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No Money, No Defense

February 18, 2013 07:32:23 am
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By Katy Reckdahl

A half-century after the Supreme Court’s historic judgment recognizing every American’s right to counsel, the Court is being asked to weigh in on whether there is also a constitutional  obligation to ensure that the poorest defendants do not suffer for lack of funds.

The case, Boyer v. Louisiana, turns on a defendant’s claim that his constitutional right to a speedy trial was violated because the state refused to pay for his defense counsel for five years.  

The defendant, Jonathan Edward Boyer, now 32, was indicted for first-degree murder in 2002 in connection with the death of Bradlee Marsh, then 21, who gave Boyer and his brother a ride in his pickup truck as they walked along a highway in Sulphur, a town in southwest Louisiana.

The capital charge against Boyer was reduced by prosecutors in 2007 to second-degree murder and armed robbery. He was convicted of both charges in 2009.

The Court’s landmark 1963 Gideon v. Wainwright decision required the state to provide lawyers for defendants, regardless of their ability to pay—a ruling that transformed the nation’s legal landscape.  But it didn’t spell out how the lawyers should be provided, much less how they would be paid.

The case now before the Court, which is expected to deliver a ruling later this year, “shines a light on this country’s problems with indigent defense,”  says Norman Reimer, executive director  of the National Association of Criminal Defense Lawyers (NACDL), which filed  one of the amicus briefs supporting Boyer’s argument.

Shortfalls in funding for public defender’s offices across the country mean that the right to counsel promised by Gideon remains unrealized for many poor Americans caught up in the  criminal justice system,  adds Reimer.

“It’s almost poetic justice that Boyer is before the Supreme Court in this term, which marks the 50th anniversary of Gideon,” he says.

Waiting for a Lawyer

Boyer’s situation, which left him without counsel for five years, is particularly egregious. But experts say it’s not unusual for indigent defendants across the nation to sit in jail for weeks and months awaiting a public defender who can take their case.  

Louisiana  has “one of the most poorly funded indigent-defense systems in the nation,” according to Reimer but he pointed out that other states have similar problems, citing lawsuits lodged in Michigan  and New York.

Defense lawyers and legal advocates hope that the Court will use Boyer to address the systemic shortcomings that they’ve documented for decades.

“Ever since Gideon, the Sixth Amendment right to counsel has been an enormous unfunded mandate, where the Supreme Court declares that the right is fundamental and must be enforced but the legislative and executive branches leave 100 percent of the funding to the states,” William Leahy, head of the New York State Office of Indigent Legal Services told The Crime Report.

“Essentially, we have been living a fiction,” Leahy added.  “(We are) proclaiming that the right to counsel as a fundamental constitutional value while enduring decade upon decade of inadequate funding and political neglect.”

Though it’s unclear why prosecutors downgraded the original first-degree murder charge  against Boyer,  the cost of paying for his legal defense almost certainly played a role.

According to court rules in Louisiana and a number of other death-penalty states, indigent defendants who face death must be appointed a two-lawyer defense team including capitally certified lead counsel and a mitigation specialist, whose work is used at the penalty phase of the case to show reasons why the defendant shouldn’t receive death.

Though Boyer didn’t go to trial for seven years, the Court case only concerns five of those years – the period of time that the state chose to pursue capital charges.

Failure to Pay

Boyer’s lawyer, Richard Bourke of the Louisiana Crisis Assistance Center, says the state’s failure to pay his court-appointed  counsel accounted for that five-year delay.

The defense team, argues that this was a violation of Boyer’s Sixth Amendment rights to a “speedy and public trial.”

Boyer’s lawyer filed “a motion to quash” shortly after a three-year Louisiana deadline, but Boyer’s issues regarding unpaid counsel weren’t resolved for two more years, when prosecutors reduced his charges.

The state of Louisiana, represented by Carla Sigler, an assistant district attorney in Calcasieu Parish, counters that Boyer’s lead counsel caused the court’s delays because he asked for or agreed to nine different motions that postponed a hearing about funding.

Even if the court decides that the state’s lack of funding was to blame for the delay, Sigler said, “those delays must be excused because they were a valid reason”—to pay for the “generous” two-attorney defense teams mandated in Louisiana state courts for all capital cases.

The defense brief was filed jointly with Pascal Calogero, the former chief justice of the Louisiana Supreme Court.

A ruling in Boyer’s favor is likely to add more pressure on already budget-strapped courthouses and state legislatures across the country, who will need to increase their budgets for indigent defense.

Calls to a number of criminal-justice and legislative-watch groups turned up  no one who even recognized the case’s name, much less had calculated its possible costs.

Norman Lefstein, dean and professor of law emeritus at the Indiana University School of Law, who’s written extensively about Gideon and indigent defense, said that he believes that Boyer “is absolutely under the radar of most states and counties.”

Lawyers for both sides declined to be interviewed for this story.

$33 Million Budget

Frank Neuner, chair of the Louisiana Public Defender Board, said that the state has in recent years stepped up and doubled its appropriation for indigent defense to roughly $33 million.

