The Oregon Defense Attorney

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1 The Oregon Defense Attorney A journal published by the Oregon Criminal Defense Lawyers Association Special Gideon Issue Feb/Mar 2013 Vol. XXXIV, No. 1 Championing justice, promoting individual rights and supporting the legal defense community through education and advocacy.

2 Cover Art: Ben Sargent Celebrating Gideon The cover of this issue presents an original work by Ben Sargent. Sargent won the Pulitzer Prize for Editorial Cartooning in He began drawing editorial cartoons for the Austin American-Statesman in 1974, and he retired in Through his trenchant cartoons, Sargent has demonstrated an enduring commitment to the Bill of Rights. OCDLA is proud that he is part of our special tribute to Gideon v. Wainwright. The original work will be framed and hung at the new OCDLA offices. OCDLA Celebrates the 50th Anniversary of Gideon v. Wainwright FIFTY YEARS AGO, a crude, handwritten letter from a Florida inmate forever changed the course of the American judicial system. Clarence Earl Gideon, a native of Hannibal, Missouri, authored the petition which ultimately resulted in the landmark decision that guaranteed every American s right to a lawyer marks the 50th anniversary of this There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. ~ Former U.S. Supreme Court Justice Hugo L. Black landmark ruling, and its effects are still felt today. This U.S. Supreme Court decision handed down half a century ago made sure every individual has equal access to the law, regardless of income level. The Landmark Case In 1961, a burglary occurred at the Bay Harbor Pool Room in Panama City, Florida. Someone broke a door, smashed the cigarette machine and a record player, and stole money from a register. A witness reported that he had seen Clarence Earl Gideon leaving with a wine bottle and money in his pockets. The police arrested him and charged him with breaking and entering with intent to commit petty larceny. Gideon appeared in court and was too poor to afford counsel, whereupon the following conversation took place: GIDEON: The United States Supreme Court says I am entitled to be represented by Counsel. THE COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case. From his prison cell at Florida State Prison, writing in pencil on prison stationery, Gideon appealed to the Supreme Court in a suit against the Secretary to the Florida Department of Corrections. He argued that he had been denied counsel and, therefore, his Sixth Amendment rights, as applied to the states by the Fourteenth Amendment, had been violated. The rest is history. This issue of the Oregon Defense Attorney is edited by Tony Bornstein, OCDLA Board member. Clarence Earl Gideon Louie Wainwright, Secretary of the Florida Division of Corrections Attorney Abe Fortas represented Gideon at the Supreme Court Bruce Jacob, Assistant Attorney General, State of Florida February/March The Oregon Defense Attorney

3 THE OREGON DEFENSE ATTORNEY Publisher Oregon Criminal Defense Lawyers Association 96 East Broadway, Suite 5, Eugene, OR t: f: Executive Director, Editor John R. Potter, Staff Riley Jones, Tracye May, Jennifer Root, Alene Sybrant, Lobbyist Substantive Issues: Gail Meyer, Submissions & Deadlines OCDLA welcomes articles from qualified professionals. Submit articles by attachment to OCDLA will also consider articles which have appeared elsewhere. OCDLA reserves the right to select and edit material for publication. Articles, announcements, classified and display advertising and other items for publication should be submitted by to by these dates. April/May Mar 15 June/July May 1 Aug/Sept July 1 Display Advertising Delivered to over 1300 OCDLA members, The Oregon Defense Attorney accepts commercial display advertising. Deadlines are the same as publication deadlines. Call OCDLA at for information. Full Page (9.75h x 7.5w)...$650 2/3 Page Vertical (9.75h x w)... $525 1/2 Page Horizontal (4.6875h x 7.5w)... $400 1/3 Page Vertical (9.75h x 2.375w)... $275 1/6 Page Horizontal (4.5h x 2.375w)...$150 Classified Ads Deadlines are the same as publication deadlines. Members (up to 100 words, 3x/year)...Free Non-members /word IN THIS ISSUE The Promise of Gideon Requires Vigilance Lane Borg...4 The Guiding Hand of Counsel in Fargo, N.D. Jim Arneson...5 Calendars...7 Board of Directors...7 The Echoes of Gideon Susan Elizabeth Reese...8 A Tribute to Bruce Jacob Dennis Balske...10 A Judge s Perspective on Juvenile Law The Honorable Lisa C. Greif The Value of Gideon The Honorable Kenneth Walker Gideon s Promise Paul J. De Muniz Lawyers, Tyranny and The Rule of Law Steven T. Wax Donors Make the Difference Our Members Seminars, Ads, Registration Forms, Events Legislative Drive-In...6 March Online Savings...9 Pond Listserve Sunny Climate Seminar...14 Post-Conviction Relief Seminar Scientific Evidence: A Manual for Oregon Defense Attorneys Hard Time Made Easy Registration Form...21 Juvenile Law Seminar Program and Registration Form Trial Notebook Oregon Criminal Defense Lawyers Association The views expressed by authors are not necessarily the views of OCDLA, nor is the printing of advertising meant to imply an endorsement of those services or products. The Oregon Defense Attorney 3 February/March 2013

4 The Promise of Gideon Requires Vigilance by Lane Borg AS MY DAY JOB involves leading a large public defender office, I might be forgiven for focusing on this March 18th and the 50th Anniversary of Gideon as a celebration of court-appointed counsel, but as I was recently, and rightly so, reminded that misses the point. This March 18th is really an affirmation of the role of criminal defense attorneys. Now, no doubt, Gideon is important to establishing public defenders as it switched the default from not having courtappointed counsel, absent special circumstances, to presuming an attorney is provided to those that cannot afford one. But this was only because the court finally decided that the disadvantage of not having counsel was so great it made the process fundamentally unfair and thus a violation of due process. Also, the Gideon Court did not come to this conclusion out of nowhere. Many court watchers anticipated the ruling and the Court posed that very question: should we overrule Brady v. Betts and not require the defendant to show special circumstances in order to get court-appointed counsel. So we need to look back further in the Court s history for this link between counsel and fundamental fairness. There is perhaps no better articulation of this concept than in the 1932 decision Powell v. Alabama wherein Justice Sutherland wrote: The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequate to prepare his defense, even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. And in session after session, including this past session, the Court has recognized the fact that the guiding hand of counsel at every step means more than jury selection to closing argument. The Court recognizes this right to counsel and that means competent counsel at the plea bargaining and trial preparation stages, particularly in the area of advice we give our clients as they make their choice of whether to plead or go to trial. But while many cases before and since have defined the role of counsel in a criminal case, Gideon is the flagship case that we celebrate. It stripped away the ifs, ands, or buts as to whether you got a lawyer. No longer do the factual circumstances of the case determine the right; rather, the financial circumstances of the accused have become the focus: the need and benefit of counsel is presumed. This special edition of OCDLA s Defense Attorney reflects upon, celebrates and affirms the promise of Gideon. However, fulfilling and preserving the promise of Gideon requires continued vigilance not only from defense lawyers but the entire justice system. OCDLA Board President Lane Borg is director of the Metropolitan Public Defender in Portland. He serves on the Education and Legislative committees. February/March The Oregon Defense Attorney

