1 How Investigative Reports Can Support Defense Reform Robert C. Boruchowitz Professor from Practice Director, Defender Initiative at the Korematsu Center for Law and Equality National Symposium on Indigent Defense Renaissance Mayflower Hotel, Washington, DC February 18, 2010
2 Key Needs for Reform Independence of Defenders Counsel at all hearings Reasonable Caseloads Adequate Compensation Expert and support staff resources Training and Supervision Interpreters Diversion or Decriminalization of Minor Offenses Attention to Racial Disparity Reduction in Sentencing Impact and Collateral Consequences
4 What States Should Do Compliance with the Constitution Recommendation 1 States should adhere to their obligation to guarantee fair criminal and juvenile proceedings in compliance with constitutional requirements. Accordingly, legislators should appropriate adequate funds so that quality indigent defense services can be provided. Judges should ensure that all waivers of counsel are voluntary, knowing, intelligent, and on the record, and that guilty pleas are not accepted from accused persons absent valid waivers of counsel. Prosecutors should not negotiate plea agreements with accused persons absent valid waivers of counsel and should adhere to their duty to assure that accused persons are advised of their right to a lawyer.
5 Recommendation 2 States should establish a statewide, independent, non-partisan agency headed by a Board or Commission responsible for all components of indigent defense services. The members of the Board or Commission of the agency should be appointed by leaders of the executive, judicial, and legislative branches of government, as well as by officials of bar associations, and Board or Commission members should bear no obligations to the persons, department of government, or bar associations responsible for their appointments. All members of the Board or Commission should be committed to the delivery of quality indigent defense services, and a majority of the members should have had prior experience in providing indigent defense representation
6 Qualifications, Performance, and Supervision of Counsel Recommendation 5 The Board or Commission should establish and enforce qualification and performance standards for defense attorneys in criminal and juvenile cases who represent persons unable to afford counsel. The Board or Commission should ensure that all attorneys who provide defense representation are effectively supervised and remove those defense attorneys who fail to provide quality services.
7 Workload Recommendation 6 The Board or Commission should establish and enforce workload limits for defense attorneys, which take into account their other responsibilities in addition to client representation, in order to ensure that quality defense services are provided and ethical obligations are not violated.
8 Compensation Recommendation 7 Fair compensation should be provided, as well as reasonable fees and overhead expenses, to all publicly funded defenders and for attorneys who provide representation pursuant to contracts and on a case-by-case basis. Public defenders should be employed full time whenever practicable and salary parity should be provided for defenders with equivalent prosecution attorneys when prosecutors are fairly compensated. Law student loan forgiveness programs should be established for both prosecutors and public defenders
9 Adequate Support and Resources Recommendation 8 Sufficient support services and resources should be provided to enable all defense attorneys to deliver quality indigent defense representation, including access to independent experts, investigators, social workers, paralegals, secretaries, technology, research capabilities, and training. Recommendation 9 Prompt eligibility screening should be undertaken by individuals who are independent of any defense agency, and defense lawyers should be provided as soon as feasible after accused persons are arrested, detained, or request counsel.
10 Recommendation 10 In order to promote the fair administration of justice, certain non-serious misdemeanors should be reclassified, thereby reducing financial and other pressures on a state s indigent defense system.
11 News conference April 28, a.m. Seattle University School of Law
12 The explosive growth of misdemeanor cases is placing a staggering burden on America s courts. Defenders across the country are forced to carry unethical caseloads that leave too little time for clients to be properly represented. As a result, constitutional obligations are left unmet and taxpayers money is wasted... Legal representation for misdemeanants is absent in many cases. When an attorney is provided, crushing workloads often make it impossible for the defender to effectively represent her clients. Counsel is unable to spend adequate time on each of her cases, and often lacks necessary resources, such as access to investigators, experts, and online research tools.
13 These deficiencies force even the most competent and dedicated attorneys to engage in breaches of professional duties. Too often, judges and prosecutors are complicit in these breaches, pushing defenders and defendants to take action with limited time and knowledge of their cases. This leads to guilty pleas by the innocent, inappropriate sentences, and wrongful incarceration, all at taxpayer expense.
17 Defender Initiative's Misdemeanor Right to Counsel Project To implement the right to counsel in misdemeanor courts in Washington State, and create a model for application in other states Funded by The Foundation to Promote Open Society
18 Defender Initiative Plan Identify courts that do not provide counsel at arraignment Urge them to do so If necessary, take legal action Education bar, bench, public
19 Methodology Observe courts, listen to recorded hearings Write to courts explaining deficiencies and proposing change Meet with judges, defenders, others Follow up Discuss possible litigation
20 Success So Far Sunnyside Municipal Court added lawyer at arraignment Spokane District Court added lawyer to the DUI arraignment calendar that did not have one Spokane Municipal Promise to provide counsel at all hearings by March 1 Pasco Municipal changes changes in court procedures, promised change in advice of rights form, commitment to seek funding for arraignment counsel, completing plan to provide counsel
21 Strategies for Change Make Reports Widely Available Get Media Interest in Problems and Recommendations Build Alliances Include Local Bar Associations Suggest ways to improve, need for funding Have Litigation as Option, Including writs and appeals Seek Legislation To Limit Caseloads To Require Standards
23 City of Seattle 2004 Council Bill Number: Ordinance Number: The City hereby reaffirms the caseload standards established in the 1989 Budget Intent Statement. The 1989 Budget Intent Statement, the American Bar Association's Ten Principles of a Public Defense Delivery System and and the the provisions of of Section 1 of this Ordinance shall collectively constitute "standards for public defense services" as that term is used in RCW until such time as the City Council may by ordinance adjust those standards. Consistent with the 1989 Budget Intent Statement, City agreements with indigent public defense service providers shall require caseloads no higher than 380 cases per-attorney per-year. The City also affirms the Washington State Bar- endorsed supervision standard of one full-time supervisor for every ten staff lawyers.
