Now call me old fashioned, but does it really require an explanation starting with the Bill of Rights and ending with Duke Lacrosse to explain why this is a problem? Carmen’s press release states:
Asking a lawyer to go to trial without preparation is like asking a doctor to perform surgery before diagnosing the patient. Harm is inevitable – the facts will be unclear and evidence will be missed. Worst of all, the wrong people may go to jail while real criminals remain at large. We ought not to forget so quickly the lessons that the Duke Lacrosse players who were falsely accused of crimes taught us.
So if we didn’t compare going to trial with a doctor performing surgery, would no one get the point? Actually, the comparison sucks, since surgeons often are forced to perform emergency surgery, and diagnose with greater particularity while the patient is lying open on the table before them, without any advance notice. This is the best she could come up with?
This just isn’t that tough a sell. I, as well as about every other commentator on the internet, in articles and books, has discussed trial preparation. Lawyers prepare for trial, and the failure to prepare is tantamount to a deprivation of the 6th Amendment right to effective assistance of counsel. We’re clearly not the same as doctors. We need to know what we’re doing, and apparently we need more time since they are dealing with the same human body day after day. Our cases, well, differ from one another.
But still, here I am explaining. Do we need that? Is there anyone out there, other than Portage County Municipal Court Judge John Plough, who finds this tough to understand?
Getting beyond the obvious, this bizarre (at least for those of us who don’t practice in Ohio) situation raises an entirely different question. Apparently, the public defender in Portage has a policy of not trying a case on one day’s notice. One Day? They try cases on two day’s notice?
Let’s go back to all those words wasted on trying to explain why defense counsel needs time to prepare. If all that is true (and who am I to doubt Carmen Hernandez?), then the entire world changes if we stretch out that woefully inadequate one day notice to two days? Sorry Carmen, but two days doesn’t do it for me either.
One cannot help but wonder what the hell these defenders are thinking. These are people’s lives at stake; they are going to trial and the objective is to defend them, not clear the docket and go through the motions. You cannot try a case with 2 days notice and preparation. You cannot try a case with 2 day’s notice and preparation.
We spend a lot of time talking about Gideon, and what it means to a defendant to have effective representation of counsel. Then we hear that one days notice is bad, but 2 days is just hunky dory? Frankly, it makes criminal defense lawyers look like a bunch of disingenuous dopes. In fairness to Carmen, she’s commenting on the wrongfulness of having jailed public defender Brian Jones, and not giving the NACDLs seal of approval to a 2 day notice policy. It is unfathomable to me that she would ever try a case on 2 days notice, or frankly that any lawyer I know would do such a thing. Maybe us New York lawyers are funny that way, but even the worst among us would want at least 3 days (I’m being facetious here, so don’t get all huffy).
I can hear some lawyers in the background saying, “Hey, it’s only a garden-variety _______ case. I’ve done a dozen of them and I can do them in my sleep.” To anyone saying this, I can only respond that each case involves one human beings life. It may be garden-variety to you, but it’s awfully important to him or her. If you are going to be so cavalier about how trivial the case is to you, then let your client know that you don’t consider their life to be worthy of independent thought and assessment, that the best you have to give is some “one-size fits all” defense. Somehow, I bet your client won’t agree that his or her life is that inconsequential that it’s unworthy of more thought than that.
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He was appointed to the case the day before trial. There’s no way in hell any one can try it. Not even two days.
Of course not. It isn’t the PDs fault that he wasn’t ready (as there is no possible way he could be). But do you think that the PD office policy that, while one day notice is insufficient, two days notice is just fine? I’m sure you don’t (You didn’t take the name Gideon for nothing). That’s the part that boggles my mind.
The press release does start with a reminder about effective assistance of counsel and Gideon. The Duke thing is later on in the release.
I may be missing your point here, Gid. Carmen’s press release includes all the usual platitudes, plus some analogies that are obviously intended to connect effective assistance to pop culture (the Duke inclusion) as well as the doctor thing (bad analogy, but apparently one that someone thought was a good idea).
Is there something else going on that I’m missing?
Oh sure. It’s one thing if you have been the attorney of record for a while and then the case is placed on the trial list with 24-hour notice.
But this is just insane. Even if it were “garden” variety; you’d want at least a few weeks to investigate!
Well, you didn’t include it and seemed to reprimand her for making an awful analogy to the Duke lacrosse case, but not mentioning Gideon.
Also, I don’t see where she says (explicitly or implicitly) that 2 days would be okay.
In fact, she says: “For the jury or judge to find the truth at trial, the defense must understand the case and be prepared. Defense lawyers must have investigated, talked to the witnesses, researched the law, and, frequently, consulted experts. Indeed, defense attorneys are required to do these things by a long line of U.S. Supreme Court precedent and the ethical rules that govern lawyers in every state in the Union.
We deserve and are entitled to better than an unreliable criminal justice system. Public defenders must be given the time and resources to do their jobs.”
Folks. Ignore my comments. I was confused.
I didn’t “reprimand” Carmen for not mentioning Gideon, though I did challenge this nonsensical Duke Lacrosse analogy and the even more nonsensical doctor analogy. Not my fault that she put her name to such a poorly conceived press release.
But the PDs office policy against 1 day notice for trial was clear in the news accounts, and if we are going to stand up for Gideon, then we have to stand up for it on both sides of the fence. The judge was insane, both in his demand that the PD go to trial without notice as well as jailing him for contempt.
But the PDs office policy of “1 day bad, 2 days fine” can’t go without notice. This is not acceptable to anyone who believes in the 6th Amentment. This is not acceptable, and it’s even worse that it comes from the PD, who exists to fulfill the promise of Gideon. If we, as criminal defense lawyers, are going to stand up for Gideon, then we have to stand up when either side reduces the promise of effective representation, even when it’s one of our own.
Nah, sometimes I’m just unclear. It must be the New York accent.
It’s feels really weird to keep reading “Gideon” and have it not mean me.
Prep 1, Admin Convenience 0, For The Moment
When