5 The Guiding Hand of Counsel in Fargo, ND by Jim Arneson THIS ARTICLE will present a slightly different slant on Gideon v. Wainwright. I wasn t indigent when I was indicted by the federal government, although I was strapped for funds, but I certainly needed the assistance of an attorney. I can speak firsthand of the benefit a lawyer provides, whether retained or courtappointed. Like many males of my generation, I struggled to determine my response to the government s call to fight in Vietnam. In 1968, I began working as a social worker at a juvenile correctional institution in Minnesota. I applied for an occupational deferment from my draft board but was denied. I eventually persuaded myself that I could state that I was conscientiously opposed to participation in war in any form and I applied for conscientious objector status. That was denied. I was ordered to report for induction on July 20, 1970, in Fargo, North Dakota. When asked to step across the line, I refused. I was interviewed and then sent on my way. More than a year passed before I was finally arrested by U.S. Marshals, transported to the Hennepin County jail in Minneapolis and lodged. I had hoped to be bailed out that evening by my wife, Pat. We didn t have the $500 in cash, but we were hopeful we could borrow the money from her parents or from mine. She asked her parents first because they were in the Minneapolis area, but they refused because their own son was fighting in Vietnam. My parents lent the money but it took a while for Pat to get the cash. It was late the next day before Pat could bail me out. The uncertainty of waiting in jail when you cannot communicate with loved ones on the outside is a valuable experience for the work we do. It means so much to someone sitting in jail to have a lawyer say, Of course I will call your wife, husband, girlfriend, parent, or other loved one, and let them know where you are. Only at this point did I begin to think about a lawyer. My father had a good friend who practiced law in Fargo Mart Vogel, and we went to see him. He was very sympathetic to my position, he was opposed to the war, but he said he had not handled a draft case and was doing very few criminal cases. However, we persuaded him to take my case. He was familiar with the local draft resistance organization and would seek their assistance in developing my defense. In the year that followed, Mart Vogel exemplified the qualities described by Justice Black in Gideon. He kept me informed of the progress in my case, he discussed possible defenses, and he provided the likely result if we lost (five years in prison). He was the guiding I was ordered to report for induction on July 20, 1970, in Fargo, North Dakota. hand of counsel at every step in the proceedings against [me]. Mr. Vogel requested all the records of my draft board proceedings, and a volunteer with the local draft resistance organization reviewed them. They located numerous procedural defects in the Draft Board s proceedings, including the discovery that one of the denials of my various applications had not been done by the board, but by the secretary of the board. Another issue raised by Mr. Vogel was that the board considered one of my appeals along with 258 other appeals in two hours and 15 minutes, an average of 31 seconds for each appeal. Mr. Vogel prepared a motion to dismiss the indictment. On July 24, 1972, my family and I gathered for the hearing on our motion to dismiss. Chief Judge Paul Benson presided. Mart Vogel presented what seemed to me to be an overwhelming argument in support of dismissal, followed, to my dismay, by what seemed to me to be equally compelling arguments against it. The judge clearly had already reviewed the long motion and the many exhibits in support of our motion to dismiss as well as the US attorney s brief in opposition. He read his opinion from the bench and it seemed to go on for an eternity. My heart would soar as he pointed out the government s weaknesses and sink as he pointed out ours. Finally he opined that the defendant might not meet the criteria for either an occupational deferment or conscientious objector status, but that the Due Process Clause of the Fourteenth Amendment required where individual cases are brought to the Court s attention which indicated that due process has not been given, it is the duty of the Court to give appropriate relief; and in this case, taking the file as a whole, it is clearly apparent to this Court that due process was not followed, and that the Court finds that the registrant is entitled to the relief which he has requested through his motion to dismiss, which the Court further finds to be a proper motion, and the motion is granted. Continued on next page The Oregon Defense Attorney 5 February/March 2013

6 THE GUIDING HAND Continued from previous page. The uncertainty of waiting in jail when you cannot communicate with loved ones on the outside is a valuable experience for the work we do. With the dismissal of the case, I waited for only two things: my notice of reclassification from the Selective Service System and the bill from my lawyer. My classification and the draft lottery decreased my odds of being drafted again. The bill arrived shortly after receiving the judgment of dismissal. Pat and I discussed many times how much the bill would be. (Perhaps the only shortcoming in Mr. Vogel s representation, I realize after many years of scraping a living from this work, was his failure to discuss the fee for his services.) The total: $54.86 for the expenses incurred including mileage, telephone calls, and photostating. The fee for legal services? No charge, by reason of the affection we have for your entire family. My experience as a defendant was, of course, a powerful influence on my decision to be a lawyer. It has also guided me throughout my career. And, as all of you reading this know, I am not alone. OCDLA is testament to the notion that legal representation of the accused is a noble calling. Whether representing those who have paid, representing those on whose behalf the government has paid, or those whom we choose to represent for no fee: From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. Gideon v. Wainwright provides, as a matter of right, what I was lucky enough to obtain through a fortuitous relationship. Sustaining Member Jim Arneson is a past president of the OCDLA board of directors. He practices law in Roseburg. Gideon Anniversary Legislative Drive-In March 18, 2013 State Capitol, Salem Celebrate the 50th Anniversary of the landmark ruling on the right to counsel! OCDLA s Discovery Bill: Senate Judiciary Committee, 8 a.m. CLE Program: 10:00 a.m. Presentations by: Lane Borg, OCDLA President and Director, Metropolitan Public Defenders Former Justice W. Michael Gillette, Portland Rob Cary, Former Attorney for the Late Senator Ted Stevens, Washington, D.C. Rep. Jennifer Williamson, D-36 Attorney General Ellen Rosenblum Lunch & CLE credit included with paid registration, but all are encouraged to attend! Let Your Voice Be Heard!: 1:00 p.m. Individual Meetings with Legislators Plan now to meet with your Senator or Representative, advance scheduling required. Call or register online at The Oregon Criminal Defense Lawyers Association February/March The Oregon Defense Attorney

7 CALENDARS EVENTS, MEETINGS, & CLEs Online summary of seminars and events 2013 Post-Conviction Relief March 8 Eugene Hilton Hard Time Made Easy: Sentencing Seminar March 8 9 Eugene Hilton Legislative Drive-In March 18 State Capitol, Salem Juvenile Law Seminar April Hallmark Resort, Newport Investigation Seminar April 27 World Trade Center, Portland Annual Conference June Seventh Mountain Resort, Bend September Seminar September Agate Beach Inn, Newport Juvenile Law Training Academy October Eugene Hilton Public Defense Management October Salishan, Gleneden Beach Death Penalty Defense October Salishan, Gleneden Beach Sunny Climate Seminar November The Fairmont Orchid, Big Island, HI Winter Conference December 6 7 Benson Hotel, Portland BOARD MEETINGS March 8, 9:00 a.m. 1 p.m., Eugene Hilton April 27, World Trade Center, Portland June 14, 3:30 p.m. 5:00 p.m., Seventh Mountain Resort, Bend Visit for a complete calendar of meetings. PUBLIC DEFENSE SERVICES COMMISSION Friday, March 22, 10:00 a.m. 2:00 p.m. Office of Public Defense Services 1175 Court Street NE, Salem, OR For information about PDSC meetings contact Laura Anson, , BOARD MEMBERS President: C. Lane Borg Metropolitan Public Defenders Office, Vice President: David T. McDonald District 5, Secretary: Megan L. Jacquot District 3, Coos Russell S. Barnett, III At-large, Tony Bornstein Federal Public Defenders Office, Carole Hamilton Southwestern Oregon Public Defender, Inc., Coos Eric R. Johansen Office of Public Defense Services, Robert Kaiser Public Defender Services of Lane Cty, Edward Kroll District 4, Gordon Mallon District 6, Eve Oldenkamp District 1, Klamath Kelly Ravassipour Southern Oregon Public Defender, Inc., Keith Rogers Multnomah Defenders, Terri Wood District 2, Visit for a map of board districts. The Oregon Defense Attorney 7 February/March 2013

