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"Court-Appointed Attorneys Do Little Work, Records Show"

"Court-Appointed Attorneys Do Little Work, Records Show"

Here we go again, this time from the Detroit Free Press:

Court-appointed attorneys rarely put up much of a fight for their clients, a State Journal review of 2015 invoices for felony cases in Ingham, Eaton and Clinton counties showed. Less than 2% of criminal cases with indigent defendants went to trial, meaning defendants took plea deals in almost every case.

The records also indicate attorneys sometimes reached out to prosecutors to begin plea-deal negotiations before even meeting with their clients.

Preliminary hearings, which are supposed to determine if prosecutors have enough evidence to proceed, were waived in three-quarters of criminal cases. Motions challenging the prosecution were filed in only about 8% of cases and the counties paid for outside experts and private investigators in only 2% of cases. Several attorneys told the State Journal they don't often ask for experts because they know they'll be denied or won't get enough money to fully pay for an expert even if the request is approved.

Even when charges include a penalty of life in prison, only about 12% of cases went to trial and prelims were waived in 42% of cases, the records show. 

The problem isn't the lawyers.  The problem is the perverse incentives created by a system where the government is forced to fund lawyers to work against the government.  The system works best for everyone else (judges, prosecutors, police, etc) when those lawyers don't work very hard and don't get paid well for the work they do.

An attorney that does NOT waive preliminary hearings would probably not be appointed any more cases.  An appointed attorney who does more work than other appointed attorneys would do on the same case will see his billing invoice scrutinized and reduced.  In other words, he will be punished for working too hard.  Think about that:  The more work an appointed attorney does on a case, the less likely it is that he will be paid for his time on that case, and the less likely he will be appointed to any more cases.  

Instead of rewarding the attorneys who do the most work, the appointed attorney system ends up rewarding the attorneys who close cases most efficiently.  

“I think that it’s a broken system," area defense attorney Jamie White said. "It's not only broken in our community and our state, but it's broken across the nation.” White said he rarely does court-appointed work, but his law firm is often hired by defendants who previously had public defenders.

Stories like these usually end with someone calling for more funding for indigent defense, but the government is never going to adequately fund the lawyers who are working against it.  The only reason the government funds indigent defense at all is because the Supreme Court has said it must:  

U.S. Supreme Court decisions in the 1960s guaranteed more rights to criminal defendants, such as the right to an attorney and protections from unlawful search and seizure. That made cases more complicated just as lawmakers across the country got tough on crime and funneled more defendants into the criminal justice system by cracking down on drugs and other offenses and boosting police budgets.

One would think that it would be more difficult for the government to incarcerate someone after the advent of the right to a public defender in 1963, but just the opposite has happened:   



Some of the problem may be the abuse of the indigent defense system.  In many counties, there is little or no screening of who qualifies for a public defender.  As such, the public defender ends up saddled with defending people who should and could hire their own attorneys.  That leaves even less time and resources to spend on the truly indigent defendants.  Unfortunately, there's little political will to reduce the public defender workload with better screening, because the government likes to keep public defenders overworked and underpaid.  

Most counties in Georgia use a full-time Public Defender, including Fulton and Dekalb Counties.  A few of the more populous counties outside of Atlanta use an appointed attorney system, such as Cobb, Gwinnett, Cherokee and Forsyth.  Wherever a person is arrested in Georgia, there is some sort of indigent defense system in place.  But defendants who can afford to hire their own lawyers should probably do so.  Lawyers are more affordable than people think.  





AG Holder Says Public Defenders Rendered "Less Effective" by Shortages

Gideon Has Failed, Says NPR

Fifty Years Later, And It Still Doesn't Work

Fifty Years After Gideon v. Wainwright . . .

Despite the "True Believers," The Public Defender System is Broken

Indigent Defense Horror Stories

Most Would Not Trust A Public Defender

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Do School Bus Cameras Work?

Do School Bus Cameras Work?

