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Subscribe to this list via RSS Blog posts tagged in Pro Se

In New York, a trial is pending regarding the state's "persistent failure" to provide adequate representation through the public defender system. 

The case was first filed in 2007, and seeks to remedy a "persistent failure" to deliver meaningful counsel to the poor by forcing a state takeover since New York's system places the responsibility of providing public defense on the counties.

. . .

After six years of back and forth, state Supreme Court Justice Eugene Devine wrote in a decision on Monday that the court "has observed that the reputation of the public defense system in this State has deteriorated" and that "there are substantial issues of fact to be resolved at trial." The trial is scheduled for March 17.

Corey Stoughton, lead attorney for the plaintiffs and a lawyer with the New York Civil Liberties Union, said this case would be the first time an entire state's system of indigent defense would be put on trial.

She said there have been similar court cases in a number of states, including Montana, Michigan and Georgia, though all have settled.

. . .

"The ultimate relief we're seeking is for the state to live up to its responsibility," Stoughton said. The U.S. Supreme Court began the right to counsel under the Sixth Amendment in 1963.

This doesn't shock me, nor should it shock anyone who works in the system.  It is always in your best interest to hire your own attorney rather than take your chances with whatever lawyer the government assigns to you.

Original source here.


Fifty Years Later, And It Still Doesn't Work

Gideon Has Failed, Says NPR

Philadelphia Abandons Government-Run Public Defense?

Most Would Not Trust A Public Defender









Hits: 284

The public defender system is the legal version of Obamacare, except 50 years older.  I.e., it is a government system which tries to use public dollars to entitle individuals to the service of another individual.  Predictably, it often fails.  At least for a part of the system, the city of Philadelphia wants out of the business:

In a controversial plan, the city of Philadelphia is planning to retain a private law firm to handle all court-appointed defense work for indigent individuals at an expected savings of $1 million annually.

. . .

Currently, some 300 to 350 lawyers accept court appointments at notoriously low fees. Although the plan is not yet a done deal, it appears that attorney Daniel-Paul Alva is likely to strike a deal with the city to create a 75-attorney firm to handle the public defender's overflow work for $9.5 million a year, the Inquirer says.

He says his firm will be more efficient than farming out the work to individual lawyers. Hence, it will improve on the "hopelessly flawed" current system by providing better representation at lower cost, according to Alva.

Considering what prominent speakers and organizations have said about the state of public defense in the US, it is no surprise that a major city like Philadelphia is distancing itself from responsibility.   

As I've said elsewhere, the public defender system if only for people who CAN'T afford an attorney, not those who don't want to.  It was never intended to be a "public option" for those looking for free legal representation.  If you are able to afford an attorney, you should. 

Hits: 365

In yet another example that anyone who represents themselves has a fool for a client, a NJ jury has convicted a former prosecutor who decided he would represent himself.  Note, this appears to be an experienced veteran of both the state and federal system.  He knows the rules.  He knows his way around a courtroom.  However, to the jurors it was obvious that he should have stayed at the table quietly while his attorney did the work: 

As he himself questioned witnesses at his federal trial in Newark, N.J., attorney Paul Bergrin couldn't help but reveal more of his personality than would ordinarily have come to the jury's attention, juror Tad Hershorn, an archivist for the Institute of Jazz Studies, told the Star-Ledger.

"The risk is that you show character," he explained to the newspaper, adding: "As smart as he is and he thinks he is, you cannot totally disguise who you are."

A defense lawyer handling the trial also would have helped prevent witnesses saying to Bergrin, essentially: " ‘No, Paul, this is what you did to me; this is what you said to me,’ " Hershorn noted.

Hershorn said the accumulated evidence of Bergrin's criminal activity mounted during the eight-week trial, showing a pattern of criminal activity that supported his conviction.

He should have known better.  Don't make the same mistake.  The last time I went to traffic court, I had a lawyer.  While most people won't go that far, any offense that can result in jail time should involve a retained attorney of your choosing.  Don't try it pro se or even with a public defender.

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After the popularity of my previous post "Top 10 Things Clients Do to Damage Their Cases" I received all sorts of feedback and ideas from other attorneys. 

So without further adieu, here is the Top 10 More Things Clients Do To Damage Their Cases:

1. Hire the Wrong Lawyer.  There are many lawyers that are experts in fields OTHER than criminal law.  When you need that great real estate or probate lawyer for a real estate or probate case, go hire him.  For your criminal case, stick to criminal defense attorneys.

