Shocking News out of Texas

We all learned recently, courtesy of a high profile drunk driver in Texas, that the well-to-do are treated differently by our justice system then are the working class and poor. The shock and outrage that accompanied this news blip brought to mind the classic scene of hypocrisy from Casablanca, when the Prefect of Police, Captain Renault calls for Rick’s Cafe to be shut down because of the gambling going on in the back room:

Renault: Clear the room at once!

Rick: How can you close me up? On what grounds?

Renault: I am shocked, shocked to find that gambling is going on in here!

(The croupier comes out of the gambling room and up to Renault)

Croupier: (handing Renault a roll of bills) Your winnings, sir.

Renault: Oh. Thank you very much.

The truth is that anyone who is shocked, shocked to learn that those with money are treated differently by our criminal justice system than those who have little or none, have been intentionally ignoring the disparity or have simply not been paying attention. From the methods of investigation, arrest, and interrogation, to the early assistance of counsel, to treatment options and alternatives to prosecution, to the quality of legal assistance, there is little doubt that wealth can buy a decidedly higher quality of justice than is generally available to middle or low income.  “Affluenza,” the psychological condition that made headlines in Texas, whereby wealth creates such a disconnect between behavior and consequences that it mitigates the seriousness of criminal behavior, is just the latest variation on a theme that has been playing out in our justice system for a very long time.

The contrast between rich and poor is most glaring for individuals who suffer from mental illness, often arrested for petty crimes, such as being drunk in public, panhandling, and trespassing in train stations or shopping malls. For any individual or family with money or adequate health insurance, therapy, medication and even hospitalization may be costly, but they still exist, separate and apart from the criminal justice system.

But those without resources often wind up on the streets, panhandling, self-medicating with alcohol, and committing petty thievery to survive.  During the 1990s, jails and prisons emerged as our nation’s psychiatric hospitals and the trend has continued unabated.  While the public mental health safety net has become dangerously frayed among competing budget priorities, the criminal justice system in many communities has taken over as the mental health system of last resort.  People who cannot get treatment elsewhere, are serially arrested and placed in jails, where law enforcement professionals are forced into the role of mental health professionals.  As one commentator put it: the criminal justice system has become the dumping ground for the mentally ill; the “end of the line for the schizophrenics, bipolars, and borderlines among us without the resources or wherewithal to care for themselves and stay out of trouble.”

While our treatment of the mentally ill is the most obvious criminal justice distinction between rich and poor, it is by no means alone.  Our country’s crisis in the way we supply attorneys for poor people has been so well documented for so long, that the use of the word “crisis,” no longer applies.  The sad state of affairs can easily be described as an accepted, if unfortunate, feature of our criminal justice system.

Various strains of “affluenza” have been infecting our criminal justice system for quite some time.  No one should be shocked by an occasional high-profile outbreak.

To learn more about me and the work of The Goemann Law Firm, visit my website.

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Taxpayer-Funded Lawyers: Examining our Priorities

A recent Washington Post article on the fees Virginia taxpayers are paying attorneys for state employees caught up in the investigations swirling around Governor Bob McDonnell highlights once again the underfunding of state systems that provide lawyers for low income people charged with crimes.  The state, of course, has a constitutional obligation to pay for lawyers to represent those accused of crimes who cannot afford to hire a lawyer, and who face the possibility of jail or prison if convicted.  Virginia and many other states underfund their public defense systems in ways that undermine our adversarial court process for achieving justice.  They often supply poorly paid, undertrained, and overwhelmed lawyers for people charged with everything from reckless driving and shoplifting to capital murder.  In some instances, the state requires cities and counties to shoulder the financial burden of carrying out its responsibility.

Lawyers in state or county public defender offices are paid at the lowest end of the attorney pay scale and carry huge caseloads, hundreds of clients at a time.  Private attorneys who accept court-appointments or work under a contract are often paid a very modest hourly rate – $65 to $100 – or are effectively capped at the number of hours they can put into each representation. Despite the good intentions and hard work of many of these lawyers, the set-up precludes consistent quality representation.

