Left2Right

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Posted by: Sans Serfs

The problem, of course, is not those who perpetrate crime, but those who try to prevent and/or punish them. Another strong issue for the left. It's pretty interesting to see a political group which identifies on such a soulful basis with the losers in society. Why is this?

Posted by: Sans Serfs | Apr 29, 2005 7:28:20 AM

Posted by: Don Herzog

No, this won't do. I'm all in favor of criminals being punished. But it is absurd to conflate that demand of justice with cavalier indifference about whether criminal suspects get fair treatment at every stage, including defense at trial. Some of those suspects are in fact innocent, just to remind you. And even the guilty ones are entitled to a proper defense.

Posted by: Don Herzog | Apr 29, 2005 7:31:49 AM

Posted by: Sans Serfs

I will agree that far too many evil-doers end up in jail. More should have their income financially attached, or possibly spray painted and flogged. But there is a large segment of society which has detached from the main, and finds evil-doing amusing, deserving of MTV celebration, and perversely "normal". And, no, I don't think it's anyone's fault but their own.

But why don't we read posts here about the travails [ever! - it's not a good issue!] of their victims those who suffer from the actions of criminals - not too much angst about that at the grain coop these days, huh Don? Is it possible that academia still identifies with criminals as it has for decades? Why would that be? Hmmm....let's see....I'm not just living off the crumbs of capitlalism .....I'm an Outlaw! Please.

Posted by: Sans Serfs | Apr 29, 2005 7:55:46 AM

Posted by: Bernard

Sans, are you parodying a low-watt reactionary, or is this really you?

Posted by: Bernard | Apr 29, 2005 8:34:43 AM

Posted by: D.A. Ridgely

As one clever fellow wrote on Mr. Herzog’s post on incarcerations: legalize drugs, make the problem go away.

Here, however, I may surprise some by agreeing that the state should pay for competent legal representation for criminal defendants. The state is a juggernaut possessed of almost limitless resources to investigate and prosecute a defendant and it is only the rare multimillionaire who has anywhere near the resources at his disposal to combat that juggernaut effectively. Indeed, I’d like to see the same equitable principles of justice applied when the IRS comes after a taxpayer or the state or city tries to condemn someone’s private property, etc., etc.

Even so, matters may not be quite as bleak as Mr. Herzog portrays. In many jurisdictions most defendants do not remain incarcerated while awaiting trial, and any defense attorney will tell you that, constitutional guarantees of a speedy trial aside (and, believe me, what the courts have decided counts as speedy is pretty pathetic), it is to the advantage of any criminal defendant out on bail or a recognizance that a trial be delayed as long as possible. Memories fade, evidence gets lost, witnesses move away or die (sometimes even from natural causes!), etc.

Furthermore, let’s not kid ourselves. Yes, some innocent people do get caught in the net and their lives can be ruined by the system. However, the overwhelming majority of those defendants are, indeed, guilty, and many of them know better than their court appointed counsel how to plea bargain. In fact, you will often hear from prosecutors (who, themselves, have oppressive case loads) that the criminal justice system is held hostage by the criminal defendants, themselves – if they could only unionize effectively enough to all demand jury trials, they’d bring the entire system to its knees overnight.

We might also remember that public defenders and private attorneys who regularly represent criminal defendants (in D.C., what is somewhat derisively referred to as the “5th Street Bar”) are only poorly paid by comparison to successful private attorneys with civil practices. Compensation within the legal profession is, in fact, broadly distributed. A number of senior partners in major law firms charge well over $500 an hour (plus making money from their salaried associates’ billings), but government lawyers and small firm lawyers and public defenders, while they don’t get rich, all tend to make comfortably upper-middle class incomes.

There are scandalous cases of ineffective assistance of counsel, but I would largely blame the courts for permitting it. Trial court judges tend to come from the ranks of good trial court lawyers, and they damned well know when an attorney is making a tactical decision to refrain from objecting or introducing evidence or cross examining a witness, etc., and when that attorney is simply clueless. Judges are overworked, too, but they’re not all that overworked or poorly paid except again by comparison to the private civil bar and it is their responsibility to ensure that justice is being done in their courtrooms, including closely examining improvident plea agreements, incompetent attorneys, etc.

Posted by: D.A. Ridgely | Apr 29, 2005 9:57:02 AM

Posted by: Don Herzog

George Fisher has done extraordinarily fine work on how and why we have always relied heavily on plea bargaining.

And Mr. Ridgely is of course right that many suspects are not waiting in jail (though many are). I missed an edit: sorry.

Posted by: Don Herzog | Apr 29, 2005 10:18:19 AM

Posted by: Bret

Don Herzog wrote: "There’s a story of a woman in Gulfport, Mississippi who was in jail eleven months before a lawyer was appointed..."

Whatever happened to the concept of bail and bail bonds? In which case delayed trials are much less of an issue for the defendent.

Don Herzog wrote: "So what do these harried and hassled PDs do?"

That's easy. They quit! (I have a cousin who was a PD and did exactly that.

And don't forget about us harried and hassled citizens who constantly get jury duty summons. I just got a jury duty summons for a four month trial! With a $40/day stipend! I got out of it for financial hardship (I would've had to shut down the business, fire all of the employees, sell the house, etc.), but who can afford to have their family live on $40/day for 4 months?

As the always clever D.A. Ridgely wrote (twice now): "legalize drugs, make the problem go away."

Oh goody! We can continue on with our drug policy discussions now.

Posted by: Bret | Apr 29, 2005 10:28:49 AM

Posted by: paul

A typo, I think. In the first 2 paragraphs, you go from Wyoming to Wisconsin to Kentucky and finally back to Wyoming. Do you really mean Wisconsin, or did you confuse those two alphabetically similar states in the early hours of the morning?

Posted by: paul | Apr 29, 2005 10:56:09 AM

Posted by: Tad Brennan

Small query to DH:

"As far as constitutional interpretation goes, very crudely speaking, we might say that the plain text easily supports the rule and that the rule is clearly demanded by justice."

