New Orleans, LA (October 31, 2003) --
National Association of Criminal Defense Lawyers 2003 Fall Meeting
Astor Crowne Plaza Hotel,
It is very much an honor for me to be asked to come speak to you all today. It’s an honor first of all because I have tremendous respect for this organization. In my prior life as a criminal defense lawyer, I viewed the NACDL as the big guys on the block, gutsy and outspoken and seemingly fearless in taking on prosecutors, judges or legislators for our unpopular causes. For those of us early in our careers, it was great to know you were all on the front lines.
And I’m doubly honored today because the request came from Barry Scheck. I think what Mr. Scheck, Mr. Neufeld and the Innocence Project have done is truly miraculous. It’s been, of course, literally miraculous for the 130+ men who have been exonerated. That alone would entitled Barry and Peter to some sort of legal sainthood. But they have taken it to that all important next level - going back to the trial records in those cases to find out what went wrong... why these innocent men were convicted and how our criminal justice system can be fixed so these tragedies won’t happen in the future. That is tedious unglamourous work. Systemic reform takes time, money, tenacity and patience. But they’re doing it and it is the truly extraordinary and lasting contribution of their work.
This year is the 40th anniversary of Gideon v. Wainwright. Gideon v. Wainwright, 372 U.S. 335 (1963) The Innocence Project has shown that one of the fundamental ways our criminal justice system misfires is through ineffective assistance of counsel. By that I don’t just mean the standards set by Strickland v. Washington. I mean ineffective counsel in the real sense, the kind of representation that may not be a Strickland violation, but is nonetheless woefully short of being adequate representation. And that is the sad state of indigent defense in too many places in this country.
As a federal judge, I frequently participate in the Department of Justice’s trial advocacy training of new assistant United States Attorneys. Part of that program is for the various judges to speak on a panel to the newly minted prosecutors. Often the other judges emphasize to them how as prosecutors, they represent “the United States of America.” When it is my turn, I always tell them that the criminal defense lawyer also represents the United States of America... because the criminal defense lawyer represents the Bill of Rights - and the Bill of Rights is the essence of the United States of America. Your own former indigent defense counsel Kate Jones has written in The Champion that the Bill of Rights is about “liberty... liberty from ideological, religious, governmental, and physical bondage.” Being a criminal defense lawyer is a very patriotic profession. But a criminal defense lawyer who is asleep, drunk, or has so many cases that he barely knows his client’s name obviously can do little to defend his client’s liberty or truly represent the Bill of Rights.
The right to effective assistance of counsel is not, of course, just about separating the innocent from the guilty. It’s the most fundamental of a criminal defendant’s constitutional rights, guilty or innocent, and without it, the whole premise of our criminal justice system simply collapses. Without adequate counsel, none of the other constitutional or statutory or jurisprudential rights can be protected or exercised. Due process, fundamental fairness, equal protection simply disappear.
Our country’s public defenders are true heroes and heroines in our criminal justice system. Armed often with not much more than the presumption of innocence, they take on prosecutors who have far more resources, judges who are too often impatient and hostile and a public that doesn’t understand and little respects what they do. Yet their idealism and zeal carries them on, like punch drunk fighters refusing to go down for the count. But they need our help.
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As mentioned, this year is the 40th anniversary of Gideon v. Wainwright. That fact was first brought home to me when I received the January/February issue of The Champion last winter, which is a special commemorative edition dedicated to the right to counsel. It is a marvelous issue. It has a wealth of information, resources and contacts. Stephen Bright’s lead article spells out the problem in detail - and his one phrase says it all - “No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel.”
Until I saw this issue, I hadn’t realized how much the NACDL is doing to improve indigent defense. My memory of the NACDL from when I was lawyering, 10+ years ago, was that it focused on white collar crime and the kinds of defenses you could put on when you have a high paying client. That is certainly important and to the extent it makes the system honest for the rich, it should likewise benefit the poor. But 80% of the defendants in this country are indigent and they need more than just trickle down criminal justice.
