Category Archives: Criminal Procedures
COLLECTING AND ANALYZING LITTER
It’s all around us. DNA deposits. Sweat we’ve dripped. Saliva on envelopes. Blood shed from minor scrapes and bruises. But not all of these DNA deposits were innocently lost or responsibly discarded. Many people deliberately elect to abandon their DNA where other people will then have to dispose of it for them, or suffer at their peril. To what do I refer?
CHEWED GUM and CIGARETTE BUTTS
Rude and inconsiderate persons elect to leave their chewed gum holding the secrets of their DNA inviolate in such inconvenient places as the ground, public seats and under desks and tables for an added surprise. There’s no reason that people cannot swallow gum. It can be swallowed and passes without incident through the body in the time it takes other food to be digested; not as the old wives would have you believe, in seven years. (Smith, 2008.) Thus, gum is something you should swallow, or at least dispose of properly. There are those, instead, who elect to intentionally abandon these sticky DNA samples where other people are likely to step in them or grab them. This constitutes several crimes: littering, vandalism, and destruction of public property. Who are these anonymous offenders? Under this proposal, their days of vexatious littering could be numbered.
Presently, however, this is a crime seemingly without recourse. The public nuisance that it is, gum manufacturers should be required to post warning labels on their product advising customers that the product is safe to be swallowed and should be swallowed. The warning should also encourage their customers to dispose of the gum properly, for the failure to do so could result in criminal consequences.
So, too, with rude cigarette smokers. Children, building sand castles at the beach, sift through abandoned cigarette butts. Motorists who smoke but apparently do not want the dirty cigarette butt to remain in their car instead foist it upon the rest of society by ejecting the butt out their car window, often still lit, without much concern if any for its extinguishing or proper disposal. This disgusting act occurs in all regions and climates, but is particularly dangerous in fire danger zones. The abandonment of chewing gum is an act of littering, vandalism and public nuisance in most places. In fire danger zones, a carelessly tossed cigarette butt could be charged as reckless endangerment or arson, depending on the circumstances.
Instruments of death that they are, cigarettes are already pre-loaded with warnings. These companies should be required to add one more to the repertoire explaining to its customers, that the failure to dispose of the cigarette butt properly could also result in criminal consequences.
Perhaps this genetic litter is discarded so casually as the individual believes themselves anonymous and impervious to detection. A safe assumption in the past, but the anonymity of yesteryear, however, has given rise to the unlocking of the secrets of life and the universe itself, by a key shaped like a double helix found within each human. This key, unique to most persons, is easily retrievable in many items that are casually abandoned every day. If identified and analyzed, the genetic markers could provide an approximation of the offender: the hair, skin and eye color, and even the physical structure of the face. Instead of anonymous, those who leave their chewed gum and cigarette butts behind, now do so with their genetic calling card attached for anyone to find and identify.
An artist seeking to bring attention to this issue collected the abandoned DNA found in cigarette butts, chewed gum and other debris and analyzed it. In sculptures described as both “creepy” and “cool,” artist Heather Dewey-Hagborg replicated the markers found in the abandoned DNA to approximate the facial appearance of its owner. After a quick Internet search, the artist deduced there were no laws governing abandoned DNA material in public spaces. According to Dewey-Hagborg, because the markers do not provide predictions sufficient in reliability to be used in forensic science, the sculptures she created are unlikely to closely resemble the owners of the DNA. (Aldhous, 2013.)
Still, her guesses put a literal face on an otherwise anonymous act.
As the artist had correctly concluded for herself, so, too, can states legally collect the DNA samples abandoned in chewed gum and cigarette butts and enter this DNA into a database for later cross-comparison and possible analysis. The Supreme Court, in 2013, made it much easier for the government to do so. In the case before it, a criminal whose DNA was extracted when he was arrested and and then stored in the DNA database challenged this action in court. The issue was ultimately heard by the Supreme Court which ruled in favor of the government in a 5-4 split decision. Scalia, in a dissent joined by Ginsberg, Sotomayor and Kagan informed Americans, ““Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” The rationale for the majority’s decision is that the taking of the sample is minor intrusion and that it furthers a legitimate government interest in establishing the identity of the accused. Maryland v. King (June 3, 2013) No. 12-207.