I would have thought that "easily supports" is stronger than you intended. Don't you want to say something like:

"the plain text is clearly *consistent* with the rule, and the rule etc."

I assume by "plain text" you mean something like "even a minimal, penumbra-free, originalist reading". Even on that reading, the 6th does not say the state *may not* provide counsel, and justice requires it etc.

Or do you find more positive support? And if so on which kind of reading?

Posted by: Tad Brennan | Apr 29, 2005 11:01:18 AM

Posted by: Tad Brennan

Mr. Ridgely--

"...public defenders, while they don’t get rich, all tend to make comfortably upper-middle class incomes."

I had thought this was not so, i.e. that PD's were getting more like 40-50 grand p.a. in some states. That might be middle class, but not upper-middle class.

Are my numbers out of date? (Or my class-boundaries?)

Posted by: Tad Brennan | Apr 29, 2005 11:07:43 AM

Posted by: DJmatheso

If the idea that the percentage of innocent defendants is low provides you comfort, doesn't it become somewhat less comforting as the number of defendants increases dramatically?

According to an article by one of those leftist Michigan professors: "There were 3,577 prisoners on American death rows at the end of 2001. The 73 death-row exonerations since 1989 amount to 2.04% of that population. There were a total of 1,404,032 inmates in American prisons at the end of 2001...if exonerations from that population had occurred at the same rate as on death row, there would have been 28,642 non-death row exonerations since 1989. (If we restrict our focus to prisoners who were convicted of murder, the expected number of exonerations would be 13% of that total or about 3,723.)."
http://www.mindfully.org/Reform/2004/Prison-Exonerations-Gross19apr04.htm

There are a number of reasons that this estimate may vary it is more likely to be too low than too high. Perhaps most importantly, more serious crimes generally go to trial, while as DH points out, in less serious cases defendants accept a plea. Individual examples are legion, but I would refer anyone interested in how innocent defendants get trapped into accepting plea-bargains to the Tulia Texas and L.A. Rampart Division scandals, or to the child-abuse "witch hunts" of the 1980s.

Posted by: DJmatheso | Apr 29, 2005 11:13:04 AM

Posted by: Don Herzog

paul, thanks for the correction. With somber regard for 'net etiquette on preserving the past in all its finicky inglorious integrity, I've used a strikeover to correct the post.

Tad, I don't want to delve into constitutional interpretation again. By "supports," I meant, "will comfortably bear the weight of." To remind everyone, here's the text of the 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.

So my claim is a bit stronger than that an affirmative entitlement to a lawyer is "consistent with" the text. It's that it's a sensible reading of the plain language, even though we know it isn't the originalist truth of the matter.

Posted by: Don Herzog | Apr 29, 2005 11:22:04 AM

Posted by: D.A. Ridgely

Mr. Brennan:

I may wrong. I certainly have no hard statistics readily available and don't know if, for example, your 40-50k range represents average figures or entry level figures, etc. (since most attorneys don't do PD work for more than a few years, anyway). I know that private attorneys doing publically funded defense work in D.C. can earn roughly double that. Honestly, it probably varies wildly from state to state, but my sense is that they are generally paid somewhere in the upper range of state / federal white-collar salaries, which I suspect most people would consider upper-middle class.

Posted by: D.A. Ridgely | Apr 29, 2005 11:25:49 AM

Posted by: Tad Brennan

"the accused shall enjoy the right...to have the Assistance of Counsel for his defence."

Ah--okay, I think I see.

To my naive ear, that does indeed suggest that the govt. has a duty to provide the accused with said assistance, and so the 6th provides positive support, not merely compatibility, with the PD system.

(Compare: the accused has the right to a speedy trial by jury. That means the govt. has to provide the venue and the jury. It does not simply say that the govt cannot interfere with the defendant's provision of his own courthouse and jury, paid for out of his own pocket. By parity of reasoning, the right to counsel should also mean a right to have govt provide counsel, not merely a right to have the govt not interfere with the accused's own provision of his own counsel.)

And I also see how the originalist reading, which imports the contemporary debates abt. govt's refusing to allow defendants to use counsel even if they provided it themselves, would argue for their more minimal reading of the 6th.

Interesting conflict between plain text and originalist.

Posted by: Tad Brennan | Apr 29, 2005 11:29:36 AM

Posted by: Tom

First off, I must say that I agree with the right for the accused to have assistance of counsel, even if provided pro bono by the government.

So the problem appears not to be a funding issue, but a supply and demand issue. We have a large number of accused seeking pro bono counsel from a relatively constrained supply of PDs. So the problem is that we don't have enough PDs. Do we need to train more lawyers in the hope that they will become PDs? Or is the solution you are proscribing to spend more money enticing attorneys in private practice to become PDs?

I have a hard time believing that we need to graduate more lawyers, so that means that we must entice many lawyers currently in private practice into becoming PDs. How much more do they need to be offered to get them away from private practice? Maybe if it wasn't so easy for lawyers to sue AT&T over cell phone bills so I could get a $7.00 coupon for AT&T Wireless products, supply and demand for PDs could begin to move back into balance. Somehow I doubt it though. I think that Mr. Ridgely's prescription;

legalize drugs, make the problem go away.

is the right first step to solving the problem. If the solution is to give local governments more money for the criminal justice system, my guess is that most citizens will prefer to see their taxes going to enforcement rather than efforts to defend the accused.

