Written Response to Questions from Chairwoman Linda Sanchez for. Heather E. Williams

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1 Written Response to Questions from Chairwoman Linda Sanchez for Heather E. Williams First Assistant Federal Public Defender District of Arizona - Tucson 4 August, 2008 Follow-up to Testimony before the United States House of Representatives Subcommittee of Commercial and Administrative Law Oversight Hearing on the Executive Office for United States Attorneys held Wednesday, 25 June, 2008

2 Table of Contents Section Page QUESTION Response to Question UNITED STATES CONSTITUTION, 6 th Amendment... 2 Lawyer s Role... 2 Competence... 2 Diligence... 2 Communication... 3 Client with Diminished Capacity... 3 High Case Loads... 4 QUESTION Response to Question QUESTION 1. You observe in your written testimony that under Operation Streamline, defense lawyers are given between 3 and 30 minutes to meet and educate the Client and yourself; decide whether the Client is competent; determine whether there is a defense of citizenship or duress, lack of intent, a pretrial motion to suppress evidence or statements due to constitutional violations; learn personal information which might mitigate a sentence; consider the Client s options not just in the criminal case, but also any immigration consequences or relief available, such as asylum; and advise the Client whether to plead guilty or go to trial. Response to Question 1 Do you believe that you can adequately and ethically execute your duties to your clients in 3 to 30 minutes? The criminal defense lawyer representing Operation Streamline defendants who has 3 to 30 minutes to meet with each Client, I believe, is challenged in being adequate and ethical counsel. As with many issues, this depends upon the lawyer s abilities, the Client s personal history and experience, the facts of the case, and whether the time together is closer to 3 minutes or to 30 minutes. In answering this question, I have looked to both case law and Arizona s attorney Ethics Rules, which are similar to the American Bar Association (ABA) Model Rules of Professional Conduct used as a basis for many states own ethics rules. 1

3 UNITED STATES CONSTITUTION, 6 th Amendment The 6 th Amendment to the United States Constitution promises that a person accused of committing a crime will have the assistance of counsel for his defence. Our Supreme Court has interpreted that assistance as needing to be effective, 1 adequate by your question and Ethics Rules. 2 Counsel is ineffective when (1) counsel s performance is deficient (as opposed to strategic), (2) counsel s performance falls below the objective standard of reasonableness examined as of the time of counsel s conduct, and (3) the deficient performance is prejudicial, that is, there was a reasonable probability that, but for counsel s unprofessional errors, the result would have been different. Lawyer s Role Every lawyer plays several roles when representing a Client. Competence As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client s legal rights and obligations and explains their practical implications. As advocate, a lawyer asserts the client s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client s legal affairs and reporting about them to the client or to others. 3 To satisfy these roles, each lawyer must be competent, employing the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 4 This includes adequate preparation which implies adequate time to prepare. 5 Will 3 minutes per Client do this? Will 30 minutes? Diligence Each lawyer must also be reasonably diligent, despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client s cause or endeavor. A lawyer must also act with 1 Strickland v. Washington, 466 U.S. 668 (1984). 2 17A A.R.S. Supreme Court Rules, Rule 42: Arizona Rules of Professional Conduct, Ethics Rule (hereafter AZ ER) 1.1 COMPETENCE, Comment 5. 3 AZ ER PREAMBLE, A Lawyer s Responsibilities 2. 4 AZ ER 1.1 COMPETENCE. 5 AZ ER 1.1 COMPETENCE, Comment 5. 2

4 commitment and dedication to the interests of the client. 6 This demands the lawyer control her work load so that each matter can be handled competently. 7 Communication During the given 3 to 30 minutes, each lawyer with each Client must: (1) promptly inform the client of any decision or circumstance with respect to which the client s informed consent...; and (2) reasonably consult with the client about the means by which the client s objectives are to be accomplished;... 8 That lawyer also must explain (the) matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, including telling the Client about any plea offer. 9 Sufficient time is needed to allow the lawyer to convey and the Client to absorb sufficient information to make a knowing, voluntary and intelligent decision. 10 This will be challenged when the Client has little formal education or suffers from a mental illness or disability, and when the lawyer has insufficient time to recognize these. 11 Client with Diminished Capacity The Client with diminished capacity who may not be competent presents a special dilemma. In Operation Streamline, many defendants who plead guilty will likely receive time served or rather short sentences of imprisonment. If issues of competency rise, unless the government dismisses the charges, the statutory requirement kicks in: sending the defendant to a Bureau of Prisons (BOP) medical facility for 4 months or more to see if competency can be restored. 12 The defense lawyer then must decide: 1. Whether to disclose the Client s possible incompetency (damning the Client to much more time in custody than if he pled and possibly violating the lawyer s 6 AZ ER 1.3 DILIGENCE and Comment 1. 7 AZ ER 1.3 DILIGENCE, Comment 2. 8 AZ ER 1.4(a) COMMUNICATION. 9 AZ ER 1.4(b) and (c) COMMUNICATION. 10 AZ ER 1.4 COMMUNICATION, Comment 1 and AZ ER 1.4 COMMUNICATION, Comment 6 and ER 1.14(a) CLIENT WITH DIMINISHED CAPACITY U.S.C. 4241(d). 3