CBS asks whether the school bus violation cameras work.  

Read the article and judge for yourself.  But whether they "work" depends on what they are meant to accomplish.    If their purpose is to generate money for a private company and local government by scaring drivers and denying them due process, then the cameras are a huge success.  If their purpose is to make children safer, then there's not much evidence that they do.


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Gwinnett School Bus Camera Tickets Net $1.1 Million

School bus cameras: Sensible idea, but a money-grab | Editorial | NJ.com

 Huge Increase in Bus Passings Spark Meetings in Cobb

Cobb Violations Increase by 31% After Installation of School Bus Cameras




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Prohibition is Power

Prohibition is Power

My criminal justice clients sometimes ask my opinion on why the government likes to prohibit and regulate things that don't seem to do much social harm.  The most common example is marijuana, but there are all sorts of government regulations that don't seem to serve much of a purpose.  

But ALL government regulations serve the same purpose of giving the government more power.  Here's a quote from Ayn Rand's "Atlas Shrugged" (1957) where Dr. Ferris is explaining to Hank Reardon why the government wants to regulate his business and others as much as possible:  

“Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with.” 
― Ayn Rand, Atlas Shrugged 
Prohibition doesn't need a reason.  Prohibition IS the reason. Criminalizing marijuana provides police with a reason to stop, frisk and arrest people.  It's no different than making about everything you do on the road a traffic violation of some kind so that the police have an excuse to pull you over anytime they want.  Police really don't care if one of your three tag lights aren't working.  They just want to use that as an excuse to pull you over and interrogate you for something else (DUI, drugs, etc..).  It's a facade, and everyone knows it.
For the client, here's what that means:  If you think you're going to go to court and say, "But Judge, it's no big deal.  Why does the government care about these things?" and have your case dismissed, you're wrong.  Government writes and selectively enforces laws for reasons that the average person on the street never understands.
NEVER go to court without a lawyer.
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Go to Trial, Crash the System

Go to Trial, Crash the System


I found this piece recently, discussing the prospect of what would happen if everyone accused of a crime demanded a trial:

[I]n this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these [trial] rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The author ponders what would happen if people accused of crimes all (or mostly all) refused plea bargains:

Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

The idea is similar to the James Mills book "One Just Man" where an idealistic attorney convinces New York prisoners to refuse all plea bargains.  The result brings New York City to its knees.

In theory, I think at least the math is correct:  In Gwinnett County, GA, for example, the DA's Office where I used to work indicts about 5000 cases per year.  (I'm rounding off to make the math easy).  There are 10 judges to hear these cases, meaning each judge gets 500 new feloniy cases per year.  In order to give every accused defendant a trial, a judge would need to dispose of 10 felony jury trials per week.  Rarely can a judge close even two felony trials in a single week.  Most felony trials take most of the week.  That means a judge might be able to try 50 or 60 of his 500 felony cases per year, if he ignored every other type of work (divorce, child custody, contract disputes, personal injury cases, real estate disputes, etc.)  The 90+% of cases that didn't get tried would remain on this docket while new felony cases keep coming in. 

In reality, it isn't as simple as it looks.  "Cases" means "people."  So for the 90% or more of cases that don't get tried, that represents people whose cases are still pending.  They may be in jail without bail (or with a bail they can't make), or they may be free on bond with a felony case hanging over their head.  Either way, they might want to 'get it over with" by pleading guilty rather than awaiting their turn for a trial.

Who really wins and loses?  If a person awaiting trial on Aggravated Assault facing 20 years in prison negotiates a plea of guilty with 5 years of probation, is that person really a victim of an overburdened system?  Or is that person using an overburdened system to his advantage?  Perhaps the DA wanted prison time, but is forced to negotiate plea deals to probation.  So who is really "forced" in this situation?  Is it the priosecutor?  Is it the defense?  And who is doing the forcing?

