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October 24, 2013

"How Much Does a Public Defender Need to Know About a Client?"

The title of this post is the headline of this notable new commentary in The Atlantic by Andrew Cohen, which was recommended to me by a helpful reader.  Here is how it starts:

Earlier this month, the New Jersey Supreme Court issued a ruling in a case that didn't generate much publicity in the Garden State or anywhere else.  It was just another opinion, about another indigent criminal defendant whose case was processed through a justice system that was relentlessly more concerned with efficiency than with justice.  Sadly, it's not big news today when our nation's judges permit a person's fair trial rights to be violated in a way that both shocks the conscience and violates the Constitution.

In State v. Terrence Miller, four justices of the state supreme court — over a lone dissent — affirmed the conviction of a man indicted on drug charges who met his lawyer for the first time for a few minutes in a stairwell at the courthouse on the morning of trial.  The lawyer had not tried a criminal case in seven years and had been appointed to Miller's case only four days before trial.  He never spoke to any witnesses, or to Miller's former attorney, or to investigators in the public defender's office.  He didn't know what his client would say on the witness stand.

Twice, the defense attorney asked the trial judge for a continuance so that he could adequately prepare for trial.  Twice, the trial judge refused the request even though there were other cases he could have tried during that time.  He had his docket schedule to worry about, the judge said, and the case was not complex.  The judge was frustrated, court records revealed, with the "higher ups" in the public defenders office.  He thought they were trying to play him.  Lost in the middle of this turf war was Miller.  He bore the brunt of the judge's frustration.

To their credit, prosecutors did not oppose the adjournment, but of course they did not complain when it was denied by the judge.  The trial proceeded.  Miller never had a chance to present his best defense, whatever it was, and was quickly convicted.  All of this, the state supreme court declared, satisfied the defendant's constitutional right to counsel first expressed in Gideon v. Wainwright.  Miller, the court said, got a fair trial.  His trial judge, the justices concluded, should have delayed the trial but did not "abuse his discretion" when he didn't.

October 24, 2013 at 11:37 AM | Permalink

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Comments

Cui bono?

Who benefits from an incompetent public defender office?

Lawyers! All of 'em. Prosecutors have less work to do. Paid defense attorneys get more business. And the public defenders can request more funding from the gov'ment.

When I started reading this blog, I though Supremacy Claus was insane with his constant jammering about the criminal rent-seeking lawyer class. Now I start to wonder.

Posted by: Boffin | Oct 24, 2013 12:43:03 PM

The commentary appears to suggest that this was the direct appeal. Assuming from the brief summary of facts that Mr. Miller was represented by the public defender for more than four days and was merely the office designating a new attorney, I can see how a state court could find no abuse of discretion in denying a continuance.

I would be interested to see what happens on the post-conviction case because, under these facts, Mr. Miller may have a good argument for presumptive prejudice.

Posted by: tmm | Oct 24, 2013 2:15:51 PM

Is anyone interested in whether the outcome was correct?

Posted by: Bill Otis | Oct 24, 2013 3:04:35 PM

There are two questions of "correctness", Bill. Was the defendant factually guilty (and of what) and did he receive effective assistance of counsel? I don't see how we can be confident of the former if we can't answer the latter affirmatively. That's kind of the point of due process. Hopefully, there will be a collateral attack on this conviction and a new trial with more than just the physical presence of a lawyer.

Posted by: Ala JD | Oct 24, 2013 3:20:26 PM

Bill, whether the outcome was "correct" is irrelevant. As stated in a different context, "The fact that respondent is guilty does not mean he was not entitled by the Sixth Amendment to effective assistance....." Lafler v. Cooper 132 S.Ct. 1376, 1388 (2012). And, as you surely agree, “even those guilty of the most heinous offenses are entitled to a fair trial.” Screws v. United States, 325 U.S. 91(1945), “constitutional rights of criminal defendants are granted to the innocent and the guilty alike.” Kimmelman Morrison, 477 U. S. 365, 380 (1986).

Posted by: Michael R. Levine | Oct 24, 2013 3:55:27 PM

Michael --

"Bill, whether the outcome was 'correct' is irrelevant."