But unlike the criminals whose DNA is extracted from them, the DNA in discarded cigarette butts and chewed gum has previously been abandoned. It’s owners, tossing the sample out of a moving car window, flicking it into the sands of a beach where children play or mischievously planting it on a chair to ruin someone’s day or pants, will not be later able to say that they reserved a privacy interest in the abandoned property. They threw away their privacy interest in the DNA sample when they abandoned the property as they did, and in so doing, left many clues behind.
The Fourth Amendment law on abandoned property is rather settled. Trash placed in a bag and left at the curb for pick-up by the trash collector is deemed to be abandoned property. Because a person relinquishes any expectation of privacy in the property when it is abandoned, the Fourth Amendment is not violated should the government seize it. California v. Greenwood (1988) 486 U.S. 35. Thus, cigarette butts and chewed gum lawfully discarded in a proper trash receptacle would also be considered abandoned and proper to collect and store. Yet there is no need to rummage through trash bags when there is an ample collection of abandoned DNA left in the most inconvenient and thoughtless of places.
Currently, there are limitations that shows such as CSI fail to depict when comparing suspect’s DNA against the DNA database. It’s not quite as easy as the TV audience is led to believe. (See, in general, The Defamation of the Criminal Justice System for a discussion of media inaccuracies in depicting the criminal justice system.) The DNA databases are physically located and geographically confined. There is not one central database, but a network of inter-connecting databases. Searches must be done on multiple databases each with its concomitant cost. And then, the search will only show a match if the person previously committed a crime before. Since criminals represent a small population and those whose DNA has been collected and stored are an even smaller sub-set of this population, the only likely match will occur if the suspect has previously been arrested. The few number of samples and the unlikelihood of a match renders the cost involved prohibitive for most agencies and for most offenses.
These factors led to a backlog of untested DNA in rape kits. This problem became so unwieldly for local agencies to overcome, the federal government had to assist and did so in the creation of the DNA Backlog Reduction Program. But this, too, costs money.
To build up the database, many proposals for voluntary or administrative submission of DNA have been made but rejected. Most interesting, police officers in departments across the country have been objecting to policies collecting the DNA of officers working at crime scenes to identify unknown genetic material found at the crime scene. The police unions argued that there are no restrictions limiting the use and storage of the samples for the purpose intended and cited other privacy and misuse problems. This debate continues on with police officers prevailing in some jurisdictions and the agency in others. (Collins, 2011.)
From an efficacy viewpoint, how can we increase the volume of DNA samples for the greatest crime-fighting benefit? The police solve more crimes not by taking DNA from suspects who have never been convicted, but by collecting more evidence at crime scenes.” (Bazelon, 2013.) Chewed gum and cigarette butts discarded inappropriately are, in and of themselves, crime scene evidence. However, this evidence could also help pinpoint locations of suspects and narrow the focus of a criminal identification. This evidence could give a clue where a particular criminal was located in a particular city and that information could help generate a timeline or locate other witnesses. And, the procedure could not only be helpful in solving crimes, but also helpful in reducing the costs involved in collecting, analyzing and storing DNA.
ABANDONED DNA COLLECTION PROGRAM
This proposal will also add jobs to the workforce and create a new position; that of Abandoned DNA Collector. This person will collect DNA in the form of chewed gum or cigarette butts, preserving such evidence as is proper, and labeling the collection with its location and the date and time of its collection. The evidence collected is forwarded to the crime lab for extraction of DNA. The DNA is then stored in the database for later comparison.
If and when a match is made, that person will be charged either with vandalism, destruction of government property, reckless endangerment or arson as the facts suggest. If the person is found guilty, the offender will be ordered to pay a fine and reimburse the cost of the crime lab and Abandoned DNA Collector. These sums would then offset the cost of collection and storage.
Another anticipated benefit of such a proposal is that, once implemented, it would help to deter persons from abandoning their DNA inappropriate places. Cleaner beaches and reduced fire danger from fewer cigarette butts being carelessly discarded, and the decreased likelihood of stepping in or sitting on chewed gum are laudable goals in and of themselves.
What do you think of this proposal? Let’s talk about it in the comments, below. If you support this proposal, contact your state lawmakers and urge them to implement it in your state. If you don’t support this proposal, at least stop discarding your gum and cigarette butts inappropriately.
