1. The Role of Defense Lawyers and the History of the Right to Counsel Why Lawyers Matter: Indigent Defense in Crisis University of Illinois College of Law March 3, 2011 Robert C. Boruchowitz, Professor from Practice Director, Defender Initiative

2. Outline of Discussion Brief history of Main Developments in Right to Counsel Some of the major problems in misdemeanor courts representation Why lawyers are needed How lawyers can make a difference—both in individual cases and systemically

3. Before we get started… What is the glaring error in the following advice of rights that used to be read to defendants in a Washington State municipal court?

5. What issues are presented by the following case?

6. October 16, 2006 Transcript Snohomish County Misdemeanor Court Start Time: 9:46:35 Judge:“S J” Prosecutor:“Mr. J is represented (inaudible). You are or you’re not represented? Defendant:“No, uh-uh.” Prosecutor:“I just need to find your file here (inaudible). Case # C74829. Defendant is present without counsel. What did I talk to you about doing (inaudible)?” Defendant:(Inaudible) Prosecutor:“You want to enter your plea. Uh, Your Honor, my understanding from the defendant is he wishes to enter a plea on the charge and the state offers no jail time and $150 fine.” Judge:“Well alright, Mr. J, how do you plea to Driving While Suspended third degree?” Defendant:“Guilty, sir.” Judge:“All right. Twenty-four months unsupervised probation, ninety days jail, all suspended, $1000.00 fine, $850 suspended with $150 fine to pay plus the $150 monitoring fee and a $43 assessment. Conditions: no driving in the next twenty-four months unless you have a valid license and insurance and no moving traffic violations or criminal charges are to be filed against you in the next two years. Exonerate bond.” End Time: 9:47:52 Total Time:1 minute, 17 seconds

7. What is the source of the right to counsel?

8. Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

9. Illinois Constitution Article I SECTION 8. RIGHTS AFTER INDICTMENT In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel ; to demand the nature and cause of the accusation and have a copy thereof; to be confronted with the witnesses against him or her and to have process to compel the attendance of witnesses in his or her behalf; and to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed. (Source: Amendment adopted at general election November 8, 1994.)

10. History What are the key US Supreme Court cases on right to counsel?

11. Key cases Powell v. Alabama (1936) Gideon v. Wainwright (1963) In re Gault (1967) Argersinger v. Hamlin (1972) Faretta v. California (1975) Alabama v. Shelton (2002) Rothgery v. Gillespie County (2008)

12. “Scottsboro Boys” and Lawyer

13. Powell v. Alabama during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself

14. . The right [*69] to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he had a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. I

16. Justice Frankfurter Sworn in on Sunday, January 29, 1939.

18. Gideon Right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.

19. What happened after Gideon got a lawyer?

20. Requirements of Waiver (Faretta) Knowingly and intelligently forego benefits of counsel Be made aware of the dangers and disadvantages of self-representation Record must establish that he knows what he is doing and his choice is made with eyes open

21. Argersinger v. Hamlin (1972) Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution. Alabama v. Shelton (2002) Courts cannot impose suspended sentences on indigent defendants without providing counsel at trial or finding a waiver of counsel. Rothgery v. Gillespie County (2008) This Court has held that the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.

22. In re Michels 150 Wn. 2d 159(2003). The rights of the poor and indigent are the rights that often need the most protection. Each county or city operating a criminal court holds the responsibility of adopting certain standards for the delivery of public defense services, with the most basic right being that counsel shall be provided. …Disregarding our most basic and important principles weakens the legal system as a whole. In light of this, we again find it necessary to reiterate that this court will not tolerate short cuts to due process.