2. Be Late. The client who can't make it to court on time is inviting the judge to reincarcerate him so that he is certain to be on time for court next time.

3. Dress Guilty.  Dress for court like a job interview, because both are situations where you want to make a good impression.  While you may be proud of that NORML T-shirt with the 12" marijuana leaf on the back, it is probably not the best courtroom attire.  Men should be covered from wrists to ankle;  Ladies from elbow to knee.

4. Consent To A Search.  I know I've covered this one before and again at every opportunity, but it's a big one. Consenting to a search accomplishes nothing.

5. Play Lawyer.  If you have a lawyer, let him/her do the work.  Don't file your own motions because you read something on the internet.

6. Write The Judge.  Countless times I've seen cases derailed because a client thinks it is a good idea to write the judge in a private plea for mercy.  The letter usually basically says "I did it, but I'm a good guy. I promise to never do it again."  These handwritten confessions are quickly copied and redistributed to the lawyers, including the prosecutor. 

7. Get Legal Advice From Inmates.  If they knew the law, they wouldn't be in jail.

8. Contact Victims.  Especially in domestic cases, a guy will get arrested and released on bail (or served with a restraining order) with a condition that he have no contact with the victim (usually a wife or girlfriend).  Within minutes of leaving jail, he will call her to talk about the case.  Whether he's calling her to apologize or complain, it's all the same violation of his bail conditions and often a whole new criminal charge.

9. Represent Yourself.  I have rarely seen anyone win a pro-se felony case.  It happens, but for every time it happens, I think there are ten other people who got far worse outcomes than they would have had if they had left the legal work to the lawyers.

10. Berate the Judge.  I have never seen a case go well after a defendant berates a judge.  My personal favorite was the defendant who called a judge "white b*tch" and was later sentenced to 10 years for shoplifting a pair of blue jeans.

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Georgia has a crime called "Theft of Lost or Mislaid Property."  Basically, it means that just because you find something that someone else has lost doesn't mean you get to keep it.  One would think that a Georgia lawyer working as a Public Defender would know that.  Unfortunately not, according to the Augusta Chronicle

An Augusta lawyer surrendered to authorities Tuesday morning on a felony charge in connection with a lost diamond ring.

Hits: 683

NPR weighs in with their own doom-and-gloom take on the 50th Anniversary of Gideon v. Wainwright:

Next week marks the 50th anniversary of the landmark Supreme Court decision in which the justices unanimously ruled that defendants facing substantial jail time deserved legal representation in state courts, even if they couldn't afford to pay for it.

The ruling came in the case of Clarence Earl Gideon, a drifter convicted of breaking and entering [of a pool hall after closing] after he was forced to defend himself [in court]. His handwritten appeal made it to the high court, and the decision in his favor became a rallying cry for the idea of equal justice.

But a half-century after Gideon v. Wainwright, many lawyers say the system for providing defense attorneys for the poor is in crisis.

By "crisis", they mean "underfunded."  They are using the 50th anniversary of the Gideon decision to point out the flaws in the system in a not-so-subtle appeal for more taxpayer funding.  But more money is not the answer and never will be.

In a nutshell, the nation's public defenders are saying "we can't do our job because you taxpayers won't give us enough money." NPR, the ABA and the US Attorney General are just a few of the voices advancing this narrative. I think they are doing a long-term disservice to public defenders, though. First, taxpayers are tapped out. Consumer debt is high and we are years into the Obama Recession. Second, these are public defenders for people accused of crimes, not cops and teachers and firemen. Many taxpayers (unfairly) see these attorneys as the "bad guys" (or at least the lawyers for the "bad guys") and are unlikely to give these lawyers a cent more than they already do, even while opening their checkbooks for more teachers, cops and firemen (the perennial "good guys" of government funding). So while major groups are using the 50th anniversary of Gideon to call for more funding, I think it will fall on deaf ears. The result will be alot of loud public criticism of public defenders but no real effort to solve the problems. All the public will remember is the criticism. 

Indigent defense is a government program like any other:  If it works well, it won't get any additional taxpayer dollars next year.  But if it can convince enough people that it's broken and "in crisis" then the taxpayer dollars will fall like rain.   Failure is rewarded while success is ignored, as if often the case in government programs.   It's the same mentality that keeps the UK's National Health Service (NHS) in a constant state of crisis with politicians promising an endless string of "overhauls" if taxpayers will spend just a little bit more than last year.  It's the same mentality that causes our own government to spend the most money on the worst public schools while ignoring the good ones.