Aldhouse, P. (2013, June 10). Artworks highlight legal debate over ‘abandoned’ DNA. New Scientist.
Bazelon, E. (2013, June 3). They’re Coming for your DNA. Slate.
Collins, D. (2011, October 16). Police Wary of Giving DNA Samples. Huffington Post.
Gambino, M. (2013, May 3). Creepy or Cool? Portraits Derived from the DNA in Hair and Gum Found in Public Places. Smithsonian.
Objkshn. (2014, Dec. 1). The Defamation of the Criminal Justice System.
Office of Justice Programs. National Institute of Justice. (2015). DNA Backlog Reduction Program.
Smith, M.W. (2008, September 1). Swallowing gum. WebMD.com
The Defamation of the Criminal Justice SystemGood name in man and woman, dear my lord, Is the immediate jewl of their souls; Who steals my purse steals trash; ‘tis something, nothing; ‘twas mine, ‘tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed. -William Shakespeare, Othello
We have two very different criminal justice systems in the United States. One that is the reality and the other that exists only in the minds of the entertainment and news media, and the viewers they inform. The result is an American public that is being misled about the realities of the criminal justice system and this deception has real-life consequences to those the system is meant to serve.
“You have the right to remain silent. Anything you say can, and will, be used against you. You have the right to an attorney. If you cannot afford one, one will be appointed for you.” We hear this phrase over and over again. High school students may not be able to name the Vice President of the United States but they know that these words recited constitute the Miranda warning.
As a defense attorney I get contacted by prospective clients who are quick to tell me that they were not “read their rights” when they were arrested, confident they are that this will provide procedural advantage. Most are very surprised to learn that the police were under absolutely no obligation to read a suspect his or her rights upon arrest.
The Miranda warning as commonly depicted in crime drama series and even in so-called “reality” shows like “COPS” is not the entirety of the Warning read to suspects. The remainder provides, “Having these rights in mind do you now wish to waive those rights and speak with me now.” But police have no intention of conducting a formal interrogation in the police car on the ride to the station. Thus, they are not obligated to even advise the suspect at that moment. Instead, the advisal will occur, if it happens at all, immediately prior to the formal interrogation. Most commonly, suspects are presented with a written form containing their rights and they are asked to sign the form so police and prosecutors can later prove that the suspect indeed waived those rights.
Indeed, there is no practical purpose to provide the Miranda warnings upon arrest and tactical considerations would frown upon doing so. Police can get evidence surreptitiously by placing two cuffed arrestees in the back of the patrol car and leaving them to talk, unwittingly believing that they are alone, all the while the audio recording device in the police cruiser is capturing all they are saying. This is not a rogue practice but standard operating police procedure. (Ruttledge, 2008, para. 2 – 3.) Yet millions of television viewers are led to believe otherwise. Why? Perhaps it gives the actors something to say while putting on the cuffs. Perhaps since every other movie and crime drama series does this, it has become expected in the industry.
This is a fictional genre so viewers who watch shows like Law & Order, CSI and Criminal Minds should know the difference between fictional content and reality, right? Not so. The problem is that while there is a disclaimer on most shows that the facts portrayed are fiction, the viewer still mistakenly believes that the backdrop for those facts, the criminal procedures portrayed, is accurate depiction of our criminal justice system.
Ask anyone who modernly teaches Criminal Procedure to undergraduate students and you will find resounding support. Students enter such classes mistakenly believing they have a decent understanding of the criminal justice system from watching such shows. The reality is the instructors have to de-program and unwind all the falsehoods these shows depict.
While the misinformation places an additional burden on criminal justice faculty, the challenge for the criminal defense attorney representing a client whose liberty is threatened can be untold and provides few opportunities to re-educate. Jurors on a case do not come to court with a list of episodes they have watched. The jurors believe that the procedures they have watched are accurate and the attorneys do not know the extent of each individual juror’s misunderstanding. This has dangerous consequences.