8 The Echoes of Gideon by Susan Elizabeth Reese One half century after the Supreme Court decided Gideon, the possibility of one charged with a crime defending himself is almost incomprehensible. CLARENCE EARL GIDEON was an unlikely candidate for immortality. Fifty years old, Gideon was a frail white man whose livelihood had been gambling and petty theft. He was considered a perfectly harmless human being, rather likeable, but one tossed aside by life. 1 He was arrested in 1961 for breaking into a Panama City, Fla., pool hall. Roughly $5 in change and a few bottles of beer and soda had disappeared. The owner, Ira Strickland, Jr., complained to police that $50 had also been taken from the jukebox. A witness, 22-year-old Henry Cook who lived nearby, reported to the police that he had seen Gideon walk out of the pool hall with a bottle of wine and his pockets filled with coins. He said he saw Gideon get into a cab and leave. A bit later Gideon was arrested in a tavern. Because he couldn t afford a lawyer he defended himself at trial. The Supreme Court later noted that [He] conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State s witnesses, presented witnesses in his own defense, declined to testify himself and made a short argument emphasizing his innocence to the charge 2 The jury convicted Gideon, and five days before his 51st birthday he received the maximum sentence, a five-year penitentiary term. In prison, he became a jailhouse lawyer. He felt he had been denied a fundamental constitutional right his right to counsel under the Sixth Amendment. He believed the judge had violated the Due Process Clause of the Fourteenth Amendment. He complained to a local FBI office in Florida, to no avail. He next complained to the Florida Supreme Court with the same result. Then, in 1962, he mailed a penciled five-page petition to the United States Supreme Court. That court, in its landmark unanimous decision, ruled on March 18, 1963, that Gideon was right: Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth Lawyers in criminal trials are necessities, not luxuries. 3 At his retrial, Gideon was represented by a local lawyer, Fred Turner, who prepared vigorously. He interviewed witnesses and even picked pears in the backyard with Henry Cook s mother to try to find out about the state s star eyewitness. 4 After the jury deliberated for just an hour, Clarence Earl Gideon finally heard those most Beautiful Words, not guilty. New York Times writer Anthony Lewis chronicled Gideon s case in a widely acclaimed book, Gideon s Trumpet, which was published the next year and sold, hard bound, for the sum of $4.95. One of my uncles, knowing I had decided in eighth grade to become a criminal defense lawyer, provided a first edition of the book for me at my graduation from high school in My uncle, curiously, was an FBI agent (they weren t all Special Agents back then). He inscribed the front page: Congratulations on your recent graduation. May you have a long and happy life. Continued on next page February/March The Oregon Defense Attorney

9 ECHOES Continued from previous page. Almost forty years later, Anthony Lewis was the commencement speaker and recipient of an honorary degree at Oberlin College. Attending my 35th college reunion that weekend, I met him and asked that he autograph my yellowing and oft read copy of Gideon s Trumpet. He was delighted to do so. Gideon s triumph took a while to make an impact in the small Pennsylvania community where I grew up. In the summer of 1967, county officials appointed local attorney Michael Wherry to open an office as a part-time county public defender. Funding for the office was uncertain. Home for the summer after my junior year at Oberlin, I learned that Mike had no staff, so I volunteered. He was delighted and put me to work at once. I answered the telephone, created forms and interviewed clients in jail. Mike showed me that reading cases didn t simply involve looking at an opinion, but required tracking it through the dizzying tiny columns of numbers in the red volumes of Shepherd s Citations to be sure the results hadn t been changed or overruled. I learned the importance of hard work and preparation. And I retained enduring memories of clients from that summer. There was Furman, just a few years older than I, who found himself in and out of jail because he d dropped out of school and couldn t keep a job. He was encouraged that a college student would be interested in helping him stay out of trouble, and for many years he did well. We corresponded a long time after his case resolved, until I spent a year out of the country and his letters stopped coming. There was Jimmy, by all accounts a quiet and thoughtful young man. Neighbors described him as helpful and friendly. All were shocked when, one night, at the end of a trivial argument, he stabbed his mother 23 times with a kitchen knife and walked, covered with blood, to the local police station to confess. The next day, Mike and I got the case, and the trip to the crime scene in the small house was one I would never forget. The walls were smeared with blood, the small living room a shambles. The reality of the life and death struggle that had been waged there was overwhelming. I drew diagrams and took pictures on a small Kodak camera. I learned quickly the importance of keeping my own emotions at the door. Visiting him in jail, I found Jimmy to be a model client: filled with horror, bewildered, depressed. We brought in experts to help us understand what had led him to snap and how to help him through the court system to get a semblance of his life back. I stayed in touch with him, too, over the years, and believe eventually he was released and found a good job. At the end of the summer Mike received a small stipend for his work, and I too was paid something less than a few hundred dollars. But the experience added priceless reality to my commitment to criminal defense. I came back to help out the next summer. Over the years, I completed law school, spent a year with a legal aid office in Connecticut, and then began my own practice as a criminal defense lawyer in Portland. Mike Wherry became a judge in the small county where Gideon gave us a chance to work together, fighting for justice. For more than 30 years, I have had the privilege of writing for OCDLA about our criminal defense lawyers successes. Beautiful Words, which describes acquittals after a jury trial, and Reese s Pieces, which profiles dismissals, successful motions, and positive settlements. Each story echoes the vitality of the criminal defense lawyer in our society. The quality of our defenders is high, whether retained or appointed. These lawyers pursue the defense with passion and professionalism. One half century after the Supreme Court decided Gideon, the possibility of one charged with a crime defending himself is almost incomprehensible. Indeed, the expansion of the right to counsel over the past five decades has affirmed what Justice Hugo Black declared in Gideon, that Lawyers in criminal trials are necessities, not luxuries. ENDNOTES 1 Anthony Lewis, Gideon s Trumpet, Random House: 1964 p. 6 2 Gideon v. Wainwright, 372 US 335, 337, 83 S Ct 792, 9 L Ed 2d 799 (1963) 3 Gideon 372 US at Curiously, Turner had represented Cook in a divorce and during another legal matter. See, Gideon s Trumpet, p. 238 Life Member Susan Elizabeth Reese serves on the Building Development and Education committees. She practices law in Portland. March Online Savings MEMBERS ONLY Save $15 when you register for the April 27, 2013, Investigation Seminar online. The Oregon Defense Attorney 9 February/March 2013

