"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.

Monday, December 5, 2016

#IStandWithBennettBaur. New Mexico Public Defender punished for refusing to provide substandard representation to indigent criminal defendants.

I wrote previously on this blog about a problem in Louisiana where the public defender's office invited federal lawsuits against itself, literally, asked for such lawsuits, because it could not provide effective representation of counsel to the indigents due to lack of funds.

There was no similar problem, by the way, with Louisiana prosecutors - they have enough funds for prosecutions, even if such prosecutions result in wrongful convictions and fabrication of evidence.

At the same time, I wrote about the problem with indigent defense in New York where there are caps on appellate indigent representation and a nearly complete bar for indigent defendants to have funds for experts and investigators, and where indigent defendants have to beg the court to allow such funding, with a restriction of $1,000 that makes it impossible to have effective help from experts and investigators at trial in New York - while, again, prosecutors have an unlimited budget for experts and investigators, and do not have to ask the court for funds.

After New York was sued in a class lawsuit for failure to provide constitutionally required counsel for criminal defendants at the arraignment stage, New York recently did two things:

  1. introduced legislation allowing arraignments in centralized locations, so that "conveyor" arraignment counsel are available for criminal defendants at that stage - which is, of course, only a lip service to satisfying the indigent defendant's constitutional right to counsel, which would have better been fulfilled by a deregulation of the legal profession or a voucher system (suggested recently by a legal scholar) where criminal defendants can choose their own assigned counsel, based on that person's knowledge, and on the defendant's trust in that person, and thus, only good defense attorneys who actually do their work will survive;
  2. introduced a legislative bill, still in the works, that would require reimbursement by the state to the Counties of the full cost of indigent defense, and thus shift financing of indigent defense from the Counties to the State (where County taxes are levied on people's houses, and where people, in a weak economy, may, and do lose their homes in order to fund County taxes, including indigent defense - which may soon result in revolts).
Recently, New Mexico added itself to the disturbing news about the abysmal state of indigent criminal defense.

Chief Public Defender Ben Baur, of Santa Fe, reportedly refused to have his office accept new felony cases in one county, Lea County, claiming lack of attorneys and lack of funding.

Attorney Ben Baur was absolutely right to do what he did.

On the one hand, there is Gideon v Wainright, the U.S. Supreme Court case requiring states to provide attorneys for indigent criminal defendants.  And, there is a New Mexico Statute requiring creation of a Public Defender's office in order to fulfil that constitutional duty.  The NM Public Defender's office claims, this year, to have a $44.5 million operating budget.

$44.5 million - seems like a lot.

But it does not seem like a lot if you consider that the office of the Public Defender reportedly handles 70,000 cases per year.

Simple math indicates that the Public Defender's office has $635.71 to expend per case - and that is, from arraignment to trial to appeals to travel to rent to legal research database to electricity bills.

So, the operating budget of the New Mexico Public Defenders - including investigators, cleaners, utility bills and all - per case, covers only 1.5 hours of work, hardly, per case.

In reality, that amount is much less.

New Mexico Public Defenders office reports that it has 221 staff attorneys and 160 private (assigned) attorneys working on indigent cases - those same 70,000 cases per year.

Again, simple math shows that each attorney must handle 183 cases per year.  That means that an attorney must complete a criminal case every second day of the year.   Considering that there are labor laws and mandated public holidays, and people must have some sick days and vacations, an attorney realistically must complete a criminal case every day or every day and a half.

This is completely unrealistic, first.  Second, the public defender's office must, obviously, without proper funding, wrap up cases and force their clients into pleas instead of properly litigating cases - because the Public Defender's office simply does not have funds to fully litigate cases, and provide effective assistance of counsel, as Gideon v Wainright required, not simply a warm body with a pulse and a law license.

