty, sir.”“Guilty, sir.”Judge:Judge: “All right. Twenty-four months unsupervised probation, ninety days “All right. Twenty-four months unsupervised probation, ninety days jail, all suspended, $1000.00 fine, $850 suspended with $150 fine to pay plus jail, all suspended, $1000.00 fine, $850 suspended with $150 fine to pay plus the $150 monitoring fee and a $43 assessment. Conditions: no driving in the the $150 monitoring fee and a $43 assessment. Conditions: no driving in the next twenty-four months unless you have a valid license and insurance and no next twenty-four months unless you have a valid license and insurance and no moving traffic violations or criminal charges are to be filed against you in the moving traffic violations or criminal charges are to be filed against you in the next two years. Exonerate bond.”next two years. Exonerate bond.”End TimeEnd Time: : 9:47:52 9:47:52 Total TimeTotal Time:: 1 minute, 17 seconds1 minute, 17 seconds

What is the source of the right What is the source of the right to counsel?to counsel?

Sixth AmendmentSixth Amendment

In all criminal prosecutions, the accused shall In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by enjoy the right to a speedy and public trial, by an impartial jury of the State and district an impartial jury of the State and district wherein the crime shall have been committed, wherein the crime shall have been committed, which district shall have been previously which district shall have been previously ascertained by law, and to be informed of the ascertained by law, and to be informed of the nature and cause of the accusation; to be nature and cause of the accusation; to be confronted with the witnesses against him; to confronted with the witnesses against him; to have compulsory process for obtaining have compulsory process for obtaining witnesses in his favor, and witnesses in his favor, and to have the to have the Assistance of Counsel for his defenceAssistance of Counsel for his defence..

Illinois Constitution Article IIllinois Constitution Article I

SECTION 8. RIGHTS AFTER INDICTMENT SECTION 8. RIGHTS AFTER INDICTMENT In In criminal prosecutions, the accused shall criminal prosecutions, the accused shall have the right to appear and defend in have the right to appear and defend in person and by counselperson and by counsel; to demand the nature ; to demand the nature and cause of the accusation and have a copy thereof; to and cause of the accusation and have a copy thereof; to be confronted with the witnesses against him or her and be confronted with the witnesses against him or her and to have process to compel the attendance of witnesses to have process to compel the attendance of witnesses in his or her behalf; and to have a speedy public trial by in his or her behalf; and to have a speedy public trial by an impartial jury of the county in which the offense is an impartial jury of the county in which the offense is alleged to have been committed. alleged to have been committed. (Source: Amendment (Source: Amendment adopted at general election November 8, 1994.) adopted at general election November 8, 1994.)

HistoryHistory

What are the key US Supreme Court What are the key US Supreme Court cases on right to counsel?cases on right to counsel?

Key casesKey cases

Powell v. Alabama (1936)Powell v. Alabama (1936)

Gideon v. Wainwright (1963)Gideon v. Wainwright (1963)

In re Gault (1967)In re Gault (1967)

Argersinger v. Hamlin (1972)Argersinger v. Hamlin (1972)

Faretta v. California (1975)Faretta v. California (1975)

Alabama v. Shelton (2002)Alabama v. Shelton (2002)

Rothgery v. Gillespie County (2008)Rothgery v. Gillespie County (2008)

““Scottsboro Boys” and LawyerScottsboro Boys” and Lawyer

Powell v. AlabamaPowell v. Alabama

during perhaps the most critical period of the during perhaps the most critical period of the proceedings against these defendants, that proceedings against these defendants, that is to say, from the time of their arraignment is to say, from the time of their arraignment until the beginning of their trial, when until the beginning of their trial, when consultation, thoroughgoing investigation and consultation, thoroughgoing investigation and preparation were vitally important, the preparation were vitally important, the defendants did not have the aid of counsel in defendants did not have the aid of counsel in any real sense, although they were as much any real sense, although they were as much entitled to such aid during that period as at entitled to such aid during that period as at the trial itself the trial itself