10 A Tribute to Bruce Jacob by Dennis Balske I AM A LUCKY MAN. My parents loved me. I married two terrific women. I have two great daughters and a wonderful son. And Bruce Jacob was my mentor. Bruce was a puppy Harvard law grad when he served as Florida s sacrificial lamb in Gideon. He had to square off against Abe Fortas in the Supreme Court before the H on his diploma had a chance to dry. The result was a foregone conclusion, and we celebrate Fortas s Sixth Amendment victory with reverence and gusto. But Bruce is a hero, too. He became the director of the Ohio State Clinical Program, where he mentored me. He served as dean at Mercer and Stetson law schools. Lest you doubt his credentials, he recently took on post-conviction and habeas representation of a murder defendant because the defendant s mother, a cleaning lady at the law school, told Bruce that she did not have money to hire a lawyer for her son. He is the only law professor I ever had who would admit he did not know the answer to a student s question; then he would start the next class by providing the answer he had found by researching the question in the law library (yes, we used books in those pre-westlaw days). And he has yet to allow me to walk through a door without opening it for me. He was the moving force in another interesting Sixth Amendment battle. It happened in I was co-teaching the criminal defense practicum with Bruce. The mother of Ronnie Pinson asked me to defend her son on a capital murder charge. I said okay. After all, I was very experienced I tried one capital case in 1975 and was almost a year and a half out of law school. Of course, Ronnie s mother had no money. So I went to the judge hearing the case and asked him to appoint me. He refused. Soon after, I complained to a friend, Max Kravitz, my clinical counterpart at Capital University s Law School. He agreed that the judge was an SOB and said, If you ll do it for free, I ll do it for free. We did. Thirty-eight years later, it is my Gideon story. Ronnie protested his innocence. The DA was offering manslaughter. Ronnie said, Tell me what to do. We said, You can t plead guilty if you re innocent. We decided a polygraph would help us sort out our conundrum. If a tuba-toting judge messes with your client s Sixth Amendment right...sue the bastard. ~ Bruce Jacob We hired a polygrapher and accompanied him to the jail. The admitting official said, No polygrapher is going in without an order from the captain. The captain said, Not without an order from the judge. And the judge said, Take it up with the court of appeals. It was the Wednesday before the opening of trial. I returned to my office complaining vociferously. I ll never forget Bruce s response. He stated very simply, He can t do that. He sent me to Lou Jacobs, who taught the civil litigation practicum. Lou told me I needed to file a 1983 action in federal court and provided me with the necessary forms. I stayed late drafting a complaint, motion for TRO, and motion for preliminary injunction against the captain and the mean judge (his claim to fame was dotting the i in Script Ohio when he played the tuba in the marching band). By Friday afternoon we were in federal court, the mean judge and the captain with their lawyer and me with Max at my side and Lou in the front row. I remember two things from the hearing. I inadvertently called the mean judge by the wrong last name, inserting the captain s name in place of his. He rose from his seat at counsel table and sternly corrected my error. And the federal judge asked me whether my client was required to exhaust state remedies before seeking relief in federal court. I astutely responded that Lou knew more about this than me and, pointing to Lou, asserted that Lou told me, when I asked, that I did not need to exhaust state remedies. Later that afternoon, the judge issued an order granting us relief. He held that prohibiting the polygraph examination would infringe on Ronnie s Sixth Amendment right to effective assistance Continued on next page February/March The Oregon Defense Attorney

11 TRIBUTE Continued from previous page. of counsel. Pinson v. Williams, 410 F.Supp. 1387, 1388 (1975). So Saturday the test was administered. Unbeknownst to us, Ronnie had an abscessed tooth. It had required immediate dental intervention, including removal of the tooth under, you guessed it, lots of Novocain. Turns out, this is not a good time for a polygraph test. Yes, the results were a whopping inconclusive. Monday brought jury selection and some really ugly (attitudinally speaking) prospective jurors. Tuesday started the same. To our surprise, the DA lowered his offer to armed robbery. Ronnie s response remained the same: I m innocent, tell me what to do. My colleague, Max, to his credit, stepped in and said, We re taking it; it s too good to pass up even if you are innocent. Ronnie pleaded guilty to armed robbery. After the plea, we asked the DA what had caused him to reduce his offer from manslaughter to armed robbery. The judge, he responded. Our mean judge, it turned out, felt that the trial was going to cut into his Christmas vacation. So he leaned on the DA to make the case go away. There is a moral to our story. If the state s sacrificial lamb in Gideon becomes one of liberty s great champions and becomes your mentor, you will be blessed. And if a tuba-toting judge messes with your client s Sixth Amendment right to effective assistance of counsel, follow your mentor s advice. Sue the bastard in federal court and, if he played in the Ohio State Marching Band he may hate your guts, but he won t be able to resist the opportunity to dot the i in your client s capital murder i nnocence. OCDLA Member Dennis Balske is co-chair of the Death Penalty Committee. He practices law in Portland. For all this & more... Need closing argument suggestions for the untrustworthiness of a rat? Seeking sponsorship by a SCOTUS bar member? Forced by an intractable judge to find urgent child care? SWIM IN THE POND! OCDLA s Listserve. Free with membership. expert referrals shared tips and insights motions and case law fast! I belong to several list-serves in several practice areas, and all those other lists put together don t match the friendliness and helpfulness of the Pond. It s not even close. Please also consider this a collective thank you to the Pond Pond-Folk rock! Brian Cox Subscribe org with Subscribe in the subject line. Unsubscribe with Unsubscribe in the subjeect line. Strength in Numbers Join or Renew Today Memberships are valid through June Join or renew online. OCDLA is a 501(c)(3) tax exempt organization. The OCDLA PAC is a separate entity. Call us at (541) DUES Life Member Sustaining Member* $5000/one-time fee $550/yr New Bar Admittee (2012) $50/first yr Regular (Bar# ) Regular (Bar# up to 2007) Professional Nonlawyer Law Student Add a PAC Contribution $225/yr $325/yr $115/yr $10/yr $ *SUSTAINING MEMBERSHIP includes free PDF of written material, upon request, of the September seminar, Winter Conference, March seminar and April Juvenile Law Seminar. Visit for complete membership benefits. The Oregon Defense Attorney 11 February/March 2013