Posted by: Tom | Apr 29, 2005 12:03:40 PM

Posted by: catfish

I can't vouch for the information below, but the website below claims that the starting salary for a public defender in Kentucky is around 25,000 a year while California public defenders get closer to $86,000. This seems intuitively corrent to me. My wife is a law student in Alabama, and one of her friends is about to become a public defender in Mississippi, where IIRC the starting salary is in the $30,000s. Law students in general see public defender work as the worst legal jobs possible. The pay is low despite the fact that you have amassed the same amount of debt as someone who is going to work for a coporate law firm. Also, unlike jobs with the district attorney's office, PDs are not usually seen as a stepping stone to something better. As you can see from the graph, the working conditions are horrible. It is simply impossible to do right by your clients. Unfortunately, I don't see any political constituency out there with an interst in making sure that the public defender's office is adequately staffed and financed. Is this another instance of a problem that is only going to be corrected by the combersome hand of the judicial branch?

http://www.pbs.org/kqed/presumedguilty/3.2.0.html

Posted by: catfish | Apr 29, 2005 12:15:55 PM

Posted by: Achillea

I'll echo D.A. Ridgely here (shocking, I know). What percentage of these cases loading down our poor, beleaguered PDs are drug cases? I'll add in prostitution cases, too, since that's a pet peeve of mine.

As far as The law maintains a "strong presumption" that counsel's actions are reasonable goes, do you have any statistics that indicate that's an incorrect presumption? No doubt there are defense attorneys who botch things up, but just how prevalent is it, really? I've heard the 'sleeping PD' story before. In fact, I've heard it so many times that I get the distinct impression it's the only example of gross incompetence the people using it have to deploy. Now, no doubt some digging nationwide going back a decade or two would turn up other instances. But the Bureau of Justice page indicates there were 4.2 million cases employing PDs/other indigent counsel. In just 100 counties. In just one year. However much I deplore even the individual or infrequent injustice, I'm having trouble working myself into a lather worrying about a plague of inadequate counsel sweeping the country.

Further adding to the short shrift inadequate counsel appeals are met with by the courts may well be the practice by anti-capital-punishment lawyers of lobbing it automatically, without regard to its applicability to a given case.

Posted by: Achillea | Apr 29, 2005 12:25:36 PM

Posted by: ya honza

Professor Herzog raises a valid point. A wealthy Westside PB with famous defense attorney-gun does get different service than repeat offender O'Riley. And while many "public pretenders" do care and do work hard, many don't, since a win or loss doesn't really matter--the same for most smaller cases with defense attorneys, but his "batting record" is a bit more important, at least in the street . There are some statistics on this showing that rate of conviction for those suspects with pub. def or in pro per are higher than those with street attorney; also those who make bail are generally acquitted more readily than those who don't.

Among most of the inmates who can't afford a street attorney, the pretenders are thought to be rats who will strike up deals (as in back room) with DAs and judges; "lets put this old drug dealer away for 5 years in state, and you cut me some slack on this gangsta robbery case."

Plea bargaining with a public defender is also a crap shoot for many suspects. PD advises his client not to go to "the box" because his case load is overwhelming or he has a flashier case or has hunch or whatever. BY doing so client may get lesser sentence or dismissal (even if he is innocent but PD says he can't win), and then when he goes in Judge maxes him out. Street attorneys do this as well to avoid trials, but that seems to be quite common for PDs.

Even if the majority of the scum in the system belong there, 5-10% of men are being screwed--maliciously prosecuted and oversentenced or in many cases innocent (one could argue nearly all dope cases are bogus--especially for cannabis related). While crimefighters might cry one is sympathizing with the criminal by arguing for equal rights to legal representation, in reality 1 to 2 men out of 10 is probably a victim of wrongful conviction (as well police brutality, excessive police force, and exposed to disease, violence, rape etc.), and those are generally the guys who can't afford a decent street attorney.

Posted by: ya honza | Apr 29, 2005 12:50:45 PM

Posted by: DBCooper

I'd be interested to know what percentage of public defenders support drug legalization as a solution to their burgeoning caseload. Afterall, it is they who get to deal with America's finest day in and day out.

Another question: How much time is really necessary to prosecute the majority of these cases? I imagine most are just boilerplate form filling sessions that don't require much attention.

Posted by: DBCooper | Apr 29, 2005 1:06:44 PM

Posted by: D.A. Ridgely

A couple more points. First, I made the sweeping claim earlier that the overwhelming majority of criminal defendants are guilty. It’s true. Why? Well, for one thing, prosecutors hate losing and really do care about their record. With rare exceptions, they can choose not to indict or to nolle prosequi a doubtful case, and they do these things all the time. PD’s and private defense attorneys know full well that they would probably lose most of their cases at trial, so winning is defined for the most part as cutting the client the best deal possible. Frankly, we should all be very happy about this fact. The police don’t go around randomly arresting people, nor do DA’s risk their records on prosecutions when they doubt they can meet their burden of proof.

Second, ineffective assistance of counsel is a boilerplate ground of appeal. I suspect any appellate lawyer who didn’t throw it into the appeal could himself be accused of malpractice. The sad truth is that the standard is appallingly low in the first place. Take a day off sometime and sit in a criminal courtroom and watch the system in action. “The Practice,” it ain’t. In fact, most courtrooms would be an embarrassment to watch on Court TV.

Third, by all means let’s legalize prostitution, too. (Also gambling, though I’d, um, bet that accounts for few arrests these days.) The fact is, our criminal justice system is flooded precisely because of these sorts of arrests, convictions and incarcerations. Stop the madness. Free the resources. As Ross Perot would say, it’s as simple as that.

Posted by: D.A. Ridgely | Apr 29, 2005 1:26:59 PM

Posted by: Josh Jasper

Here's a thought: Creaqte a law that ties the number of PDs to be employed with a fair caseload to attorney ratio, and require all attorneys who make *over* a certain amount to serve as PDs for a portion of thier time. Thus, rich trial lawyers who're hated by the right are forced to serve the public, and people accused of crimes who cannot afford attorneys are given fair treatment.

Problem solved.

What do you folks think?