. The right [*69] to be heard would be, in many cases, . The right [*69] to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. or bad. He is unfamiliar with the rules of evidence. Left Left without the aid of counsel he may be put on trial without the aid of counsel he may be put on trial without a proper charge, and convicted upon without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. issue or otherwise inadmissible. He lacks both the He lacks both the skill and knowledge adequately to prepare his defense, skill and knowledge adequately to prepare his defense, even though he had a perfect one. even though he had a perfect one. He requires the He requires the guiding hand of counsel at every step in the guiding hand of counsel at every step in the proceedings against him.proceedings against him. Without it, though he be Without it, though he be not guilty, he faces the danger of conviction because not guilty, he faces the danger of conviction because he does not know how to establish his innocence. he does not know how to establish his innocence. If If that be true of men of intelligence, how much more true that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble is it of the ignorant and illiterate, or those of feeble intellect. I intellect. I

Justice FrankfurterJustice FrankfurterSworn in on Sunday, January 29, 1939Sworn in on Sunday, January 29, 1939

..

GideonGideon

Right of one charged with crime to counsel Right of one charged with crime to counsel may not be deemed fundamental and may not be deemed fundamental and essential to fair trials in some countries, essential to fair trials in some countries, but it is in ours.but it is in ours.

What happened after Gideon What happened after Gideon got a lawyer?got a lawyer?

Requirements of Waiver Requirements of Waiver (Faretta)(Faretta)

Knowingly and intelligentlyKnowingly and intelligently forego forego benefits of counselbenefits of counsel

Be made aware of the Be made aware of the dangers and dangers and disadvantages of self-representationdisadvantages of self-representation

Record must establish that he knows what Record must establish that he knows what he is doing and his choice is made with he is doing and his choice is made with eyes openeyes open

Argersinger v. HamlinArgersinger v. Hamlin(1972)(1972) Counsel is needed so that the accused may know precisely Counsel is needed so that the accused may know precisely what he  is doing, so that he is fully aware of the prospect of what he  is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the going to jail or prison, and so that he is treated fairly by the prosecutionprosecution..

Alabama v. Shelton (2002)Alabama v. Shelton (2002)Courts cannot impose suspended sentences on indigent Courts cannot impose suspended sentences on indigent

defendants without providing counsel at trial or finding a defendants without providing counsel at trial or finding a waiver of counsel.waiver of counsel.

Rothgery v. Gillespie County (2008)Rothgery v. Gillespie County (2008)This Court has held that the This Court has held that the right to counsel guaranteed by the right to counsel guaranteed by the

Sixth Amendment applies at the first appearance before a Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his accusation against him and restrictions are imposed on his libertyliberty..

In re Michels In re Michels 150 Wn. 2d 159(2003).150 Wn. 2d 159(2003).

The rights of the poor and indigent are the rights that often need the most protection. Each county or city operating a criminal court holds the responsibility of adopting certain standards for the delivery of public defense services, with the most basic right being that counsel shall be provided. …Disregarding our most basic and important principles weakens the legal system as a whole. In light of this, we again find it necessary to reiterate that this court will not tolerate short cuts to due process.

ProblemsProblemsNo counsel at all in many casesNo counsel at all in many cases– Systemic unavailability at arraignments and first Systemic unavailability at arraignments and first

appearancesappearances– Court denial of counsel to eligible defendantsCourt denial of counsel to eligible defendants

Excessive caseloadsExcessive caseloads– One lawyer doing 1700 cases a year in Lynnwood, One lawyer doing 1700 cases a year in Lynnwood,

Washington—and Washington—and in Champaignin Champaign– Atlanta, Miami, Chicago, New Orleans—defenders Atlanta, Miami, Chicago, New Orleans—defenders

with more than 2000 cases per year each.with more than 2000 cases per year each.

