"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

With no caps on fees for prosecution, there should be no caps on indigent criminal defense

The cap in representation of the poor in New York appellate courts is, upon my information, $4,400, with an hourly rate of $75.00 per hour, irrespective of the case, unless there are "extraordinary circumstances" and a court's permission,

and with $350.00 cap for reimbursement of costs without additional permission of the court, whatever they actually are - for printing, reproduction of the record, mailing, copying.

Note that legal research through Westlaw or LexisNexis - available to state-paid prosecutors - is not available to assigned counsel.  Westlaw or LexisNexis packages can come at hundreds of dollars per hour, and enormous amounts per month.  Apparently, prosecutors are entitled to such an expense, but defense attorneys for the poor are not.

Of course, there are law libraries in courthouses, but, first, doing research through books is not very fast (and will quickly eat into those allowed 58 hours), resources of local courthouse law libraries may be limited, and - most importantly - attorneys may reside miles from those courthouses, and courthouses may have limited time for the law libraries to be open.

In other words, your assigned counsel will be at a severe disadvantage, as compared to an opponent with an online Westlaw account who can do research 24/7 and without caps on paid attorney time or expenses involved.

Moreover, note that the state makes assigned counsel FINANCE the defense - by paying them not in advance, but only in arrears, after the often multi-month representation is complete, and with no guarantee of deadlines for payment after the vouchers are submitted.

Of course, you should know that all applications for costs or fees in excess of the above amounts are, of course, "disfavored" by courts - which means, more often than not, you will get nothing over the capped limits, despite your actual expenses and despite your actual (and necessary) input of hours.

That means that on an assigned appeal in New York, the indigent client is entitled to 58.66 hours of paid representation, total.  You know that no assigned attorney will work when he or she is not being paid, so after your assigned attorney has worked his or her 58.66 total on an assigned case - you can expect... Well, nothing.  Cutting corners, that is.

58 hours, depending on the case, may not be enough even to READ the transcripts of the proceedings, much less to do proper research on issues that arise in such proceedings, while cases in Family and criminal courts can last for days, producing miles of trial transcripts - and believe my experience as an appellate attorney in New York in civil, civil rights, criminal and Family Court cases, many issues may arise requiring research, 58 hours of work is not nearly enough for any appeal.

Here are answers posted by attorneys from different states on AVVO as to how many hours an "average" appeal takes:

So, attorneys from across the country agree that it takes anywhere from 10 to several hundred hours to do an appellate brief, depending on many factors.

Only 58 of those necessary hours are compensated in New York.

Try asking your assigned appellate counsel before he or she starts working on your appeal, and during the appeal, as to what issues he or she is going to raise, how exactly - or whether - she does legal research, whether he or she is going to exceed the fees and/or expenses cap and whether he or she is going to apply for fees or expenses on top of the caps.

You have grounds for concern especially if the record is large - because of how much time goes into just reading it, spotting the issues in the record and researching the issues.

My readers report to me that, mostly, assigned appellate counsel duck such questions and, most often, do not even agree with their own clients to discuss issues they are raising on appeal, claiming that they have the record and don't need their clients' input.

Of course, no attorney will behave in this manner with a paying client, and no attorney should behave in this manner with any client.

In cases of criminal appeals, the issue amounts to a constitutional violation.

Under Gideon v Wainright the U.S. Supreme Court required representation at every meaningful stage of a criminal proceeding, and an appeal from a conviction is such a meaningful stage.

Capping such representation for the indigent based on budgetary concerns does not spell out compliance with this constitutional precedent.

New York caps on assigned representation on appeal are not the only such caps.

In federal criminal cases, compensation of assigned criminal defense attorneys is subject to guidelines.

Here are the federal maximums in compensation for criminal defense counsel as of January 1, 2016.

$10 thousand dollars for a criminal trial of a felony other than a capital (death penalty) case.

Is it a lot or not a lot?

It all depends on the number of hours required to be put into the case.

Here are the hourly rates:

So, for a felony, at the hourly rate of $129.00, an assigned criminal defense attorney is allowed a fee of $10,000 for a felony case, $2,900 for a misdemeanor case, and $7,200 for appeal from a conviction from either a felony or a misdemeanor.

Let's translate that into the number of hours an indigent criminal defendant will get out of assigned counsel in federal criminal cases.

In a felony case, a criminal defendant will get 77.51 hours of paid representation.

In a misdemeanor case - 22.48 hours.

On an appeal from either a felony or a misdemeanor - 55.81 hours, less than in New York.

An attorney, once assigned, cannot bow out of the case without court's permission, and will have to work as many hours as the case requires.

The attorney will have to be present at as many hearings as necessary, and at as many days of criminal trial as necessary.

Also, a whopping $500.00 is allowed for "computer-aided legal research" - that will be worth, probably, 3 (three, total) hours of research on Westlaw.  Otherwise, the assigned counsel will have to submit to the court a "statement of justification" of his work for the defendant

- which is an interference with effective representation of counsel and freedom of the defense counsel to decide how to build the defense.

Imagine that a criminal case is lasting for a year - usually, criminal cases run for more than a year, but let's say a year.

Over that year, the prosecution will earn an annual salary, with benefits.

Here is the rates of compensation of U.S. Attorneys, irrespectively to how many cases they handle per year:

Yet, a criminal defense attorneys who may work for the same year only and entirely on a labor-intensive case, will earn only $10,000 for a felony or $2,900 for a misdemeanor - that is lower than the current poverty levels in this country, with no benefits, by the way.

What kind of quality of criminal defense can we expect under the circumstances?

Criminal defense is notoriously "labor-intensive".  Moreover, criminal procedure laws give a criminal defendant and his counsel notoriously less time for discovery and motions than in a civil case, which makes work of a criminal defense counsel not only labor-intensive, but labor-intensive over certain periods of time.