Posted by: Josh Jasper | Apr 29, 2005 2:06:46 PM

Posted by: ya hozna

Thinking that the appellate courts are there to remedy the wrongs of the trial courts and stand up for the defendant is about like thinking all catholic priests are holymen following scripture. The appellate courts exist not to protect the innocent but to protect their junior colleague-cronies. Over 90% of appeals are rejected (and the state supreme barons simply ditto the appellate at about 95%). I doubt 1 in 10 inneffective assistance of counsel writs are allowed if even read (en suepct there is a large circular folder for most in pro per writs). Appellate courts are sort of like referees, --they generally are not concerned about evidence or facts or even bias, but only with Zee Rules on motions etc. They are lower in the el culo el Diablo even then the trial court goons.........

Posted by: ya hozna | Apr 29, 2005 2:07:00 PM

Posted by: DBCooper

According to the Wyoming defenders report cited by Don Herzog, national guidelines recommend maintaining a level of 175 –200 new trial level cases per year per attorney. Following Josh Jasper’s suggestion would only require hiring or “volunteering” nine to ten extra attorneys for the entire State of Wyoming to bring them within compliance of those guidelines. I don’t see that as a huge problem.

The scale on that bar graph is exaggerated to the extreme. The 2003/2004 bar should be about three times taller than the 1983/84 bar...not forty times taller.

Posted by: DBCooper | Apr 29, 2005 3:02:33 PM

Posted by: Will

I have a question for all of the drug-legalizers here (and I say this as someone who finds Libertarian arguments convincing: just finished "constitution of liberty", props to DAR and mona for unintentionally motivating me to read it); given that, statistically, X% of persons that try (heroine,crack,crystal meth, ...) *will* become addicts -- does legalization really make sense in terms of total societal costs?
Despite our protected private spheres, everyone in America is connected: we share the same public spaces, we work together, shop together, our kids go to school together -- do we want to consign X% of our people to drug addiction and suffer the inevitable costs, as a nation?

Posted by: Will | Apr 29, 2005 3:29:25 PM

Posted by: Josh Jasper

given that, statistically, X% of persons that try (heroine,crack,crystal meth, ...) *will* become addicts -- does legalization really make sense in terms of total societal costs?

Sure, because the benefits outweigh the costs. The benefits are: destruction of the criminal classs of drug dealers, huge amounts of money freed up from the War On (some) Drugs, being able to treat and help those addicts without the criminal stigma, etc...

Yes, it's going to result in some more addicts than we currently have, but we'll probably be able to help a lot more addicts get off the drugs because they won't be having to hide anymore. So, we'll have a net loss in the number of addicts.

Posted by: Josh Jasper | Apr 29, 2005 3:43:56 PM

Posted by: D.A. Ridgely

I'm certain that X% would become addicted, but I have no idea what X equals. That's pretty much the point as long as what we are arguing about is the consequences of Policy A versus Policy B. I think the harm from X additional addicts would be much smaller than the social cost we experience with the current system. But no one knows.

The non-consequentialist answer, however, is that we are all individuals, too, and if we value individual autonomy and freedom, then we permit people to do things to themselves that might well harm them. Permitting people to be free to harm themselves is not consigning them to that harm.

Posted by: D.A. Ridgely | Apr 29, 2005 3:52:12 PM

Posted by: Bret

Josh Jasper wrote: "... require all attorneys who make *over* a certain amount to serve as PDs for a portion of thier time ... Problem solved."

I have a hunch that the clients would be better off under the current system than to be represented by a forced and resentful group of lawyers. That's even if it had a political prayer.

I've read something similar that might work better though. Take a portion of the punitive damages awarded in tort cases and use that to fund the rest of the court and legal system - including hiring more PDs.

Posted by: Bret | Apr 29, 2005 4:40:56 PM

Posted by: David Velleman

Much as I would like to go on speculating about the benefits of legalizing drugs, prostitution, and gambling, I'd like to propose that we limit the discussion to what we should do about public defenders before hell freezes over. ("Cut taxes" isn't one of the options.)

Posted by: David Velleman | Apr 29, 2005 4:45:02 PM

Posted by: Bret

The infinitely clever D.A. Ridgely wrote: "if we value individual autonomy and freedom..."

But since most people don't value individual autonomy and freedom, at least not with respect to drug use, we're back to your other statement regarding whether or not social costs would decrease or increase with drug legalization: "no one knows."

Posted by: Bret | Apr 29, 2005 4:46:11 PM

Posted by: Bret

Drat. Foiled again. At least I got one under the wire (sort of).

Posted by: Bret | Apr 29, 2005 4:48:00 PM

Posted by: Mona

I agree with Don's post, and also mostly w/ D.A. Ridgely. Yup, legalizing drugs would go an enormous way to reducing a legal and penal system groaning under laws that seek to prevent adults from using or selling substances for which there is an unalterable demand that renders black markets so lucrative, a demand that only a Singapore-style police state could significantly eradicate.

But I take some issue with Ridgely's view that many prosecutors eagerly avoid charging the wrong person. Not really, certainly not in my professional experience. What they care about is whether they can craft a theory of guilt that they can sell to a jury. Check with the Innocence Project -- they have a fine, if infuriating book out on the many innocent people they have freed w/ DNA evidence, OFTEN with the prosecutors kicking and fighting them every step of the way. Prosecutors are lawyers, and like any other of our breed, all too many of them care about is whether they can win. Indeed, it is not rare for prosecutors to get their hands slapped by the Court, or even to be disciplined for failing in their duty to overturn exculpatory evidence to the defense.

Additionally, I think an originalist could sign on to well-paid public defenders and public financing of extensive forensic and investigative services for all accuseds. After all, in 1791 forensics did not exist as a science, and certainly not at any significant expense. Further, trials were very short, uncomplicated and quick events, and lawyers not particularly expensive. Circumstances have, to understate, changed.

While I do not identify as an originalist, most of those with whom I am familiar are not opposed to modifying doctrine in order to effect the result intended by the text of the Constitution, when changed circumstances threaten to undermine the principles and protections enshrined in the text. (For example, I know of few originalists who think that the 4th Amendment should not cover telephones and wiretaps, even tho telecommunications are not within "person, papers and effects.")