Inadequate compensation for attorneysInadequate compensation for attorneys

Racial DisparityRacial Disparity

The crisis in America’s public defense system has a much more acute impact on communities of color. The dramatic under-funding and lack of oversight of America’s indigent defense services, described at length above, has placed people of color in a second class status in the American criminal justice system.The Terrible Toll of America’s Broken Misdemeanor Courts, p. 47

These problems present ethical These problems present ethical issuesissues

RPC RULE 1.1 COMPETENCERPC RULE 1.1 COMPETENCE

A lawyer shall provide competent A lawyer shall provide competent representation to a client. Competent representation to a client. Competent representation requires the legal representation requires the legal knowledge, skill, thoroughness and knowledge, skill, thoroughness and preparation reasonably necessary for the preparation reasonably necessary for the representation.representation.

American Bar Association andAmerican Bar Association andAmerican Council of Chief American Council of Chief

DefendersDefendersEthics opinions on not taking excessive Ethics opinions on not taking excessive caseloadcaseload

Guidelines on what to do when too many Guidelines on what to do when too many casescases

AMERICAN BAR ASSOCIATIONAMERICAN BAR ASSOCIATIONSTANDING COMMITTEE ON ETHICS AND PROFESSIONAL STANDING COMMITTEE ON ETHICS AND PROFESSIONAL

RESPONSIBILITYRESPONSIBILITYFormal Opinion 06-441 May 13, 2006Formal Opinion 06-441 May 13, 2006

Ethical Obligations of Lawyers Who RepresentEthical Obligations of Lawyers Who RepresentIndigent Criminal Defendants When ExcessiveIndigent Criminal Defendants When Excessive

Caseloads Interfere With Competent and Diligent RepresentationCaseloads Interfere With Competent and Diligent Representation  

If workload prevents a lawyer from If workload prevents a lawyer from providing competent and diligent providing competent and diligent representation to existing clients, she representation to existing clients, she must not accept new clients. If the must not accept new clients. If the clients are being assigned through a clients are being assigned through a court appointment system, the lawyer court appointment system, the lawyer should request that the court not make should request that the court not make any new appointments. any new appointments.

Defense lawyers are constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. April 14, 2009

Portion of a Portion of a closed case closed case report from a report from a Washington Washington city contract city contract defenderdefender

What What stands out stands out here?here?

• Why Misdemeanors Matter• Why Counsel is Required• What Counsel Should Be Doing at These

Hearings• Progress of Open Society Project• How to Persuade Funders

Shackled Defendants on Their Own

High Volume—Courts Where Most People Go to Court

United States: Estimated 8-10 million cases per year.

“Courts of limited jurisdiction serve as the window to the judicial branch for many people who do not normally have contact with the judicial system.” In re Michels, Washington Supreme Court,150 Wn.2d 159, 174, 75 P.3d 950, (2003)

Illinois Courts The great bulk of criminal court filings are

misdemeanors

2008

350,015 Misdemeanor Court filings

90,466 Felony filings

Misdemeanor Courts Misdemeanor Courts ProblemsProblems

““Waiver” of counsel—you cannot do a Waiver” of counsel—you cannot do a thorough inquiry in 60 seconds.thorough inquiry in 60 seconds.

Unrepresented defendants talking with Unrepresented defendants talking with prosecutors without valid waiver of counsel.prosecutors without valid waiver of counsel.

Guilty pleas by unrepresented defendants Guilty pleas by unrepresented defendants who do not understand the disadvantages who do not understand the disadvantages of proceeding pro se or the direct and of proceeding pro se or the direct and collateral consequences of the plea.collateral consequences of the plea.

Excessive defender caseloads result in Excessive defender caseloads result in ineffective representation.ineffective representation.

Why counsel is required at first Why counsel is required at first appearancesappearances

Accused persons generally cannot without help Accused persons generally cannot without help understand the elements of the charge, possible understand the elements of the charge, possible defenses, or the full nature of the consequences defenses, or the full nature of the consequences of a conviction. of a conviction.

Accused persons generally cannot without Accused persons generally cannot without challenge a finding of probable cause.challenge a finding of probable cause.

Accused persons generally cannot without help Accused persons generally cannot without help advocate effectively for personal recognizance advocate effectively for personal recognizance release or reduced bail.release or reduced bail.

Accused persons generally cannot without help Accused persons generally cannot without help advocate effectively for sentencing alternatives.advocate effectively for sentencing alternatives.

Because of all of the foregoing...Because of all of the foregoing...