The U.S. Supreme Court has ruled long time ago in Johnson v Avery: " In the absence of some provision by the State of Tennessee for a reasonable alternative to assist illiterate or poorly educated inmates in preparing petitions for post-conviction relief, the State may not validly enforce a regulation which absolutely bars inmates from furnishing such assistance to other prisoners."

In other words, the U.S. Supreme Court has ruled, 47 years ago, that states cannot enforce lawyer monopoly on court representation if states cannot provide for a "reasonable alternative" to assist "illiterate and poorly educated" (not even indigent) individuals to file petitions for post-conviction relief.

Once again, Johnson v Avery was about "illiterate and poorly educated" - which is a far wider scope than "the indigent", who can very well be literate and educated, but lacking funds to hire a private attorney.

If the U.S. Supreme Court announced a ban on lawyer monopoly in the practice of law in civil (post-conviction petitions) cases for people who are not necessarily indigent, it goes without saying that such a ban must apply in the case of indigent criminal defense.

As an additional problem, attorney disciplinary rules require that any given attorney should not take on more cases than the attorney can handle - where the attorney can provide effective, quality representation.

New Mexico Public Defender's office has a caseload per attorney of 183 cases per year.

Of course, first, such caseloads (150 felonies per attorney per year or 400 misdemeanors per attorney per year) are unrealistic and cannot ensure effective assistance of counsel in each of these cases.

Additionally, the ABA highlights the complexity of appellate work by equating work on 150 felonies or 400 misdemeanors at trial level with 25 appeals per attorney per year, and the New Mexico Public Defender's office handles, reportedly, 70,000 cases per year, without a breakdown as to how many attorneys handle how many appeals per year on top of their trial caseloads.

And, while the death penalty is abolished in New Mexico since 2009, it is not an inviting prospect to go to prison simply because your indigent defense lawyer did not have time for you, and because you had no money for a private attorney - while the "in-between" provision (required by Johnson v Avery) of a lay representative in court is unavailable.

It is interesting that, reportedly, New Mexico spends TWICE MORE on private prisons than it does on indigent defense ($85 million on its 5 private prisons versus $44.5 on its State Public Defender Office).

(By the way, in New York, initial felony hearings for detained indigents are routinely waived by assigned counsel - likely because if assigned counsel are too feisty and demand a felony hearing within 144 hour of detention, in order to either have the indigent client released without bail, or get information about the case at its freshest, before the prosecution had a good chance to coach witnesses, they will never be assigned again and will lose income).

And, the NM Public Defender indicated to the Legislature that he may have to start turning away cases for lack of ability to provide effective representation, if emergency funding is not given to him.

I wonder if the NM Public Defender pointed out the state's priority funding of private prisons over indigent defense...

An additional problem affecting effective representation is that the NM public defender also has a hard time "attracting" quality representation because of low reimbursement rates for assigned private attorneys - not to mention the high caseloads.

When no additional emergency funds were given to the Public Defender's office, the NM Public Defender did the only thing that an attorney can do as a matter of compliance with disciplinary rules - deny representation to those to whom he cannot possibly provide a quality representation, due to time and budget constraints

So, how did Louisiana - and New Mexico - react to the de facto strikes of Public Defenders due to lack of funding?

Louisiana offered a "way out" by drawing in for indigent criminal representation attorneys who know nothing about criminal law - which is, in itself, a denial of constitutionally required EFFECTIVE assistance of counsel.

In New Mexico, the court and the prosecution - who could not prosecute unrepresented defendants - became more creative.

Prosecution got into sheep's clothing and pretended to be a good Samaritan defending the rights of indigent criminal defendants - the very same that the prosecution was prosecuting.

The prosecution asked the court to FORCE the NM Public Defender's Office to accept new cases, no funding and no personnel and high caseloads and inability to provide effective assistance be damned.

The NM Public Defender's office insisted on its right not to provide any legal representation when it could not provide effective representation.