12 A Judge s Perspective on Juvenile Law by The Honorable Lisa C. Greif AS AN ATTORNEY at Southern Oregon Public Defender, Inc., I represented thousands of adult and juvenile clients in criminal, delinquency, dependency, and termination of parental rights cases. I was often asked by family and friends how I could defend people who were charged with serious crimes or advocate for people who were guilty. I had a number of answers to these questions but first and foremost was that our Constitution guaranteed the right to counsel for anyone who was facing a criminal or delinquency prosecution. I have been a circuit court judge since 2009 and, after being on the criminal rotation my first year on the bench, have presided over juvenile delinquency and dependency cases for the last three years. Although my position in the courtroom may have changed, my belief in the fundamental concept of the assistance of counsel is stronger than ever. Gideon paved the way for In re Gault, which extended the right to counsel to juveniles in delinquency proceedings. As we are all aware, Gideon v. Wainwright 1 is the landmark decision by the United States Supreme Court in 1963 that held that due process requires courts to appoint attorneys for indigent defendants charged with criminal offenses. Gideon paved the way for In re Gault 2, which extended the right to counsel to juveniles in delinquency proceedings four years later. Like attorneys who are appointed to represent adults in criminal cases, attorneys who are appointed to represent juveniles in delinquency cases share the same responsibilities: attempting to secure the pretrial release of their client, conducting an independent review and investigation of the case, filing pretrial motions, entering into plea negotiations with the prosecution, adequately preparing for and conducting a trial, fully advocating for the client s interest at disposition, informing the client of his right to appeal, and filing appropriate post trial and/or post-disposition motions. However, a juvenile delinquency attorney has to tailor his representation specifically to meet the age and intellectual capacity requirements associated with youthful clients. This often means learning about basic child development and the adolescent brain and having age-appropriate communication skills. Scientists have shown through their years of research that adolescents brains tend to tolerate uncertainty more than adults brains do. In other words, when the risks of a particular behavior or action are unknown or ambiguous, a teenager is more likely to engage in that risk-taking, especially when the potential rewards are high. This is due to the frontal lobes not being fully connected. This part of the brain is responsible for thinking about what the consequences of an action will be, for planning and organizing, and for impulse control. Teenagers don t have as much myelin (the fatty coating that acts as an insulator around nerve cells) as adults, and nerves need the myelin for their transmissions to flow freely or a breakdown in communication can occur between the different parts of the brain. Recent studies have shown us that people don t reach a stage of complete nerve insulation until their mid-20s. This means that the part of the brain that controls judgment isn t fully developed until adulthood. As an attorney representing juveniles charged with delinquency offenses, you may be dealing with clients who are not capable of understanding what effects their actions have on others simply because of the way their brains are wired. In addition to trying to explain the meaning of beyond a reasonable doubt, subpoena, the right to confrontation, motion to suppress and other legalese to a thirteen-year-old, you have to be mindful of his brain development (or lack thereof). This brings up another issue for juvenile attorneys: how do you talk to your clients? When I am explaining charges, possible penalties, and rights to the youths who appear before me in court, I get a lot of blank stares. I think they generally understand the idea of being locked up in detention or paying a fine, but many have never heard the term youth correctional facility before. How about the differences between acting Continued on page 14 February/March The Oregon Defense Attorney

13 The Value of Gideon by The Honorable Kenneth Walker The best way to understand a problem is to consider it from all points of view. When one is charged with a crime, lawyers are the ones equipped to analyze all aspects of the case. Lay people lack that training. Consequently, the only way due process can be realized is with a trained defense attorney representing the accused. Before Gideon, only wealthy defendants, or defendants accused of serious crimes like murder, got lawyers. Then, in the spring of 1963, my local paper proclaimed Criminals now get lawyers So Says the Supreme Court. I remember thinking, Well, this only applies to criminals; no big deal. At that age, I did not realize that innocent people could be charged with crimes, or overcharged, or that people could be stopped illegally, searched illegally, or arrested illegally. In the criminal justice setting, the police are sworn to protect and serve, and most adhere strictly to that code, but every now and then a mistake is made and that is where the assistance of counsel can be critical. The United States Supreme Court understood, and all lawyers agree, that justice cannot be achieved unless everyone charged with a crime has a legally trained advocate. Self-representation is akin to self-surgery unless one is a trained medical expert, it would be ridiculous and dangerous to attempt that surgery. Fundamentally, Gideon v. Wainwright is about due process. Without a lawyer trained in criminal defense to assist and advise a fair trial is impossible. This is the foundation of the Sixth Amendment to our Constitution. As I look back on the spring of 1963, I now think, What took so long? It s hard to believe that judges thought lay people could represent themselves in serious cases where they could end up in prison for many years. Before Gideon, prosecutors must have had a conviction rate approaching 100% when trying the unrepresented. If they lost a case to a criminally charged defendant, it had to have been the ultimate professional embarrassment. As a criminal defense attorney for twenty-five years, and as a circuit court judge for six, I have seen the promise of Gideon every day. As a judge, I have presided over hundreds of judicial settlement conferences. In these sessions, I sit down with the defendant, his attorney and the prosecutor, and discuss a potential resolution of the case. This presents an opportunity for the defendant to hear the case against him. The defense attorney learns what evidence will be held admissible and what will be excluded. The prosecutor weighs potential defense witnesses credibility. The attorney can then advise her client about the potential for conviction and about the risks that might ensue from trial. She can advise whether or not to accept a plea agreement. Without this information and advice, the accused could be rolling the dice on his future and on a potential conviction. And that is the value of Gideon. Equally important, this occasion is a reality check for defendants who may have considered self-representation or believed that certain evidence could exonerate them. I have had defendants tell me they have seen lawyers on television and that they can do what those lawyers do. I politely explain that lawyers on television are scripted and acting, and that it takes four years of college, three years of law school, and passing the bar exam to become a lawyer. On top of that, it takes years of practice under experienced lawyers before an attorney can effectively assess and try a serious criminal case on his own. I also tell them that self-representation is akin to selfsurgery. Unless one is a trained medical expert, licensed and skilled in a particular medical procedure, it would be ridiculous and dangerous to attempt that surgery. Representing oneself in a criminal matter without a trained attorney is equally ridiculous. Frequently, defendants ask, What should I do? The accused can only make that decision if assisted by intelligent, fully informed professionals who understand all the consequences. That is why an attorney is so important. Still, no matter what the advice to a defendant, the ultimate decision to go to trial is his. It is the responsibility of the defense attorney to flesh out the good, the bad and the ugly so that the accused can make an informed decision about going to trial. That is the profound value of Gideon. When a defendant decides to go to trial, it is still the attorney s sworn duty to defend his client and to force the government to prove guilt beyond a reasonable doubt. Continued on next page The Oregon Defense Attorney 13 February/March 2013