Accused persons generally Accused persons generally cannot without help make a valid cannot without help make a valid decision about waiving counsel or decision about waiving counsel or waiving trial.waiving trial.

The fairness of the proceedings The fairness of the proceedings and the integrity of the court are and the integrity of the court are at risk.at risk.

News conference April 28, 2009

10 a.m. Seattle University

School of Law

The explosive growth of misdemeanor cases is placing a staggering burden on America’s courts. Defenders across the country are forced to carry unethical caseloads that leave too little time for clients to be properly represented.As a result, constitutional obligations are left unmet and taxpayers’ money is wasted....

Legal representation for misdemeanants is absent in many cases. When an attorney is provided, crushing workloads often make it impossible for the defender to effectively represent her clients. Counsel is unable to spend adequate time on each of her cases, and often lacks necessary resources, such as access to investigators, experts, and online research tools.

These deficiencies force even the most competent and dedicated attorneys to engage in breaches of professional duties. Too often, judges and prosecutors are complicit in these breaches, pushing defenders and defendants to take action with limited time and knowledge of their cases. This leads to guilty pleas by the innocent, inappropriate sentences, and wrongful incarceration, all at taxpayer expense.

Why Misdemeanors MatterWhy Misdemeanors MatterHuge Commitment of Resources When All Huge Commitment of Resources When All Governments Are Struggling To Make Ends Governments Are Struggling To Make Ends Meet.Meet.

Fairness—Fundamental rights are being Fairness—Fundamental rights are being denied to millions of people in the places denied to millions of people in the places that should protect them the most.that should protect them the most.

Perception of Justice—Most people who Perception of Justice—Most people who actually go to a court go to these courts. actually go to a court go to these courts. Their respect for American justice is Their respect for American justice is shattered when they experience the shattered when they experience the problems we describe in the report.problems we describe in the report.

Economic PenaltiesEconomic Penalties

Increasing fines, costs, and other fees have Increasing fines, costs, and other fees have become staggering. become staggering. Cumulative impact of all of Cumulative impact of all of the economic obligations a significant problem the economic obligations a significant problem for most defendants.for most defendants.““Courts have demonstrated an almost total Courts have demonstrated an almost total disregard for the ability of the defendants to disregard for the ability of the defendants to afford the amounts assessed.”afford the amounts assessed.”Criminal convictions diminish employment Criminal convictions diminish employment prospects and eligibility for housing and other prospects and eligibility for housing and other benefits.benefits.

McCormack, “Economic Incarceration”, Windsor McCormack, “Economic Incarceration”, Windsor Yearbook of Access to Justice, 2007Yearbook of Access to Justice, 2007..

ConsequencesConsequencesThe collateral consequences that can result from any conviction, including a misdemeanor conviction, have expanded significantly.These consequences can be quite grave. The defendant can be deported, denied employment, or denied access to a wide array of professional licenses. A person convicted of a misdemeanor may be ineligible for student loans and even expelled from school. Additional consequences can include the loss of public housing and access to food assistance, which can be dire, not only for the misdemeanant but also for his or her family. Fines, costs and other fees associated with convictions can also be staggering and too frequently are applied without regard for the ability of the defendants to pay the assessed amounts.

...” No criminal conviction should be regarded as minor or unimportant.”

1968: UW Professor John M. Junker Wrote[A] large majority of the [people] annually

charged with non-traffic misdemeanors must, if they are financially unable to hire an attorney, face the bewildering, stigmatizing and (especially at this level) assembly-line criminal justice system without the assistance of counsel. The misdemeanor prosecution is the “Appalachia” of the criminal justice system.

“[I]t’s easy for judges to let their frustration get the best of them and look for

ways to move the calendar along.”

— then Judge Michael Spearman, King County, Washington, speaking at an

ABA hearing on public defense.