By contrast, Virginia’s attorney general’s office is contracting with private lawyers to advise and represent state employees involved in the investigation of the governor.  Those lawyers are being paid a rate of $250 to $495 per hour (working at a discount, according to the article).  It does not appear that the state employees have yet been charged with any criminal misconduct; they are getting legal advice and counsel, quite possibly to avoid criminal charges.  These state employees – who may not be paid exceptionally well, but who undoubtedly would not qualify as indigent under the state’s guidelines – have no constitutional right to counsel.  They may have a contractual right or maybe a state statutory right, but if so, those are obligations that the state voluntarily took upon itself.  The right to competent and effective counsel for those accused of crime and too poor to afford a lawyer is a right enshrined in the U.S Constitution. 

I don’t begrudge these state employees their lawyers.  It just seems that the state’s priorities in terms of who to pay and at what rate are backwards. States should first use their limited resources to make real the promise of the Constitution: a competent and diligent lawyer for the defense who will ensure as fair a criminal justice system for the poor as already exists for the wealthy.

It seems easier, though, to open up the check book when the people in need of representation are more like “us,” we middle classers.  It’s so much easier to believe that people who could be our friends, neighbors or even family may be innocently swept up in circumstances.  Poor people, often people of color, are different.  We see the poor as “them” or “the other,” probably guilty and undeserving of our largess.  The presumption of innocence stops at the border where our neighborhood becomes their “hood.”  So we supply lawyers for the indigent only grudgingly, not because we believe in its rightness or fairness, not because it will bring about justice or a reliable outcome, but because we have to.

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Ordinary Injustices Continue

When Amy Bach titled her book “Ordinary Injustice” to describe how we have all come to accept and no longer even notice the everyday disgraces of our criminal justice system, certainly she had court appointed attorneys like Texas’ Martin Zimmerman in mind.  The headline of this NY Daily News story, appropriately enough, grabs you with Zimmerman falling asleep during his client’s trial, failing to communicate his client’s acceptance of a prosecutor’s plea offer resulting in a twenty year increase in his sentence, and forgetting his client’s name during jury selection.  But that’s just the beginning of the story’s ordinary injustices.

Of course, Texas became rather infamous in legal circles some years back when a courtroom judge, prosecutor, and courtroom clerk all allowed a court appointed attorney to fall asleep during the 1984 trial of a death penalty case.   Needless to say, the accused, Mr. Burdine, was sentenced to death. Even after the sleeping defense attorney came to light, the state of Texas argued that it was just to have Mr. Burdine executed and, indeed, the Texas Court of Criminal Appeals denied Burdine relief on his state habeas corpus claim.  It took the United States Court of Appeals for the Fifth Circuit sitting en banc in Burdine’s 2001 federal habeas claim to finally get Mr. Burdine a new trial, finding that a sleeping attorney was ineffective assistance of counsel. 

It is with that backdrop that we turn back to Mr. Zimmerman.  The first ordinary injustice that the News simply noted is that the trial judge, The Honorable Dib Waldrip said, apparently without shame, that “he was familiar with Zimmerman’s napping tendency.” That means that Waldrip or another judicial officer had appointed Zimmerman to represent Daniel Textor, Jr., knowing that he falls asleep in court.  And whether or not Judge Waldrip made the initial appointment, he presided over a trial with a known napper as defense counsel.  And apparently allowed him to nap.  At what law school do Texas judges learn that our adversarial system achieves justice when one of the adversaries sleeps during trial?

Of course, unlike Mr. Burdine, Zimmerman’s client Daniel Textor, Jr. was not facing the death penalty.  He was staring at a mere total sentence of 88 years in prison. 

So that brings us to the second ordinary injustice that was too ordinary to dwell upon: Although we often hear the legal maxim that “the punishment shall fit the crime,” the ordinary injustice of our modern sentencing schemes makes such a sentiment seem quaint.  Mr. Textor was arrested on Aug. 8, 2010 and accused of DWI with a minor in the car and spitting on the arm of a police officer.  Post-trial, Mr. Textor was facing a sentence of 60 years for spitting on the officer’s arm and 28 years for the DWI.  The plea offer that Zimmerman failed to accept per his client’s instructions was that if Mr. Textor pled guilty to a charge of “harassing a public servant” (presumably for the spitting), he would receive a sentence of 45 years and to DWI, a sentence of 20 years.