When the state seeks to take a person's life or liberty, the right to counsel is vitiated when the only counsel they can acquire is greatly over-burdened and lacking in the same resources available to the contemporary govt. Seems to me, countenancing the continuation of such a disparity in burdens and resources is unfair, and even unAmerican.

Finally, my email address has changed. I've modified my data here to reflect that.

Posted by: Mona | Apr 29, 2005 5:00:22 PM

Posted by: Bret

I've opened a comment post here at geralddworkincomments in case anyone wants to further discuss drug policy so as not to dilute this discussion.

Posted by: Bret | Apr 29, 2005 5:10:05 PM

Posted by: DBCooper

The Wyoming crime index in 2000 was at the lowest level since 1972, and well below levels seen in the 80's and early 90's. How does this jibe with the increasing caseload for PD's? Is this a sign that there are too many police officers filling their time making petty arrests? Is there an advancement/promotion requisite that unduly motivates officers to maximize their arrest totals?

Posted by: DBCooper | Apr 29, 2005 5:19:54 PM

Posted by: D.A. Ridgely

In brief response to Mona, I didn’t mean to state I thought prosecutors cared whether or not they charged the right party but only whether they thought they had a winning case. I am, by the way, all for ex post facto DNA testing – it’s a cheap and reliable method of redressing some miscarriages of justice.

I would have thought Mr. Velleman would appreciate elegant, albeit politically unlikely solutions to social problems. Oh well. Okay, we can take legalizing drugs and tax cuts off the table in exchange for taking tax increases off as well. So, what government spending should we reduce to buy more and better paid public defenders with?

Posted by: D.A. Ridgely | Apr 29, 2005 5:26:10 PM

Posted by: pickabone

"First, I made the sweeping claim earlier that the overwhelming majority of criminal defendants are guilty. It’s true."

- D.A. Ridgely

To this layman whose never had the displeasure of using the phrase, "my lawyer," it sounds like you're in direct conflict with the presumption of innocence. Sure, it may seem logical that prosecutors, protecting their own reputations, hesitate to bring a charge against the innocent. Were that to become the logic accepted by the judicial system it would no longer have its original force. Some prosecutors would surely exploit such a presumption of guilt to boost their conviction counts.

And yes, legalize (some) drugs, if for no other reason than to eliminate much of the violence surrounding the drug trade.

Posted by: pickabone | Apr 29, 2005 8:25:50 PM

Posted by: D.A. Ridgely

pickabone:

The system requires the jury to presume innocence, not the prosecutor. Sure, prosecutors are citizens and human beings, at that, and they care about not prosecuting innocent people. But their job is to determine whether there is sufficient admissible evidence to meet their burden of proof beyond a reasonable doubt. The prosecutors I have known truly believe that those they prosecute are guilty, but it wouldn’t matter to the system whether they did or not, and it is a good thing that for self-interested reasons they decline prosecution of many doubtful cases. For that matter, the job of the police is to determine whether there is probable cause to make an arrest, a much lower evidentiary standard, and to turn the evidence over to the prosecutor’s office. Guilt or innocence is none of their business. The defense attorney’s job is to zealously defend the accused, innocent or guilty. Frankly, the few good criminal defense lawyers I’ve known couldn’t care less if their clients are guilty or innocent, but I can tell you that they know that the majority of their clients are guilty. In a jury trial, it is the judge’s job to ensure that the rules of criminal procedure and evidence are followed, to rule on motions and questions of law and to instruct the jury. Only the jury needs to presume innocence because only the jury has the responsibility of determining guilt.

Posted by: D.A. Ridgely | Apr 29, 2005 9:42:18 PM

Posted by: Don Herzog

In the autumn of 1794, some British radicals were acquitted of treason. (The regime had been pressing for a very broad account of "treason," on which for instance publishing a radical tract arguing against monarchy could count.) In parliament, William Windham described them as "acquitted felons," and was (rightly, I think) excoriated in the radical press for doing so.

I think the presumption of innocence has a complicated life outside the criminal justice system.

Posted by: Don Herzog | Apr 29, 2005 9:48:59 PM

Posted by: D.A. Ridgely

Admittedly. But it has a specific role inside the criminal justice system, and that role needed to be made more clear. Further, I don't think those of us who won't serve on his jury need to presume Saddam Hussein is innocent, nor do I feel called to believe O.J. is innocent despite his acquittal (though I would not call him an acquitted felon, if only because he isn’t a felon). There is certainly no perfect correlation between legal guilt and actual moral guilt and in all too many cases there is none at all.

Posted by: D.A. Ridgely | Apr 29, 2005 10:12:54 PM

Posted by: pickabone

"The prosecutors I have known truly believe that those they prosecute are guilty." - D.A. Ridgely

I should hope so.

But DH was talking about the resources the state allocates toward providing for the defense of the accused. From that perspective, that of society at large, which is represented in a trial by the jury, the accused should retain the presumption of innocence.

Posted by: pickabone | Apr 29, 2005 10:13:43 PM

Posted by: Mona

Wilton Dedge served 22 years of a life sentence for a rape and assault he did not commit. His is one of some 158 case profiles you may read of at the Innocence Project web site. As I wrote above, it is not uncommon for prosecutors to oppose DNA testing, and to vigorously oppose freeing the wrongly convicted even after innocence has been demonstrated via such testing. While there certainly are some human and decent prosecutors in our country, I would ask that readers consider what the following sort of behavior indicates about some in their ranks:

In 1996, Dedge was one of the first Florida inmates to seek postconviction DNA testing, several years before the state passed its 2001 law providing for such testing. He won that motion in 2000, and, in June 2001, mitochondrial DNA testing proved that the pubic hair did not come from Dedge. The Innocence Project and local counsel, Milton Hirsch, asked the court to overturn Dedge’s conviction on grounds of innocence. The State, however, argued that because Dedge had won access to DNA testing too early – before there was a law governing postconviction DNA testing – he could not benefit from the new law, or get into court with new evidence of innocence.

