"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Sunday, October 2, 2016

On competence of criminal defense for the indigent

In Wisconsin, an assistant public defender was removed from a criminal case - a first degree murder case - for incompetence.

The trial was scheduled to begin on October 10, 2016, so all pretrial discovery and motions should have been done by this time.

At the pretrial hearing judge Ellen Bertz

grilled the privately hired defense attorney Sarah Clemment on elementary concepts of criminal law, and, reportedly, she could not give coherent answers.

The defendant Dennis Hassel is African American.

And indigent, since the case is now handled by the public defender's office.  The private attorney the judge disqualified as incompetent has been hired by the defendant using his sister's cashed-in retirement fund.

The disqualified defense attorney is, reportedly, a solo immigration attorney who complained that she did not get to see her clients because he was housed in prison far away from her.

Which, apparently, did not prevent Sarah Clemment from taking the retainer - a considerable retainer, I am sure, for representation in a 1st degree murder case.

Even though Wisconsin does not have the death penalty, a conviction for 1st degree murder carries a life sentence in the state, so the stakes are very high and require competence and diligence from a defense attorney.

Yet, while the private defense attorney was disqualified on the even of trial, and now the Public Defender's Office will have to assign a new attorney, the quality of that attorney is not guaranteed.  Whenever criminal defendants ask to assign a specific, competent, attorney, they usually are rebuffed by courts stating that their constitutional "right to counsel" under Gideon v Wainright does not include the right to choose that counsel - and a lawyer that is assigned may be no better than the one that was disqualified.

The State Public Defender's office may either provide an attorney working for the state, or, assign a private attorney, which reportedly happens in 40% of all criminal cases in Wisconsin.

Such an attorney is paid $40.00 per hour for work and $25.00 per hour for travel, the lowest reimbursement rate for criminal defense for the poor in the U.S.

For comparison, in the recent case of a temper tantrum by federal judge Nicholas Garaufis, who called it "insulting" when an associate and not partner was sent to a court conference, FIVE partners showed up to the "kiss-ass-and-make-up" conference, one of whom reportedly flew to New York City from California.  Those partners were reportedly charging at $3,000 per hour, each, at the total amount of $15,000 per hour.

That was a civil case, not a case with the stakes of a life prison sentence.

Moreover, while an assigned attorney is paid in Wisconsin $40.00 per hour of work and $25.00 per hour of travel, the cost of maintaining a private law office in the country back in 2008 (8 years ago) was already assessed at $160,000 per attorney per year, making existence of solo attorneys practically impossible.

Assigned criminal defense attorneys in Wisconsin are right in claiming that by accepting assignments of $40.00 per hour, they are subsidizing prosecution of their clients - with full funding of the prosecutor's office.

As a comparison, in non-capital federal cases, reimbursement of criminal defense attorneys for the poor is at $129 an hour, but even then, there are caps in reimbursement of assigned criminal defenders, while, naturally, there are no caps in reimbursement of salaried prosecutors, while a criminal case can last for years and require a lot more hours than the cap allows.  I will explain about caps in assigned cases in a separate blog.

With compensation rates in Wisconsin at $40.00 per hour for work and $25.00 per hour for travel, the highest-caliber criminal defense attorneys will not accept such payment rates, since such payment rates will not allow to maintain a law office or to survive, and one can imagine who represents the poor in criminal cases in Wisconsin.

Moreover, for a 1st degree murder case, and especially where the defendant is housed 134 miles from the courthouse:

housing a criminal defendant within 5 hours roundtrip from the courthouse - when the criminal defendant had a private attorney - is nothing short of deliberate.

While I will not question at this time whether private defense attorney Sarah Clemment was or was not incompetent - I have to go on the press report, and judging by the press report, she did not know answers to elementary questions of criminal defense, but I also know how such reports can be falsified - her claims that the defendant was too far away are legitimate.

I do not know how much the attorney was paid - but 5 hour roundtrips (and that's not counting the time of clearance through the prison security and time spent with the client) put a drain upon a private criminal defense attorney's time, and upon the defendant's retainer.

I wonder whether the criminal defendant was kept so far away from the courthouse to inconvenience his criminal defense counsel and make it difficult for her to present an effective defense.

After the allegedly incompetent criminal defense lawyer was disqualified by the judge on the eve of trial, I wonder who will be assigned in this case, and, if the assigned attorney is a privately assigned attorney, reimbursed at $40.00 per hour for work and $25.00 for travel, how much will it rectify the situation - or was all of this disqualification and assignment for show, so that the conviction would not be reversed for ineffective representation of counsel.

Salaries among attorneys employed directly by the Wisconsin Public Defender's office show a wide range of qualifications:

Defendant Dennis Hassel does not get to choose whether he will be represented by a $32K per year attorney or by a $98K per year attorney.

