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April 10, 2013

"Can Constitutional Rights Be Sequestered?"

The title of this post is the headline of this notable and potent new commentary appearing today in the New York Law Journal. It is authored by federal public defender Douglas Morris, and here are excerpts:

In Germany, between the end of World War I and the beginning of the Nazi regime, a criminal defense lawyer named Max Hirschberg confronted right-wing reactionaries in court, including one Adolf Hitler in a dramatic case in 1929.  Some three years later, at the end of 1932, just months before Hitler came to power, Hirschberg published an article in a small democratic journal.  He protested the recent misuse of emergency decrees for stripping defendants of certain basic rights.  The excuse, Hirschberg pointed out, was budget constraints.

Today in the United States, the federal sequester, the across-the-board cuts in federal spending that took effect March 1, has become a frontal assault on the Sixth Amendment right to counsel.  For years I have been representing defendants as an employee of Federal Defenders of New York, Inc., the public defender office in New York City for those who cannot afford an attorney.  But my office, like its counterparts elsewhere, is being gnawed to the bone in the jaws of the sequester....

The sequester is not just financially squeezing the federal defenders, who already earned far less than, say, first year associates at major law firms. It is destroying any semblance of justice.  The body blow is to the defense, not the prosecution.  Take the example of the Southern and Eastern Districts of New York, which comprise the federal trial courts for New York City and some surrounding counties. The prosecutors in the two U.S. Attorney Offices have always vastly outnumbered the defense lawyers in the federal defender office.

The head count alone captures the picture, with 280 prosecutors versus 38 Federal Defender lawyers, who represent approximately 40 percent of the New York metropolitan area's federal criminal defendants, a ratio of three to one.  The sequester, slashing our office's budget for the next six months by 20 percent, is forcing these 38 defense lawyers to take an average of six weeks of furlough, more than one day a week.  The alternative was laying off one third of the lawyers.  As of now, the prosecutors will take no furlough....

The adversarial system in criminal justice acknowledges that prosecutors have no monopoly on the truth, logical reasoning, or good judgment, and the Sixth Amendment right to counsel assures individuals in trouble some support against the powers of the state.  The principle of Gideon is that the Sixth Amendment announces not just a privilege for the rich, but a right for all, including the poor.  The only fair, effective and efficient way to secure that right is by investing money in institutions like Federal Defenders.  This institutional structure has taken years to build.  Ax it at the knees and it will collapse in no time.

Then the promise of Gideon will become the shameful memory of a principle that was beginning to work until its miserly abandonment. God, in infinite wisdom, set aside the seventh day as one for rest, but the Founding Fathers, with good practical sense, did not envision the right to counsel on furlough.  When Max Hirschberg cried out in late 1932 for preserving fairness in criminal defense, he did not know that Germany had only to await the imminent emergence of the Nazi regime for delivering the finishing blow to independent defense lawyers.  An open question is whether America will cripple criminal defense in the midst of a democracy.

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Comments

I wonder whether Mr. Morris could be a little more specific. In particular, what amount does the Constitution require in his yearly budget? Would last year's budget do -- it can't have been that much different. How about 2011 or 2010? How about budgets during the Clinton years? Were they like Nazi Germany too?

We are told that the country is in dire financial straits, and that the feds in particular are more than 16 trillion in the hole. Everyone must make his fair share of the sacrifice, we are advised.

Only that was then. Now, apparently, the local break-in artist or child molester or Medicare swindler is NOT required to sacrifice, together with their lawyers. Sacrifice is only for law-abiding suckers (who were picking up all the bills beforehand anyway).

Seniors seeking medical care get cut, but hoodlums get to elbow their way to the front of line. No cuts for them!

At least I'm glad we have our priorities straight.

Posted by: Bill Otis | Apr 10, 2013 9:17:39 AM

The case where "Thomas talked" had a bit of this -- state funding issues inhibited the appointment of one of the counsels there.

The basic concern is not limited to one area. The same would apply to judicial nominations held up. Justice includes personnel and money, on all three sides. It is not just sympathy for the defendants. Delays here will delay trials, keeping potentially dangerous people in the streets. Not enough money for full representation might lead to later litigation, and even if the results are deemed dead wrong by some around here, it wouldn't be surprising if some result in guilty pleas or judgments overruled or other things.