The people who work in these programs labor under the same perverse incentives as most other government workers:  they get paid the same whether they win or lose, and regardless of how hard they try.  It doesn't take long for that to crush the motivation out of even the most idealistic young lawyer, doctor, or teacher.

[Attorney] Norman Lefstein started working for poor criminal defendants in Washington, D.C., a few months after the Gideon ruling on March 18, 1963.

Lefstein [says] . . . he's troubled by what he sees and hears today, like a call he got from a defense lawyer for poor people in a Northeastern state.

"In my judgment, his caseload was absurd," says Lefstein, who's written widely on indigent defense issues. "I mean, just try to imagine simultaneously representing competently over 300 clients. And he was in an impossible situation."

Public Defender caseloads ARE absurd, but not always because they are underfunded.  The system is abused by people who pretend to be indigent so that they can get a free attorney.  Judges and prosecutors do not scrutinize applicants very much, perhaps because they know that the cases will flow more smoothly through the system when public defenders are too overloaded to give any one case much attention.  The result is an overloaded system originally designed for a few and now being [ab]used by many, where well over 90% of defendant's plea guilty. 

Those caseloads can have some pretty bad consequences, says University of Georgia law professor Erica Hashimoto.

"There are a lot of stories of what are called meet 'em and plead 'em lawyers — lawyers who show up at the courthouse and represent the defendant for about five minutes, where they tell the client, 'You have to plead guilty,' " Hashimoto says.

Those aren't just stories.  That's reality.  And it's reality not because the lawyers are bad lawyers.  It's reality because the lawyers are overloaded from defending people who shouldn't qualify for a public defender.   Then, AFTER the defendant pleads guilty to something he didn't do, his family calls private attorneys to clean up the mess.  If the money is available to hire an attorney to clean up the mess, then the money was available to hire an attorney to avoid making a mess in the first place.  The time to hire an attorney is the day you are arrested, not the day after you are convicted.

So if Clarence Earl Gideon were alive and arrested today, what would happen?  There's a good chance that he would never meet nor talk to his public defender until his first day in court.  At that meeting, the public defender would flip through his large box of files for that day, find Mr. Gideon's file, take a brief look at it, Mr. Gideon's criminal history, and then tell Mr. Gideon to plea guilty.

Yes, Gideon has failed. 


UPDATE:  Anthony Lewis, author of "Gideon's Trumpet" about the Gideon case, has died.  He was 85.



Fify 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

Should I Hire A Defense Attorney?

Most Would Not Trust A Public Defender



Don't miss a single post! To be alerted when a new blog post appears (about every other day or so), click on "Subscribe to Blog" near the top of this page.

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A full half-century after the Gideon v. Wainright decision from the U.S. Supreme Court holding that indigent people accused of crimes are entitled to taxpayer-funded attorneys for their defense, the system still isn't working, says the American Bar Association.  Clarence Earl Gideon was a homeless drifter in his 50's accused of breaking into a pool hall.  He was convicted without an attorney and sent to prison.  He appealed. 

In its Gideon decision, the justices unanimously overruled a 1942 case, Betts v. Brady, and held that the Sixth Amendment’s guarantee of counsel was a fundamental right made applicable to the states through the 14th Amendment. Justice Hugo L. Black wrote for the court that it was an “obvious truth” that a fair trial for an indigent defendant could not be guaranteed without the assistance of counsel. The “noble ideal” that every defendant “stands equal before the law … cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him,” Black wrote.

It always sounds wonderful when people promise other people stuff for free.  It is the foundation of modern politics.  The problem, though, is that it rarely works: 

A year ago, addressing the American Bar Association’s National Summit on Indigent Defense, U.S. Attorney General Eric H. Holder Jr. said that across the country, “public defender offices and other indigent defense providers are underfunded and understaffed. Too often, when legal representation is available to the poor, it’s rendered less effective by insufficient resources, overwhelming caseloads and inadequate oversight.”

In short, Holder said, “the basic rights guaranteed under Gideon have yet to be fully realized.”