For three years, the State opposed Dedge’s motions on procedural grounds, at one time admitting in court that they would oppose Dedge’s release even if they knew that he was absolutely innocent. These paradoxical arguments were roundly rejected last summer by Brevard Circuit Judge Silvernail and again by the 5th District Court of Appeal in April 2004.

Truly, it is a crime that defendants are not accorded the same resources as those arrayed against them by the state. What should we surmise about whether innocents are languishing in prison because DNA evidence is not available to exonerate them due to the nature of the crime, due to lack of resources such as the limited ones available from the IP, or because over time the DNA sample material has been lost or corrupted?

If one reads a profile, such as Stephen Cowan's, one finds that he was convicted based on a false fingerprint ID. (This is not included in the profile, but I am aware that the two finger-print testing officers who testified at Cowan's trial, were later indicted -- tho charges were dropped -- and an audit of all their cases conducted. None of the "problems" with these two would have to light, but for the IP and Cowan's case.) This is but one example of either incompetence or outright falsification/perjury committed by law enforcement officers leading to a wrongful conviction.

Posted by: Mona | Apr 30, 2005 1:28:16 AM

Posted by: D.A. Ridgely

pickabone:

I think, or at least hope, we are talking at cross purposes here. By all means we must as a society afford the presumption of innocence to every criminal defendant. Moreover, to that end I have already agreed that criminal defendants should be afforded effective assistance of legal counsel as well as the resources (investigators, expert testimony, etc.) required to keep the almost limitless resources of the state from being the per se determinant of the outcome of the trial.

But it would be a fallacy of composition to infer from the need to afford every individual the presumption of innocence the conclusion that the majority of those arrested or prosecuted are, in fact, innocent. It would be absurd and outrageous to believe that the police randomly arrest people or that prosecutors willy-nilly subject them to trial. They don’t. I’m as big a fan as the next fellow of Rumpole of the Bailey’s peroration about the “golden thread of presumption of innocence that runs throughout our history since the time of Magna Carta,” but even Rumpole knew that his bread-and-butter clients, the Timpsons, were a clan of petty thieves. There are, to be sure, all too many cases of police and prosecutorial abuses about which Mona writes, but no one can or should seriously believe that such abuses are the rule rather than the exception. We are not living in Casablanca, where Captain Renault says, "Major Strasser has been shot. Round up the usual suspects." Better no criminal justice system at all than a system like that.

Furthermore, what I tried to describe was the U.S. criminal justice system from the perspective of the relative roles its various participants are required to perform for the system to work as it is supposed to do. Unlike various European judicial systems, ours is a deliberately adversarial system. This necessarily results, especially for the lawyers and judges involved, in an internal ethical framework that sometimes conflicts with the positive ethos of society at large. Thus, it really doesn’t matter if the defense counsel believes in the guilt or innocence of his client as long as he is capable of zealously defending that client. Nor does it really matter if the prosecutor is convinced of the guilt of a defendant as long as that prosecutor is convinced that the evidence of guilt is strong enough to present to a jury whose job it is to determine guilt or innocence.

Mr. Herzog’s point I take to be at least in part the notion, with which I basically agree, that we are morally obligated to affirm the fundamental justice of the system and to treat the exonerated or acquitted accordingly even when we cannot help but believe that the system failed to produce a just result in a particular case. (I suspect he also disapproves, as do I, of politicians abusing their position to make such statements as that which he quoted. But I am not a politician, thank God, and he and I apparently disagree about the extent to which private parties should be more circumspect in our remarks.)

In any case, given that I fundamentally disagree with neither Mr. Herzog nor with what you have said in response to my comments, I will add only that I continue to await (for Mr. Velleman’s sake) politically viable solutions to the problem now that it’s over 40 years since Gideon v. Wainwright.

Posted by: D.A. Ridgely | Apr 30, 2005 11:21:42 AM

Posted by: DBCooper

Concerning the U.S. vs Fredman case cited in the original post, was this supposed to be an example of a miscarriage of justice due to ineffective state appointed counsel? Is there something untoward in the Courts rejection of Fredman's claim of inadequate counsel that I missed? Was the defendant's attorney really the key determinant in the outcome of this case?

Posted by: DBCooper | Apr 30, 2005 11:57:45 AM

Posted by: Mona

DBCooper asks: Was the defendant's attorney really the key determinant in the outcome of this case?

The Innocence Project has assessed the factors contributing to the wrongful convictions in their first 70 exonerations, and found that prosecutorial misconduct was at play in these percentages:

37% Suppression of Exculpatory Evidence 25% Knowing Use of False Testimony 11% Coerced Witness
9% Improper Closing Arguments 9% False Statements to Jury 5% Evidence Fabrications 4% Other Misconduct

With regard to bad defense lawyering, the IP identifies:

Failure to investigate, failure to call witnesses, inability to prepare for trial (due to caseload or incompetence), are a few examples of poor lawyering. The shrinking funding and access to resources for public defenders and court appointed attorneys is only exacerbating the problem.The recent exoneration and release of Jimmy Ray Bromgard from Montana prison provides us with a sobering view of the effects of inadequate or incompetent counsel. Bromgard, arrested when he was eighteen, spent fifteen and a half years in prison for the brutal rape of an eight-year-old girl, a crime postconviction DNA testing proved he did not commit. Bromgard's trial attorney performed no investigation, filed no pre-trial motions, gave no opening statement, did not prepare for closing arguments, failed to file an appeal, and provided no expert to refute the fraudulent testimony of the state's forensic expert. Other than that forensic testimony and the tentative identification, there was no evidence against Bromgard.

The Innocence Project's policy recommendations for addressing the ineffective assistance of counsel issue mirror those Don has offered, and which appear to enjoy a consensus here.