When “The Practice” was popular, I had occasion to watch an episode when Dylan McDermott, playing the role of defense attorney Bobby Donnell, told a jury in closing argument, “I know my client is innocent.” Six words. Makes for good drama. But if I say those words in closing argument, the prosecutor is entitled to a mistrial and I could be fined in contempt for making such a rookie mistake. I cannot vouch, personally, for my client. That would make me a witness and entitle the prosecutor to cross-examine me. So I cannot make such an assertion ever. Yet I do not know which of the jurors may have seen that particular episode and are expecting, if I believe my client to be innocent, for me to say as such. So instead, I have to explain this to every jury in every case. That is just one of the potential ways a misinformed juror could end up wrongfully convicting the defendant based on Hollywood’s reckless disregard for the truth. This “alternate-reality” depicted in crime drama series does not always inure to the benefit of the prosecutor.
CSI Effect: This is now a criminological term created by the misinformation in one particular series, CSI. (Rath, 2011). Much like with those who watch its companion series Law & Order, viewers universally understand that the factual scenarios depicted on that series are not true. They may also understand that not all of the forensic techniques showcased are grounded in reality. But without an adequate understanding of the realities of the system, juxtaposed against the fictions presented as truths, the juror is ill-equipped to adequately assess the difference between the two.
CSI has created an entirely new occupation – that of the Crime Scene Investigator. This position does not exist in one person or in one field of study. Students enroll in college programs hoping to one day become a “Crime Scene Investigator,” motivated by this series. Yet this position is unattainable. There is the entry-level position of crime scene evidence technician. These are the individuals who collect the evidence. Then there are those individuals who look under the microscope and conduct scientific analysis. These are the forensic examiners. Finally, there are police detectives who interview witnesses. One person does not do all three tasks.
In talking with jurors after they have rendered verdicts favorable to my client, it is common to find that they were disappointed with the lack of forensic evidence in the case and found the police work to be sloppy and incomplete as a result. Yet many criminal prosecutions neither need nor support such. Fingerprints are not going to be taken at all burglaries. Fingerprints are not capable of being found on many surfaces. Some surfaces would have so many different fingerprints, isolating to the criminal would be impossible. Fiber evidence, paint analysis, DNA: these techniques are costly. Only in the most serious cases will such costs be justified.
The prosecutor in the Casey Anthony murder trial pulled out all the stops, forensically. They were able to prove that the “smell of death” was present in the trunk of the defendant’s car. Yet the jury acquitted Casey Anthony, much to the astonishment of the American public. Many ascribe this failure-to-convict to the ‘CSI Effect.” (Hoffmeister, 2011, para. 8). The prosecutor, by relying so heavily on forensic analysis in its presentation of the case, may have unwittingly perpetuated this. While proving certain facts forensically, the prosecutor was unable to prove manner or cause of death. In the past, the circumstantial evidence of her disappearance might have been sufficient to overcome this absence. But not modernly. Jurors want and expect more, even while acknowledging CSI is a fictional representation. Jurors, with “no legal training or real-life experience with the criminal justice system . . . are without any frame of reference for how trials operate beyond what they see on television.” (Hoffmeister, 2011, para. 2.)
The role and function of the defense attorney is also routinely impugned on these series. Retained attorneys are depicted as high-priced shysters who will say or do anything to secure the acquittal of his or her client. Conversely, the public defender is portrayed as feeble and inept. Yet none of these depictions resemble reality. Criminal defense attorneys, unlike their counterparts who practice Civil Law, are less motivated by the material gains in the profession and more motivated by the higher ideals of defending the Constitution.
In a companion piece,I address how the vast majority of cases, approximately 95%, do not go to trial, but plead guilty. (Durose & Langan, 2007.) In those cases, it is incumbent upon the defense attorney to review the facts to ensure that the crimes alleged are supported by the evidence and that the government acted lawfully within the confines of the Constitution. In this manner, defense counsel serves a quality control function. The defense attorney ascribes to the Due Process model philosophy which believes that if the procedure is fair, the outcome should also be fair. A “win” for the defense attorney, therefore, is a fair outcome and NOT an acquittal. Prosecutors calculate their win-loss record on convictions and acquittals only. Thus, in many cases, both prosecution and defense may consider the case that is fairly resolved by conviction, to be a “win” or a successful outcome. By routinely portraying defense counsel as ethically bereft and chasing after the almighty dollar, the media does a disservice. Jurors are more likely to believe prosecution experts than defense experts, believing the defense attorney will say or do anything to secure an acquittal. This creates a bias in favor of the prosecution that shifts the burden unfairly to the defendant.