14 PERSPECTIVE Continued from page 12 with criminal negligence, acting recklessly, or acting knowingly or intentionally? I had a hard enough time explaining those concepts to adults in criminal court let alone to a group of year-olds. Juvenile attorneys (and judges, for that matter) need to be able to use kid-friendly language when speaking with their clients. We need to stop using technical legal terms and to speak to youths in a manner that allows them to truly comprehend the information. Talking to your juvenile client may be made even more problematic because many of the kids suffer from communication disorders and/or speech impairments and tend to have more educational struggles and lower verbal IQs. These factors may affect the adolescent s ability to express, understand, and process information. It might be a good idea to put things in writing at an appropriate grade level for your juvenile clients. Some have suggested that court forms should be written at a third grade reading level, for example. Having the youth summarize the important information to you in his or her own words seems to be a good alternative to just asking if they understand. I am fortunate that my county has a group of attorneys who are well versed in both zealous advocacy and child development. They appreciate the challenges of representing juvenile clients and understand the need to speak for the youth s expressed interests, even though those interests may be contrary to the interests or desires of the probation officer, the prosecutor, the judge, the parents, or the best interest of the child standard that commonly accompanies juvenile cases. Youth offenders face a myriad of consequences, including detention, probation, residential treatment, placement in foster care, commitment to a youth correctional facility, offenses that are not expungeable, and permanent sex offender registration. It is hard to imagine them facing these consequences without the guiding hand of counsel at every step in the proceedings. 3 SELF-REPRESENTATION Continued from previous page I have many memories as a criminal defense attorney, including hours spent weighing the pros and cons of going to trial versus accepting a plea agreement. Going to trial and getting an innocent defendant exonerated was hugely rewarding. I also have somber memories of being offered a great deal, having the client reject it against my advice, going to trial and receiving a conviction and a stiff sentence. Even in those instances, though, my client had all the information he needed to make an informed decision. He benefitted from the guiding hand of counsel the great promise of Gideon v. Wainwright. The Honorable Kenneth Walker is a Multnomah County Circuit Court judge. Endnotes 1 Gideon v. Wainright, 372 US 335 (1963). 2 In re Gault, 387 US 1 (1967) US at 345; 387 US at 36. The Honorable Lisa Greif is a Jackson County Circuit Court judge. Mark Your Calendar! 2013 Sunny Climate Seminar Hawaii Nov , 2013 At The Fairmont Orchid, Big Island, Hawaii Photo Courtesy The Fairmont Orchid, Hawaii February/March The Oregon Defense Attorney

15 Gideon s Promise by Paul J. De Muniz T his year marks the fiftieth anniversary of the United States Supreme Court s landmark decision in Gideon v. Wainright, 372 v. 335 (1963), holding that a person charged with a felony who is unable to hire a lawyer because of indigency is entitled to a court-appointed lawyer at government expense. The opportunity to write this article permits me to offer some observations about Oregon s implementation of the Gideon promise over the past fifty years. In doing so, I want to share an occasional personal story or two, and offer some thoughts about the future. There are many passages in the Gideon opinion, authored by Justice Hugo Black, that merit quotation. However, for me the following quote captures in just two sentences the principles that underlay the Court s decision in Gideon. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trails before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with a crime was to face his accusers without a lawyer to assist him. The Court also observed in Gideon that lawyers in criminal courts are necessities, not luxuries, and that it is governments that have the obligation under the federal constitution to provide lawyers for people charged with crimes who cannot afford to hire their own.1 I was admitted to the Oregon Bar in 1975, twelve years after the Gideon decision. For the first two years of my career I worked in the State Public Defender s office, arguing appeals in the Court of Appeals and the Supreme Court on behalf of indigent prisoners.2 More than thirty-eight years have passed since I first entered an Oregon courtroom representing a poor man charged and convicted of a crime. Throughout my legal career I have always worked in the criminal justice system as a public defender, a court appointed lawyer in misdemeanor, felony, and death penalty cases, a Court of Appeals judge, a Supreme Court justice, and as Chief Justice of the Oregon Supreme Court. In 1977, a week or two after I joined a small law firm in Salem, I was appointed to represent a 19-year-old single mother Oregon needs to establish within the public defense system a public defender unit dedicated to post-conviction relief cases. charged with robbery in the second degree then a class B felony. At that time, Oregon did not have a unified court system. Indigent criminal defense was funded locally; there were no uniform or statewide compensation standards and no quality assurance standards for counsel. Although trial-level public defender offices existed in some counties (Multnomah, Douglas, Baker), Marion County did not have such an office. In Marion County the appointment of attorneys, their compensation, and the appointment, compensation and use of investigators and experts was within the unfettered discretion of the presiding judge. Soon after receiving the appointment, I asked the presiding judge to appoint an investigator at county expense. In denying my request, the judge informed me that investigators were necessary only in serious cases such as murder, and then only rarely. It was incumbent on me to investigate the case. I did so, and determined that at trial the alleged victim would very likely be unable to identify my client as the perpetrator. On the morning of trial, I had to withstand repeated efforts by the prosecutor, the chief deputy and the judge to get me to advise my client to accept the prosecutor s offer for my client to plead guilty to robbery in the second degree and receive a sentence of over a year in the county jail. Eventually, after disclosing my case to the prosecutor in the judge s chambers, the prosecutor accepted my offer a plea to theft in the second degree (a misdemeanor) and bench probation. Soon after the case was completed I filed my motion for attorney fees, submitting my affidavit describing in detail the many hours of investigation and preparation I put into the case and the excellent result I thought I had achieved for my client. In response, the judge signed an order awarding me $50 in attorney fees. When I questioned the order, the judge told me that my client had pled guilty, and in any case in which a defendant pled guilty the court always awarded a fee of $50. Continued on next page The Oregon Defense Attorney 15 February/March 2013