Again, the IP can take on only a handful of cases, altho Congress and many states have recently passed laws allowing prisoners to be assigned a PD and to petition for post-conviction DNA testing, and then to petition for vacating the conviction based on innocence. Importantly, this legislation does not solve the serious problems the IP and others have identified with the criminal justice system, since not all convictions are amenable to exoneration via DNA testing. And, of course, innocent people ought not be convicted in the first place.

While I respect Prof. Velleman's desire not to see this thread derailed into another drug policy discussion, as some of us have noted, it is simply impossible to address what ails the criminal justice system without considering drug prohibition. Cops can and do lie. They plant evidence, especially in drug cases. They become corrupted by pay-offs. They themselves have begun referring to their testimony in drug (and now other cases) as "testilying." Beverage Alcohol Prohibition led to pervasive police corruption, and so has drug prohibition. (It also has established the de facto "crime" of Driving While Black.) There is enormous money involved in a commodity black market, and that creates terrible incentives for regular-guy cops to supplement their modest incomes.

This nation has spent hundreds of billions of dollars to wage a losing drug "war." Those resources could be better spent on erecting a criminal defense system that protects the rights of the accused. And, an end to prohibition would remove the primary cause of police corruption. So, it truly is difficult to intelligently consider reforms to our criminal justice system without examining current drug policy.

Posted by: Mona | Apr 30, 2005 2:12:53 PM

Posted by: pickabone

DA,

Many points, well taken. However, the one that stands out (thanks in small part to your repeating it) is that most of the accused are in fact guilty. True as that may be, the predictable political consequence is something we ought to avoid in order to sustain the "golden thread." Upon hearing and agreeing with you, many people would no doubt reach the conclusion that increasing PD quality just isn't all that important, because it would mean protecting criminals. This, we may agree, should be discouraged.

As for a viable political solution, I've been mulling the idea of taking a lesson from the medical profession. A doctor has a series of mandatory rotations (surgery, obstetrics, etc) as part of her training. In order to be board certified in a given specialty, you have to (I think) have done a residency in that field. Could a PD residency lead to a status-granting certification in criminal defense practice? Interest on school loans would be deferred, of course, until the residency period is finished. I don't know all that much about the legal profession, particular criminal law, so I don't know how to suss out all the consequences of this suggestion. Also, I'm not sure exactly which institutions should have authority over the process (the courts, state bar associations, law schoosl, etc).

Posted by: pickabone | Apr 30, 2005 3:52:34 PM

Posted by: D.A. Ridgely

pickabone:

I began to laugh when I read your last comments, not because of what you suggested but because it occurred to me that if Mr. Velleman thinks hell will freeze over before we legalize drugs, I can’t imagine what the weather would have to be like in Hades before criminal defense work became a high status field within the legal profession. (I know that’s not what you meant, but your comments triggered that comparison in my mind.)

Well, to begin with, the legal profession has fought tooth-and-nail to avoid board certification / specialization along the lines of the medical model. Law schools ‘train’ (if you can call it that) generalists, requiring typically only one or two courses in criminal law. It would take too long to explain why that is so, but if you think in terms of hubris, sloth and greed, you won’t be far off. Also, in terms of status within the profession, a good general rule of thumb would be that the more directly one’s legal practice affects individual human beings, the less it ranks on the status continuum. As such, criminal defense law is right down there at the bottom with family law and real estate settlements.

Most lawyers are not trial lawyers. Of those who do trial work, the majority who go into either prosecutors’ offices or public defenders’ offices are either true believers (in either the “put away the bad guys” or “fight the power” church, respectively) or they’re there to get a few years of litigation experience before going off into politics, civil litigation, etc. Trust me, aside from the soap-opera tales of interoffice backstabbing, sucking-up and posturing, a television series about the actual work of a major Wall Street or K Street law firm would be tedious beyond belief. (“Wait, Jamison! Thank God I caught you before you FedEx-ed that IPO prospectus! Young Wilson here thinks he might have caught a comma that should be a semicolon on page 317!”)

At the risk of grinding my predictable axes, the problem (insofar as there is one) with the criminal defense bar is that people don’t value criminal defense sufficiently to make it an attractive legal practice for any but a small handful of high profile and highly paid lawyers. The reason they don’t value it (here comes the axe grinding) is because they don’t fear the state enough – they don’t think it can happen to them! Statistically, that’s probably a safe bet if you don’t happen to be born poor or black or especially poor and black. (O.J. got a good defense, proving you no longer have to be both rich and white to get away with murder in American. Ironically, I take that as a sort of progress.)

Posted by: D.A. Ridgely | Apr 30, 2005 4:35:26 PM

Posted by: Mona

D. A. Ridgely writes: Well, to begin with, the legal profession has fought tooth-and-nail to avoid board certification / specialization along the lines of the medical model. Law schools ‘train’ (if you can call it that) generalists, requiring typically only one or two courses in criminal law.

Very true, as is your entire analysis of the legal profession. I have long argued that law school proper should be contracted to two years, and the third should be a practicum in which one is mentored by a working lawyer and learning how to actually file motions and the vicissitudes of actual practice. A head full of theory and case law is simply and wholly insufficient to practicing law effectively. Of course, the third year, in which course work is usually comprised of electives, is "necessary" to well-paid law profs who get to teach all kinds of fun classes in areas of intense interest, but which only up the cost of a law degree, increase student loan burdens, but do little to prepare one to represent a client's interests.

If a practicum in crim law were coupled with a loan forgiveness program if one practiced as a defender for 5 yrs, that might contribute to the generation of more competent defense attorneys. However, a cadre of brand spanking new lawyers is insufficient, especially for serious felonies. The solution there is greater compensation for seasoned lawyers in the PD bar which would allow recruitment of better practitioners.

Posted by: Mona | Apr 30, 2005 5:04:31 PM

Posted by: D.A. Ridgely

Mona's suggestion is a good one. Ultimately, any answer in terms of the supply of competent defense attorneys with managable caseloads will be driven by incentives.