What Counsel Should Be What Counsel Should Be Doing at These HearingsDoing at These Hearings

• Challenge probable causeChallenge probable cause• Talk with client about rights, silence, ability Talk with client about rights, silence, ability

to post bail, residence, work, references, time to post bail, residence, work, references, time in community; assess any immediate needs of in community; assess any immediate needs of clientclient

• Advocate for releaseAdvocate for release• Confirm appointment process beyond first Confirm appointment process beyond first

appearanceappearance• Consider appellate review and pursue as Consider appellate review and pursue as

appropriateappropriate• Begin investigation and researchBegin investigation and research

ABA Ten Principles

Of A Public Defense

Delivery System

Defender Initiative's Defender Initiative's Misdemeanor Right to Misdemeanor Right to

Counsel ProjectCounsel Project

To implement the right to counsel in To implement the right to counsel in misdemeanor courts in Washington State, misdemeanor courts in Washington State, and create a model for application in other and create a model for application in other states. Working now in Kentucky and New states. Working now in Kentucky and New

HampshireHampshire

Funded by The Foundation to Promote Open SocietyFunded by The Foundation to Promote Open Society

MethodologyMethodology

Observe courts, listen to recorded Observe courts, listen to recorded hearingshearings

Write to courts explaining deficiencies and Write to courts explaining deficiencies and proposing changeproposing change

Meet with judges, defenders, othersMeet with judges, defenders, others Follow upFollow up Discuss possible litigationDiscuss possible litigation

Progress on the Open Society Progress on the Open Society ProjectProject

Sunnyside Municipal CourtSunnyside Municipal Court—added lawyer —added lawyer at arraignmentat arraignment

Spokane District CourtSpokane District Court—added lawyer to —added lawyer to the DUI arraignment calendar that did not the DUI arraignment calendar that did not have onehave one

Pasco Municipal CourtPasco Municipal Court—changes in court —changes in court procedures, promised change in advice of procedures, promised change in advice of rights form, agreed to provide counsel at rights form, agreed to provide counsel at arraignmentsarraignments

And....And....

City of SpokaneCity of Spokane Added attorney at first appearances for in-Added attorney at first appearances for in-

custody defendantscustody defendants Developed new diversion programDeveloped new diversion program

City of YelmCity of Yelm Agreed to provide counsel at arraignmentsAgreed to provide counsel at arraignments

Ways to Cut Caseload and CostsWays to Cut Caseload and Costs

Diversion of Suspended Driver License Diversion of Suspended Driver License CasesCasesRe-Licensing programsRe-Licensing programsDiversion of Marijuana Possession CasesDiversion of Marijuana Possession CasesDiversion of Minor in Possession of Diversion of Minor in Possession of Alcohol CasesAlcohol CasesDiversion of Shoplifting CasesDiversion of Shoplifting CasesDecriminalization of Offenses Such as Decriminalization of Offenses Such as Sleeping on SidewalkSleeping on Sidewalk

Working for Systemic Change--Working for Systemic Change--Media Coverage ExamplesMedia Coverage Examples

..

Don’t send kids to court aloneDon’t send kids to court aloneThe Olympian The Olympian Published April 21, 2008Published April 21, 2008

Most troubling is the finding that 17 counties Most troubling is the finding that 17 counties never or only sometimes make public defense never or only sometimes make public defense attorneys available to children and teenagers attorneys available to children and teenagers during their first appearance in juvenile court.during their first appearance in juvenile court.

A child or teen’s constitutional right to an attorney A child or teen’s constitutional right to an attorney has been well established in a 1967 court case and has been well established in a 1967 court case and reinforced in state law since then. It’s reinforced in state law since then. It’s unconscionable to think that juvenile offenders unconscionable to think that juvenile offenders still fend for themselves in court at the critical first still fend for themselves in court at the critical first stage of a legal proceeding when decisions are stage of a legal proceeding when decisions are made that could affect their lives forever.....made that could affect their lives forever.....

And the practice of sending alleged juvenile offenders And the practice of sending alleged juvenile offenders to their first court appearance without an attorney must to their first court appearance without an attorney must stop.stop.