The situation has recently come to a head in the State of Louisiana where the State Public Defender's office announced the so-called "austerity plan", turning away cases because public defenders were overworked, underfunded and could not, under the circumstances, provide effective representation constitutionally required in criminal cases.

I will remind you, that is the same blessed State of Louisiana that could afford to spend money on disciplinary proceedings of two qualified family court and criminal defense attorneys, not even allowing them to work for the poor at a reduced rate - because they criticized Louisiana judges, which has nothing to do with the purpose of attorney regulation, to protect consumers of legal services.  I am talking about attorneys Nanine McCool and Christine Mire.

I must also note that there are no claims anywhere in the State of Louisiana - or elsewhere in this country - that a prosecutor's office is strapped for funds.  Prosecutors get what they need.

After the Louisiana Public Defenders' Office implemented its "austerity plan" and started to turn away cases of indigent criminal defendants, ACLU filed a federal lawsuit against the Public Defender's Office.  The lawsuit alleges that, because of lack of representation, charged criminal defendants must languish in jail indefinitely - at public expense, I must note, and losing their jobs because of absence - which is an additional constitutional violation.  Keeping people in jail because they do not have money for bail, cannot afford a lawyer and where the state cannot provide them with a lawyer, is despicable.

Because of the "austerity plan", courts in Louisiana started to FORCE assignments upon lawyers - thus causing lawyers to claim, correctly, that they are subjected to forced labor and taking their property (their time) without due process of law.

While some attorneys "grudgingly agree" to represent indigent criminal defendants at confiscatory rates of reimbursement that does not allow attorneys to cover the costs of running their offices, ($160,000 per attorney per year), and agree only not to cause trouble with judges, there are a lot of ways in criminal defense to cut corners - such as, not do proper investigations, discovery, motions, responses to motions, not to prepare properly for hearings and trials, not to visit clients in far-away correctional facilities and not answer their collect calls from jail - that will make such forced representation not only useless for the client, but of negative value, since the client will harbor an illusion of representation while the forced-labor attorney will do only enough to avoid a disciplinary prosecution.

By the way, in many states, a criminal defendant may not sue his criminal defense attorney for malpractice, even if such malpractice brought about the conviction - unless such conviction is overturned, and good luck with that, and discipline against criminal defense attorneys for not doing their jobs properly is notoriously low.  One can expect discipline against a criminal defense attorneys more if he does do his job and criticize a judge as part of that job.

Forced labor was never effective, and legal scholars agree that forcing attorneys into "pro bono" work - or work pro bono-like compensation rates - will not resolve the "justice gap" crisis, but may make it worse, for services provided under the forced labor mandate will be far from prime quality.

At present, in Louisiana the crisis of criminal defense for the indigent came to the point of the state - that regulates attorneys under the guise of protecting consumers from incompetent attorneys - orders incompetent representation in criminal cases against the indigent by assigning to criminal cases attorneys who know nothing about criminal defense, insurance or real estate attorneys.

Attorneys not qualified in criminal defense and who are forcibly assigned to criminal defense cases say that it is like "asking a dentist to do a heart surgery".

Yes, it is.

And, fast backward to the case at the beginning of this blog - Louisiana is doing exactly what Wisconsin just disqualified an attorney for, lack of specialized knowledge necessary to represent a client in a criminal defense case.

In Wisconsin it is a point of disqualification - even though there is no alternative.

In Louisiana it is a mandate of the time.

And, even though the U.S. Supreme Court has ruled long time ago, in 1969, that states have no right to enforce attorney regulation rules (and criminal unauthorized practice of law laws) in situations where states cannot provide adequate legal representation of the poor and the illiterate - attorney regulation in Wisconsin and Louisiana is alive and well, and the states of Wisconsin and Louisiana will prosecute criminally those who, without law licenses, attempt to HELP indigent criminal defendant who sit in jail awaiting a lawyer that the state claims it cannot pay for.

Now, I have a question.

We have just had three judges in three different states undergoing disciplinary proceedings for disobeying the same sex marriage precedent of the U.S. Supreme Court.

What about liability of the state to its citizens - and to criminal defendants - for disregarding TWO precedents of the U.S. Supreme Court:

Gideon v Wainright, requiring the states, since 1963, to provide a qualified "counsel" (not necessarily a licensed attorney) at every meaningful stage of criminal litigation, and

Johnson v Avery, barring the states, since 1969, from prohibiting lay individuals, not licensed attorneys, from providing legal services to the poor when the states do not have money to provide necessary services of licensed attorneys.

Will states claim "sovereign immunity" now? 

Where is the legal remedy for the massive deprivation of right to counsel in criminal proceedings across this country?

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