Getting around Gideon

Those of us working in the criminal justice system know of the trend for increasing fees, fines, court costs, supervision reimbursement, paying for probation/house arrest. Every politician can see the benefit of sticking it to criminals. However, the Times notes some problems:

The sums raised by these ever-mounting fees are intended to help offset some of the enormous costs of operating the criminal justice system. But even relatively small fees — $40 per session, say, for a court-ordered anger management class or $15 for a drug test — can have devastating consequences for people who emerge from prison with no money, credit or prospects, and who live in fear of being sent back for failing to pay.

The private companies that run probation threaten my clients repeatedly. I have to warn them that they are not supposed to go to jail simply not for paying. I mean, they will go to jail, but we have a defense if the only violation is not paying court costs. But what happens when the probation officer, whose entire office is paid by these fees, is successful at scaring the probationer so much? The probationer stupidly misses a meeting, then ends up going to jail when they get picked up for months and months. Cost to the taxpayer? Thousands upon thousands of dollars each time it happens. I mean, I am very sure to tell all my clients, emphatically, but I handle just a small percent of all probationers. Unfortunately, some of them don't understand the game, or they are not educated enough to understand even when I have told them.

Besides this insanity, it is clear that many of the fees are simply efforts to circumvent Gideon and its guarantee of free legal counsel.

Judge James R. Thurman of the Magistrate Court in Lee County, Ga., said his state's many fees, known there as add-ons, were a backdoor way to make poor people pay for the free lawyers guaranteed to them by the United States Supreme Court's decision in Gideon v. Wainwright in 1963.

"You're asking the people who can't afford to hire an attorney to pay anyway by making them pay through add-on fees," Judge Thurman said.

I mean, the Times outlines in that article how a man in Louisiana has been billed $127K for his fourth and final trial (the earlier murder convictions of 1961, 1964 and 1970 were all reversed), where he was finally convicted of a lesser and released after serving 44 years on a crime with a
21 year maximum. I don't know if you can put a price on 23 years extra in prison, Angola nonetheless. It is idiotic for Judge David A. Ritchie to rule that Mr. Rideau "was responsible for all of the charges billed by the prosecution" for his fourth trial.

Judge Ritchie apparently uses the but for cause from tort law, forgetting the more important proximate cause test. After all, even if the trials would not have occurred but for Wilbert Rideau's killing a bank teller, the proximate cause of his four trials? How about because the justice system was inept! It seems he spent 23 extra years, wasting both the state's money and his life, because he likely had inept trial counsel. After all, Louisiana's public defender system has long been inept.

Judge Ritchie should be familiar with the facts of this case. I mean, was it Mr. Rideau's fault that in his first trial he only had two appointed civil attorneys with no prior experience with a criminal case. Although they only had six weeks to prepare, among other errors at trial:

The judge refused to disqualify persons who were friends or relatives of the victim or the witnesses. He refused to disqualify a man who had only months before printed campaign literature for the prosecutor. The defense quickly used up its allotted challenges. As a result, the jury included two Calcasieu Parish sheriff's deputies, a relative of the victim, a vice president of the largest bank in the area (who had known the wounded bank manager-a key witness for the state-for twenty-five years), and three persons who admitted they saw Ham Reid "interviewing" Wilbert on television.

The second trial occurred in Baton Rougue, within the range of the television station that had broadcast Rideau's coerced confession, despite the U.S. Supreme Court's ruling that no trial could occur within such an area!.

What happened in the 1970 trial was a travesty, basically just another judicially sanctioned lynching of a black man without adequte legal counsel:

The attorney in charge of Rideau's 1970 defense readily acknowledged as much to Judge Ritchie. Baton Rouge attorney James Wood had only been out of Louisiana State University Law School for two years when he was summoned by the judge in charge of the 1970 trial to handle the defense. When he complained that he did not have the minimum five years legal experience required to represent a capital case, Wood testified recently, the judge told him not to worry because he was appointing as co-counsel a maritime law attorney to meet the criteria. But the understanding was that it was Wood's case. He was provided no compensation for himself and no money for investigation; he was given no resources at all. He defended Rideau out of his own pocket.

These three prior trials clearly involve racial prejudice. The only thing missing were the hoods. though one prosecutor in the second trial admitted his membership in the Citizens Council, the genteel counterpart to the Klu Klux Klan. Given Judge Ritchie's desire to allow transcripts from the 1970 trial to be read at trial, deciding that Rideau's (ineffective!) counsel already had an opportunity for cross, this suggests that the judge is either unaware of the history or none too concerned about the rights of citizens or the rule of law.

Regardless of Judge Ritchie's justification based upon this but for cause rather than proximate cause for costs, the citizens should not tolerate such a blatantly unjust ruling. Rideau played no role in making there be four trials, three of them unfair, or that he spent an extra 23 years in prison. Because Rideau lost so much of his life, if anything, the costs should be a wash and this most rehabilitated prisoner should be allowed to try and make a life outside of Angola.

