Jon Katz at Underdog posts that the well has run dry for indigent defendants who require counsel but are conflicted from representation by the Maryland Public Defender. Uh Oh. Baltimore, we have a problem.
It seems that the Maryland Public Defender was responsible for paying the cost of private lawyers, paid at a ridiculously reduced rate, to represent the poor when there were multiple defendants in a case, thereby precluding the Public Defender from representing defendants whose interest conflicted. This would be the 18B lawyer, in New York parlance. What they call them in Maryland is beyond me, but the idea is the same.
It’s no shock that this has happened. We’ve been warning that it was coming for a long time. It was just a simple allocation of scare resources issue, with indigent defense funding on the slide and a bunch of defendants who were still entitled to a lawyer under Gideon.
Jon provides a link to a letter from Maryland’s Chief Judge, Robert M. Bell, to the head political honchos of the state. Aside from Judge Bell’s delightful use of such lawyerly favorite phrases as “rendered nugatory” (when was the last time you said that to some hottie at a beer bash?), his answer is to have the Public Defender continue assign lawyers and to fudge the funding from elsewhere. The purpose of his letter is to persuade the political branches of Maryland government to eek out some additional funding for the PD.
This is really kinda nutty on a number of levels.
What is it about states’ Chief Judges that makes them think that they have any business becoming embroiled in political battles with the other branches of government? Our own Judy Kaye tried that on the issue of judicial pay raises, and, man, did she get burned. Now Judge Bell does it on behalf of Gideon? It makes no sense.
The judicial branch cannot compete with the political branches based upon cogent, rational argument. The political branches don’t function based on rationality, which is why they are the political branches. They appeal to voters, whether rational or not. They aren’t supposed to be held to a strict rational standard, while the judiciary is. They just need votes.
But the strength of the judiciary is its ability to put a stop to anything that is done by government that is unconstitutional. It doesn’t have to please the political branches, or cuddle up to them with a warm and fuzzy appreciation of their political (meaning cashflow) problems. It just holds that the government either does something the constitutional way or it can’t do it at all.
Jon offers his own solution to Judge Bell’s problem:
[R]adically shrink and reform the criminal justice system into one that legalizes marijuana, prostitution, and gambling; that heavily decriminalizes all other drugs; and that sharpens the teeth of the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution.
This isn’t likely going to do much to help any particular defendant in the near future, and is a matter for the political wings rather than the judiciary to address.
I would offer a simpler, and more attainable, solution: If the state fails to provide adequate funding for the defense of indigent defendants, then they cannot be prosecuted. If an indigent defendant appears in court without a lawyer, as required by the Constitution, it isn’t his problem whether the state has enough money to pay the freight.
The message should be clear. The judiciary will not, and cannot, tolerate the conduct of unconstitutional prosecutions. Cure it or dismiss it. How to do so is a political problem. That it cannot be allowed to happen is a judicial problem. And that problem is now solved.