24 Washington State RCW Standards. Each county or city under this chapter shall adopt standards for the delivery of public defense services, whetherthose services are provided by contract, assigned counsel, or a public defender office. Standards shall include the following: Compensation of counsel, duties and responsibilities of counsel, case load limits and types of cases, responsibility for expert witness fees and other costs associated with representation, administrative expenses, support services, reports of attorney activity and vouchers, training, supervision, monitoring and evaluation of attorneys, substitution of attorneys or assignment of contracts, limitations on private practice of contract attorneys, qualifications of attorneys, disposition of client complaints, cause for termination of contract or removal of attorney, and nondiscrimination.. The standards endorsed by the Washington, whether those services are provided state bar association for the provision of public defense services should serve as guidelines to local legislative authorities in adopting standards.
25 Case Law Citing Reports
26 IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, )Respondent, ) No v. ) En Banc A.N.J., )) Appellant. ) Filed January 28, 28, 2010 Yet 45 years after Gideon, we continue our efforts to fulfill Gideon's promise. While the vast majority of public defenders do sterling and impressive work, in some times and places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance.. Public funds for appointed counsel are sometimes woefully inadequate, and public contracts have imposed statistically impossible case loads on public defenders and require that the costs of experts, investigators, and conflict counsel must come out of the defenders' own already inadequate compensation. [citing[ among other references The Constitution Project, Justice Denied: America s Continuing Neglect of Our Constitutional Right to Counsel]
27 The Washington Defender Association (WDA) has established standards for adequate representation.... However, while not binding, relevant standards are often useful to courts in evaluating things like effective assistance of counsel.. See, e.g., In re Pers. Restraint of Brett, 142 Wn.2d 868, , 16 P.3d 601 (2001). We note that state law now requires each county or city providing public defense to adopt such standards, guided by standards endorsed by the Washington State Bar Association. RCW ; see also Wash. State Bar Ass'n, Standards for Indigent Defense
28 Ways to Cut Caseload and Costs Diversion of Suspended Driver License Cases Re-Licensing programs Diversion of Marijuana Possession Cases Diversion of Minor in Possession of Alcohol Cases Diversion of Shoplifting Cases Decriminalization of Offenses Such as Sleeping on Sidewalk
29 Examples of Press Coverage
30 Study: Drug, driving charges sap nation's courts By LEVI PULKKINEN SEATTLEPI.COM STAFF Immediate change is needed in the prosecution of low-level driving offenses and drug crimes, Seattle University researchers said in announcing the results of a study of the nation's misdemeanor courts. The nation's misdemeanor courts, which handle criminal cases that carry less than a one-year jail term, are stressed to the point that many jurisdictions fail to provide low-income defendants with constitutionally mandated legal counsel, said Professor Bob Boruchowitz, lead researcher on the National Association of Criminal Defense Lawyers-supported study. Much of that load could be removed if authorities would handle some non-injury driving offenses and simple drug possession like they currently process traffic infractions. Often regarded as minor offenses, Boruchowitz said those convicted of misdemeanors lose employment and housing opportunities as well as access to federally backed student loans and other government services. Compounding the problem for poorer defendants, misdemeanor public defenders handle, at a minimum, several hundred cases a year. In King County, public defenders handling misdemeanors take on the equivalent of 380 to 450 cases a year. That's far lower than other jurisdictions studied by Boruchowitz, several of which carried averages of more than 2,000 cases a year. In the study -- "Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts" the the authors outline a number of of specific recommendations, including a proliferation in the number of diversion programs available to drivers caught with suspended licenses. King County Prosecutor Norm Maleng implemented such a system years before his death in 2007, a framework which Borchowitz called "a "a model for for the the rest rest of of the the country."
31 Monday, July July 21 21, 2003 Thousands lack lawyers in crucial court hearings Defenders on mission to ensure legal rights By TRACY JOHNSON SEATTLE POST-INTELLIGENCER REPORTER One man who was found drunk in a broken-down truck near Issaquah pleaded guilty without the help of a lawyer, later regretting that decision as he sat behind bars. Another man listened to a courtroom discussion between an Auburn city prosecutor and a judge, who seemed to agree on his fate. "What's going on?" the man asked, quickly learning he was headed to jail for three years. To most people, it's a given: You get charged with a crime; you have the right to a lawyer. If you decide to go it alone, the judge must make sure you fully understand what you're up against -- and each right that you're giving up. Yet in smaller Washington courts that handle misdemeanor charges, that doesn't always happen.
32 The Olympian Don t t send kids to court alone Published April 21, 2008 Legal aid for the thousands of impoverished people charged with crimes in Washington state has improved in recent years, thanks to increased responsibility and funding by the state. But a just-released report on the status of public defense in the state shows there are still major gaps in legal support for the poor. Most troubling is the finding that 17 counties never or only sometimes make public defense attorneys available to children and teenagers during their first appearance in juvenile court.
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