The Nazi reference is a bit much. You know, Godwin's Law and all.

Posted by: Joe | Apr 10, 2013 10:38:02 AM

I'm not sure who wins the trophy for extreme analogy here, comparing the sequester to Nazi Germany or saying that giving accused "hoodlums" legal representation before imprisoning them is letting them "elbow their way to the front of the line." I do like jamming in "child molester" even though sexual abuse cases are a very small fraction of the federal caseload though.

Posted by: dsfan | Apr 10, 2013 12:47:07 PM

Did you mean Goodwin Liu's Law?:

I.E.: "[Judges should utilize] socially situated modes of reasoning that appeal ... to the culturally and historically contingent meanings of particular social goods in our own society [and] determine, at the moment of decision, whether our
collective values on a given issue have converged to a degree that they can be persuasively crystallized and
credibly absorbed into legal doctrine."
--2008 Stanford Law Review

Posted by: Adamakis | Apr 10, 2013 1:13:15 PM

dsfan --

"I'm not sure who wins the trophy for extreme analogy here, comparing the sequester to Nazi Germany or saying that giving accused 'hoodlums' legal representation before imprisoning them is letting them 'elbow their way to the front of the line.'"

1. You're quite right that not all defendants are "hoodlums" One would not think of Bernie Madoff as a "hoodlum." But I have no problem using a negative characterization, and, as it happens, "hoodlum" would be generous for him and some other swindlers.

2. I have never voiced opposition to defendants, hoodlums or whatever you wish to call these folks, getting representation at trial, not once. Did you miss that? The question is how much the taxpayers should get stuck for, and about that you say zilch.

3. The other question is whether more and more defense costs get paid while everyone else has to take cutbacks (defendants' muscling to the front of the line, in other words). You also have zilch to say about that.

4. Child molesters are in fact among federal defendants (I had one). I understand the reasons that, on a defense-oriented blog, some of the Mr. Nicey defendants tend to get shoved under the rug, and mentioning their existence is verboten. But I won't be going along with enforced silence, sorry.

Posted by: Bill Otis | Apr 10, 2013 2:01:38 PM

1. You're quite right that not all defendants are "hoodlums" One would not think of Bernie Madoff as a "hoodlum." But I have no problem using a negative characterization, and, as it happens, "hoodlum" would be generous for him and some other swindlers

Again, defendants. Not convicts, defendants. My objection isn't to the use of negative terminology to describe someone who has been convicted.

3. The other question is whether more and more defense costs get paid while everyone else has to take cutbacks (defendants' muscling to the front of the line, in other words). You also have zilch to say about that.

This article is about a twenty percent cut. If accurate, that is a much bigger cut than most services are taking under the sequester. I have "zilch" to say about "more and more defense costs" being paid while "everyone else" has to take cutbacks because that isn't happening.

4. Child molesters are in fact among federal defendants (I had one). I understand the reasons that, on a defense-oriented blog, some of the Mr. Nicey defendants tend to get shoved under the rug, and mentioning their existence is verboten. But I won't be going along with enforced silence, sorry.

No one is trying to enforce "silence." But it's no more legitimate to point to the most extreme examples of criminal defendants (child molesters and Bernie Madoff) as your exemplars than it would be for someone to point to Mike Nifong and Ken Anderson as the quintessential prosecutors. You know perfectly well the federal docket is dominated by drug, immigration, weapons, and much lower-level fraud cases.

Posted by: dsfan | Apr 10, 2013 3:34:12 PM

Gideon overruled Betts v. Brady, which was decided in 1942. I wonder how the six justices in the Betts majority (holding there was no per se right to government-provided defense counsel applicable to all felony prosecutions) would have felt about being compared to Hitler? Does the author of this article think Justice Jackson lacked the moral standing to be a Nuremberg prosecutor because he did not think that the Sixth Amendment required the taxpayers to fund the salaries of public defender's offices?

Posted by: JWB | Apr 10, 2013 3:48:38 PM

Bill:

When do you run out of straw? I at least hope it will be minimized because of the "sequester".