The NACDL is doing a lot. You have a full-time indigent defense counsel and a very active Indigent Defense Committee. This committee has targeted besieged indigent programs throughout the country and has worked with the local bar and community leaders to bring change, either through legislative action or litigation. You’re currently involved with such efforts in Michigan, Virginia, South Carolina and in several parishes right here in Louisiana. Your Indigent Defense Counsel, Catherine Beane, will probably be eligible to vote here by the time her efforts are finished. On the NACDL website are two prominent pages - one dedicated specifically to Gideon and the other to indigent defense. Both of them have detailed information about what is going on throughout the country to improve indigent defense, with links to invaluable resources. One is the “No Exceptions” Campaign which highlights 10 reforms that are necessary for indigents to have adequate representation. For example, one month it focused on the importance of an indigent to be appointed counsel within 24 hours of being charged; another month on limiting the caseloads of indigent defenders; another on guaranteeing both a time and a place for the attorney to meet privately with the client. These are things that those of us in the private practice of criminal defense take or took for granted. But for 80% of the people who are accused of crime, they’re often a luxury and too often nonexistent.
The poor quality of indigent defense is largely ignored by the public and by policy makers. After all, it’s about people accused of crime who are presumed guilty. They’re poor people, often unattractive, inarticulate, with no apparent constituency and no voice in public policy. The NACDL has stepped up to the plate and given them a chance. Like the work of the Innocence Project, this work by the NACDL is tedious, time consuming, frustrating, but incredibly important and equally inspiring.
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What I would like to focus on today is how the judiciary can and should play a role in this effort. The title of this seminar is “The Art of Effective Communication: Influencing Judges and Jurors.” Influencing judges, persuading judges, building alliances with judges, shaming judges if necessary, is where I think the most promising hope lies. It’s very difficult for the criminal defense bar, however dedicated, to win this war on your own. Just as indigent defendants need the criminal defense bar to advocate for them, the criminal defense bar needs allies and co-patriots.
Judges are the logical choice. Unlike legislators and policy makers, judges are all lawyers... and many have experience as trial lawyers. We know how a case ought to be prepared and tried. We are also in a position to see how indigents are represented in fact. It happens literally in front of our noses. The public, legislators and policy makers, on the other hand, are not in the courtroom, and only hear about how the system works secondhand.
Furthermore, it’s our unique job in our set-up of government to administer “justice.” The legislatures and executive branches of government have other things on their plate but our primary mission as judges is justice. In a criminal case, justice means assuring a defendant’s rights are respected - including his right to the effective assistance of counsel - and that he receive a fair trial.... something that can’t happen absent adequate representation. It’s also our job to administer “justice” in general... not just on a case by case basis. It’s no real surprise that it was the United States Supreme Court, and not Congress and not the state legislatures, that finally extended the Sixth Amendment right to counsel to state defendants. It’s our job to pay attention to people like Clarence Gideon, even if we haven’t done it well or consistently.
Judges also often control the appointment of counsel for indigents and parcel out the funding. The judge is at times intimately involved with the development of the defense since he or she decides, usually by ex parte motion, whether to provide funding for defense requests. Finally, judges are a little more sheltered from public displeasure than the legislature... although that unfortunately is not so true anymore.
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How do these alliances work? One way is through litigated systemic reform. Filing law suits in jurisdictions where indigent defense is inadequate. This is where the NACDL has been very effective.
These types of law suits can be filed in places where the judges understand and are in alliance with the goal. There is a well-known example of this from right here in New Orleans in State v. Peart, State v. Peart, 621 So.2d 780 (La.1993) one in which the NACDL also had a hand. Appropriately enough, that case is also having an anniversary this year, along with Gideon. The Peart decision came down 10 years ago this past July. In Peart, an indigent defender named Rick Tessier filed a motion in Criminal District Court claiming that because of his crushing caseload and lack of resources, he could not provide adequate counsel to his clients. The subsequent hearing disclosed that in a seven month period, he had represented 418 defendants. He had at least one serious case set for trial every day during that period. The Indigent Defender Office that he worked for had only three investigators to cover the 7,000 cases per year that come through Criminal District Court. The Office had no funds for expert witnesses and an ancient minimal library. The trial judge concluded that the indigent defender system in Orleans Parish was unconstitutional.