24. Problems No counsel at all in many cases –Systemic unavailability at arraignments and first appearances –Court denial of counsel to eligible defendants Excessive caseloads –One lawyer doing 1700 cases a year in Lynnwood, Washington—and in Champaign –Atlanta, Miami, Chicago, New Orleans— defenders with more than 2000 cases per year each. Inadequate compensation for attorneys

25. Racial Disparity The crisis in America’s public defense system has a much more acute impact on communities of color. The dramatic under- funding and lack of oversight of America’s indigent defense services, described at length above, has placed people of color in a second class status in the American criminal justice system. The Terrible Toll of America’s Broken Misdemeanor Courts, p. 47

26. These problems present ethical issues

27. RPC RULE 1.1 COMPETENCE RPC RULE 1.1 COMPETENCE A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

28. American Bar Association and American Council of Chief Defenders Ethics opinions on not taking excessive caseload Guidelines on what to do when too many cases

29. AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY Formal Opinion 06-441 May 13, 2006 Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere With Competent and Diligent Representation AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY Formal Opinion 06-441 May 13, 2006 Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere With Competent and Diligent Representation If workload prevents a lawyer from providing competent and diligent representation to existing clients, she must not accept new clients. If the clients are being assigned through a court appointment system, the lawyer should request that the court not make any new appointments.

31. Defense lawyers are constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. April 14, 2009

32. Portion of a closed case report from a Washington city contract defender What stands out here?

33. Why Misdemeanors Matter Why Counsel is Required What Counsel Should Be Doing at These Hearings Progress of Open Society Project How to Persuade Funders

34. Shackled Defendants on Their Own

35. High Volume—Courts Where Most People Go to Court United States: Estimated 8-10 million cases per year. “Courts of limited jurisdiction serve as the window to the judicial branch for many people who do not normally have contact with the judicial system.” In re Michels, Washington Supreme Court,150 Wn.2d 159, 174, 75 P.3d 950, (2003)

36. Illinois Courts The great bulk of criminal court filings are misdemeanors 2008 350,015 Misdemeanor Court filings 90,466 Felony filings

38. Misdemeanor Courts Problems  “Waiver” of counsel—you cannot do a thorough inquiry in 60 seconds.  Unrepresented defendants talking with prosecutors without valid waiver of counsel.  Guilty pleas by unrepresented defendants who do not understand the disadvantages of proceeding pro se or the direct and collateral consequences of the plea.  Excessive defender caseloads result in ineffective representation.

39. Why counsel is required at first appearances Accused persons generally cannot without help understand the elements of the charge, possible defenses, or the full nature of the consequences of a conviction. Accused persons generally cannot without challenge a finding of probable cause. Accused persons generally cannot without help advocate effectively for personal recognizance release or reduced bail. Accused persons generally cannot without help advocate effectively for sentencing alternatives.

40. Because of all of the foregoing... Accused persons generally cannot without help make a valid decision about waiving counsel or waiving trial. The fairness of the proceedings and the integrity of the court are at risk.

41. News conference April 28, 2009 10 a.m. Seattle University School of Law

42. The explosive growth of misdemeanor cases is placing a staggering burden on America’s courts. Defenders across the country are forced to carry unethical caseloads that leave too little time for clients to be properly represented. As a result, constitutional obligations are left unmet and taxpayers’ money is wasted.... Legal representation for misdemeanants is absent in many cases. When an attorney is provided, crushing workloads often make it impossible for the defender to effectively represent her clients. Counsel is unable to spend adequate time on each of her cases, and often lacks necessary resources, such as access to investigators, experts, and online research tools.

43. These deficiencies force even the most competent and dedicated attorneys to engage in breaches of professional duties. Too often, judges and prosecutors are complicit in these breaches, pushing defenders and defendants to take action with limited time and knowledge of their cases. This leads to guilty pleas by the innocent, inappropriate sentences, and wrongful incarceration, all at taxpayer expense.

44. Why Misdemeanors Matter Huge Commitment of Resources When All Governments Are Struggling To Make Ends Meet. Fairness—Fundamental rights are being denied to millions of people in the places that should protect them the most. Perception of Justice—Most people who actually go to a court go to these courts. Their respect for American justice is shattered when they experience the problems we describe in the report.

45. Economic Penalties Increasing fines, costs, and other fees have become staggering. Cumulative impact of all of the economic obligations a significant problem for most defendants. “Courts have demonstrated an almost total disregard for the ability of the defendants to afford the amounts assessed.” Criminal convictions diminish employment prospects and eligibility for housing and other benefits. McCormack, “Economic Incarceration”, Windsor Yearbook of Access to Justice, 2007.