At its core, however, entertainment television is designed to entertain. Reality TV, however, which purports to adequately represent the reality of the system, is much more nefarious when it seeks to abandon the truth in exchange for ratings.
Watch most “COPS” episodes and you will see the officers advising suspects of their Miranda warnings upon arrest. This has confounded me for decades: why? I’ve concluded in those cases, it is likely the videographer or producer telling the officer to advise the suspect since its viewers will be expecting they do so. When shows that purport to be “reality TV” deliberately present and promote a reality that does not exist, this helps to further confuse the public understanding of the true reality.
Beyond Scared Straight: Perhaps most egregious is the series, “Beyond Scared Straight,” which airs on the Disney A&E network. In this series, juveniles who get arrested for minor acts of delinquency are incarcerated for the weekend in order to “scare them straight” and deter them from continued criminality. The only problem? Scared straight programs do not work. In fact, in repeated studies, juveniles who participate in the “Scared Straight” programs are almost twice as likely to reoffend as those who delinquents who do not. (Aos, Phipps, Barnoski & Lieb, 2011.)
Criminologically, this makes sense. Much of the deterrence of incarceration comes from the fear of the unknown. The fear of the unknown is taken away from these participating juveniles who, because of the nature of their brief incarceration, are held in a sterilized and protected environment. The juveniles are exposed to other delinquents who then share their criminal exploits with each other. In the end, the juvenile, whose brain is not fully formed to appreciate risk and consequence, rationalizes that the experience wasn’t so bad after all and it might be worth committing another delinquent act. (Sullivan, 2011). Indeed, as this program has proven to be cost-inefficient and counter-productive to its stated goals, the federal government refuses to allow any federal funding to be used for these programs. (Hornberger, 2011, para. 5.)
When A&E decided to air the story, it was flooded by the opinions of criminologists and criminal justice policy makers, who provided A&E with the evidence-based analysis showing its ineffectiveness and its danger to the continued delinquency of youth. Their response? To air yet a new series of episodes. (Hornberger, 2011, para. 7.). A petition, which is now closed, circulated in a failed attempt to require A&E to tell the truth about “Scared Straight” programs. (Campaign for Youth Justice, 2011).
Equally disturbing is the inability of the News Media to accurately report on the criminal justice system. Burglaries, a property crime defined as the entering of a building with the intent to commit a theft or a felony, (FBI, n.d.) are commonly described as robberies instead. Robberies are, however, a violent crime and involve the taking of property through force or fear from one’s immediate presence. (FBI, n.d.). Thus, it would be an impossibility to report that an individual returned home from work one day to find that his or her house had been “robbed.” Houses cannot be robbed, only people can be.
Another common mistake is the confusion between jail and prisons; a confusion that is exacerbated by realignment practices such as those in California that shift the population of one facility to another. A prison run by the state and is intended for long-term commitments, generally over one year. Jail, on the other hand, is a city or county facility and is intended for shorter sentences under one year as well as those who are unable to post bail and are awaiting trial. (BJS, n.d.)
But the most egregious is how news media report on acquittals. The reporter will indicate that the defendant was found “Innocent” after a jury verdict. Unlike the confusion between robbery and burglary or jail and prison, both of which reflect an ignorance but not a malice, the decision to report not-guilty verdicts as “innocent” verdicts is intentionally made. News outlets, worried that their reporters will make a mistake and not read the tele-prompter correctly, avoid using “Not Guilty.” If the news reporter mistakenly claims that an acquitted defendant was found “Guilty” instead of “Not Guilty,” a potential civil suit could arise. The irony is that in order to avoid the reporter making a mistake, the news agency makes a conscious and deliberate decision to report it incorrectly.
We do not have a verdict of “innocence” in our country. Scotland does. Scotland has three potential verdicts: guilty, not-guilty and not-proven. (The Scottish Government, 2013, para. 1.) We do not. Our verdict of “not guilty” could mean that the jury found that the defendant was innocent. The verdict, however, could also mean that the jury found the prosecutor had not proven guilt beyond a reasonable doubt. To falsely represent an acquittal as an “innocence” verdict is to misinform the public about what “not guilty” means. Jurors may be loath to render a not guilty verdict simply because they do not believe the defendant is innocent, and irrespective of whether the prosecutor has proven its case to its standard.
