When All Else Fails

There is a tacit assumption that whoever is running the indigent defense show has at least a little, itty-bitty interest in criminal defense-type stuff, like Gideon, the Constitution, zealousness. What if they didn’t? What if they didn’t care about much of anything at all? Via The Seattle Times:

An unprecedented filing by the Department of Justice in a class-action lawsuit in Mount Vernon and Burlington signals a watershed solution to the country’s crisis in indigent defense: a first-ever federal-court takeover of a local public-defender agency.

Sounds absolutely nuts, a government takeover of public defense, and yet the situation as it currently exists is a disaster.

The Skagit County towns are at the center of a groundbreaking class-action civil-rights lawsuit over indigent defense filed two years ago by the American Civil Liberties Union, alleging misdemeanor defendants were given little more than a “meet ’em, greet ’em and plead ’em” defense by a pair of public defenders expected to handle more than 2,000 cases a year.

It’s not entirely clear that the “pair of public defenders” are overwhelmed and lack the support and finance needed to do the job, or just don’t care. But evidence appears to support the latter.

According to the complaint and evidence presented at trial, Burlington’s assistant chief of police complained to prosecutors and city officials in 2008 that he had witnessed the public defenders playing crossword puzzles and other games while representing clients in court on at least seven occasions. Court records show the defenders visited the Skagit County Jail just six times in 2010, and, in 2011, the defenders participated in just two trials while closing 2,271 cases.

And the two towns, apparently, didn’t appear to have much of a problem with their public defenders doing nothing more than a quickie plea, while maintaining their private practices as well, at least until it became clear that the good times were coming to an end.

The ACLU says that this and other issues show the towns have been indifferent to their responsibilities under the Constitution to provide a meaningful defense to thousands of defendants who are unable to hire their own attorney.

Mount Vernon and Burlington have responded to the situation through what its lawyers have called a “complete overhaul” of the defender’s office: hiring four attorneys and monitoring their work,  according to court filings. They say the problems have been corrected, and that the court now has no reason to appoint a monitor.

Nothing to see here, Judge. We may have been completely screwed up before, but now we just ooze justice.  But the government isn’t buying.

The U.S. Department of Justice on Aug. 14 filed a “statement of interest” in the case of Wilbur v. Mount Vernon et al, saying the “United States has an interest in ensuring that all jurisdictions — federal, state and local — are fulfilling their obligation … to provide effective assistance of counsel” to criminal defendants who can’t afford an attorney of their own. It quotes Attorney General Eric Holder saying the nation’s indigent defense systems exist in a “state of crisis” where, in some places, they do “little more than process people in and out of the courts.”

Or to put it another way, the feds think it would be a shame if all those criminals would have to be prosecuted twice because their constitutional right to counsel was, oh, not quite satisfied. On the other hand, the government isn’t backing the ACLU’s position that “that the rights of the criminally accused in Mount Vernon and Burlington were systematically violated.”

The case was tried before U.S. District Judge Robert Lasnik last June, and with the government jumping in after the fact on the issue of remedy, they apparently expect the ACLU’s position to prevail. But should the defense of the indigent be trusted to the hands of the federal government?

That in itself would be “huge,” according to Jonathan Rapping, a criminal-law professor at the John Marshall Law School in Atlanta and the founder and president of Gideon’s Promise, a national organization aimed at improving indigent defense.

The goal, Rapping said, should be that the indigent accused “receive the same kind of representation that you or I would pay for.”

The reality at this point, however, is that most public-defender agencies — including the federal Public Defender’s Office — are struggling with budget cuts and a paucity of resources, he said.

“It’s unfortunate, but over the years we have become accustomed to a lower standard of justice for poor people,” Rapping said.

In other words, the solutions to this travesty range from awful to unbearably awful.  While the public defenders in most jurisdictions are constrained to struggle, to do the best they can with the limited resources available, because they want desperately to provide at least a constitutional level of defense if not zealous representation, not so here. In these two towns, they get squat, and the lawyers being paid to do the job just weren’t.

But is it a remedy to put it under federal oversight?  It’s an extreme solution, given that the government isn’t nearly as committed to defending the accused as, say, criminal defense lawyers. But then, can the localities that created and perpetuated the problem be trusted when they say “leave us alone and we’ll take care of it”?

If Lasnik appoints a monitor, the message it would send to states, counties and cities about the need to provide adequate indigent defense cannot be understated, said Jessica Eaglin, counsel for justice programs at the Brennan Center for Justice, a nonpartisan law and policy institute at New York University School of Law.

But it has never suggested federal-court oversight of a public-defense system, and the implications are significant.

Eaglin said such a move could set a precedent the Justice Department   could use to force changes to substandard public-defense agencies throughout the country.

It would come as no surprise to find that there are others, maybe plenty of others such as the failed public defenders discussed in Amy Bach’s Ordinary Injustice, who have been systematically failing to provide a constitutionally viable level of defense, and certainly nothing remotely resembling a quality defense.  The implications aren’t just significant, but scary and overwhelming. Imagine a dozen, a hundred, local public defenders offices run by the same people who do the prosecuting.  The idea is outrageous.

And yet, if not a federal monitor, then who?  The localities can’t do it, as they have conclusively proven they don’t care by the fact that they’re already depriving the poor of their right to counsel. The local lawyers apparently lack the infrastructure or will to stop the outrage, or they would have stepped in to do something. There is no public defender entity that can swoop in to fix the problem. So who?

It’s occurred to me many times that we may ultimately end up relying on the government, the same folks who spend their days so successfully filling jail cells, to run the defense function as well.  This is why it’s crucial to maintain a vital private criminal defense bar, lest the government control its own adversary.  But as shown here, when things go south, there just isn’t an entity to pick up the slack other than the government.  This won’t end well.

H/T Marilou Auer

9 comments on “When All Else Fails

  1. Ed

    Just figuring this out? I suppose 20 years too late is better than never.
    Your “system” doesn’t work, people. Walk away from it.

    1. SHG Post author

      It’s extremely difficult to post a comment that is so utterly divorced from anything remotely resembling thought of any kind or description, and yet you’ve managed to do so. This is a very special feat.

    1. SHG Post author

      While it’s not quite clear what the hell you’re trying to say, do you think we would be better off without prosecutors? That’s nuts. There are criminals out there, bad people who do grave harm to others and from whom we need to be protected. Without prosecutors, there would be no system to differentiate the bad dudes from the not so bad, or even not bad at all, dudes. There would be no system to limit the government’s force at all.

      I realize that some people tend to become unduly zealous in their attitude against the system, but an excess of “passion” does not excuse idiocy or insanity.

      1. John Boanerges Redman

        Not at all. It is just that “Justice” is literally impossible to accomplish/deliver (track record) under ‘public’ “stewardship (wow, it stinks, right?)”. There’s No Government Like No Government, a book I own by Jackney Sneeb (NRN, of course) sums up my feelings on the matter. Lord Acton weighed in conclusively sometime before yesterday on the matter of power. Right, as they say in several Monty Python films, lets get to the heart of the matter. Hoppe wrote DEMOCRACY, The God That Failed. It failed because the worst type of human being, the control freak, is the only one given a voice in coercive relationships (earthly governments). End coercive states and that vile, murderous trait will at least be suppressed. And they say that sociopaths are the problem. Eh eh, I say (as you just read). I really do enjoy your blog, BTW.

    1. SHG Post author

      The ability of people who lack the capacity for rational thought to understand one another always amazes me. And yet, it’s not relevant to those folks who don’t wear tin foil hats.

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