According to one report, Mr. Textor was a repeat offender.  But a sentence of from 45 to 60 years for spitting on a police officer’s arm?  Not even in his face.  I don’t mean to suggest that these crimes are not serious and deserving of punishment, especially if Mr. Textor has been ’round this way a number of times before.  But do those sentences really fit the crimes?  Could that really be termed justice?  And is Mr. Textor taking up bed space in prison for the next 6 to 8 decades (at an average cost to Texas taxpayers of $21,390 per year, before inflation over the next 60 to 80 years) really an efficient use of taxpayer money?  Is there no one considerably more dangerous that should be occupying that bed for the next half century?  Maybe someone who actually hurt another human being? 

The fact that Judge Waldrip presided over a trial with a napping Martin Zimmerman, Esquire, and that Mr. Textor accepted a plea offer that netted him 65 years in prison suggests just how ordinary the extraordinary degree of injustice in our criminal justice system has become.

To learn more about me and the work of The Goemann Law Firm, visit my website.

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DOJ Beginning to Live Up To Its Name

Upon hearing the recent news that the Justice Department had filed a brief in support of improving indigent services in an on-going Washington State lawsuit , can there be any reaction other than “Yeah!” and “What took you so long?”.  The problems of indigent defense in Washington have been well known since at least since 2004, when The Seattle Times ran a series of articles titled, “An Unequal Defense: The Failed Promise of Justice for the Poor.”  In recent years, there have been court challenges to the abysmal state of indigent defense in a variety of states, including Michigan, New York, Florida, and Montana.  These battles were waged by private organizations with the DOJ standing largely on the sidelines.

But the federal agency is call the Department of Justice, not the Department of Prosecution.  A core principle of the United States’ adversarial system is that each side to a dispute must have adequate and fairly equivalent resources in order for the process to be fair and the result to be reliable.  Hence, justice is achieved.

However, as I noted in an earlier post,  years of studies, reports, and advocacy from entities such as the American Bar Association, the National Legal Aid & Defender Association, the Justice Policy InstituteThe Constitution Project, National Association of Criminal Defense Lawyers, and even the Department of Justice itself have confirmed that in jurisdictions throughout this country, poor people are routinely denied competent counsel and denied the justice that is the promise of a properly balanced criminal justice system.

Until now, the Justice Department’s indigent defense reform efforts have been limited to several speeches by the Attorney General, beginning in 2009 right through 2013, and the creation in 2010 of the DOJ Access to Justice Initiative, an office that has been under-resourced and underfunded from its inception.  More than previous administrations, it’s true, but hardly an adequate response to the mockery that so many states have made of the right to counsel as recognized 50 years ago in Gideon v. Wainright.  But with the Justice Department finally getting some skin in the game in Washington State, DOJ appears to be getting serious and lawmakers are on notice that they should start putting their own indigent defense houses in order, rather than waiting for the next lawsuit.

With the gap between the haves and have-nots growing, the demand for public defense services will not be going away any time soon.  And who knows whether reform of the criminal justice system will be a priority or even a concern for the next Attorney General?  With those considerations in mind, it is vitally important that DOJ’s recent court filing in Washington be only the first in a more aggressive strategy to abolish our two-tiered criminal justice system.  Only when public defense lawyers have the time, training, and resources to do their jobs, will our courts be able to provide justice for all, rather than allowing that lofty phrase to remain a hollow slogan.

To learn more about me and the work of The Goemann Law Firm, visit my website.

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Justice, Justice We Shall Continue to Pursue

Yesterday, August 28, marked the 50th anniversary of the 1963 “March on Washington for Jobs and Freedom.”  Civil rights titan Dr. Joseph Lowery urged thousands who had gathered in front of the Lincoln Memorial: “We ain’t going back.  We ain’t going back.  We’ve come too far, marched too long, prayed too hard, wept too bitterly, bled too profusely and died too young to let anybody turn back the clock on our journey to justice.”