I respectfully but strongly disagree.

Ask 100 intelligent laymen what's the main thing the criminal justice system should do, and I'll bet dollars to doughnut holes that the overwhelming majority would say, "Convict the guilty and free the innocent."

And they'd be correct -- as the defense bar itself correctly recognizes in those instances when, despite all the due process in the world, an innocent man goes to jail.

Process matters, you bet. Substance matters more.

Posted by: Bill Otis | Oct 24, 2013 4:21:48 PM

Who is it to say what outcome was "correct." This is what fair trials, consistent with due process, are designed to determine. Are we going to substitute the Founders' vision for this country for some Third World style post-Bill of Rights bureaucracy stacked with big-government apologists who will tell us what the truth is? Not for me, thank you.

Posted by: C | Oct 24, 2013 6:23:45 PM

C --

"Who is it to say what outcome was 'correct.'"

Often, the videotape -- as for example, the one showing Mr. Cutie Pie, Dzohkar Tsarnaev, dropping off the backpack with the bomb in it.

He did it and did it intentionally, as you full well know, as does every other sensate person on this thread.

The idea that what outcome was correct is some big mystery is baloney.

As to the drug crime at issue in this excerpt, I don't see so much as a claim, much less evidence, that the defendant didn't do it.

The reason the defense bar wants to turn every case it can into procedural muck is that procedural muck is all they have. The defense of "he didn't do it" has all but disappeared. And the procedural muck has ballooned and ballooned to something grotesquely beyond, as you put it, "the Founders' vision."

Posted by: Bill Otis | Oct 24, 2013 7:29:01 PM

Well bill you would be wrong. I think he got hosed! i also think that the trial judge and any and all judges all the weay to the last one to affim this kangaroo court was legal have as they say "Forfited their right to life"

As for the new lawyer who meet him 4 min's before the case! He should have had the balls to stand up and tell the judge there is no way he can function as a legal lawyer for this individual with a 4 min consult. At that point request the continuance. If the judge refuses then announce he will not be part of this kangaroo court and then turn around and walk out! and file a complain with the oversight officers of the judge!

Posted by: rodsmith | Oct 25, 2013 12:08:11 AM

Gideon was of course guilty of breaking into the cigarette machine, having $23 in quarters right near it. The jury found him guilty without hesitation.

He refused the ACLU a-holes. He demanded the slickest private criminal lawyer. He got him off in the second trial. In gross violations of the Rules of Conduct, the lawyer tore apart the testimony of a witness with whom he had a prior lawyer-client relationship, with insider information.

Posted by: Supremacy Claus | Oct 25, 2013 2:01:46 AM

Mr. Otis, I must respectfully disagree that "Process matters, you bet. Substance matters more." U.S. Courts also seem to disagree with that statement in important respects.

My chief evidence is the Rule of Finality in post-conviction matters, where (sometimes grossly) unconstitutional sentences are allowed to stand unchallenged, because the conviction became "final" too long before the problem was ruled on. My data comes from the tens of thousands of Federal inmates still serving unconstitutional sentences since Booker v. U.S., because our courts provided no way to retroactively correct the constitutional errors.

Posted by: Jay Hurst | Oct 25, 2013 7:30:06 AM

As to "procedural muck," others call that "Due Process." But I guess there are other names for the trial penalty at sentencing too . . .

Posted by: Jay Hurst | Oct 25, 2013 7:38:58 AM

I agree with Bill Ois: substance trumps procedure, and the main question is if the accused did it.

When I started reading this blog, I though Supremacy Claus was insane with his constant jammering about the criminal rent-seeking lawyer class. Now I start to wonder.

With S.C., first you thinks it's all gibberish then you understand the main topics and find such ideas totally crazy and, in the end, you find he is not totally wrong (through he exagerates when he accuse the entire law profession to engage in a conspiracy to subvert the U.S. government).

Nevertherless you don't want him to participate in a comission for redacting a penal code unless you're a fan of the Leh doctrine.

Posted by: visitor | Oct 25, 2013 8:08:20 AM

I was among several victims of a rogue trial judge several decades ago .

Procedure ▬►DOES◄▬ matter.

