Mark StephensPublic Defender

6th Judicial District

Who Stole Gideon's Trumpet?

THE CONSTITUTIONAL RIGHT TO COUNSEL

Amendment Six -Right to Speedy Trial, Confrontation of Witnesses.

In all criminal prosecutions, the accused shall...have the Assistance of Counsel for his defense.

The United States SupremeCourt says I am entitledto be represented by Counsel.

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CLARENCE GIDEON

In Gideon v. Wainwright, Justice Hugo Black said, “it is an obvious truth that lawyers in

criminal courts are necessities, not luxuries."

In addition, Justice Black stated, "The right of one charged with a crime to counsel may

not be deemed fundamental and essential to fair trials in some countries, but it is in

ours."

Counsel is fundamental and essentialto a fair trail.

According to the Supreme Court's opinion in Gideon v. Wainwright, Clarence Gideon was

supposed to be the last of his kind. The United States Supreme Court had solved the problem of

poor people being tried without legal representation.

Gideon... the last of his kind.

"Nearly 50 years later, [the problem] has not been solved at all… the whole system is pretty awful right now. The Gideon case, the ideals that the court announced, have

just not come close to being met."

- Bruce Jacob, Assistant Attorney General, Florida

The Supreme Court left it to the individual states to determine how and when counsel should be provided and to whom. The Court also left it

up to the States to find the necessary funds wherever they could.

This led to a patchwork of systems across the country in which the availability and quality of counsel varies significantly from state to

state and, in some cases, between county to county in a single state.

Fix left to states

Many states passed on some or all of the financial responsibility to their county governments, which are

typically far more limited in how they can raise money. The result was that the nations poorest counties, which

often had a larger percentage of indigent defendants, were the ones least able to provide counsel.

Tennessee Constitution, Article 1, § 9, Rights of the accused in criminal prosecutions.

“That in all criminal prosecutions, the accused hath the right to be heard by himself and his

counsel...”

The Tennessee constitutional right to counsel has been held to be identical to the provisions

contained in the Sixth Amendment of the United States Constitution, Baxter v. Rose, 1975.

The right to counsel is only guaranteed in criminal cases - there is no absolute right to counsel in a

civil trial.

The right to counsel begins in Tennessee when judicial proceedings are initiated. This occurs

when the arrest warrant is issued, a preliminary hearing is held, or when an indictment or

presentment is made.

There is no right to counsel during investigation and surveillance.

Get tough on crime

In the early 1980's, politicians discovered that the “tough on crime” candidates began to win elections. That reality resulted in:

Legislatures creating new crimes;

Expansion of the number and severity of collateral consequences of those crimes;

Increase in funding for law enforcement and DAs;

Explosion in public defender caseloads.

There was no corresponding increase in funding for the defense function.

"A chief impediment to an effective criminal justice system is the vast number of misdemeanor offenses clogging court dockets

and overcrowding the nation's prisons, including turnstile jumping, fish and game violations, dog leash violations, and a

minor in possession of alcohol.”

– Minor Crimes, Major Waste, NACDL

"All the TV shows give you the impression that not only does everyone get a lawyer when they need one, but that they show up at the police station right on time. They walk right in in the middle of the interrogation, and they're all pretty good."

– John Payton, President, NAACP Legal Defense Fund

Even the most dedicated public defenders lack the resources they need. Public defenders everywhere are forced to juggle hundreds of felony and thousands of misdemeanor cases each year.

National Felony Caseload Standards

National standards recommend that attorneys handle no more than 150 felony cases a year.

Public defenders are often forced to juggle several times that amount.

For example, in Dade County, the average public defender caseload exceeds 500 felonies per lawyer. One trial-level attorney currently has over 900 open felony cases. In 2009, that lawyer plead 200 cases at arraignment... the day he met his client for the first

time.

National Misdemeanor Caseload Standards

National standards recommend no more than 400 misdemeanor cases per attorney per year.

In some states, defenders are handling between 1,500 and 2,000 cases each year - far too many to provide an

adequate defense for any of them.

When Public Defenders have too many cases and too little resources, mistakes are made.

In 1981, Alan Crotzer was convicted of rape, kidnapping and robbery. He was sentenced to 130 years in prison.

Mr. Crotzer didn't match the victim's description, had an alibi for the night of the crime, and didn't know either of

the other two men charged with the crimes.

DNA evidence eventually proved Crotzer was innocent. He was released in 2006, having served 24 years in jail.

"I spent more than half my life in prison. My life was turned upside down. I am not the only one," said

Crotzer, testifying before the House Committee on the Judiciary Sub-committee on Crime, Terrorism and

Homeland Security.

"This system is broke; it failed me from the very beginning. Why? I'm indigent."

