Fifty years ago, the Supreme Court famously declared in Gideon v. Wainwright that the government was required to supply counsel to defendants who cannot afford it. The noble ideals of the Bill of Rights, Justice Hugo Black wrote in that case, "cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him." Unfortunately, as journalist Karen Houppert demonstrates in exhaustive detail in her terrific new book, Chasing Gideon, in practice the requirements of Gideon have often been flouted by governments. This week provides two excellent examples of the way in which the dysfunctions of American government have translated into inadequate legal representation for those accused of crimes.
First of all, the sequester that resulted from Republican hostage-taking in 2011 is undermining both public safety and the rights of defendants. Because of the sequester, people working in the federal public defender's office in Boston will face furloughs—Dzhokhar Tsarnaev's lawyers could be forced to "take up to 15 days of unpaid leave before the end of the fiscal year on September 30." Even worse, the sequester will not have the same effect on the U.S. Attorney's Office, which handles prosecutions, further diminishing the important check on government power provided by the Sixth Amendment. In cases less high-profile than Tsarnaev's, the sequester may mean defendants receiving inadequate representation and could possibly require some defendants to be released (or have their convictions overturned).
Yesterday, the Supreme Court issued a ruling in a case presenting an egregious failure of the state to provide adequate counsel. Jonathan Boyer had to wait in jail for more than seven years before his case went to trial. The Louisiana Court of Appeals found that most of this delay was caused by a "funding crisis" that prevented the state from making available two lawyers qualified to try a capital case to Boyer, as state law required. The Louisiana court, however, found that the state's failure to provide counsel shouldn't be counted against it in determining whether or not it violated Boyer's Sixth Amendment right to a "speedy and public trial."
The Supreme Court on Monday held that Boyer's appeal was "dismissed as improvidently granted," which basically means the Court ruled that it shouldn’t have taken the case in the first place; the decision lets the lower-court ruling stand. Dissenting from the Court's order, Justice Sotomayor, speaking for the Court's four Democratic appointees, argued that the Court should have deferred to the Louisiana court's finding that lack of funding explained a majority of the more than seven-year delay, which would presumptively violate the Sixth Amendment if it was the state's responsibility. Given this assumption, Sotomayor argues, "our precedents provide a clear answer: Such a delay should weigh against the State. It is important for States to understand that they have an obligation to protect a defendant’s constitutional right to a speedy trial." While not saying that Boyer's Sixth Amendment rights were clearly violated, the dissenters argued that at a minimum the state could not evade responsibility for the delays caused by a lack of counsel by arguing that funding issues are beyond the control of the prosecutor's office and that the case should be sent back to the state courts so that they could evaluate the Sixth Amendment claim using the proper standard.
While the two swing votes in the case—Chief Justice Roberts and Justice Anthony Kennedy—declined to explain their reasoning, Justice Alito argued that the appeal should be dismissed because it was based on a false premise. Alito—providing a classic demonstration of the important principle that nobody actually cares about federalism—refused to defer to the findings of the state court. Based on his reading of the record, he argued that the delay wasn't caused by the funding crisis per se but by the motions filed by the defense related to the lack of funding. This argument is unpersuasive, but it is important to note that the concurrence did not deny that a failure to provide counsel would count against the state for speedy-trial purposes if it were its responsibility.
Whether one agrees with the appeal being dismissed or not, however, there's no question that Louisiana's public-defender system was a disaster at the time of Boyer's arrest. Whether the state reforms passed in 2007 will prove to have improved the system is very much an open question. And the problems revealed by this case are pervasive. Public defenders are generally underfunded and understaffed, which leads to extensive trial delays, the violation of individual rights, and convicting innocent people of crimes up to and including the death penalty. The sequester's ill effects on public defenders are just the latest example of American politicians who simply aren't committed to effectively implementing the right to counsel guaranteed by the Constitution.
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