46. Consequences The collateral consequences that can result from any conviction, including a misdemeanor conviction, have expanded significantly. These consequences can be quite grave. The defendant can be deported, denied employment, or denied access to a wide array of professional licenses. A person convicted of a misdemeanor may be ineligible for student loans and even expelled from school. Additional consequences can include the loss of public housing and access to food assistance, which can be dire, not only for the misdemeanant but also for his or her family. Fines, costs and other fees associated with convictions can also be staggering and too frequently are applied without regard for the ability of the defendants to pay the assessed amounts....” No criminal conviction should be regarded as minor or unimportant.”

47. 1968: UW Professor John M. Junker Wrote [A] large majority of the [people] annually charged with non-traffic misdemeanors must, if they are financially unable to hire an attorney, face the bewildering, stigmatizing and (especially at this level) assembly-line criminal justice system without the assistance of counsel. The misdemeanor prosecution is the “Appalachia” of the criminal justice system.

48.   “[I]t’s easy for judges to let their   frustration get the best of them and look for ways to move the calendar along.”   — then Judge Michael Spearman,   King County, Washington, speaking at an ABA hearing on public defense.

50. What Counsel Should Be Doing at These Hearings Challenge probable causeChallenge probable cause Talk with client about rights, silence, ability to post bail, residence, work, references, time in community; assess any immediate needs of clientTalk with client about rights, silence, ability to post bail, residence, work, references, time in community; assess any immediate needs of client Advocate for releaseAdvocate for release Confirm appointment process beyond first appearanceConfirm appointment process beyond first appearance Consider appellate review and pursue as appropriateConsider appellate review and pursue as appropriate Begin investigation and researchBegin investigation and research

51. ABA Ten Principles Of A Public Defense Delivery System

52. Defender Initiative's Misdemeanor Right to Counsel Project To implement the right to counsel in misdemeanor courts in Washington State, and create a model for application in other states. Working now in Kentucky and New Hampshire Funded by The Foundation to Promote Open Society

53. Methodology  Observe courts, listen to recorded hearings  Write to courts explaining deficiencies and proposing change  Meet with judges, defenders, others  Follow up  Discuss possible litigation

54. Progress on the Open Society Project  Sunnyside Municipal Court—added lawyer at arraignment  Spokane District Court—added lawyer to the DUI arraignment calendar that did not have one  Pasco Municipal Court—changes in court procedures, promised change in advice of rights form, agreed to provide counsel at arraignments

55. And....  City of Spokane Added attorney at first appearances for in- custody defendants Added attorney at first appearances for in- custody defendants Developed new diversion program Developed new diversion program  City of Yelm Agreed to provide counsel at arraignments Agreed to provide counsel at arraignments

56. Ways to Cut Caseload and Costs Diversion of Suspended Driver License Cases Re-Licensing programs Diversion of Marijuana Possession Cases Diversion of Minor in Possession of Alcohol Cases Diversion of Shoplifting Cases Decriminalization of Offenses Such as Sleeping on Sidewalk

57. Working for Systemic Change-- Media Coverage Examples.

58. Don’t send kids to court alone The Olympian Published April 21, 2008  Most troubling is the finding that 17 counties never or only sometimes make public defense attorneys available to children and teenagers during their first appearance in juvenile court.  A child or teen’s constitutional right to an attorney has been well established in a 1967 court case and reinforced in state law since then. It’s unconscionable to think that juvenile offenders still fend for themselves in court at the critical first stage of a legal proceeding when decisions are made that could affect their lives forever.....  And the practice of sending alleged juvenile offenders to their first court appearance without an attorney must stop.