Proof of Defamation
To prove that one’s reputation has been defamed, the litigant will have to prove that there was a published statement, that the statement was false and that the statement was injurious. (Doskow, n.d., para. 3.) As demonstrated above, there are many false statements perpetuated about the criminal justice system by the entertainment and news media. The inability of the lay person to adequately distinguish between the false reality portrayed by the media and the actual system could lead to wrongful convictions or unnecessary acquittals. When public figures sue for defamation, they have the additional proof of demonstrating actual malice.
“’Actual malice’ means that the person who made the statement knew it wasn’t true, or didn’t care whether it was true or not and was reckless with the truth — for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it.” (Doskow, n.d., para. 12.) This can certainly be proven as to Disney’s A&E network’s reckless portrayal of the “Beyond Scared Straight” program despite overwhelming evidence of its ineffectiveness and counter-productiveness. This network has deliberately chosen the profit the show generates and rejected the truth.
This “actual malice” standard can also be proven as to news agencies that deliberately elect to report verdicts as “innocent” in order to avoid being sued by an individual for making a mistake. Perhaps, if the news agency was worried about a defamation lawsuit on behalf of the taxpaying public for defamation of the criminal justice system, it would have the proper incentive to report on the truth instead of creating a fiction.
Aos, S., Phipps, P., Barnoski, R. & Lieb, R. (2001). The comparative costs and benefits of programs to reduce crime. Olympia, WA: Washington State Institute for Public Policy. Retrieved on December 1, 2013 from: http://www.wsipp.wa.gov/rptfiles/costbenefit.pdf
Bureau of Justice Statistics. (n.d.) FAQ Detail: What is the difference between jails and prisons? Retrieved on December 1, 2013 from: http://www.bjs.gov/index.cfm?ty=qa&iid=322
Campaign for Youth Justice (2011). Demand A&E tell the truth about ‘Scared Straight.’ Change.org. Retrieved on December 1, 2013 from: http://www.change.org/petitions/demand-ae-tell-the-truth-about-scared-straight
Durose, M.R.& Langan, P.A. (2007, July 1). Felony sentences in state court, 2004. Bureau of Justice Statistics Bulletin. Retrieved from: http://www.bjs.gov/content/pub/pdf/fssc04.pdf
Duskow, E. (n.d.) Defamation law made simple. NOLO. Retrieved on December 1, 2013 from: http://www.nolo.com/legal-encyclopedia/defamation-law-made-simple-29718.html
Federal Bureau of Investigation. (n.d.) Burglary. Uniform Crime Reports. Retrieved on December 1, 2013 from: http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/property-crime/burglarymain
Federal Bureau of Investigation. (n.d.) Robbery. Uniform Crime Reports. Retrieved on December 1, 2013 from: http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/violent-crime/robberymain
Hoffmeister, T. (2011, July 7). Did ‘CSI Effect’ sway Anthony jury? CNN. Retrieved on December 1, 2013 from: http://edition.cnn.com/2011/OPINION/07/06/hoffmeister.anthony.jury/
Hornberger, N.G. (2011, August). National juvenile justice experts: Invest in proven strategies, not “Scared Straight.” Reclaiming Futures. Retrieved on December 1, 2013 from: http://www.reclaimingfutures.org/blog/juvenile-justice-reform-Scared-Straight-CJJ-position-statement
Rath, A. (2011, February 5). Is the ‘CSI Effect’ influencing courtrooms? NPR. Retrieved on December 1, 2013 from: http://www.npr.org/2011/02/06/133497696/is-the-csi-effect-influencing-courtrooms
Ruttledge, D. (2008, March 1). The Bruton rule: Playing arrestees against each other can help you elicit confessions. Police Patrol. Retrieved on December 1, 2013 from: http://www.policemag.com/channel/patrol/articles/2008/03/the-bruton-rule.aspx
Sullivan, I. (2011, September 6). The many things that are wrong with A&E’s “Beyond Scared Straight” program. Juvenile Justice Information Exchange. Retrieved on December 1, 2013 from: http://jjie.org/whats-wrong-beyond-scared-straight/
The Scottish Government. (2013, June). Reforming Scots criminal law and practice: Additional safeguards following the removal of the requirement for corroboration: Analysis of consultation responses. Retrieved on December 1, 2013 from: http://www.scotland.gov.uk/Publications/2013/06/1213/5
Fifty years ago, the Supreme Court recognized that the Sixth Amendment right to counsel obligated state courts to provide counsel to felony defendants who could not afford to hire one. (Gideon v. Wainright, 372 U.S. 355 (1963).) Today, that right exists in name only for many criminally accused.
