Over on my comic, reader Martenzo this morning asked: While this is off-topic for the current chapter, I got curious after reading about the recent Bundy acquittal in Oregon. Are you ever going to cover jury duty in greater detail, and will you mention jury nullification? Are you, as a...
In the “class participation” section of my comic, commenter G. T. Bogosian this morning asked: Why does the supreme court keep guaranteeing that we have a right to counsel, but only in situations that almost never come up in real life? Is there some guiding constitutional interpretive philosophy that explains...
In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the...
“You are saying it was unfair to have a fair trial?” That was a fair question put by Justice Kennedy at oral argument today. The issue is whether a criminal defendant can be deprived of the effective assistance of counsel (for Sixth Amendment purposes) when a lawyer screwup prevents...
Extortion is a kind of threat. A threat that’s so bad, it’s criminal. For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests. Threatening to kill a child if the parents...
Gideon v. Wainwright, 372 U.S. 335 (1963) guarantees that criminal defendants who cannot afford a lawyer must be provided one by the state. In a groundbreaking decision today, New York’s highest court ruled that “serious questions have arisen in this and other jurisdictions as to whether Gideon‘s mandate is being met in practice.” And these questions are significant enough to warrant a class action against the State of New York by criminal defendants left to suffer the consequences.
In a lengthy opinion (viewable here), Chief Judge Lippman goes out of his way to point out that this is not a Strickland issue about whether defendants are getting ineffective assistance of counsel. The issue is whether the state is denying them counsel, period.
In order to allow the class action to go forward, the court had to find that there’s a basis for that suit, that looked at in the light most favorable to the plaintiffs they actually have a case. So what did the court see here?
Judges are deciding who is or is not “indigent” for the purposes of assigning counsel, and there are no standards for that determination. There’s no rhyme or reason to it. There’s no consistency. People who perhaps should be getting a public defender wind up never getting a lawyer at all. There’s a huge Due Process and Equal Protection violation right here.
Defendants are arraigned without having a lawyer present. Bail gets set in amounts they could never afford. And they wind up languishing in jail without representation, even for minor offenses. They lose their jobs in the meantime, and lose their homes when they can’t pay the rent, and their families suffer enormously.
Defendants appear in significant court appearances without counsel. They enter into pleas without a lawyer. This despite the clear language of CPL 180.10(5) forbidding a court from proceeding without counsel, unless the defendant has knowingly agreed to it.
In instances where lawyers do get appointed, they’re incompetent. They don’t confer with their clients. They don’t learn the case. There’s a different lawyer at each proceeding, just as unfamiliar with the case as the previous one. They don’t respond to client inquiries however urgent. They either miss court appearances, or if they do appear they’re unprepared to proceed.
The appointed lawyers waive important rights, without first conferring with their clients and getting authorization. They make “virtually no efforts on their nominal clients’ behalf,” as the opinion puts it.
“Actual representation assumes a certain basic representational relationship.” The facts here show the opposite, that there are “serious questions as to whether any such relationship may be really said to have existed.” In other words, counsel may have been appointed, but there was never any real attorney-client relationship. This is not ineffective representation — it is the absence of representation.
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… Well no, the rule doesn’t suck. We do not have to all of a sudden become experts in immigration law. We do not have to parse the insanities and inanities of that highly complex field. All we have to do is advise our clients that there is a risk of deportation. And we’d better not tell them there is no risk, when there really could be one.
This really is nothing new. It’s what we’re supposed to have been doing all along. …
“Why is this case here, except as an opportunity to upset Melendez-Diaz?” So wondered Justice Scalia during oral argument a couple weeks back in the case of Briscoe v. Virginia. For some background, see our previous post on this case here. Briefly, the Supreme Court held last year in Melendez-Diaz...
On June 25 last year, the Supreme Court held in Melendez-Diaz v. Massachusetts that in a drug case the prosecution can’t simply use a sworn lab report to prove the existence of a controlled substance. If the chemist doesn’t testify, it violates the Confrontation Clause. (See our previous post about...
If you are charged with a crime, the stakes couldn’t be higher. Unlike civil lawsuits, which are merely about money, criminal prosecutions are the real deal. You can lose your liberty, rights, reputation, and opportunities down the road. You can lose your life, or a substantial part of it. So...
The Supreme Court this morning ruled that it’s a violation of the Sixth Amendment’s Confrontation Clause for the prosecution in a drug case to simply admit a sworn lab report, without the chemist’s testimony, to prove that the drugs were controlled substances. This is what we predicted, of course, making...
With only two more decision dates remaining in this Supreme Court term, we’ve got our eyes on four criminal cases yet to be decided. Either next Monday (June 22) or the following Monday (June 29), we should expect to hear from the Supremes. We’re going to make a prediction right...
In a perhaps not-all-that-important decision this morning, the Supreme Court overruled a landmark case involving the Sixth Amendment right to counsel. Although it seems like a big deal, today’s decision doesn’t really seem to change anything. Criminal procedure is not likely to change. The upshot is that the police still...
The Supreme Court ruled this morning that a confession obtained in violation of the 6th Amendment right to counsel is still admissible on cross-examination to impeach a defendant who testified that someone else did it. Writing for the 7-2 majority in Kansas v. Ventris today was the always-entertaining Justice Scalia....
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