I attended last Saturday’s anniversary march and am reading the words spoken by the leaders of 2013 and 1963 who spoke at these commemorative events on the National Mall.  While the need for good jobs, decent pay, and to close the growing chasm of economic disparity remained a theme this year, the fight for justice also had a very prominent place in the minds and hearts of speakers and attendees. “No justice, no peace.”

Of course, “justice” can refer to the degree of fairness we achieve in a number of different realms: economic justice, justice in the manner in which we resolve civil disputes, justice as an expression of the enforcement of various rights, such as the right to vote, equal treatment, access to health care, and educational opportunity.

But to my ears, the word “justice,” as it was whispered, shouted, painted on signs, and chanted on the Mall had a specifically criminal justice ring to it.

Anger from the Trayvon Martin verdict is still raw, there is recognition that our country’s mass incarceration policies, the new “Jim Crow,” have decimated entire African-American communities, police department racial profiling continues, and a federal court recently recognized and declared that the NYC police department’s stop and frisk harassment of young black men is unconstitutional.  To that list, we can add continued starvation of many of our nation’s public defense systems, condemning poor people and people of color to face our nation’s criminal justice machinery with the assistance of undertrained, under-resourced, and overwhelmed attorneys.  It’s not surprising that justice as criminal justice is playing such a prominent role in the exhortations of today’s civil rights advocates.

While as President Obama acknowledged, much has changed in the last 50 years, when it comes to achieving the dream of racial equality and equality for the poor, criminal justice may be where we have the furthest yet to go in order to finish the job.

At Saturday’s march, Myrlie Evers-Williams, the widow of slain civil rights worker Medgar Evers, urged the crowd to take back the phrase “stand your ground” – made infamous by the Trayvon Martin case – and make it more positive.  These words she said, should remind us, as had Dr. Lowery, that we cannot give up the hard-won ground gained over the past 50 years.  Given the genesis of its recent popularity, Ms. Evers-Williams’ re-framing of the phrase makes it a particularly apt battle cry for the continuing struggle to achieve justice for those caught in the mire of our nation’s criminal justice system: Stand your ground in the fight for justice and equality.

To learn more about me and the work of The Goemann Law Firm, visit my website.

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Our Nation’s Two Criminal Justice Systems

Poor Matthew Yglesias.  He probably thought he was venturing into fairly safe territoryOn July 15, 2013, on his “blog about business and economics” Yglesias opined that George Zimmerman probably would not have fared as well had he been represented by a public defender instead of the attorney he was able to employ with over $300,000 in donations.  Apparently Yglesias heard from enough insulted and outraged public defenders to subsequently tweet an apology to any PDs “who read that post as an attack.”

PDs were particularly offended by Yglesias grouping them together as attorneys “with little emotional or financial investment in winning the case.”  Unfortunately, the brouhaha that arose from that phrase destroyed any serious discussion of the phrase that followed: “and no resources with which to pursue a robust defense even if he’d been inclined to do so.”

In 2008, I spoke at a symposium in New Orleans on indigent defense reform and mused about what would have happened if the white Duke University lacrosse players charged with an array of violent crimes in 2006 had been poor and African American and represented by a public defender, rather than the well-paid private counsel whose skillful investigation and advocacy led to all charges being dismissed against the accused students and the eventual disbarment of the prosecutor.  The remarks were published in the Loyola University New Orleans Journal of Public Interest Law.

At the time, I was Director of Defender Legal Services for the National Legal Aid & Defender Association and had spent many years as a public defender in Virginia and before that, as a teacher and court-appointed attorney in the District of Columbia.

I painted a rather grim picture of what awaited my clients, whether they pled guilty pursuant to a plea agreement or went to trial.  My focus was on the manner in which policy makers had so undermined the ability of a public defender or court-appointed attorney to do his or her job that they had, in effect, dismantled the adversarial system for so many poor people charged with crimes.

My comments raised no ire from the other speakers or the symposium attendees.  Indeed, although I thought it a provocative way to frame the issues raised by the abominable state of indigent defense in this country, the fact of the abominable state of indigent defense in this country was beyond question.