There you have it: United States Attorney General Eric Holder speaking fast and furiously about how people who rely on public defenders get a level of service that is "less effective" because of "insufficient resources, overwhelming caseloads and inadequate oversight."  But Holder isn't the only person who knows it: 

Daniel T. Goyette, the chief public defender for Jefferson County in Kentucky, and a member of the ABA’s Standing Committee on Legal Aid and Indigent Defendants, says that “despite some genuine efforts and notable advances, the criminal justice system and, more pointedly, the leadership of our executive, legislative and judicial branches of government—both state and federal —have largely failed to carry out the constitutional mandate of the Gideon decision.”

He adds: “Sadly, it has not been a priority, and we are constantly taking one step forward and two steps back.”

This isn't a new problem:

A 2004 report by the ABA, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (PDF), laid out the top concerns. The chief one is that indigent defense services are not adequately funded, leading to an inability to attract and compensate good lawyers, as well as to pay for experts and investigators. Meanwhile, defenders of the indigent are often inexperienced, fail to maintain proper contact with their clients, or are not competent to provide services that meet ethical standards. And judges sometimes fail to honor the independence of defense counsel and routinely accept representation of indigent defendants that is patently inadequate.

That report shouldn't have shocked anyone, because public opinion polls from years earlier already showed that Most Would Not Trust A Public Defender.  But that was in 2004.  Surely the problem was solved, right?  Think again:

Fast-forward to 2009, and a report of the National Right to Counsel Committee and the Constitution Project found little progress. Despite an overall increase in funding, “inadequate financial support continues to be the single greatest obstacle to delivering ‘competent’ and ‘diligent’ defense representation,” said the report, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (PDF).

The most visible sign of such inadequate funding is public defenders with “astonishingly large caseloads,” sometimes more than 100 clients per lawyer at a time. Such lawyers cannot interview their clients properly, file the appropriate motions, investigate their cases, responsibly negotiate with prosecutors, or perform other tasks.

Never a group to pass up a chance at publicity, the ACLU has their own project outlining the failings of the public defender system in their "Unfulfilled at 50" project.

The real goal of all this public criticism is to generate more money from politicians for public defenders, but I think this theme that "public defenders don't do a good job because they don't get enough taxpayer dollars" does more harm than good, because it also means that until there is a vast increase in taxpayer dollars for attorneys to defend the accused, public defenders will continue to do a poor job. 

In Georgia, most counties are part of the statewide public defender system.  A few places, like Gwinnett County, Cobb County, Cherokee County and a few others fund their own systems that are independent of the statewide system.  I think clients get more attention in the independent systems, but those systems and the lawyers who work within them are still economically limited in what they can do for their clients.  Even in those counties, my advice to someone facing criminal charges would still be to hire your own attorney. 

With the United States Attorney General, the National Right to Counsel Committee, the American Civil Liberties Union, and the American Bar Association all going on record describing public defenders as underfunded, understaffed,  less effective, having insufficient resources, overwhelming caseloads and inadequate oversight, the answer to the question of Should I Hire A Criminal Defense Attorney? should be more crystal clear than ever:  YES

UPDATE: This isn't a slap at the dedication of the individual lawyers who work in PD offices.  This is a criticism of the highest levels who use these overworked lawyers as hostages to extort more money from taxpayers instead of advocating for stricter limits on who qualifies for a PD. 


Fifty Years After Gideon v. Wainwright . . .

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

Should I Hire A Defense Attorney?

Most Would Not Trust A Public Defender


Don't miss a single post! To be alerted when a new blog post appears (about every other day or so), click on "Subscribe to Blog" near the top of this page.


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0 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


 Don't miss a single post! To be alerted when a new blog post appears (about every other day or so), click on "Subscribe to Blog" near the top of this page.

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Posted by on in Criminal Defense Blog

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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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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The failings of the indigent defense system are so widespread that the ACLU is building a bank of horror stories to raise awareness of just how bad the problem has gotten. The ACLU project has just started as of the posting of this blog entry, but it should be available soon so people can see for themselves just how bad the various systems around the country have gotten. 
If you're facing criminal charges, it is always in your best interest to hire a lawyer. Private attorneys typically have smaller caseloads and thus more time to spend per case.
Far too many people don't consider hiring private counsel until after their trial with a public defender has gone badly. By that point, many of the rights they had before trial are gone. The time to win your case is BEFORE trial, not after.
If you are serious about your case, your rights, your freedoms, and your reputation, then you also need to be serious about hiring the best lawyer you can afford as soon as you can. Call us.

- John
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