Posted by: albeed | Apr 10, 2013 4:17:11 PM

Actually, come to think of it, there's been a certain amount of coverage in the media recently about how it's a whole lot harder to get one of those high-paying NYC big firm associate jobs than it was before the bubble burst a few years back. I expect that at least in NYC both the Federal Defender's office and the US Attorney's office could attract a wealth of extremely highly-qualified candidates for openings even if they paid materially less than they currently do. But tinkering with the salary scale rather than with headcount is not how bureaucracies are set up to work.

Posted by: JWB | Apr 10, 2013 4:30:19 PM

Bill Otis does not appear to be well mentally.

Mentalities like his are behind the all-too common phenomenon of the imprisonment of innocent people. He and his ilk believe anyone charged by a prosecutor is guilty.

Posted by: Jeff Aldridge | Apr 10, 2013 4:36:55 PM

The big problem is not your budget. Its the fact that the federal govt has 1,000's of criminal laws on the books it has not legal or constutional right to have there in the first place. Sorry but they not only got the camel's nose under the tent they got it's fat ass under there as well.

better than 90% of the so-called federal crimes are already prosecuted at the local and state level. That's where they legally should stop! Federal Law was to cover things the state could not! IE. Treason and such!

Rip out the 50,000 illegal federal lots and i'd be willing to bet they could cut your budget 90% and you would still have funds coming out your ears to deal with the crimes you needed to handle

Posted by: rodsmith | Apr 10, 2013 4:38:45 PM

dsfan --

1. "Again, defendants. Not convicts, defendants. My objection isn't to the use of negative terminology to describe someone who has been convicted."

The overwhelming majority of defendants (I think Lafler said 97.5%) get convicted by their own plea, and most of the remainder are convicted after trial. Using "defendants" as a synonym for "convicts" is, I grant you, imprecise, but, in the present limited context, pretty darn close.

2. I notice you skip right past Point 2. That discussed your having accused me of opposing "giving accused 'hoodlums' legal representation before imprisoning them..." As you now implicitly admit, I took no such position. Care to say so explicitly?

3. "This article is about a twenty percent cut. If accurate, that is a much bigger cut than most services are taking under the sequester. I have "zilch" to say about "more and more defense costs" being paid while "everyone else" has to take cutbacks because that isn't happening."

Having once worked for a government paycheck (although not for many years), I can tell you that some government employees yelp at ANYTHING that smells like they might not get last year's fat allotment. Seems to me that Mr. Morris is a part of that group. And not for a minute am I buying his 20% figure either.

4."No one is trying to enforce 'silence.'..."

Then I guess I get to use my own examples rather than the ones you'd prefer.

"...But it's no more legitimate to point to the most extreme examples of criminal defendants (child molesters and Bernie Madoff) as your exemplars..."

Madoff and molesters are anything BUT the most extreme examples. My own former office has done murder cases, Zacarias Moussaoui, and John Walker Lindh (the "American Taliban"), among numerous others. Don't worry, when I want to use "the most extreme examples," it can get a great deal worse than merely child molesters. (On the other hand, I see no good reason to let the defense bar pull off the absurd pretense that federal defendants are just a bunch of kids out smoking a joint or two, speaking of the "most extreme examples").

"...than it would be for someone to point to Mike Nifong and Ken Anderson as the quintessential prosecutors."

I have been robust in my condemnation of liberal fascist hoodlums, whether defense lawyers or prosecutors. I would have indicted Nifong for obstruction and sent him away for everything I could get. (Over the anguished cries of some defense lawyer who'd be pleading that he'd just been munching too many Twinkies).

"You know perfectly well the federal docket is dominated by drug, immigration, weapons, and much lower-level fraud cases."

...as does the majority of people who follow this blog, meaning there's no need for me to repeat it.

Posted by: Bill Otis | Apr 10, 2013 4:55:07 PM

Bill-

To your credit, you have been indeed a voice from the prosecutorial side of the world who has consistently condemned Nifong. As a Duke grad myself, I thank you for it.

You're right on Lafler's 97%, but this is the percentage of people convicted who pled guilty. My understanding of this data is that if the case was dismissed or nol prossed prior to trial, that wouldn't show up in either the denominator or numerator. Also, I believe it would also be the case if the prosecutor charged something beyond what he could prove, and conviction was obtained on a lesser offense, that it would just show up as "conviction." In fairness, though, from what I've seen the really crazy overcharging tends to be more of a state court phenomenon, though certainly some white collar prosecutions have pushed the envelope.