Returning to my old friend Horace Rumpole, I rather like some aspects of the British system, though I hear it's moving in our direction instead. Barristers (trial lawyers) are (were?) a separate legal class from solicitors (paper pushing lawyers) who not only specialize in trial work, they do both prosecution and defense work. Moreover, defendents who cannot afford to pay for legal representation (given the welfare economy of England, that's just about everyone but the Queen) nonetheless have some say in the selection of their legal counsel.

Where the medical model really does make sense is the fact that trial lawyers are more like surgeons while nontrial lawyers are more like nonsurgeons in terms of temperment, skill sets, etc. It's a great pity our legal profession doesn't recognize that reality and train and certify lawyers accordingly.

Posted by: D.A. Ridgely | Apr 30, 2005 8:08:05 PM

Posted by: ya hozna

O.J. got a good defense, proving you no longer have to be both rich and white to get away with murder in American.

Was the DNA guy Scheck, of the Innocence Project, lying then? While wrongful conviction is tragedy, it's converse is also unsettling --the guilty going free. And if the defense knew their guy did it but lied they would seem as culpable as the suspect. That's what get me about Scheck (as well as Cochran, Shapiro, etc.) --if they actually knew or even strongly suspected that OJ was guilty then they are as guilty of 187 as he was.

Posted by: ya hozna | May 1, 2005 12:22:38 AM

Posted by: Bret

Benjamin Franklin thought "that it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer." For "one hundred", substitute N, and probably everyone can find some N, between 0 and infinity, that they feel comfortable with. As one rather amusing essay points out, lots of people over time have put forth different values for N, with the current mean value being approximately 59.72. In other words, in the United States, we believe that on average, it is better for 59.72 guilty persons to go free than to have one innocent punished, but better to have one innocent punished than to have more than 59.72 guilty people go free. Note that an N of 0 means we would have to round up an imprison everybody and an N of infinity means that we should never punish anybody because we can never be absolutely, one-hundred percent sure of guilt. In the latter case it would be pointless to even bother to arrest anybody since we wouldn't end up punishing them. In that case, we could close down the courts, fire all the policemen, and with the expenses saved, we could cut taxes (oops, I shouldn't've said that - my apologies to David Velleman). The point is that it doesn't make sense to insist that innocent people are never punished - it will simply happen some of the time if anybody is ever punished, and indeed, in some ratio to the number of guilty who go unpunished.

I know someone who was a Public Defender for several years and a fantastic story teller. The stories she told of how she helped numerous guilty crooks escape justice were captivating and enjoyable. She saved the guilty from serving countless thousands of years of time in jail. She was proud of it too, because these guilty people were, in her opinion, the downtrodden of the earth, to be protected and kept free at all costs in that horribly oppressive and unjust society that is the United States today. We can imagine that her N is quite a bit higher than the 59.72 average. I can also imagine that she and her colleagues pushed the actual N well past the 59.72 ratio desired by the people of the United States.

Of course she also helped the innocent avoid punishment. I'm sure that was a good thing. But even here, some of the stories gave me pause. For example, a drunken homeless guy finds an unlocked parked car and crawls inside and goes to sleep. The owner (a woman) finds this guy in her car and freaks out and calls the police. The police arrests the guy and he's charged with breaking and entering a vehicle. But he was clearly innocent of breaking and entering because the vehicle was unlocked. The owner claimed otherwise, but there was no sign of breaking and entering. The guy, defended by my cousin, goes free and justice is served - sort of. What about the poor woman who had to deal with the rather scary situation of finding some guy in her car? I guess no real harm done, but still, I'm left with this nagging feeling that something wasn't quite right.

One of the results of hearing these stories is that it is going to very hard for me to buy into any proposal that we increase the number of Public Defenders since it's clear to me that more Public Defenders will mean yet more criminals escaping punishment. That being said, the "story of a woman in Gulfport, Mississippi who was in jail eleven months before a lawyer was appointed, was in jail two more months before the lawyer came to see her, and was in jail one more month before they went to court and pled guilty to time served, all for shoplifting merchandise worth $72" does bother me a lot. So there are a few things I might try and change.

1. Shorten trials: this would have the benefits of freeing up Public Defenders for other clients and reducing the strain on the courts of having to recruit jurors. I don't know exactly how to do this. However, having recently received a jury duty summons for a four month trial, I've thought a lot about it, and I don't see how I personally could absorb four months worth of information and make a better decision than if I had just received one month of information. I'm not a walking encyclopedic computer that can utilize all of that information. The last three of the four months would basically be a farce.

2. Make bail easier to get for non-violent criminals: the alledged shoplifter should have been out on bail (unless she had previously skipped bail). The government should pay the interest on the bail bonds when the system is too slow. Perhaps the government should even guarantee bail bonds for the poor. I realize this doesn't solve the problem regarding the right to a speedy trial, but that concept becomes a lot less important if one is free and presumed innocent. I suspect that most of those out on bail would just as soon their court date be postponed forever. Those that did want a speedy trial could be given priority. Those waiting in jail for a trial should certainly be given priority.

3. Use fines instead of jail for punishments wherever possible: the resulting revenues could be used to hire more Public Defenders or to cut taxes (oops, I shouldn't've said that). Drug possession (oops, I shouldn't've said that either) and prostitution could easily be punished by hefty fines instead of jail time.

4. Use the punitive damages portion of tort settlements to fund the court system instead of having the money go to the plaintiffs.

Posted by: Bret | May 1, 2005 2:29:01 AM

Posted by: Jeff the Baptist

Question: How many of these cases involve the same defendant?

Is it possible that part of the reason the caseload is so out of control because people are getting arrested one night, paroled the next morning, then arrested soon after etc? Conceivably, a career criminal could rack up many cases before the first one came to trial.

Posted by: Jeff the Baptist | May 2, 2005 5:28:11 PM

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