While I have read a number of law review articles that discuss the Peart case, none of them point out - and perhaps they didn’t know - that the trial judge in that case was himself a former public defender. His name is Calvin Johnson and he ran the Loyola University Law School clinic here in town for a number of years, representing indigents in that very same court. He was a very principled and conscientious public defender. While I was not involved in any way in the Peart case, I doubt that it was an accident that the motion was brought in Judge Johnson’s court... because he would understand the problem.
What happened next has a similar story. The case went to the Louisiana Supreme Court which partly upheld and partly reversed the decision. The court agreed that ineffective of assistance of counsel can be assessed pretrial. It also found that from the evidence developed, particularly Tessier’s caseload, that there was a rebuttable presumption that Tessier’s clients were not being adequately represented. The court then called upon the legislature to institute reform, with the warning that if the legislature did not, the court “may find it necessary to employ the more intrusive and specific measures it has thus far avoided to ensure that indigent defendants receive reasonably effective assistance of counsel.” Id, 621 So.2d at 791.
The Chief Justice of our state supreme court and the author of the Peart decision is Pascal Calogero. He is a good man, with a good heart, and he too understands the needs of indigent defense. He is also a longtime friend and law school classmate of Sam Dalton, whom many of you may know. Sam is just starting his 50th year as a lawyer and he is both a lion and a legend in our community on behalf of indigents and indigent defenders. Sam was also involved with the strategy and development of the Peart case and filed an amicus brief on behalf of other public defenders. After the Peart decision came down, and largely through Justice Calogero’s efforts, the state supreme court established a statewide indigent defender board... Justice Calogero then went to the legislature himself and put his prestige and the prestige of the state supreme court on the line to acquire $5 million in funding for this Board. That funding is now up to about $8 million. Among other missions, the statewide board has a capital litigation program, an expert witness fund, a direct assistance program and an appellate program. This program has been in operation now for several years. It has not cured all the problems by any means, primarily because even $8 million is nowhere near enough funding, but it has been of substantial assistance to numerous defendants and indigent defenders. I know Justice Calogero believed it was a worthwhile cause, but frankly I think it was his respect, affection and his 50 year friendship with Sam Dalton that made it an even more compelling priority.
As an aside, LSU Law School offers an upper class seminar on punishment and post conviction procedures, which includes about five weeks devoted to wrongful convictions and the reforms suggested by the Innocence Project. Chief Justice Calogero and Sam Dalton come together to present the class on ineffective assistance of counsel. That will be next Thursday. You can imagine the impression that makes on the students when the Chief Justice of the state’s highest court and the lion of public defense work come together in joint concern over indigent defense.
And by the way, around the same time as Peart case ten years ago, a criminal defense lawyer named Al Gray in Lake Charles led a successful fight to get funding for assigned counsel from the private bar. That lawyer is now Judge Al Gray in Lake Charles and recently granted a Peart motion to reduce the caseloads from 800+ to 150 for the public defender in his section of court.
Not all judges, of course, are Calvin Johnsons, Pascal Calogeros or Al Grays. Those that are not need to be educated, challenged and as mentioned before, shamed, if necessary, to win their involvement. I’m now 55 years old which means I grew up during the 1960''s. One of the popular expressions then was “If you’re not part of the solution, you’re part of the problem.” That certainly is true of judges and indigent defense. We have all heard about the capital case where the lawyer slept through part of the trial; where the lawyer was drunk; or just simply utterly inept. As Sam Dalton would say - yes, that’s terrible, but what the hell was the trial judge doing when all that was going on? That should have been stopped then and there.
How to reach those judges? There are the obvious idealistic arguments. We’ve touched on some of those already... our foundation as a nation on the concept of liberty. Our adversary system which requires, as Justice Black said in Gideon, the right to counsel as a fundamental right and essential to a fair trial.... the unique role of the judge as the protector of “justice” in the individual case as well as in general. In addition, a strong indigent defense system protects against police and prosecutorial abuse, which too often falls upon the poor and minorities. To the extent those abuses are eliminated, those people will have greater confidence in the criminal justice system.