We have the justice system we are willing to pay for.  In my example of Gwinnett County, the voters seem content with a justice system that can have trials for about 5% of the felony cases.  The remaining 95% must be negotiated.   That's about normal.  If the voters want more cases to be tried rather than negotiated, they can spend more tax dollars for more judges, prosecutors, jails, jailers, courtrooms, etc.    Whether that works in favor of the defense or the prosecution is really a matter of perspective and each particular case.  Each side wants more resources when it would benefit their iside.  Each side is happy to use the lack of resources to apply pressure to the other side when it benefits them to do so. 

Finally, the hypothetical idea of a prisoner's "strike" against plea bargains faces what is known as the "prisoner's dilemma." I.e., each prisoner will do what is best for them, rather than prisoners as a whole.  (This is why multi-defendant cases often have defendants who cut deals to become witnesses for the State.  "The first to squeal gets the deal.")   So while a widespread prisoner "strike" would crash the system, it's not anymore likely to happen now than when James Mills wrote "One Just Man" almost 40 years ago. 

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Ochocino Gets Thirty Days for a Butt Slap

Ochocino Gets Thirty Days for a Butt Slap

Former NFL start Chad "Ochocinco" Johnson accidentally earned himself 30 days of incarceration when he raised the ire of a Broward County judge by congratulating his attorney with a pat on the butt:

Johnson on Monday accepted a plea deal for violation of probation. The charge stemmed from his domestic battery conviction last year.

The plea deal he accepted extended his probation until Dec. 21.

"You better thank your lawyer. He did a great job for you," Broward Circuit Court Judge Kathleen McHugh told Johnson after he accepted the plea deal.

Johnson then slapped his attorney, Adam Swickle, on the butt. The courtroom erupted in laughter, but McHugh said she didn't think Johnson was taking his case seriously and rejected the plea deal.

The case was recalled, and after Johnson pleaded guilty to violation of probation, McHugh sentenced him. His probation was also extended to Dec. 21 and he must perform 25 hours of community service, two of the same terms included in the plea deal she rejected.

During his probation, Johnson must attend counseling twice a week.

Johnson apologized several times to McHugh, saying he didn't intend to disrespect her or the court.

Johnson worked in a sport where men routinely slap each other on the butt as a sign of congratulations.  Johnson's lawyer was a man.  He didn't seem offended.  Nevertheless, the judge was.  And that's all that matters.   

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CopBlock.org Founder Adam Mueller Appeals Convictions

CopBlock.org co-founder Adam Mueller was convicted of felony wiretapping in connection with recorded calls to school and police officials about the arrest of a student at Manchester High School West in New Hampshire.  He has appealed to the New Hampshire Supreme Court

This shouldn't even be a crime.  His biggest problem, though, was that he made the horrible mistake of representing himself: 

Ten days after his August trial, he mailed a motion to the court, seeking to have the verdict set aside or reversed, the charges dismissed with prejudice, the conviction vacated and his release ordered, or, alternatively, a new trial ordered and the remaining sentence stayed. He argued he had been confined in jail, without access to legal materials, and that is why he hadn't filed the motion sooner.

The prosecution objected to the motion and the judge denied it, saying it was not filed within the required seven days and that Mueller himself had requested immediate sentencing after the verdict was returned, and Mueller is an "experienced pro se litigator and knows the rules."

The fact that he has been in court before doesn't mean he "knows the rules" or that he's a lawyer.  Rather, this is a good example of how just because someone represents themselves, it doesn't mean that the court will bend the rules to accomodate them.  He seems like a smart guy and smart guys often convince themselves that they can sit through a Law & Order marathon and then go try their own case to a jury.  That's not how it works. 