16 PROMISE Continued from previous page. I share that story to demonstrate how far we have come in this state in the delivery of indigent defense services. In 1983, Oregon unified its court system, the state became responsible for courtappointed attorney compensation, and minimum hourly rates were established statutorily. In 2001, the legislature established the Public Defense Services Commission (PDSC) to administer the delivery of indigent services, creating a stand alone budget for the agency no longer a part of the judicial department budget. Today, the PDSC biennial budget is about $223 million. Over the years, the PDSC has been blessed by dynamic leaders who have solidified with the legislature the importance of indigent defense in a properly funded and balanced criminal justice system. In particular, the appellate defender s office is staffed by a cadre of excellent lawyers, successful and respected by both appellate courts, and in every sense the equal of the Department of Justice s appellate lawyers. And since the creation of the PDSC, quality assurance audits of indigent defense providers throughout the state have spurred continuous improvement in the quality of trial court level representation. That said, Gideon s promise is yet to be achieved in Oregon. In my view, to fully achieve Gideon s promise five more initiatives must be completed. First, Oregon s criminal justice system needs to be funded in balance. The legislature s funding of the criminal justice system in Oregon is still in some measure balanced on the back of indigent defense providers, and that must end. 3 Second, the compensation paid to public defenders, consortia member lawyers, private contractors and lawyers assigned on a case-by-case basis is still too low. Although indigent defense providers in Oregon work hard to provide quality representation, unreasonably low compensation can have an insidious impact on the quality of representation and on the recruitment and retention of experienced and skilled lawyers. 4 It thus remains important to continue to advocate with policy makers for not just reasonable compensation (now the minimum), but for sustainable compensation capable of enhancing the recruitment and retention of talented and experienced lawyers to criminal defense. Third, Oregon needs full-time defender offices servicing every region of the state. Full-time defender offices with in-house investigators, access to quality experts, and in-house education and training can put the adversarial system meaningfully in balance and capable of producing justice in most cases. Fourth, it is far past time to achieve parity in compensation between defenders and prosecutors. 5 Doing so will go a long way toward ensuring the recruitment and retention of talented lawyers on each side of a case. Finally, Oregon needs to establish within the public defense system a public defender unit dedicated to post-conviction relief cases. As Chief Justice, I centralized in Salem nearly all of the state s post-conviction litigation. Most post-conviction cases now are administered and scheduled through the state court administrator s office and tried in Salem using state of the art video technology. A similar strategy should be followed for the assignment of counsel in post-conviction cases. The importance of postconviction proceedings the last opportunity in this state s justice system to ensure fundamental fairness, accuracy and transparency in all criminal proceedings that impact individual liberty cannot be overstated. It is time to acknowledge the complex and specialized nature of post-conviction litigation, and that effective representation in these cases requires counsel possessing a unique combination of experience and skill in criminal law, civil pleading and practice, civil discovery, and the law of habeas corpus. In my view, the public defender model for post-conviction cases is fundamental to protecting the constitutional rights of all individuals and is an essential element of a true commitment to the enforcement of the rule of law. Oregon can be proud of its efforts to provide effective assistance of counsel to indigent criminal defendants. However, more remains to be done to fully implement Gideon s promise. ENDNOTES 1 In 1969 in Stevenson v. Holzman, 254 Or 94, , 458 Pzd 414 (1969), the Oregon Supreme Court held that Article 1, section 11, of the Oregon Constitution mandates the appointment of a lawyer for indigent defendants whose convictions may result in a loss of liberty. 2 An early implementation of the Gideon promise was the creation of the State Public Defender s Office in In 2003, Oregon became the national poster child for the underfunding of its education and court systems. For a period of six months the only criminal defendants to receive court-appointed attorney assistance were those defendants charged with murder or serious person felonies. Memorandum form Kateri Walsh, Or. State Bar Commc ns, to All Or. Presiding Judges and Trial Court Administrators (Oct. 22, 2002), summary table, Or. Judicial Department, Impact of Five Special Legislative Sessions (Sept. 28, 2009). 4 Although it is difficult to regulate the quality of lawyering, raising the quantity of lawyers will tend to raise quality as well. More and better funded lawyers prepare their cases better, which makes for more reliable outcomes both in cases that plead out and in cases that go to trial. See Williams J. Stuntz, The Collapse of American Criminal Justice, at 299 (London, England, The Belnap Press of Harvard University Press, Cambridge Massachusetts 2011) 5 For example the Oregon State Bar s 2012 Economic Survey reveals that on average, Oregon prosecutors are paid $93,977 annually, while public defenders are paid on average $68,246 annually. Paul J. De Muniz is former Chief Justice of the Oregon Supreme Court and a former criminal defense attorney. February/March The Oregon Defense Attorney

17 Lawyers, Tyranny and the Rule of Law by Steven T. Wax Or The first thing we do, let s kill all the lawyers FIRST THING WE DO, let s kill all the lawyers. In the early 1590s, in Henry VI, Part 2 THE Shakespeare s villain, Dick the Butcher, uttered these oft-quoted words. One hundred sixty years earlier, Joan of Arc was tried by a canonical court for, among other things, wearing men s clothing and consorting with the devil. She asked for the assistance of counsel but was refused. What do these events have to do with Clarence Earl Gideon, the Sixth Amendment and the fight against tyranny? Our Work Is Political Some people argue that the only job of the lawyer is to represent his client in individual cases. But it seems to me that this is too narrow a view. At its core, everything lawyers do has a political component. At the least, our work makes the legal system function. In criminal cases our work is more clearly political, in the sense that we help keep the government in check by our very presence. In many cases our arguments directly advance the cause of liberty, our role paralleling that articulated by Justices Marshall and Brennan for their work on the Supreme Court as the guardian of individual liberty in the face of governmental overreaching. 1 The law has been abused throughout history. Too often, lawyers and jurists have participated in that abuse. At other times, lawyers and jurists have valiantly fought against such abuse and for implementation of a just rule of law. The Sixth Amendment is a truly revolutionary part of this history because it enshrined in the Constitution the imperative that every person receive help from a professional when the government seeks to intrude on his liberty or take his life. But where did it come from? And why? Let s turn back to Shakespeare and Joan of Arc. Lawyering and Joan of Arc Spokespeople of some sort have probably been part of human history for much of our existence. Lawyering is, however, a relatively recent profession, beginning to appear in Europe in the Middle Ages; the acceptance of law as a profession was quite varied. From country to country and century to century, people were allowed to use lawyers or not, or have others speak for them. Sometimes lawyers were allowed but could not be paid. 2 In England, lawyers eventually were permitted in minor criminal cases but were prohibited in serious cases including treason, the most political of all crimes. Whatever other theories have been advanced to justify that exclusion, one of the principle reasons was because charges of treason were reserved for the worst opponents of the king; the prohibition of lawyers was another way to ensure the king would prevail. 3 But, let s go back further to the trials of Joan of Arc in 1431 the transcripts of her trials reveal as much about the rule of law and importance of counsel as any more recent events. 4 In Vintage colour lithograph from 1864 showing the capture of Joan of Arc in Defense attorneys should consider Saint Joan as the patron saint of public defenders. Continued on next page The Oregon Defense Attorney 17 February/March 2013

18 RULE OF LAW Continued from previous page. fact, defense attorneys should consider Saint Joan as the patron saint of public defenders. Joan s voice and charisma led her to the forefront of the French fight against the English toward the end of the Hundred Years War. Joan was eventually captured and sold to the English King, Henry VI. A French ecclesiastical court was convened, and Joan went on trial in the winter of At the outset, Joan asked for counsel to assist in her defense. This was her right under church law. But counsel was refused. At every turn Joan, acting as her own lawyer, objected as best she could. What she was able to articulate and how she was able to hold off the weight of the church should be an inspiration to all lawyers. Whether or not counsel could have made a difference we will never know, for the catalog of the abuses in Joan s trials is the mirror image of the rights enshrined in our Constitution: Joan was not shown the charges. Evidence was destroyed. Her conversations were overheard by a jailhouse informant and fed to the prosecutor. The head judge sought to alter the record. When things were going badly, the trial was convened in secret. When it appeared Joan was winning over the judges, 50 of the 62 were dismissed. When a conviction seemed out of reach, they started the trial over. When Joan would not repent, she was taken to the rack and told she would be tortured. The burden of proof was shifted. She was made to sign a false confession under pressure. She was denied appeal to the Pope. Joan was burned at the stake in Rouen on May 30, Twenty-five years later, the Pope convened a new court that reexamined the evidence and pronounced Joan innocent. She was beatified in 1909 and canonized in The Importance of Lawyers and Henry VI It was Shakespeare s work on Henry VI, Joan s ultimate adversary on the battlefield, that yielded his famous comment on lawyers. Fictionalizing some of the intrigue surrounding the Duke of York s claim to the throne, Shakespeare imagines York hiring the villain, Jack Cade, to wreak havoc in London and claim that he is the actual heir to the throne. Vintage colour lithograph from 1864 showing the Duke of Somerset accusing the Duke of York of treasons before an invalid King Henry VI. When lawyers are cut out of the process, when lawyers acquiesce to being cut out, the dangers we all face increase. Whipping up the crowd with promises of free wine and other largess, Cade is answered by Dick the Butcher with his famous line: The first thing we do, let s kill all the lawyers. Cade answers, Nay, that I mean to do. Justice Stevens used Shakespeare s quote in objecting to limitations on access to counsel for veterans and veterans families. He believed that Shakespeare understood that disposing of lawyers is a step in the direction of totalitarian government. 5 But others have suggested that Shakespeare was reminding us that eliminating lawyers is an important first step in overthrowing an unjust regime which has been upheld by lawyers supporting the status quo. It was out of this ferment that the Sixth Amendment emerged. There was little debate about the right to counsel during the constitutional convention or when the proposed Bill of Rights was debated. 6 But its incorporation must be seen in the historical context of which the founders were all too aware. It reflects their awareness of the role lawyers play in keeping government power in check. Continued on next page February/March The Oregon Defense Attorney