As a private defense attorney, I have never worked for a public defender agency but I only have the utmost respect for the work that they do and the conditions they are compelled to endure. When Gideon was decided, about 43 percent of defendants were indigent. Now, over 80 percent are. (Butler, 2013, para. 6.) Those who never need the services of a defense attorney have little understanding of their importance in our justice system. Crime drama shows falsely and unfairly portray the private ones as shady and the public ones as inept. Many would be content if the defendant, assumed by most to be guilty of all charges despite the presumption to the contrary, received inadequate representation if that would assure that a conviction and retributive sentence would follow. And this is why the inadequacies of the indigent defense system in the fifty states gets little attention and no public support.
In a companion piece, I address the contributions the media has made to the public misunderstanding of the role of the defense attorney. In this article, I will address the how the implementation of this right at the state level has frustrated its purpose.
I often compare defense attorneys to dentists. Both share similar unpopularity, except by those who need them most. And while many cannot understand why I could defend criminals, I cannot understand why someone would want to put their hands in other people’s mouths. The profession of defense counsel is not for everyone and those who pursue this career path usually do so because they are intrinsically motivated to defend the higher ideals of the Constitution against the overwhelming power of the government.
But imagine for a moment you need a dentist but your insurance plan does not permit you to select the dentist. Instead, you are assigned a dentist. You come to find out that you have been assigned to one of the best dentists in your area. You are elated and relieved. That is, until you try to make an appointment. This particular dentist has been assigned so many patients, that the earliest appointment is not for several months. You wait and wait in agonizing pain for months until your appointment. And then, when it is finally your turn, you find out that the dentist has to see 50 patients a day, which means that each patient can only have 7 minutes of the dentist’s time. This time barely allows the dentist to diagnose the problem, let alone do any significant work. The result? You leave the dentist’s office in just about the same condition you entered. Did it matter that the dentist was one of the best? Not when the dentist’s caseload is so overwhelming that the dentist is prevented from treating you effectively.
The Seven-Minute Attorney: This is the plight of the indigent defender. The court appoints cases to the public defender agency. The court is not without a vested interest here. This same agency is responsible for adding workload to the courts in motion and trial practice. If the court assigns the public defender to an obscene number of cases, then the workload of the court will necessarily reduce. The public defender will just not be able to attend to each case the way a retained attorney could. While not representative of all public defender agencies, the National Association of Criminal Defense Lawyers has found that public defenders in Atlanta average only 1 hour per case, in Detroit they can spend only 32 minutes per case, and in New Orleans, clients average only 7 minutes of attorney-time. (Levintova, Lee & Brownell, 2013.)
Seven minutes permits very little. Seven minutes will not permit the attorney to review the discovery provided in its entirety nor request additional discovery that the client is entitled to receive. Seven minutes will not permit the attorney to challenge constitutional irregularities that have occurred, such as an illegal search warrant or prosecutorial misconduct. Seven minutes essentially only permits the attorney to stand at the client’s side while the client pleads guilty pursuant to a plea offer. The attorney will have no basis upon which to recommend the plea offer be accepted or rejected, without the opportunity to meaningfully review the discovery, conduct further investigation and litigate appropriate issues.
The public defender agency is powerless to refuse the appointment. Individual attorneys are powerless to object to the court or their agency that their caseload precludes their ability to effectively represent their assigned clients. Those who have tried have found themselves without a job. (Benjamin, 2013). And the client also has no meaningful recourse. The client will not be permitted to obtain another attorney on the claim that the appointed attorney has too many clients to effectively represent him or her. Instead, the client will have to wait until he or she is convicted and sentenced to appeal the decision. And then, relief will still not be forthcoming.
Ninety-five percent of cases plead guilty. (Durose & Langan, 2007.) These individuals pleading guilty are hard-pressed to contest the inadequacies of their representation. Many plea agreements require that the defendant waive his or her right to appeal. Even without such a condition, the plea agreement itself precludes any challenge. The defendant has admitted to the crime, under penalty of perjury, has waived his or her Constitutional rights in the process, and the courts are loathe to unwind a plea agreement a trial court has accepted.