Santa Clara County defendants face Santa Clara County defendants face misdemeanor Hobson's choice: Plead guilty misdemeanor Hobson's choice: Plead guilty

or wait longer in jailor wait longer in jail By Sean Webby swebby@mercurynews.comBy Sean Webby swebby@mercurynews.com Posted: 12/29/2009 06:27:00 PM PST updated: 12/30/2009 11:50:11 AM PSTPosted: 12/29/2009 06:27:00 PM PST updated: 12/30/2009 11:50:11 AM PST

For thousands of people charged with For thousands of people charged with such crimes as public drunkenness or such crimes as public drunkenness or resisting arrest, Department 42 is their resisting arrest, Department 42 is their first and last legal stop.first and last legal stop.

In this Hall of Justice courtroom, a In this Hall of Justice courtroom, a stream of defendants arrive from jail for stream of defendants arrive from jail for their first chance to have a judge review their first chance to have a judge review their case — without any attorney in their case — without any attorney in sight. sight.

There, many are given a legal Hobson's There, many are given a legal Hobson's choice: Plead guilty and go home, or ask choice: Plead guilty and go home, or ask for a lawyer and spend longer in custody.for a lawyer and spend longer in custody.

It is a choice offered to people who at It is a choice offered to people who at times appear not to understand the legal times appear not to understand the legal consequences and who, in the worst consequences and who, in the worst cases, may not even be guilty of the cases, may not even be guilty of the crimes. crimes.

An unidentified in-custody defendant plead guilty to an unspecified charge in the courtroom of Commissioner Deborah Ryan inside Santa Clara County Superior Court, Hall of Justice, on Dec. 24, 2009 in San Jose. (Dai Sugano/Mercury News) ( Dai Sugano )

Editorial: Santa Clara County should Editorial: Santa Clara County should provide lawyers for misdemeanor provide lawyers for misdemeanor

courtcourtMercury News EditorialMercury News Editorial

Posted: 01/17/2010 08:00:00 PM PSTPosted: 01/17/2010 08:00:00 PM PST

If you're arrested for shooting someone in Santa If you're arrested for shooting someone in Santa Clara County, you'll get a lawyer, even if you Clara County, you'll get a lawyer, even if you can't pay for one. But if you've had a relatively can't pay for one. But if you've had a relatively minor scrape with the law and end up in minor scrape with the law and end up in misdemeanor court, chances are you'll go to misdemeanor court, chances are you'll go to your arraignment without legal advice. If you do your arraignment without legal advice. If you do ask for a lawyer when the judge explains your ask for a lawyer when the judge explains your right to be represented, it can mean going back right to be represented, it can mean going back to jail to wait for an indefinite period of time until to jail to wait for an indefinite period of time until the public defender gets to your case. the public defender gets to your case.

Some misdemeanor defendants are crooks. But some — Some misdemeanor defendants are crooks. But some — especially those accused of unpremeditated crimes such as especially those accused of unpremeditated crimes such as public drunkenness — are just people who've made a mistake. public drunkenness — are just people who've made a mistake. Still others may have been arrested for no good reason, or hit Still others may have been arrested for no good reason, or hit with a sledgehammer charge when what they deserve is a slap with a sledgehammer charge when what they deserve is a slap on the wrist. They may feel helpless to dispute the word of the on the wrist. They may feel helpless to dispute the word of the arresting officer. Some see a guilty plea, even with jail time, as arresting officer. Some see a guilty plea, even with jail time, as the quickest way out. the quickest way out.

Those defendants' perception of the legal system from that Those defendants' perception of the legal system from that day forward will be colored by what happens in the day forward will be colored by what happens in the courtroom. If they feel railroaded — or later find that a courtroom. If they feel railroaded — or later find that a rushed guilty plea has changed their lives forever — the rushed guilty plea has changed their lives forever — the lasting effect will be bitterness. Making legal advice readily lasting effect will be bitterness. Making legal advice readily available can ensure that people who just made a mistake available can ensure that people who just made a mistake leave the system chastened but more likely to respect the leave the system chastened but more likely to respect the system. Helping them should be as high a priority as system. Helping them should be as high a priority as making sure felony defendants get proper representationmaking sure felony defendants get proper representation..

If county officials saw it this way, they'd find the money to staff If county officials saw it this way, they'd find the money to staff misdemeanor courtrooms.misdemeanor courtrooms.

