Tagged: right to counsel

John Oliver on the Public Defender System

public defenders JOJohn Oliver did it again! With more than 2.8 million views, John Oliver in his weekly “Last Week Tonight” analyzes the public defender system in the United States as only he can do it.  He begins by quoting the 1963 decision of Gideon v. Wainwright, in which the Court stated that “… any person … who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Does this system works as intended?

He shares quite a few shocking facts and statistics:

  • “… anywhere from 60-90 percent of criminal defendants need publicly-funded attorneys, depending on the jurisdiction.” (Brennan Center for Justice, Apr. 9, 2013). 
  • “… 40% of all county-based public defender offices had no investigators on staff.” (Bureau of Justice Statistics).
  • “… about 95 percent of criminal cases never make it to trial.”

He explains that

[t]he Miranda warning includes the right to a public defender. It doesn’t include the fact that public defenders are highly overworked and grossly underpaid.

Related Readings:

  • Gideon v. Wainwright, 372 U.S. 335 (1963). 
  • William Lawrence, The Public Defender Crisis in America: Gideon, the War on Drugs and the Fight for Equality, 5 U. Miami Race & Soc. Just. L. Rev. 167 (2015).
  • Indigent Defense Systems (Bureau of Justice Statistics) offers statistical data on the right to counsel and methods for providing indigent criminal defense.
  • John Oliver, Public DefendersLast Week Tonight (Sept. 13, 2015).

Court of Appeals Scrutinizes 18-b Rules

Of particular interest to criminal practitioners handling assigned cases, the Court of Appeals decided a case from Onondaga County where an assigned counsel lawyer challenged  the County’s interpretation of County Law 18-b, arguing that the rules hurt clients and served no purpose other than controlling costs. Roulan v. County of Onondaga, No. 62, NYLJ 1202598140845, at *1 (Ct. of App., Decided April 30, 2013).

NYCLU senior staff attorney Corey Stoughton, who is heading the Hurrell-Haring litigation brought to force reforms to New York’s indigent defense system, described the significance of the Roulan case in an Op Ed piece in last week’s New York Law Journal.

The assigned counsel challenged three rules. The first rule denied counsel to persons under 21 who cannot produce evidence of their parents’ indigence. The second rule prohibited persons who become indigent in the course of a criminal proceeding from requesting that the court pay their current counsel through the 18-b system. The third rule prohibited representation of a non-incarcerated client prior to a final determination by plan administrators of the client’s financial eligibility.

En route to the Court of Appeals, the Appellate Division, Fourth Department struck down the third of the challenged rules as unconstitutional, agreeing that it “requires attorneys to violate the indelible right to counsel that attaches at arraignment.” As to the first two rules, however, the Fourth Department found no constitutional violation.

The Court of Appeals decided that the Fourth Department should not have passed judgment on the constitutionality of the first two rules as counsel had no standing to raise the issues, and, significantly, left undisturbed the Fourth Department’s order declaring the delayed representation rule unconstitutional, noting that the respondents had failed to cross-appeal from that part of the order.

According to Stoughton’s Op Ed piece:

By leaving in place the Fourth Department’s rejection of the delayed-representation rule, the Court of Appeals preserved Roulan’s victory for indigent, presumptively innocent people who find themselves stranded and alone when facing a prosecutor’s accusation of crime. And, by reversing the Fourth Department’s endorsement of Onondaga County’s restrictions on eligibility and continuity of counsel, the court neutralized what otherwise would have been a defeat for the right to counsel for the poor.

Assigned counsel plan rules can impact the quality of representation provided to the poor in criminal cases. Are there assigned counsel rules in the county where you practice that adversely impact the representation you can provide your clients?  Are there changes you would suggest that might improve your assigned counsel plan? Let us know.

Related Readings

Commemorating Gideon’s 50th Anniversary

This week marks the 50th anniversary of the Supreme Court’s decision in Gideon v. Wainwright, in which it recognized that the right to counsel is a fundamental right that is binding on the states.  As the many posts and discussions honoring the day reveal, it’s probably appropriate to label the occasion a bittersweet one:  sweet, because the decision was so obviously right, but bitter because of the lost promise of what might have been.  We are better off with the right to counsel, without doubt; but resources, volume, and politics, among other factors, have created problems with the quality of counsel received by many.