☺ As a kindness , I declined to hasten his death , notwithstanding that “The Tree of Liberty” must be watered with the “Blood of Tyrants” ‼ The thought of the electric chair did not enter my mind. The moral code instilled by my parents and church enhanced my kindness . God/G-d possibly felt that it was time for the rogue¯tyrant to go ; he was dead due to trauma within ten months of his rogue conduct .

Docile Jim Brady , 43209 OH
aka Kind Soul® OH SoS #1723786
Assoc. Member OACDL
Nemo Me Impune Lacessit
kind.soul@sbcglobal.net

Posted by: Just Plain Jim (Just Another Guy) | Oct 25, 2013 8:43:32 AM

What if the “did it” occurred but the conduct violated no statute or ordinance ?

Posted by: Just Plain Jim (Just Another Guy) | Oct 25, 2013 8:46:40 AM

“On November 7, 1932, Mr. Justice George Sutherland announced the Court’s decision. He first famously declared that defendants in capital cases have the right to the ‘guiding hand of counsel at every step in the proceedings against [them].’fn4”
fn4 Powell v. Alabama, 287 U.S. 45, 69 (1932)

http://www.hofstra.edu/PDF/law_maher.pdf

‘THE GUIDING HAND OF COUNSEL’ AND THE ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES
Robin M. Maher, Director, American Bar Association Death Penalty Representation Project

Posted by: Just Plain Jim (Just Another Guy) | Oct 25, 2013 9:01:44 AM

Jay Hurst --

You say that you believe due process matters more than substance. You cite as evidence the rule of finality, which you obviously view as a bad thing.

Your stance is ironic. The rule you deplore is strictly procedural, and the thing you deplore about it is that (in your view) it gets the substance wrong.

You also say that the courts disagree with my view that substance matters more than process. To the extent the courts adopt the "actual innocence" doctrine (which I feel safe in assuming you support), that would not be correct. But it doesn't persuade me in any event, for two reasons.

First, law professors are PAID to disagree with courts and, beyond that, to write tedious law review articles about why the professoriate is right and the courts are wrong. So perhaps I should view your observation as a compliment.

Second, as just an ordinary citizen as opposed to a lawyer or law professor, I am far more concerned about what the taxpayers -- the people who foot the bill for all this process and have to live with its results -- think. As I noted, and you decline to dispute (although of course you can now if you care to), if one were to ask 100 intelligent laymen what's the main thing the criminal justice system should do, I'll bet dollars to doughnut holes that the overwhelming majority would say, "Convict the guilty and free the innocent."

So two questions: Do you disagree with my guess about what most people would say, and what do you think is the main thing the criminal justice system should do, if it ISN'T convict the guilty and free the innocent?

Posted by: Bill Otis | Oct 25, 2013 9:38:48 AM

Just Plain Jim --

"What if the “did it” occurred but the conduct violated no statute or ordinance ?"

What's the "it"?

Posted by: Bill Otis | Oct 25, 2013 9:42:51 AM

Jay Hurst --

"As to 'procedural muck,' others call that 'Due Process.'"

And some call Lynne Stewart a patriot, Dzokhar Tsarnaev a cute teenager, and Nidal Hasan (of the Ft. Hood massacre) a perpetrator of "workplace violence."

I am not concerned about what something is called. I'm concerned about what it IS. I know procedural muck when I see it, and I saw it a lot. Indeed, it was the main part of my job as an appellate lawyer for the USAO to unravel it.

What can start out as laudable due process can wind up as procedural muck, and it happens all the time. The reason it happens is well known to courtroom lawyers: A straightforward rendition of the facts is the fast route to jail, so Plan B needs to be implemented, and Plan B is procedural muck.

Posted by: Bill Otis | Oct 25, 2013 9:59:15 AM

When a judge forces a defense lawyer to go to trial without adequate time to prepare, the proper response is to refuse to put on a defense. That requires guts and the willingness to fight a contempt charge, but it's the right thing to do.