City of Seattle Law (2004)City of Seattle Law (2004)Council Bill Number: 114900Council Bill Number: 114900

Ordinance Number: 121501Ordinance Number: 121501

The City hereby reaffirms the caseload standards The City hereby reaffirms the caseload standards established in the 1989 Budget Intent Statement. The established in the 1989 Budget Intent Statement. The 1989 Budget Intent Statement, 1989 Budget Intent Statement, the the American Bar American Bar Association's Ten Principles of a Public Defense Association's Ten Principles of a Public Defense Delivery SystemDelivery System and the provisions of Section 1 of this and the provisions of Section 1 of this Ordinance shall collectively constitute "standards for Ordinance shall collectively constitute "standards for public defense services" as that term is used in RCW public defense services" as that term is used in RCW 10.101.030 until such time as the City Council may by 10.101.030 until such time as the City Council may by ordinance adjust those standards. Consistent with the ordinance adjust those standards. Consistent with the 1989 Budget Intent Statement, 1989 Budget Intent Statement, City agreements with City agreements with indigent public defense service providers shall require indigent public defense service providers shall require caseloads no higher than 380 cases per-attorney per-caseloads no higher than 380 cases per-attorney per-year. Tyear. The City also affirms the Washington State Bar- he City also affirms the Washington State Bar- endorsed supervision standard of one full-time endorsed supervision standard of one full-time supervisor for every ten staff lawyers. supervisor for every ten staff lawyers.

Helpful to Remind Local Helpful to Remind Local GovernmentsGovernments

ReflectionsReflections

William Hellerstein: The Importance of the

Misdemeanor Case on Trial and Appeal 19701970 ……the criminal court, the criminal court, the misdemeanor the misdemeanor court, is such an abomination that it court, is such an abomination that it destroys any myth or notion that I ever had destroys any myth or notion that I ever had about the realities of American criminal about the realities of American criminal justice.justice. Only a reappraisal of the Only a reappraisal of the importance of what transpires in that court importance of what transpires in that court by defender agencies and efforts by defender agencies and efforts consistent with that reappraisal can consistent with that reappraisal can provide some improvement.provide some improvement.

William HellersteinWilliam Hellerstein

As presently constituted, our courts As presently constituted, our courts do not even do not even have the appearance that justice is dispensedhave the appearance that justice is dispensed within them. within them.

…….it is time for all of us working in defender .it is time for all of us working in defender agencies to turn our energies, forcefully and agencies to turn our energies, forcefully and immediately, towards improvement of the immediately, towards improvement of the criminal court process and towards the effective criminal court process and towards the effective representation of persons faced with short terms representation of persons faced with short terms of imprisonment but for whom the criminal of imprisonment but for whom the criminal process may prove far more traumatic. process may prove far more traumatic.

William HellersteinWilliam Hellerstein

It is not enough for us to shuffle our feet It is not enough for us to shuffle our feet into the courts, go through into the courts, go through two-minute two-minute arraignmentsarraignments and seven minute trials, and and seven minute trials, and go home at night calling ourselves go home at night calling ourselves attorneys.attorneys.

Making a DifferenceMaking a Difference

Innocence Project Northwest (IPNW) Innocence Project Northwest (IPNW) ClinicsClinics

The Innocence Project Northwest (IPNW) The Innocence Project Northwest (IPNW) Clinic grew out of a volunteer effort aimed Clinic grew out of a volunteer effort aimed at freeing inmates who have been at freeing inmates who have been wrongfully convicted of crimes. Since wrongfully convicted of crimes. Since IPNW's inception in 1997, IPNW's inception in 1997, volunteer volunteer students and attorneys have overturned students and attorneys have overturned the convictions of 15 innocent people in the convictions of 15 innocent people in Washington state.Washington state.

Work TogetherWork Together

Never doubt that a small group of Never doubt that a small group of thoughtful, committed citizens can thoughtful, committed citizens can change the world. Indeed, it is the change the world. Indeed, it is the only thing that ever has. only thing that ever has. – Margaret MeadMargaret Mead