Representing yourself is always a bad idea. Worse, this guy may have had a Constitutional claim that he failed to raise and is now likely prohibited from raising. (See my Washington University Law Review article on the subject of recording the police with Professor Glenn Reynolds of Instapundit.com)


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Mandatory Sentences Face Growing Skepticism

Mandatory Sentences Face Growing Skepticism

Two decades ago when the current "tough on crime" wave was really getting going, people believed that tougher sentences would send a powerful message and result in FEWER people ending up in jail. These tough sentences would apply to non-violent crime as well, the theory being that the non-violent drug users will graduate up to being violent drug dealers and we save lives and money by locking them up before that happens.  It SOUNDS catchy, but that's just not how life works

“Even though you have been involved in drugs and drug dealing,” Judge Vinson told Ms. George, “your role has basically been as a girlfriend and bag holder and money holder but not actively involved in the drug dealing, so certainly in my judgment it does not warrant a life sentence.”

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Top Ten Ways to Damage Your Criminal Case

Top Ten Ways to Damage Your Criminal Case

Being accused of a crime is bad enough, but some people still manage to make their bad situation even worse.  Based on my seventeen years in this profession, here are the top ten ways I see people damage their criminal cases:

1. Skip bail.  If you fail to show for court, you're going to lose whatever respect the judge may have for you as well as give the proseuctor an argument for why you aren't a good candidate for probation.  The judge will issue a warrant for your arrest which will pop up at the worst possible time, like when you are standing at the airport trying to leave for vacation or when you get stopped for speeding on the way to your daughter's wedding.

2. Move, but don't tell anyone.  If I can't find you then your bail bonding company probably can't find you and the court can't find you, so now it looks like you've skipped bail, because you won't get court notices in the mail and you won't get letters from your attorney.  See #1.  Just because you may have told the Post Office your new address doesn't mean the Judge has it.  It is not the job of the court system to hunt you down. It is your job to keep them informed of your whereabouts.  If you don't want to do that, at least tell your lawyer and bail bondsman.

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Why Police Lie In Court

Why Police Lie In Court

In an interesting article in the New York Times, writer Michelle Alexander lays out examples of police lying under oath and to prosecutors about the circumstances (and legality) of arrests, even for small offenses.  What starts out sounding like another tired story about race and class offers up a much more compelling reason why police may not always tell the truth:  Money.

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The Goat and the Garden

Something that all lawyers have learned by the end of law school that most non-lawyers (called "laymen") never learn is that law isn't math.  Law usually isn't a clear "If A, then B" scenario. 

Consider this example:

A person asks:  "If I drink and drive, will I go to jail?"

The layman expects a "yes" or "no" answer.  The lawyer answers like this:

"If you drink and drive, that doesn't mean you are driving drunk, so you may not be committing a crime.  Even if you are DUI, that doesn't mean you will get caught being DUI.  Even if you get caught, that doesn't mean the officer will arrest you.  Even if the officer arrests you, that doesn't mean he can prove you guilty.  Even if you plea guilty, that doesn't mean you will go to jail.  So if you drink and drive you CAN go to jail, but maybe no." 

So what the layman sees as a straight line between question and answer, the lawyer sees a multitude of other questions and answers in between.  When a layman asks, "Will a jury find me guilty next year of this crime I just got arrested for?" the lawyer has no idea how to answer.  The person might as well have asked "Who will win the Superbowl in 2032, and by how much?"

Another example I love is the Goat and the Garden:

A layman awakes one day to find his garden has been eaten.  He knows that his neighbor has a goat, and suspects that the goat ate the garden.  He confronts his neighbor, a lawyer, and accuses the lawyer's goat of eating the garden.  The lawyer replies: 

  1. You don't have a garden.
  2. Maybe you have a garden, but I don't have a goat.
  3. Maybe you have a garden, I have a goat, but your garden wasn't eaten.
  4. Maybe you have a garden, I have a goat, your garden was eaten, but my goat has an alibi.
  5. Maybe you have a garden, I have a goat, your garden was eaten, and my goat was there, but another goat ate it.
  6. Maybe you have a garden, I have a goat, my goat ate your garden, but you can't prove it.
  7. Maybe my goat ate your garden, but only because he is legally insane.
  8. Maybe my goat ate your garden in self-defense.