Of course, there are exceptions.  There are jurisdictions where attorneys for low-income people have the time, training and resources to do what the job demands.  Many attorneys for the poor are dedicated, incredibly hard working and passionate – whether or not the state has provided them with the resources to do the job properly.

But years of studies, reports, and advocacy from entities as diverse as the US Department of Justice, the American Bar Association, the National Legal Aid & Defender Association, the Justice Policy Institute, The Constitution Project, and the National Association of Criminal Defense Lawyers, have confirmed that in jurisdictions throughout this country, poor people are routinely denied competent counsel and are sped through our justice systems without a glance backward.  Most recently, Attorney General Eric Holder has acknowledged our nation’s indigent defense crisis and the federal sequestration budget has disproportionately ravaged the federal public defenders, historically the defenders who most consistently had the resources and parity with prosecutors to support a true adversarial process.

Let’s keep our eye on the ball.  Mr. Yglesias may have painted with a bit too broad a brush in his characterization of public defender motivations.  But his real point recognizes that our country has separate justice systems for rich and poor. For those who can afford it – whether well-off Duke University lacrosse players or a neighborhood watch volunteer on the receiving end of thousands of dollars in legal fee donations – our criminal justice system works reasonably well.  But when poor people are accused of crime, they are often represented by severely under-resourced counsel who are unable to take their rightful place as the courtroom counter-balance to the prosecutor.  Reliability and fairness disappear from criminal justice and the system continues its daily grind – destroying lives, tearing apart families, and decimating communities.

To learn more about me and the work of The Goemann Law Firm, visit my website.

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The Fifth Takes a Slice from The Fourth

This week, the US Court of Appeals for the Fifth Circuit handed down a ruling that frees the government’s hand to collect so-called “non-content” information from cell phone tower records without satisfying the Fourth Amendment’s “probable cause” standard.  The government sought disclosure of the location of a particular telephone at the time calls were made, the date and time when each call was made, and the numbers called over the course of a sixty day period (but not what was said during each call, the “content”).  The court found that the public has little in the way of privacy expectations for this information, and so long as the information is being collected by a third party (in this case, the cell phone service providers) for its own business purposes, the Fourth Amendment does little to stand between the government and this information.

To be clear: The issue was not whether the government could access this data. The issue was how much information the government would need to provide to a judge before being granted the necessary court order. How high is the bar set by the Constitution before a court will order a corporation to turn over records containing its customer’s data?  Does the government need to produce facts sufficient to show a “reasonable and articulable suspicion” to believe that the records sought are relevant and material to an ongoing criminal investigation, or do they need to show “probable cause” for that belief, a higher standard? The Court found that the lower standard is all that is required by the Stored Communications Act, 18 U.S.C. §§ 2701-2712 (“SCA”), specifically § 2703(d), and that the lower standard is constitutionally permissible, the Fourth Amendment prohibition against unreasonable searches and seizures proving to be no impediment.

Our culture has been surrendering what we formerly considered private information to the corporate sector bit by bit (or rather, byte by byte).  With each new innovation in technology, the providers ask that we give over more information.  They will safeguard it, they say, and only use it according to their privacy policies.  Think about a recent app that you might have installed on your smart phone and the vendor’s “need” for you to provide permission for it to gather information as a condition of receiving the app.  We all just tap “okay”.   The Fifth Circuit’s observations of how everyone knows what information they are giving up to providers aside, there has been relatively little public discourse on the government’s ability to access whatever private information is being gathered and use it in ways that were never contemplated when we signed up for that smart phone plan or tapped “okay”.

If other courts follow the Fifth Circuit lead in lowering the Fourth Amendment bar for such intrusions, it will be up to Congress to clarify its intent and amend the SCA to tighten the leash on law enforcement.  Congress can always provide more privacy protection than required by the Constitution, just not less. Even now, though, after the revelations of the massive NSA data gathering, there appears to be little public or congressional stomach for questioning the necessity of law enforcement’s continuing encroachment into the private spheres of our lives. 

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