I also actually agree with you that too many people point to marijuana cases as emblematic of the problems with US criminal justice, and while there are definitely some grotesque abuses there, I don't think it's really the biggest deal (and I say this as a marijuana legalization proponent myself, though I have never used).

You are right that I was imprecise, mea culpa. I find it tough to imagine that anyone believes that prosecutorial and defense funding are equitable (it certainly does not jibe with what my friends who have entered the profession in many different roles have told me), and meant to say "competent" representation, which I think we are at real risk of failing to provide in many cases. But I do not believe you ever said that defendants should not be represented, no.

Posted by: dsfan | Apr 10, 2013 6:15:16 PM

The 1933 Parallels: In April 1933 the President of the then Republic of Germany, von Hindenburg issued the Reichstag Fire Decree. This executive decree set aside all protections of law for indididuals, polical parties, everyone. The ruse was the arson of the Reichstag, i.e. the German Parliament bldg. Hitler then came to power, the war came, the Holocaust, genocide. On 9/11 2001 the Twin Towers were knocked down by hijacked planes, the Pentagon was crashed into by a higjacked palne and one failed to hit the White House. Bush II passed the Patriot Act. Your rights are gone. Those who ignore history are destined to see a repetition. Those who are too dumb to know history are deserving of what they get.

Posted by: Liberty1st | Apr 10, 2013 8:37:05 PM

"Bill Otis does not appear to be well mentally.

Mentalities like his are behind the all-too common phenomenon of the imprisonment of innocent people. He and his ilk believe anyone charged by a prosecutor is guilty."

Actually, he will tell you that innocent people not only get charged, but get convicted and even sentenced to death every once in a while. FYI, misrepresenting the position of the pro-death side doesn't do our side any favors.

Posted by: The Death Penalty Sucks. | Apr 10, 2013 10:41:48 PM

TDPS --

Thank you. If Mr. Aldridge cares to discuss any of my actual positions, as opposed to the ones he makes up for me, I'd be all ears.

Posted by: Bill Otis | Apr 10, 2013 11:18:10 PM

Rod, the Constitution does not limit Congress to treason and similar offenses. The Constitution gives Congress the power to regulate interstate commerce. That power necessarily implies the power to criminalize violations of laws regulating interstate commerce. The Constitution gives Congress the power to make laws for US territories and federal property, and a large chunk of the criminal code only applies to offenses occurring on federal property. The Constitution gives Congress the power to spend funds. That power necessarily implies the power to criminalize misconduct in connection with such spending.

The question is not the constitutional power of Congress to pass the current federal criminal code. It is the wisdom of passing criminal laws that duplicate state laws that Congress has zero intent of providing adequate funding to make the investigation, prosecution, and defense of violations of these laws a normal practice, making it a fluke that a person faces federal charges instead of state charges.

Posted by: tmm | Apr 11, 2013 10:32:12 AM

"And not for a minute am I buying his 20% figure either."

Yeah Bill you definitely shouldn't. It is more like 22% for other FPD offices. While DOJ prosecutors will not suffer even one day of furlough.

Posted by: AFPD | Apr 11, 2013 11:47:26 AM

AFPD --

And I'm still not buying it, not that it makes a difference.

I have said numerous times here that both AFPD's and AUSA's should get higher salaries. But in the current low-growth, high-debt climate, that isn't going to happen. Cutbacks are coming, and everyone in the system is going to get hit, some a little more and some a little less.

Morris's idea that Gideon creates a Constitutional right to a specific funding level for defense counsel is preposterous. But if you think otherwise, please tell me what the dollar amount is, and what language in the Constitution specifies that particular dollar amount.

I mean, really. The notion that getting cut back to what was being handed out three or five or eight years ago is "unconstitutional" is nuts.

P.S. I thought it a little strange that you picked out one short line from a long comment. Would you care to chime in on whether you would have defended Mike Nifong if I had been able to bring off my (admitted) fantasy of charging him with obstruction? Would you have use the Twinkie defense? The defense that he was abused 30 years before? What then?

Posted by: Bill Otis | Apr 11, 2013 12:24:14 PM

Bill--

It does make a difference. Mind you, I am not asking for a higher salary. Indeed mine has been frozen for two years.