59. Santa Clara County defendants face misdemeanor Hobson's choice: Plead guilty or wait longer in jail  By Sean Webby swebby@mercurynews.com  Posted: 12/29/2009 06:27:00 PM PST updated: 12/30/2009 11:50:11 AM PST  For thousands of people charged with such crimes as public drunkenness or resisting arrest, Department 42 is their first and last legal stop.  In this Hall of Justice courtroom, a stream of defendants arrive from jail for their first chance to have a judge review their case — without any attorney in sight.  There, many are given a legal Hobson's choice: Plead guilty and go home, or ask for a lawyer and spend longer in custody.  It is a choice offered to people who at times appear not to understand the legal consequences and who, in the worst cases, may not even be guilty of the crimes. An unidentified in-custody defendant plead guilty to an unspecified charge in the courtroom of Commissioner Deborah Ryan inside Santa Clara County Superior Court, Hall of Justice, on Dec. 24, 2009 in San Jose. (Dai Sugano/Mercury News) ( Dai Sugano )

60. Editorial: Santa Clara County should provide lawyers for misdemeanor court Mercury News Editorial Posted: 01/17/2010 08:00:00 PM PST  If you're arrested for shooting someone in Santa Clara County, you'll get a lawyer, even if you can't pay for one. But if you've had a relatively minor scrape with the law and end up in misdemeanor court, chances are you'll go to your arraignment without legal advice. If you do ask for a lawyer when the judge explains your right to be represented, it can mean going back to jail to wait for an indefinite period of time until the public defender gets to your case.

61.  Some misdemeanor defendants are crooks. But some — especially those accused of unpremeditated crimes such as public drunkenness — are just people who've made a mistake. Still others may have been arrested for no good reason, or hit with a sledgehammer charge when what they deserve is a slap on the wrist. They may feel helpless to dispute the word of the arresting officer. Some see a guilty plea, even with jail time, as the quickest way out.  Those defendants' perception of the legal system from that day forward will be colored by what happens in the courtroom. If they feel railroaded — or later find that a rushed guilty plea has changed their lives forever — the lasting effect will be bitterness. Making legal advice readily available can ensure that people who just made a mistake leave the system chastened but more likely to respect the system. Helping them should be as high a priority as making sure felony defendants get proper representation.  If county officials saw it this way, they'd find the money to staff misdemeanor courtrooms.

62. City of Seattle Law (2004) Council Bill Number: 114900 Ordinance Number: 121501  The City hereby reaffirms the caseload standards established in the 1989 Budget Intent Statement. The 1989 Budget Intent Statement, the American Bar Association's Ten Principles of a Public Defense Delivery System and the provisions of Section 1 of this Ordinance shall collectively constitute "standards for public defense services" as that term is used in RCW 10.101.030 until such time as the City Council may by ordinance adjust those standards. Consistent with the 1989 Budget Intent Statement, City agreements with indigent public defense service providers shall require caseloads no higher than 380 cases per-attorney per- year. The City also affirms the Washington State Bar- endorsed supervision standard of one full-time supervisor for every ten staff lawyers.

64. Helpful to Remind Local Governments

65. Reflections

66. 1970 William Hellerstein: The Importance of the Misdemeanor Case on Trial and Appeal 1970 …the criminal court, the misdemeanor court, is such an abomination that it destroys any myth or notion that I ever had about the realities of American criminal justice. Only a reappraisal of the importance of what transpires in that court by defender agencies and efforts consistent with that reappraisal can provide some improvement.

67. William Hellerstein As presently constituted, our courts do not even have the appearance that justice is dispensed within them. ….it is time for all of us working in defender agencies to turn our energies, forcefully and immediately, towards improvement of the criminal court process and towards the effective representation of persons faced with short terms of imprisonment but for whom the criminal process may prove far more traumatic.

68. William Hellerstein It is not enough for us to shuffle our feet into the courts, go through two-minute arraignments and seven minute trials, and go home at night calling ourselves attorneys.

69. Making a Difference Innocence Project Northwest (IPNW) Clinics The Innocence Project Northwest (IPNW) Clinic grew out of a volunteer effort aimed at freeing inmates who have been wrongfully convicted of crimes. Since IPNW's inception in 1997, volunteer students and attorneys have overturned the convictions of 15 innocent people in Washington state.

70. Work Together Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has. –Margaret Mead