Another big issue is that manipulating between "capped" (private) and "uncapped" (assigned) federal criminal defense attorneys may be done to influence the result of the criminal case.

I wrote on this blog about federal judges in Minnesota and Nevada who disqualified private criminal defense counsel for defendants on pretextual bases and instead assigned criminal defense attorneys to them.

In at least one of these cases, as I far as I remember the record, the defense claimed that they need to review thousands of pages provided by prosecution in discovery.

Let's see how even one thousand pages provided in discovery will impact ability the right of a federal criminal defendant to effective representation of counsel at trial.

Let's say that an attorney will need from 3 to 10 minutes to read one page, depending on density of the text and complexity of the issues raised there.  Remember that it is not just casual reading when you can skim through the text, but a reading seeking to see connections with other evidentiary facts, relevance to the case and how what you read may help your client.

With a thousand pages of discovery, the attorney will spend, then, from 3,000 to 10,000 minutes on reading 1,000 pages received in discovery.

There are 60 minutes in an hour.

Thus, an attorney will spend from 50 hours to 167 hours on just reading the discovery materials.

There are no restrictions as to how much in discovery materials is to be provided in any given criminal case - felony or misdemeanor.

In fact, the more a criminal defense counsel gets in discovery, the better - when his fees and expenses are "uncapped", of course.

Yet, under federal caps on criminal defense compensation, an assigned criminal defense counsel will only be paid for less than 23 hours of work in a misdemeanor case and for less than 78 hours of work in a non-capital felony case.

So, if an attorney needs 167 hours to just read materials he received in discovery, here goes your criminal defense in the entire case.

The attorney has no time, within the paid limits, to even READ the materials in discovery, much less, to come to talk to his client in jail, appear at court proceedings, hearings or a trial, do legal research or make motions.

When federal judges remove from the case private - "uncapped" - criminal defense attorneys and replace them with "capped" attorneys, while knowing that their "capped" compensation will not even cover reading the discovery in the case, that means only one thing - to force the "capped" attorney to either provide multiple hours of work for free (not many attorneys are capable or can be expected to engage in such sacrificial work at their own expense), or to provide the bare minimum of representation to avoid malpractice and discipline, or to steer the criminal defendant into a quick plea bargain.

This is how American prisons are filled with wrongful convictions, ladies and gentlemen.

And this is how prosecutorial, and then judicial, careers are made.

Just a little help from the judge, disqualification of an "uncapped" criminal defense counsel and assigning a "capped" counsel can make a difference between an acquittal at trial and a coerced plea bargain, another "won" case for the prosecutor, and a paved path to judgeship for that prosecutor.

Attorneys, unfortunately, do readily steer their clients into plea bargains to get the maximum payment out of a minimum hours worked, this is a very well-known scam used by many criminal defense attorneys unworthy of that name.

I received many, many, many stories from my readers, in addition of the stories I heard of the years of working in a criminal defense attorney's office and practicing, telling me how private attorneys, as well as assigned counsel, steered them to a plea bargain.

We had a lot of clients who would come and say - the previous attorney has taken all my money, can you, please, correct his mistakes for free, and the story of retainer fraud or assigned voucher fraud followed.

Criminal defendants with assigned counsel will be surprised if they FOIL the County where the prosecution was taking place for the voucher of their assigned counsel, to see how much was charged for the criminal representation.  There can be unpleasant discoveries made where, for the minimum time, the attorney would charge the maximum amount allowable - while doing nothing on the case.

So, caps on attorney fees of assigned counsel prevent indigent litigants to receive effective representation, steer them into plea bargains, and encourage voucher fraud and retainer fraud amongst attorneys.

Retainer fraud, which is a closely-related subject, is charging a large criminal retainer, doing nothing on the case, and then "arranging" for a plea bargain within a couple of months, keeping the entire retainer because of a "favorable outcome".

Similar to the retainer fraud, fee cap fraud is doing nothing (because an attorney knows that the necessary amount of hours is not going to be compensated), steering the client into a plea bargain, and then obtaining a maximum-amount voucher for no work done other than travel to court and phone calls.

What should be done?

Professor Ilya Somin offered an interesting solution - to give vouchers for assigned counsel directly to the clients.

That would cover:

(1) the choice of counsel - as an attorney that particular client has chosen and trusts, after all, an attorney-client relationship is a fiduciary relationship, and courts cannot command an indigent client who to trust, especially when trusting an obviously incompetent or dishonest attorney is unreasonable;

(2) elimination - through record of performance and client rapport - of those attorneys who do not do their work, only skim the government for moneys they did not earn;

(3) providing incentive to attorneys to work better - so that clients would choose them through the voucher system, rather than what is happening now, attorneys obtain assignments through brown-nosing assigning judges (with ties to the prosecution), usually, by doing nothing on the case.

Word of mouth coupled with social media will result in vouchers being given to only those attorneys who are known to actually work with their clients, spend time on discovery, motions and research, and make effort to win the case - not just steer the client into a quick plea and submit the voucher to get paid.

I would add to Professor Somin's choice-of-provider proposal for vouchers,

that assigned counsel should receive an advance for their work. 

It is unfair for the government to require criminal defense attorneys, but not prosecutors, to finance criminal defense - because, when assigned criminal defense counsel are finally compensated, the effective rate of compensation will be eaten by inflation.

The wrongful conviction movement is on the rise.

People's awareness of causes of wrongful convictions is also on the rise - and the "capped" assigned defense is a large contributing factor to wrongful convictions.

And, the "capped" criminal defense should be prohibited as unconstitutional - since there is no such thing as a "capped" prosecution.

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