The lesson of this story?  Lawyers think step-by-step.  Laymen think only beginning and end.

The problem with people seeing complicated issues as simple is that it gives them false sense of confidence that they can represent themselves and do just as well. In my career, I have seen many accused people make the horrible mistake of representing themselves.  They tend to be people who THINK they are smarter than everyone else and don't see the complexity involved in a legal case.  They find themselves in way over their heads, but by the time they realize and admit that they are in over their heads, it is too late.  Trials are not trial-and-error. You get ONE trial and you had better make it a good one, because your freedom is on the line.
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Fifty Years After Gideon v. Wainwright . . .

Fifty Years After Gideon v. Wainwright . . .

March 18, 2013, is the 50th anniversary of the famous Gideon v. Wainright case in which the Supreme Court ruled that the U.S. Constitution entitled criminally accused individuals to the assistance of an attorney.  It is the case that required the creation of indigent defense systems to cover every criminal courtroom in the United States.  But like many idealistic ideas that came out of the 1960's, reality has proven much less idealistic than imagined. 

Jacqueline Dixon, President of the Tennessee Bar Association, writes this month that the indigent defense systems created by Gideon are woefully underfunded:

I have heard U. S. Attorney General Eric Holder speak, and, as he has on numerous occasions, he emphasized the need to reform the indigent defense system if the country is to uphold its promise of “equal justice for all.” When he received the Brennan Legacy Award in November 2009 and spoke at the Brennan Legacy Awards Dinner, he specifically mentioned Tennessee in his speech when he focused on the necessity of reforms for indigent defense and the current state of public defender networks in this country. He noted that in our state, a county public defender’s office had six attorneys handle more than 10,000 misdemeanor cases in 2006, which meant lawyers could spend an average of just under an hour per case. General Holder then commented that “high caseloads leave even those lawyers with the best of intentions little time to investigate, file appropriate motions, and do the basic things we assume lawyers do.”

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Despite the "True Believers," The Public Defender System is Broken

Despite the "True Believers," The Public Defender System is Broken

Here is a Hall County Public Defender who is a member of Gideon's Promise featured in New York Time's "True Believer" series. 

Note that the 5,000,000 cases handed to 15,000 public defenders each year averages out to 333 new cases per public defender per year, or about sever new cases per week.  In a typical 40-hour work week, that means each new case would get a total of about 5 hours of attention on average.  I spend twice that much time on minor cases. 

It is clear that the public defender system is broken.  It is horribly under-funded, under-staffed, and over-worked.  Defendants - many who should not qualify for public defenders at all - grasp at the opportunity for a "free lawyer" and overrun the system.  It is analogous to a bunch of people all trying to get in the same lifeboat until it finally tips over.   Perhaps the system will be fixed one day.  Until then, if you want your case to get the attention it deserves; if you want to have an attorney willing to walk the road beside you; then you need to hire a private attorney. 

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Hundreds of Federal Prisoners Could Be Freed

From USA Today

WASHINGTON — A U.S. Justice Department review has identified at least 175 federal prisoners who must be released or resentenced because they have been locked up improperly.

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Making Us Safer, One iPad at a Time

Making Us Safer, One iPad at a Time

New York Law School student Steven Cohen wrote an article in The New York Times last weekend about how digitizing some aspects of the legal process could streamline cases and enhance efficiency. My favorite part was the opening: 

“I LIKE my cases to age as long as possible, like a fine wine.”   

The Legal Aid lawyer was articulating a basic principle of criminal defense practice: delay helps the accused. People forget, they get scared, they move, and things get lost.

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Innocent Woman Spends 53 Days in Jail (AJC)

<a href="http://www.ajc.com/news/innocent-woman-spends-53-1471121.html">http://www.ajc.com/news/innocent-woman-spends-53-1471121.html</a>

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