“It’s still not enough money,” he said, noting that they still have shortfalls and restrictions on services, and that it would take another $10 million to provide a public defender to everyone in Louisiana who needs it.

Even with the additional money, Neuner said, most public defender’s offices couldn’t provide health insurance and retirement benefits, standard benefits for those who work for district attorneys, he said.

Last year, in its report “System Overload: The Costs of Under-Resourcing Public Defense,” (http://www.justicepolicy.org/research/2756), the Justice Policy Institute described a system in “chronic crisis” that serves four out of five people charged with crimes but “saddles defenders with excessive workloads and inadequate resources.”

The report cited a finding from the Census of Public Defense Offices, conducted by the U.S. Bureau of Justice Statistics, that nearly three-quarters of county-based public-defender offices lacked enough attorneys to meet national caseload standards set by a U.S. Department of Justice advisory board. State-based defender offices had a median 67 percent of the lawyers needed to meet the guidelines. 

During oral arguments in the case last month, Justice Sonia Sotomayor noted that prosecutors were paid —but not defense attorneys.

“Why isn’t that a deliberate choice?” she asked.

The NACDL brief, which looked at indigent-defense systems within Louisiana and Calcasieu Parish, noted that in the year Boyer was indicted, the public-defender’s office had eight attorneys on a 17-member staff and a budget of $1.2 million while the district attorney’s office had 17 attorneys on an 88-member staff and a budget of $3.7 million.

One Lawyer—Or Two?

But Justice Antonin Scalia said that, if Boyer had been interested in a speedy trial, he could have waived state defense rules and proceeded to trial with one lawyer, which is all the U.S. Constitution requires.

Sigler also argued that Boyer didn’t need to wait.

“You could either demand what Louisiana in its generosity has given to capital defendants, namely the right to two counsels,” she said. “Or you could demand your right to speedy trial. That was your choice.”

Justice Ruth Bader Ginsburg asked whether Boyer knew his options.

“Did anyone ever tell this man with an eighth-grade education what his rights were?” she asked.

While there was some disagreement among the court about the scope of the case, only Scalia seemed to advocate going beyond the general issue: whether the state is responsible for a Sixth Amendment-speedy trial violation if a case is delayed because the state didn’t pay for indigent defense.

If the court sticks to that general issue and finds that the state is responsible, the case could be remanded back to a Louisiana court, which would examine the specifics of the case and determine, for instance, whether both of Boyer’s convictions, for murder and armed robbery, should be affected.

Mary Schmid, senior counsel for the Constitution Project, which also filed an amicus brief on Boyer’s behalf, believes that, if the court rules in Boyer's favor, states could end up paying for indigent defense in a more timely manner—resulting in fewer long-delayed cases and perhaps avoiding wrongful  criminal convictions.

Legal cases suffer from the passing of time because witnesses die, evidence can be lost and memories fade, she noted.

“While the question the Court is asked to decide in Boyer is relatively narrow, its implications for the criminal justice system are extraordinarily important,” she said.

Indigent defendants whose day in court is delayed by unpaid or overworked defense counsel would be greatly impacted if the Court held that the state isn’t to blame for the delays in Boyer, Reimer said.

“There would be no remedy for defendants, who would just have to sit and wait,” he said.

Katy Reckdahl, a former reporter for The Times-Picayune newspaper, is a New Orleans-based freelance journalist in who has reported for The New York Times, the Christian Science Monitor and The Lens, a local, online investigative news site. She welcomes comments from readers.

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Posted by anthony pappas
Sunday, June 16, 2013 02:19

Paying for lawyers is not just a problem for the indigent in criminal cases. People should not have to impoverish themselves and exhaust their resources and savings when they go to court in civil cases and/or criminal cases. JUSTICE SHOULD BE AN ENTITLEMENT, like healthcare and public education. If the legal system were funded from public funds or some mixture of public/private like healthcare is, there would be guidelines for lawyers’ fees just like HMOs and Medicare set fees for doctors. There would be pressure to reform and streamline the legal process to make it efficient. Archaic rules and procedures would be changed.

Posted by Janai Reed
Thursday, February 21, 2013 08:14

In the District of Columbia, there seems to be a debate as to whether indigent defendnats are entitled to the best defense. the court has decided that court appointed counsel need not be paid hour for hour and it appears a decision has liekwise been made that the barest of "effctive " representation need only be provided. Maybe this case will offer some guidance to administrators/judges overseeing ccourt appointed/indigent representation since it can be very confusing as to whether to “put your best foot forward” or only the foot that gets you slightly beuond effectiveness scrutiny.

Posted by Katy
Monday, February 18, 2013 06:12

Great post— thanks! This is definitely an issue that needs to be addressed again in the court system. I think it’s also really important to note Bader-Ginsberg’s thought: “Did anyone ever tell this man with an eighth-grade education what his rights were?” We need to address paying for indigent defense— we also need to address communicating and educating rights for this population as well.

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