But if the idealistic arguments will not convince the judges, there are also the practical arguments that can appeal to a judge.
--A competent resourced lawyer knows how to conduct a pretrial investigation and will find the flaws in a prosecutor’s case. Such a lawyer can go to the prosecutor and persuade him to drop the charges or defer his client into a diversionary program. The judge never even sees the case.
--A competent resourced lawyer can evaluate a case of guilt more efficiently and accurately and move it promptly to a guilty plea if that is what is appropriate.
--A competent resourced lawyer will be better prepared for trial and will focus on the real issues and not waste time with a scattershot across the board in hopes of hitting a defense. Likewise, such a lawyer will not raise spurious objections or delay the trial because of lack of preparation.
–A competent resourced lawyer will have the skill to ferret out lies, mistakes or gaps at trial, to avoid conviction of the innocent and assure that people are convicted only when the legitimate proof is beyond a reasonable doubt;
–A competent resourced lawyer will assist the court in sentencing a defendant, suggesting programs and alternatives that hopefully steer the defendant away from further crime. This includes the homeless and mentally ill defendants who can be diverted to social service programs rather than jails and prisons.
--A well defended case is less likely to result in a mistrial or return on appeal for a new trial. Judges don’t like to be reversed but the word they dislike even more is “remanded.”
–Finally, when indigent defenders are overwhelmed and underpaid, apart from being unable to do any of the above, the burnout and turnover will be high. The cases will have to be re-assigned to new lawyers and relearned; the already limited attorney and staff time will be taken up with recruitment and training; cases will have to be continued...and the chances of mistrial and reversal loom larger.
Thus the over all argument to a judge is that money and effort spent at the front end - for competent representation - saves money and effort in the long run with expeditious pleas, shorter and cleaner trials and a reduction in retrials. How can a judge not love and support that?
–Judges should also be reminded and humbled by the DNA exonerations. Those exonerations have been a huge and highly public black eye for our criminal justice system. But it’s also an equally huge opportunity. It has shown us where we have gone wrong and given us the opportunity to fix it. The indigent defenders can fix a lot of it...if they are given the tools.
The NACDL and similar organizations, like the ACLU, are crucial in convincing judges to come on board, either as part of a lobbying effort to their legislatures or in supporting systemic litigation.
What about you as individual criminal defense lawyers, particularly those of you who not devote substantial time to indigent defense. What can you do?
For starters, attend this afternoon’s hearings sponsored by the A.B.A. to hear what the current realities are about indigent defense.
When you return to your home communities, find out what’s going on with your indigent defender systems. Go to the NACDL website and print out the “No Exceptions” standards. Take these standards to your local program and find out if they’re living up to them. If not, why not. Take the problems to the local judiciary. You will find allies there, judges who do in fact understand and want to help. You will also find judges who don’t and who tend to treat indigent defenders as second class lawyers. But when you come into that courtroom on their behalf, you will get their attention.
Educate and lobby the civil bar and the local bar associations. We have a Louisiana Bar Association Committee whose sole purpose is to solicit the larger civil law firms to take on post conviction death cases coming out of the state courts. When one of these uptown firms takes a post conviction death case, they are appalled at how poorly these cases were defended at trial. As one maritime lawyer commented to me, even a cargo claim over soggy bags of coffee beans gets a better defense than a person capitally charged in Louisiana. These lawyers spread the word. A few years ago the House of Delegates of our state bar association, which is heavily a civil bar, voted overwhelmingly for a moratorium on executions until competent counsel is provided to death row inmate post conviction. That was largely through the efforts of one delegate - a criminal defense lawyer from Lake Charles, Tom Lorenzi - but the fundamental right to capable counsel would be a no brainer for these competent civil litigators.
Make the same pitch to prosecutors. The tendency is to think of prosecutors as the enemy, but a good prosecutor wants the system to work and wants to believe their work achieves justice. Plus, every one of those practical reasons why judges should come on board apply equally to prosecutors. It may come as a surprise to some of you that when Gideon v. Wainwright was argued at the Supreme Court, there were twenty-two state attorneys general who filed amicus briefs urging the court to require the states to provide counsel for indigents. Georgia was one of them.