* NAC

* NLADA

* ACCD

150 felonies

or

400 misdemeanors

per year

3 Recognized National Caseload Standards

In 1999, the Tennessee Legislature required a weighted caseload study be conducted for purposes of

determining staffing needs. The Spangenberg Group conducted the defense component of that

legislatively-required study.

That caseload study recommended that Tennessee adopt a caseload standard higher than any recognized

national standard.

The Spangenburg Group'sTennessee Recommended Caseload Standards

233 felonies per year(42% more than national standards)

or500 misdemeanors per year

(25% more than national standards)

If a lawyer worked10 hours per day,

6 days a week,52 weeks per year...

under Spangenberg Group recommendations, the

lawyer could commit up to

6 hours permisdemeanor case

and

13 hours per felony case.

In Tennessee, public defenders maintain caseloads that average 150% of recommended levels. The Knox

County Public Defender operates with approximately 70% of the attorney resources called for by national

standards.

Rule 13 Section 1(e)(4)(D):

The Court shall not make an appointment if counsel makes a clear and convincing showing that adding the appointment to counsel's current workload would prevent counsel from rendering effective representation in accordance with constitutional and professional standards.

Challenging PD Caseloads: The Rule 13 Standard

Cases don't come into a PD office one at a time;they flood in. In Knox County, we receive appointments overnight; sometimes over 100 new cases at a time.

Rule 13 contemplates a clear and convincing showing that counsel could not be effective in each new appointment.

Lawyer must show “prospective ineffectiveness.”

These difficult financial times have adversely effected local governments as well as state government.

“Locals” are looking for ways to hold down costs and generate revenue.

Beyond caseloads... We have a Systems Failure.

KNOX COUNTY SYSTEMS BLUEPRINT

SYSTEM GOAL

Make sure a defendant meets with an assistant district

attorney general before the defendant meets with a

defense lawyer.

TO FURTHER THE SYSTEM GOAL

Don't give incarcerated defendants access to a phone for a day or two (or ten).

Initial appearance should occur in open court; preferably, a docket defense lawyers don't cover.

KNOX COUNTY GENERAL SESSIONS COURTFelony Division – Monday, January 25, 2010

334 cases were set on the docket.

Court started 45 minutes late and was finished before 4:00 PM.

Having spent 7 hours on the bench, the Judge was able to spend about 1.5 minutes on each case.

In Michigan, the situation has grown so bad that local lawyers refer to processing of misdemeanor cases as

"McJustice."

Studies have found that defendants charged with misdemeanors are the most likely to go to jail without

ever talking to a lawyer.

Their first court appearance is likely to be their last, primarily because most are actively encouraged to

plead guilty.

In Colorado, defendants charged with misdemeanors are required to attempt to negotiate a plea with prosecutors before they can receive a public

defender.

Crushing caseloads force many poor defendants who did not want to plead guilty to spend weeks or months in

jail waiting for their lawyer. Many eventually plead guilty just to get out of jail.

Walter Mansenior spent more than a year in a Texas jail without ever seeing a lawyer because his court date

was repeatedly postponed.

Many lawyers take appointments, but don't meet with their clients, don't even have an office, or a secretary to

answer their phone... if they have a phone. Many lawyers representing the poor fail to conduct any investigation

and seem to lack interest... or skill... in criminal law.

Judges continue to appoint bad lawyers.

Judges have allowed trials to proceed and death sentences to be imposed even when the defense counsel was clearly

intoxicated or slept through parts of the trial.

As of 2008, 1 in every 100 adults in America were in jail or in prison, saddling cash-strapped states with soaring

costs and failing to demonstrably impact either recidivism or overall crime.

– Pew Charitable Trust's Safety Performance Project

Several groups that have examined indigent representation nationwide - including the American Bar

Association - argue that while indigent defense is a state responsibility, it is also a constitutionally and federally mandated expense that the federal government should

help shoulder.

Congress spent only $39.1 million this year on indigent defense.

By contrast, Congress spent nearly $400 million funding Legal Services Corporation, which provides counsel to

low income litigants involved in civil cases – even though there is no constitutionally mandated right to

counsel in those cases.

While the federal government provided next to nothing to defend indigents, it has spent tens of billions of tax

dollars over the last two decades to law enforcement and prosecutors.

"By giving money to law enforcement without corresponding support to public defense, they're

actually exacerbating the problem. They are creating a real imbalance of the system which, ultimately, doesn't

support the fair administration of justice."

– Joann Wallace, President and CEO, NLADA

In 2007, Tennessee spent $140 million on the prosecution function, but only $56 million on defense.

“It will be an enormous task to bring to life the dream of Gideon v. Wainwright, the dream of a vast, diverse

country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing

him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an

adequate defense.”

- Anthony Lewis, author of Gideon's Trumpet