When Prosecutors Go Bad

I wonder how often prosecutor's lie and cheat to win, as this lawsuit seeks to uncover in New York. What does the lawsuit claim:

The suit accuses prosecutors in some cases of presenting false testimony by witnesses about their deals for leniency in exchange for cooperation, according to a copy provided by the lawyer filing the suit. It says prosecutors withheld evidence that could be seen as motivating witnesses to give false testimony, and also accuses prosecutors making false or misleading trial presentations to juries.

I'm with Kevin J. Mahoney on this one:

There is, perhaps, no greater threat to the criminal justice system than that posed by the unethical prosecutor. H[er] opportunities to cheat the accused citizen of h[er] right to a fair trial are unlimited. H[er] voracity for victory encourages every abuse imaginable – by the police, by “objective” or “disinterested” witnesses, and by expert witnesses, particularly those at the state crime laboratory. An assistant district attorney, as the Commonwealth’s legal representative, is not only not bound to pursue a conviction at all cost, [s]he is prohibited by the rules of ethics from intentionally undercutting the rights of the accused. The prosecutor is obligated to do right by the accused. Many prosecutors, in their zeal, fail to appreciate their obligations. Some, perhaps a substantial number, are so driven by impulse to punish the accused, they readily disregard their ethical obligations; these individuals, unrestrained by the rules or by conscience, hide exculpatory evidence from defense counsel, coach their witnesses, pressure defense witnesses into disappearing, threaten defense witnesses with prosecution, thereby, intimidating them into refusing to testify or into adopting “recollections” favorable to prosecutor.

Although many prosecutors are great, well-meaning, and cognizant of their ethical duties, sadly some are not. I hope the lawsuit can change attitudes from the modern Nancy Grace clones, those who epitomize Brandeis' warning: "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficial. The greatest dangers to liberty lurk in insidious encroachment by [wo]men of zeal, well meaning but without understanding."

As Skelly Skell pointed out, the leaders of disciplinary action in the bar, Association of Professional Responsibility Lawyers (APRL), have noticed the obvious connection between unethical prosecutors and wrongful convictions. This is particularly dangerous when public defenders are understaffed , as National Organization of Bar Counsel (NOBC) noticed. When such understaffing causes not only an inability to find all the evidence you need, but when it burns you out. I know I've been there, fed up with clients, from my first years of practice, and the lack of sleep doesn't help. It doesn't help that we get so little respect you'd think we were K-Fed's backup singers.

Who are those people?

In my years of working in criminal courts all over this great nation, what sort of people have I defended? First, aren't they criminals? Well, I never represent a person guilty of the charge they rae facing, well except for sentencing, post-conviction motions, and appeals. After all, they aren't guilty until I help them plea or lose at trial. But I have represented a good number of truly innocent people, caught up by police wrongfully accusing them because the police are lazy and the person looks guilty on a facile examination.

But seriously, most of my clients are criminals (from before), and all of them are poor (or faking because they know how expensive hiring a private is). There are some things common to these people. They are often uneducated. Predominantly minority. Many people from other countries, usually third world. Don't get me wrong, there are sometimes 18 year old white boys from the suburbs who get in trouble and I see them.

Sometimes clients don't want to listen, until I show them that I care. Sometimes they are too deferential and won't make decisions themselves, until I show them what their options are and tell them how I can't decide for them, I can only advise.

Another generalization: Those who break society's rules and get caught are often not too bright. If they were successful, they wouldn't be my clients. On those lines, they are often either below intelligence or they have mental illness. Many have substance abuse problems, often in conjunction with low IQ or mental illness.

On the other hand, plenty of young men, particularly those involved in the drug trade, are quite cunning and street smart. They have no problem understanding things. Even if the language they choose is different, we can converse as equals about many legal concepts. These people, in a different environment, would have flourished.

So, many clients are selfish, they think mainly of themselves. When I have time to delve, I can usually discover that they feel they've been wronged in their lives before, abandoned by others. So they often have a victim mentality, some of them cannot take responsiblity. Others are focused extensively on others and their needs, sometimes to their own detriment.

All I can do for most is make a sad situation a little more clear. I can be there for them. In trying to do this, I have also discovered a great many people who have insight into their problems, and helped them gain some. For example, the drug addict that wants to improve, but lacks the ability to do so. God knows jail isn't going to help.

The best thing about these people is the thanks that they give me. They seem to know that I am not getting much for this, that I work hard for them, and even if they have many other things messed up, they know to say 'good job, I appreciated your help' for my efforts, even as I apologize for not doing more. That's quite rewarding. It movtivates me to do more. Sure, many can't give a flying fig about help I give them, until they get in trouble again, but I am always pleased when I get true, heartfelt praise from my clients. Sometimes it means a lot because I know that nobody has ever really done anything for them, so they are doubly appreciative that I, a complete stranger, care for them. I need to keep that in mind next time I'm overworked and want to snap at a client who is far too slow on the uptake for me.