Under President Clinton, Attorney General Janet Reno convened several National Symposiums on Indigent Defense, calling upon judges, prosecutors and legislators to get on board and putting the prestige of the U.S. Department of Justice behind the effort. The April 1999, issue of The Champion features an article by Reno entitled the “Six Building Blocks for Indigent Defense.” The proposals are very sympathetic and include her belief that “as the nation’s top law enforcement agency, we have a responsibility to explain that strong systems of indigent defense are good for prosecutors, police, victims, the public, and justice.”
Incidentally, when you go to the Department of Justice website now, you have to dig to find materials on indigent defense. One thing the Indigent Defense Committee might do is invite Attorney General Ashcroft to author an article for The Champion on the current Department of Justice’s initiatives on indigent defense. I suggest that seriously.
The same pitch an be made to the legislators. Many legislators are lawyers too.
Ultimately, education of the public and support from the public are essential. One of the excellent links on the NACDL site is the Brennan Center for Justice at NYU and its “Taking Public Defense to the Streets” project. This project calls upon public defenders to think beyond their role as the attorney on behalf of individual clients but instead get into community-based advocacy... going out and meeting the local leadership and organizations, the ministers, the school principals, parent groups, the people running the homeless shelters, the mental health and social service advocates, to build coalitions for reform. The private criminal defense bar can help immensely with this effort.
The public doesn’t like criminals but it can’t help but be shocked and moved by the tragic stories from the Innocence Project. The play, “The Exonerated” has been a big success in New York and is touring the country... coming to New Orleans next week. The public, I think, is readier than it ever has been to accept some systemic reform. And even the most conservative of commentators supports at least the notion of a right to effective representation.
Speak up. Spread the word. The NACDL website is loaded with information intended to be used for op-ed pieces, letters to the editor, speaking gigs, interviews with the media. The NACDL has done all the homework you need... all you have to do is take it and run with it. Kate Jones in the article I quoted from earlier points out that while people accused of crime don’t appear to have any public constituency, they really do - the constituency is all those who believe in liberty and fairness. Change the language of the dialogue.
For those of you with a successful private practice, I suggest another step, something that comes out of the religious world... tithing. The Bill of Rights, and in particular the right to counsel, is the Bible of the criminal defense bar. Figure out what 10% of your income is this year from your practice.... and next year donate that amount to the NACDL indigent defender program or to your own local indigent defender program. Better yet, figure out how many hours of work it represents and donate that time yourself to representing indigents next year. There’s another religious expression - this one from the Quakers - that says, “When you pray, move your feet.” Move your feet down to the courthouse and take on this representation. One of the things we noticed with the big civil firms coming in to represent death row inmates, they get the attention of the state judges. They don’t get pushed around - they do superb work and are extremely effective. Obviously you can be too.
Stephen Bright, Director of the Southern Center for Human Rights in Atlanta and a former NACDL Board member has said:
Individual lawyers must provide zealous representation to some poor people, even if the government fails in its larger responsibility of providing legal services to everyone. As a result of the efforts of some dedicated lawyers, some innocent people will avoid wrongful conviction; some troubled youths will be diverted to drug, alcohol, mental health, job training and other programs instead of prisons; some will live instead of being put to death by the government, and others will receive professional advice and zealous advocacy through what is to them the strange and foreign land of the criminal justice system.
This year along with being the 40th anniversary of Gideon, the tenth anniversary of Peart, is also the year that Gregory Peck died. Many of us around my age were inspired to become lawyers because of Atticus Finch and “To Kill a Mockingbird.”
The truth is though he lost the case and his client died. Yet the story is inspirational and timeless. Why? Because when Atticus was asked to defend Tom Robinson, an indigent charged with a capital offense, he said yes without hesitation...and he defended Robinson with all his zeal and all his skill and in the face of personal danger and community prejudice... and was prepared to continue to defend him on appeal, even after the guilty verdict.
Everyone in this room has the skill and zeal of Atticus Finch... and there are Tom Robinsons out there who need your help.
NACDL Communications Department
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.