That's exactly what one public defender had to do a few years ago in Ohio. The trial judge found him in contempt, but the criminal defense community rallied around him (he had eight amicus briefs), and the court of appeals through out the contempt charge. State v. Jones, Portage 11th Dist. No. 2008-P-0018, 2008-Ohio-6994. http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2008/2008-ohio-6994.pdf

Posted by: Stephen Hardwick | Oct 25, 2013 10:18:35 AM

Stephen Hardwick --

"When a judge forces a defense lawyer to go to trial without adequate time to prepare, the proper response is to refuse to put on a defense. That requires guts and the willingness to fight a contempt charge, but it's the right thing to do."

I agree.

What went on here was not fair to the defense lawyer, who should have done what you recommend. My point on this thread is simply that it is not an injustice when a defendant of sound mind gets convicted of something that, in fact, he did. Injustice occurs when the INNOCENT get convicted (and when the guilty get acquitted).

Posted by: Bill Otis | Oct 25, 2013 10:53:57 AM

i would agree with this bill!

"What went on here was not fair to the defense lawyer, who should have done what you recommend. My point on this thread is simply that it is not an injustice when a defendant of sound mind gets convicted of something that, in fact, he did. Injustice occurs when the INNOCENT get convicted (and when the guilty get acquitted)."

As long as you do it within the rules. Sorry having a lawyer for 4 min's is not or should not be within the rules!

What's next. You get to the defense table and the judge and DA inform you that you don't have to wait on your lawyer! We sent him your name?

Posted by: rodsmith | Oct 25, 2013 11:03:19 AM

rodsmith --

There are lawyers you wouldn't WANT for four minutes. Or any minutes.

Posted by: Bill Otis | Oct 25, 2013 11:19:03 AM

Well, for the record in legal terms I am a lay man and I disagree with Bill. Legal guilt is the outcome of a process. Nothing more. Nothing less. And for the record I have always accepted the natural conclusions of that line of thinking. I quite agree with Scalia that there is no such thing as "actual innocence" in a way that is constitutionally cognizable.

Posted by: Daniel | Oct 25, 2013 2:55:14 PM

FWIW, based on the Atlantic article, it appears that the principle defense which newly appointed counsel was unable to litigate due to lack of client contact, was that a witness present at the courthouse and ready to testify but who was not called because the attorney did not know he was there, would have contradicted the law enforcement account of the events leading up to the drug seizure and arrest providing a basis to suppress the evidence necessary for a conviction.

It is a nice middle ground in the guilty-innocence divide. The defendant was surely guilty of illegal possession of contraband, but the prosecution very likely wouldn't have been able to prove him guilty beyond a reasonable doubt with admissible evidence if he had been defended by adequate counsel.

Posted by: ohwilleke | Oct 25, 2013 6:58:17 PM

Bill, you wrote that while process matters, "substance matters more."
At least with respect to the criminal justice system, I strongly disagree.
As my constitutional law professor would quote, "The history of American freedom is in no small measure the history of procedure.” Malinski v. New York, 324 U.S. 401, 414 (1945) (Frankfurter, J, concurring).

Posted by: Michael R. Levine | Oct 25, 2013 11:22:29 PM

Hi Michael --

Let me give you an example of why I think as I do.

Maj. Nidal Hasan shot to death 13 people at Ft. Hood, Texas. There is no doubt whatever that he did it, did it intentionally, and has no remorse. He's a Jihadist who thinks killing "infidels" glorifies Allah.

He recently got the death penalty, and deservedly so to my way of thinking. He's a cold-blooded, remorseless, random, multiple killer.

He did this massacre about four years ago. Roughly three of the years it took to get this case to trial were taken up litigating whether Maj. Hasan could, or could not, have a beard while sitting at the defense table.

This is exactly what I mean by "procedural muck." The notion that a system designed to adjudicate a mass murder by a man everyone on the planet knows did it should be held up for years by the beard v. no beard question is absurd. Talk about throwing the system into disrepute!

There are, of course, multiple victim families here, who had to wait it out while this nonsense went on and on.

More broadly, so long as we employ civilized and decent means (e.g., no forced confessions, no brutality) then, in my view -- and I'm willing to wager, the view of the huge majority of our citizens -- the most important thing the criminal justice system can produce is the conviction of the guilty and the exoneration of the innocent.