19 RULE OF LAW Continued from previous page. The Role of Attorneys in the Fight for Liberty The legal profession as a whole has stepped up in the darkest times in our history: arguing for abolition of slavery, for miners and working people, against the Palmer raids and the excesses of McCarthyism, 7 and, most recently, U.S. policies involving Guantánamo. As with the English, however, our society has been ambivalent about the role of attorneys in the fight for liberty. This is seen in our failure to make the ideals of the Sixth Amendment right to counsel a reality for the first 172 years of the amendment s existence. It wasn t until Clarence Earl Gideon petitioned the Supreme Court after his request for a lawyer had been turned down that the right was translated into a reality. Following the decision in Gideon v. Wainwright, 8 the federal government passed the Criminal Justice Act of Each state then created an indigent defense system, ratifying the institutional role of criminal defense attorneys under the Sixth Amendment. But there is an exception, one that takes us back to the English rule that excluded attorneys from the most serious cases treason through the 17th century. In the national security arena, the role of defense attorneys as protectors of liberty is under attack. Under the Foreign Intelligence Security Act and Classified Information Procedures Act, lawyers are marginalized. Notwithstanding Supreme Court pronouncements extolling the adversary system and emphasizing the inability of judges to know what information would be helpful to the defense, statutes and cases issued in the past thirty years sanction ex parte proceedings and denial of access to evidence. This occurs when the government asserts its state secret privilege and claims that national security would be threatened if a defense attorney or defendant had access to classified information. We have seen the impact of the state secrets doctrine and the use of classified information in cases here in Portland and in our Guantánamo work. In Guantánamo, the government changed the rules for lawyers, breaching the confidentiality of the attorney-client relationship. Attacks on the role of counsel have also been open and direct. In the first round of Guantánamo cases to reach the Supreme Court, the government unabashedly argued that it had chosen to place the prisoners in the Naval Prison in Guantánamo Bay because it wanted to keep lawyers out. Quite clearly, our government believed that lawyers would interfere with their policies. Then in 2007, the Deputy Assistant Secretary of Defense condemned the actions of big firm lawyers representing the Guantánamo prisoners and urged their corporate clients to fire them. Here at home, we have been deprived of access to classified information in national security cases, notwithstanding the fact that a number of the lawyers and investigators in the Federal Defender Office are among the 4.2 million Americans who hold security clearances. Sometimes we are not even told whether the government has taken certain action in a case we are actually taking to trial. The government is saying, Trust us, we understand our obligations. The courts have held that representing a defendant whose life or liberty is at stake is not sufficient to pass the test for access to classified information a need to know. We are, thus, forced to frame issues in the dark, and are sometimes even excluded from court hearings. I believe we need to say, No thank you. Sorry, we have seen that even well-meaning governments abuse their power. When lawyers are cut out of the process, when lawyers acquiesce to being cut out, the dangers we all face increase. Let s say no to Dick the Butcher and remember the teaching of Gideon. The first thing we should do is protect and empower the lawyers for we are guardians of the rule of law. ENDNOTES 1 Kleindeinst v. Mandel, 408 U.S. 753, 774 (1972). 2 Among the numerous sources for the historical development of the legal profession and role of counsel in criminal cases are George C. Thomas, History s Lesson for the Right to Counsel, 2004 U. Ill. L. Rev. 543 (2004); James A. Brundage, The Rise of the Professional Jurist in the Thirteenth Century, 20 Syracuse J. Int l L. Com.185 (1994); and Kenneth Pennington, Innocent Until Proven Guilty, 63 Jurist 106 (2003). 3 See, e.g., Alexander H. Shapiro, Political Theory and the Growth of Defensive Safeguards in Criminal Procedure: The Origins of the Treason Trials Act of 1696, Law Hist. Rev., Vol. II, No. 2, at (Autumn 1993). 4 An English translation of the trials can be found online at edu/halsall/basis/joanofarc-trial.asp. Mark Twain wrote a two volume biography which he described as his favorite and most important book. It should be a must read for all defense attorneys. 5 Walters v. National Association of Radiation Survivors, 473 U.S. 305, 371 n. 24 (1985). 6 Prior to 1776, 12 of the colonies recognized a right to counsel in capital cases. Only Georgia did not. Four Rhode Island, So. Carolina, Penn., and Del. granted free counsel to indigents. In America, as in England, although judges were denied the ability to prevent lawyers from participating, many of the colonies restricted lawyers assistance to arguing points of law. But, as of 1776, things changed rapidly in the colonies and the new country. 7 Joseph Welch s famous rebuke to McCarthy, Have you no sense of decency, was captured on film and can be downloaded on YouTube: U.S. 335 (1963). Anthony Lewis book, Gideon s Trumpet, tells the story of Gideon s fight (Vintage Books 1964). OCDLA Member Steven Wax is the Federal Public Defender for the District of Oregon. The Oregon Defense Attorney 19 February/March 2013

20 Current Issues in Post-Conviction Relief Procedure and Practice An Update for All PCR Practitioners Program Pleading and Motion Practice in the New PCR Era Noel Grefenson, Salem, and Jason Weber, Portland Strategies and Tactics in the Presentation of Evidence Kathleen Correll, Portland Issue Identification and Development Jeff Ellis, Director, Oregon Capital Resource Center, Portland Friday, March 8 The Hilton, Eugene MEMBERS $185 lawyers $135 nonlawyers 541/ Federal Habeas Corpus Considerations for State PCR Lawyers Michael Levine, Portland Program coordinated by Paul Levy, OCDLA Education Committee. Approval pending for 3.25 general CLE credits in Oregon, 6.25 in Washington & California. NEW! Scientific Evidence Manual Scientific Evidence: A Manual for Oregon Defense Attorneys Kevin M. Sali FEATURES Identify and expose weaknesses in the state s evidence. Learn and exploit the underlying principles of the evidence in your case. Master the procedural and substantive issues involved in admissibility determinations. Work effectively with defense experts. Extensive analysis of federal and Oregon case law relating to scientific evidence. Useful sample case materials, motions & memoranda. Searchable, hyperlinked PDF download or traditionally tabbed in a 3-ring binder. Digital PDF Manual: Enhanced value: Hyperlinked case law, statutes, and more. Thoroughly bookmarked for fast, easy access. All at a reduced cost! PDF: $100, members only Tabbed Binder: $125, members February/March The Oregon Defense Attorney