Effectiveness Standard of Review: Strickland: Realistically, this means only those that go to trial AND are convicted will be able to challenge the effectiveness of counsel. And, just like the public does not expect or require much of defense attorneys, nor do appellate courts. (Strickland v. Washington, 466 U.S. 668 (1984).) The court has found no ineffectiveness where an attorney has slept through portions of the trial (Ex parte McFarland, 163 S.W.3d 743,748-49 (Tex. Crim. App. 2005)) or where the attorney had Alzheimer’s as yet undiagnosed during the trial (Dows v. Wood, 211 F.3d 480 (9th Cir. 2000).) This is because the appellate court requires that the defendant prove that a different result would have likely been obtained with a different attorney. Yet it is a logical fallacy, contrary-to-fact-hypothesis, to suggest that if something had been done differently, a different result would have occurred. Such an argument requires a time machine to assess. Anything else is pure speculation.
Further, while the right to counsel is not just for those who are innocent or not guilty of the charges, the Strickland standard essentially denies the right of effective counsel to those who are guilty. The court reasons where there is overwhelming evidence of guilt, that no other attorney would have achieved a better result, in order to deny any relief. This is yet another logical fallacy: that of begging the question. Perhaps the evidence of guilt would NOT have been so overwhelming, had there been the opportunity to properly investigate and prepare the case for trial, and had the client been represented at the trial by a competent attorney with adequate time to attend to the client’s case. “Justice Marshall was prophetic in his Strickland dissent, predicting that very few defendants would be able to satisfy the burden of proving prejudice.” (Williams, 2009).
Inadequacies in representation leave lingering questions. Was the client really guilty? Even if guilty of some charges is the person guilty of the charges for which they pled guilty? Indeed, did a crime even occur? The client, unfamiliar with the law and its requirements, is often unable to answer this question for themselves. If the client is wrongfully convicted of a crime that did occur, this results in multiple injustices. The state, at taxpayer expense, will incarcerate the innocent offender while the guilty offender(s) remains free and, having gotten away with this crime, is most likely to continue in his or her criminal enterprise. And, should the unthinkable happen and you or someone you love is accused of a crime, will the existing system offer any meaningful representation?
Attorney General Eric Holder Jr., recognizing a state of crisis in public defender systems nationwide has emphatically stated, “It’s time to reclaim Gideon’s petition — and resolve to confront the obstacles facing indigent defense providers. Most of all, it’s time to speak out — with one voice — to rally our peers and partners at every level of government and the private sector to this important cause.” (Cohen, 2013, para. 7.) The time is long overdue for the promise of Gideon to be realized.
Benjamin, M. (2013, September 19). Fresno County public defenders protest work conditions. The Fresno Bee. Retrieved on December 1, 2013 from: http://www.fresnobee.com/2013/09/19/3507288/fresno-county-public-defenders.html
Butler, P. (2013, March 17). Gideon’s Muted Trumpet. The New York Times: Op-Ed. Retrieved on December 1, 2013 from: http://www.nytimes.com/2013/03/18/opinion/gideons-muted-trumpet.html
Cohen, A. (2013, March 15). Eric Holder: A ‘state of crisis’ for the right to counsel. The Atlantic. Retrieved on December 1, 2013 from: http://www.theatlantic.com/national/archive/2013/03/eric-holder-a-state-of-crisis-for-the-right-to-counsel/274074/
Durose, M.R.& Langan, P.A. (2007, July 1). Felony sentences in state court, 2004. Bureau of Justice Statistics Bulletin. Retrieved from: http://www.bjs.gov/content/pub/pdf/fssc04.pdf
Levintova, H., Lee, J. & Brownell, B. (2013, July 1). Charts: Why you’re in deep trouble if you can’t afford a lawyer. Mother Earth. Retrieved on December 1, 2013 from: http://www.motherjones.com/politics/2013/05/public-defenders-gideon-supreme-court-charts
Williams, K. (2009, May). Does Strickland prejudice defendants on death row? University of Richmond Law Review. 43(4). Retrieved on December 1, 2013 from: http://lawreview.richmond.edu/does-strickland-prejudice-defendants-on-death-row/#_ftn11