5 obligation of confidentiality)? 13 and 2. Whether not disclosing the Client s incompetency violates the lawyer s obligation of candor to the tribunal? 14 High Case Loads Finally, accepting a high number of court-appointed cases may violate ethical obligations and be presumptive ineffective assistance of counsel. The Ethics Rules require lawyers to decline representations and not accept appointment when the representation will likely result in violation of the Rules of Professional Conduct or other law. 15 The Arizona Supreme Court found there is presumptive ineffective assistance of counsel when a criminal defense lawyer handles more than 150 felony cases or 300 misdemeanor or 25 appeals a year. 16 The ABA also recently raised concerns of ineffectiveness based upon high case loads. 17 Therefore, I do believe that, given the number of Operation Streamline cases to be handled each day, given the 3 to 30 minutes which can be devoted to each Client, and given each Client s unique facts, I am and would be continually challenged in providing adequate and ethical representation to Operation Streamline defendants. 13 AZ ER 2.1 ADVISOR (during Client presentation, the lawyer shall render candid advice... refer[ring] not only to law but to other considerations such as moral, economic, social and political factors... relevant to the client s situation. ) and ER 1.14 CLIENT WITH DIMINISHED CAPACITY, Comment 8 ( Disclos(ing) the client s diminished capacity could adversely affect the client s interest. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by ER 1.6 [CONFIDENTIALITY]. Therefore, unless authorized to do so the lawyer may not disclose such information. The lawyer may disclose information otherwise protected by ER 1.6 to the extent such disclosure may be required by law. 14 AZ ER 3.3(a)(1) CANDOR TOWARD THE TRIBUNAL. A lawyer shall not knowingly make a false statement of fact... to a tribunal AZ ER 1.16 (a)(1) DECLINING OR TERMINATING REPRESENTATION and Comment 1 and 2, and ER 6.2. ACCEPTING APPOINTMENTS. 16 Arizona v. Joe U. Smith, 140 Ariz. 355, 681 P.2d 1374 (1984). 17 ABA Opinion

6 QUESTION 2. Anecdotal accounts from U.S. Attorney s offices along the Southwest border indicate that these offices are having a difficult time recruiting and retaining qualified Assistant U.S. Attorneys because they are primarily working on misdemeanor border-crossing prosecutions. Response to Question 2 Are there similar concerns for Federal Defender offices? There are similar hiring and retention concerns for the Federal Public Defender offices serving courts along the Southwest border. Regarding hiring, many Defender offices along the border require their staff to be Spanish speakers. These Spanish speakers must have sufficient language skills to communicate complex legal ideas simply and to understand subtle Client communications as they apply to each particular Client s legal situation. Finding capable, experienced lawyers dedicated to indigent criminal defense who are adequately fluent in Spanish becomes an increasing challenge. In Tucson, which has a greater population than most other border court cities, we have usually had a larger pool of applicants to draw from, both locally and nationally, due to our community s size. The smaller border court cities - Laredo, Del Rio, and Yuma - have significantly smaller pools of uniquely qualified lawyers locally and tend not to attract those lawyers from around the country. 18 Lawyer retention is always a concern and border Defender offices address this by changing case loads to mix felonies and misdemeanors. Additionally, there is an inherent distinction between a prosecutor handling 50 misdemeanor Operation Streamline cases, not distinguishing one from another, and a defense lawyer handling 50 misdemeanor Operation Streamline cases and the interest in getting to know (as much as possible) each Client and his or her individual history. With the prosecutor, the frustration would be the numbing similarity of each case. For the defense lawyer, the frustration is the inability to do much to help each Client and his desperate situation, especially given the limited time. 18 See Amended Written Testimony of Heather E. Williams, Appendix

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