The NM court, a District Court Judge Gary Clingman, who unsuccessfully ran last year for the New Mexico Supreme Court, and a judge with, reportedly, 20 years of experience,

considered it possible to resolve this constitutional crisis by simply resorting to blunt force measures. 

But, the NM court magnanimously allowed the NM Public Defender to "purge" his contempt by actually appearing in cases where he said he cannot appear for lack of funding, lack of personnel and inability to provide effective assistance of counsel.

In other words, Judge Clingman ordered NM Public Defender to provide representation, under the threat of contempt of court (and, possibly, losing his law license and livelihood), while such representation will be in violation of attorney disciplinary rules in the first place - because, according to the Public Defender, "We can't continue to spread our attorneys so thin that they don't have time to read police reports, to meet with a client, to do legal research if necessary," he said. "This is a systemic problem."

So, Judge Clingman ordered the Public Defender to choose between violation of attorney disciplinary rules by providing a substandard legal representation because of lack of funding and personnel, or suffering contempt of court and loss of law license and livelihood. 

But, as much as Judge Clingman is upset that the Public Defender cannot, as Jesus allegedly did, feed 5,000 people with one loaf of bread.

And, the State cannot threaten an attorney with sanctions, or impose sanctions upon an attorney, for adhering to disciplinary rules, and for trying to ensure their clients' rights to TRUE effective representation - not to a "body with a pulse and a bar card".

And, the State does not have authority to order an attorney to violate attorney disciplinary rules and provide a substandard representation to any clients.

In Louisiana, as far as I could find, no sanctions were imposed upon public defenders for refusing to represent indigent clients for lack of funding.

Yet, in Louisiana, public defender officers that went on strike, went on strike by county offices, and thus it was somewhat easier for Lousiana public defenders to go on strike and impress courts by numbers, where, in May of 2016, 33 of 45 public defender offices were reportedly refusing to take in new indigent cases.

Of course, both states, Louisiana and New Mexico, stubbornly continued to pay for pre-trial detention of people to whom the states could not provide proper legal representation, rather than simply release them on their own recognizance.

Moreover, in October of 2016, the NM Legislature approved REDUCTION of the already inadequate indigent defense budget by 3% - while, obviously, not reducing the budget for private prisons, or for prosecutors.

At the same time as reducing the budget for indigent defense for 3%, the NM State Legislators also:

So, while the solution of the problem is laying on the surface - using Johnson v Avery, to declare and emergency stay on regulation of the legal profession and the lawyer monopoly, and allow lay representation in at least cases where the state cannot provide funding for licensed attorneys - the states resort to:

1) Intimidation and sanctions - New Mexico;
2) Putting the unfunded mandate for indigent defense from one source (County) upon another (State) - New York; or
3) Ordering into service attorneys who have no clue about criminal defense - Louisiana,

That's exactly what I pointed out in my now pending petition for a writ of certiorari to the U.S. Supreme Court - if the justice gap became so bad that the U.S. Supreme Court Justice Sonya Sotomayor claims she would allow forced labor by attorneys in violation of their 13th Amendment protection, the government should at the very least not widen that justice gap by targeting attorneys for discipline, simply for doing their jobs for their indigent clients.

What can result from such a disparity, ladies and gentlemen, is revolts demanding justice for the indigent defendants, or release and stop prosecuting who the state cannot prosecute without a defense attorney on the other side, but cannot provide a defense attorney either.

I wonder whether, with the new president, this country will finally wake up and see that regulation of any profession - and especially the legal profession - leads to injustices, and to injustices not only to members of the regulated profession (regulated by powerful competitors), but mostly injustices to the consumers, to the public.

In the case of New Mexico - while #IStandWithBennettBaur, the NM Public Defender punished for asserting his adherence to attorney disciplinary rules to provide either a quality representation - or no representation at all - indigent criminal defendants continue to suffer.

And intimidating attorneys into providing substandard representation to the indigent is not a solution.  At least, it is not a good, fair, or even constitutional solution to the  problem.

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