While it may not be a constitutional right to be paid at a certain level, it is most certainly a statutory right. I would point you to 18 U.S.C. 3006A(g)(2)(A) where it provides for the compensation of Federal Public Defenders. The statute links the pay of the chief FPD to that of the chief USA and that of AFPD's to that of the AUSA's. That is not happening. While some AFPD offices are taking anywhere from 11 - 34 days of furlough, DOJ prosecutors are taking zero days of furlough. So yes I agree that everyone in the system should get hit, but not everybody is getting hit. If you don't believe me, go call up some of the prosecutors in your former office and find out.

This hit is not due to any mismanagement of money on FPD parts, but instead a product of the way FPD's are funded. 85% of the funding for an FPD office is salary and the rest are fixed costs like rent, transcript fees for appeals, etc. So six months into the fiscal year we are handed a memo saying our budget is being but 10.2% and you have to make it up by the end of the fiscal year. There is no other way but through massive furloughs and layoffs.

It isn't enough that DOJ prosecutors outnumber us 6-1 in our district and that our FPD office closely adheres to the CJA Plan which requires us to handle 75% of the indigent cases filed in federal court. Now we have to be furloughed on top of that?

I am not going to respond to the question on Mike Nifong, because you and I disagree about the necessary role of what defense counsel should be. I will only respond that if I was appointed to represent Mike Nifong, I would have provided him with a defense because the Constitution requires me to do so. Unfortunately, I just will not be getting paid to do so.

Posted by: AFPD | Apr 11, 2013 4:26:23 PM

tmm that might be true. BUT! lol always has to be a but!

Most of those laws only came into action in what the last 60 years or so. For some reason we managed to create the greatest country on earth in the preceding 160 or so without any of them. Now that we have them. the country is pretty much fucked!

Might be time to consider them a experiment that has blown up in our faces and can the lot of them and leave any prosecutions for crimes that happen INSIDE the border to the states except for those where the crimes cross national borders.

You know! how we pretty much did it for the first 160-170 years!

Posted by: rodsmith | Apr 11, 2013 4:41:41 PM

AFPD --

1. The article discusses the Constitutional right found by Gideon, so that was the subject of my response to it.

2. Both prosecutors and PD's should be paid more, as I noted. I have thought and said this for a long time. If AFPD's are not being paid the amount required by statute, you should sue. I'm serious.

3. "I am not going to respond to the question on Mike Nifong, because you and I disagree about the necessary role of what defense counsel should be."

With all respect, I think the reason you won't respond is that doing your best for a lying fascist creep like Nifong illustrates better than anything I could say the inherent schizophrenia of defense lawyering. In any kind of a just world, the guy belongs in jail, and you surely know that.

Posted by: Bill Otis | Apr 11, 2013 7:46:23 PM

Bill:

I never said he did not belong in jail. I only said I would defend him as the Constitution requires.

Posted by: AFPD | Apr 11, 2013 8:45:27 PM

AFPD --

So you believe he deserves to go to jail, but you'd do everything you could to make sure he did not go to jail.

Do you see why I say that defense lawyering suffers from inherent schizophrenia?

Posted by: Bill Otis | Apr 11, 2013 11:16:16 PM

Bill:

"you'd do everything". Seriously?

Posted by: AFPD | Apr 12, 2013 11:27:01 PM

AFPD --

Doesn't the context of our discussion make my statement perfectly clear? No, I don't mean you'd get a tank and attack the jail to free him.

I mean you'd file every motion in the book, and invent more if you could think of them, knowing that they were losers if not frivolous, simply hoping for a windfall.

So I'll rephrase to resolve any doubt:

So you believe he DESERVES to go to jail, but you'd do everything not plainly illegal to make sure he does NOT go to jail.

Do you see why I say that defense lawyering suffers from inherent schizophrenia?

Posted by: Bill Otis | Apr 13, 2013 12:45:58 PM

"elbow their way to the front of the line."


Yes, defendants will not be permitted to elbow their way to the front of the line when it comes to sequester cuts.

Nor will seniors in need of health care, food stamp recipients, people who want to tour the White House, etc etc.

The only agencies allowed to elbow their way to the front of the line so far are the Federal prosecutors and the Bureau of Prisons, who've been declared exempt from any sequester cuts.


Posted by: 8thAmendment | Apr 16, 2013 1:50:08 PM

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