Posted by: Bill Otis | Oct 25, 2013 11:53:41 PM

I fully agree that the Hasan beard thing was a senseless diversion, but was that really one of the defense's doing? Or even the prosecutions? The court could have, and should have, put Hasan to trial as soon as practical; instead, the court got sidetracked by facial hair -- a matter the court has no authority to dictate. Little wonder that after the delaying judge was finally removed, the case proceeded to trial in a matter of months -- with Hasan unshaven.

Hasan's case was not delayed by "procedural muck" - the trial was delayed by a court that took its eye off the ball, wasting years on something that had nothing to do wtih the crime and that was outside the court's authority in the first place.

Posted by: C60 | Oct 26, 2013 12:27:17 AM

C60 --

"I fully agree that the Hasan beard thing was a senseless diversion, but was that really one of the defense's doing?"

Yes. The defendant refused to shave it when ordered to do so, then challenged the order by litigating it.

"Hasan's case was not delayed by 'procedural muck' - the trial was delayed by a court that took its eye off the ball..."

The very DEFINITION of procedural muck is the court's taking its eye off the ball, almost always at the defendant's egging.

Prosecutors want speed, defense lawyers want delay, and the best source of delay is procedural muck. Anyone who's been in court in criminal cases knows this.

Posted by: Bill Otis | Oct 26, 2013 1:08:07 PM

Bill, you haven't really answered Mr. Levine's observation that

"The history of American freedom is in no small measure the history of procedure.” Malinski v. New York, 324 U.S. 401, 414 (1945) (Frankfurter, J, concurring).

Posted by: anon | Oct 26, 2013 2:05:29 PM

I do think this article is confusing in one way. Reading through it, it makes it sound like the issue is ineffective assistance of counsel. In reality, the issue is solely whether the defense should have gotten a continuance (although the court's opinion is less than clear on what should be this crucial point). Hopefully, ineffective assistance claim will be decided in favor of the defense. I'd like to argue that the Cronic standard should apply instead of the Strickland standard, but I'm doubtful that a Court would be willing to go in that direction. Although it seems like the system broke down and it wasn't this specific attorney's fault (who appears to have done the proper thing and moved for a continuance).

As for a direct appeal. The only case I can think of on point is a relatively obscure old Supreme Court case called Chandler v. Fretag which said that it was reversible error not to grant the defendant a continuance to hire his own lawyer. There's language in that case that says a defendant "must be given a reasonable opportunity to employ *and consult with* counsel," so that could be extended to this case.

Posted by: Erik M | Oct 26, 2013 3:54:17 PM

here's where we disagree bill!

"Yes. The defendant refused to shave it when ordered to do so, then challenged the order by litigating it."

why shouldn't the defendant refuse? the judge does not have the authority to give shuch an asasinine order in the first place.

Someone should have had the guts to tell the gov fucktard judge. Your job is to conduct a trial. Not grooming lessons!

So shut your face and move on!

in a court the only thing that matters is the TRUTH and GUILT or INNOCENCE. NOTHING ELSE!

As long as he didn't show up naked. who gives a shit!

Posted by: rodsmith | Oct 26, 2013 3:57:06 PM

Personally if it was me. I'd order the original judge to be locked up in a nice 6x6 cell for the next 3 years to repay the state for the time the ass wasted on stupidity!

Posted by: rodsmith | Oct 26, 2013 3:58:13 PM

Isn't "No Taxation Without Representation!" a call for procedure? After all, the key wasn't the substance - what the taxes funded - but the procedure - who got to help decide what the taxes funded.

Posted by: Anon | Oct 26, 2013 4:18:25 PM

anon --

I agree with Frankfurter that process is very important. But he did not say it was more important than exonerating the innocent and convicting the guilty.

What do you think of a system so overrun with process that it spends vastly more time litigating whether a mass killer can have a beard than whether he did it?

Posted by: Bill Otis | Oct 28, 2013 11:06:57 AM

i agree bill. but the problem is the judges who let it happen. Not to mention the real fuckups who like this one START IT!

Posted by: rodsmith | Oct 28, 2013 8:16:17 PM

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