Sunday, December 17, 2006

Lock 'em up

Doug Grow in the Minneapolis Star-Tribune writes about spending money on prison.

Tuesday, October 24, 2006

Effective Assistance of Counsel

Our state public defender agency handles criminal and juvenile court cases. In juvenile court we handle juvenile delinquency cases, which are most similar to adult criminal court. We also handle two civil matters in juvenile court: child protection (CHIPS) cases and termination of parental rights (TPR) cases. We represent children ten and over on CHIPS and TPR cases automatically and we represent any adjudicated parent who applies for our services and is found to be "financially unable to retain private counsel."

Very few private attorneys handle any type of juvenile court case and fewer still handle CHIPS and TPR cases - those that do, if they're smart, charge an enormous fee. CHIPS and TPR cases require a lot of time; require all the savvy legal smarts that any complicated litigation with poorly written rules, statutes, and conflicting case law calls for; require the social dexterity to deal with the dozens of legal and social work personalities that touch these cases; and require the patience and listening skills of the best social workers.

An attorney in my office spent a lot of time preparing to represent the mother in a TPR trial that was to start yesterday. When she arrived in court, the adjudicated father showed up for the first time in months. It was unclear whether he had been intentionally avoiding court or whether he simply never had notice of the dozens of prior hearings over the past year.

The child is now seven and has lived with mom with dad out of the picture since his birth. The state removed the child from the mom's home due to allegations of substance abuse that caused her to not be able to care for her child.

Just before the trial was to begin, the father indicated his intention to apply for a public defender. The attorney from my office representing the mom found me in another courtroom and asked me how I thought our office should handle the new appointment. I told her that I would handle the case but to ask for at least a month continuance of the trial, but preferably much more. I went back to handling my cases in the other courtroom.

When I returned to the office after the morning calendar, I found that the judge had continued the matter to no further than this morning at 8:30 a.m. when he expected to start the trial.

Minnesota law mandates that parents have a right to effective assistance of counsel in CHIPS and TPR cases. At 1 p.m. yesterday, I was appointed on a TPR trial with 30 witnesses, hundreds of pages of discovery, and a client I hadn't met.

I thought this situation to be emblematic of the kind of expectations that are set for public defenders. "Here you go, do the trial, you can make something up, right?"

It's not much different from the defendant in an adult felony case facing a revocation of probation where the probation agent, judge, and prosecutor have already made up their minds to send the defendant to prison but he is unrepresented so the court appoints a public defender to stand next to the defendant (at least that's how it feels) while everyone familiar with the poor guy's case rhapsodizes about why it's so important to send him to prison and immediately.

The prosecutor in the TPR case delivered the discovery packet to me at 4:30 p.m. yesterday. This is the kind of situation that grates on me. This is what wears me down. It is easy to feel like the court obviously must have no sense of the degree of effort, time, and skill we put into these cases. I'm know that the court's frustration is that my client showed up at the 11th hour.

I prepared a motion for a continuance and prepared for it to be denied. I decided that I would state at every juncture that I could not effectively represent my client - when called to give an opening statement, when called to cross a witness, when called to respond to the other party's moving exhibits into evidence, and when my client would be called to testify by the other side.

I met with the attorney for the mom, the prosecutor, and the judge this morning before starting the hearing. The court wanted to fashion a way to only have witnesses called today that relate to mom. I explained that even that should not be done because I may want to examine those witnesses depending on whether my client's position would be adverse or complementary to the child's mom's position.

The court wanted to start the trial because we have strict time limits in TPR matters and continuances may be granted only if the court finds it is in the best interests of the child. I explained that if we started the trial today and the trial court terminated parental rights and the appellate court reversed due to my ineffective assistance, the child's best interests would not be served because he would have stability only to have it undone by an appellate decision because we sped through the case at the trial level.

In short, let's do this right the first time.

The judge, in chambers, wondered whether the father was ever adjudicated the father and he sent me out to chat with my client about that. He was found to be the father shortly after the child's birth.

I spoke further with my client.

It turns out my client knows the people who would adopt the child if termination were to occur. My client said that he felt he would be able to see the child down the line because, while the mom of the kid had supposedly burned bridges with everyone, including the likely adoptive parents, my client was apparently well-liked by the prospective adoptive parents. He said he could not hold a job due to a recent felony conviction and had no way to care for his son. He lives with his parents and said he had talked a lot about relinquishing his rights to clear the way for his son to live in a better place.

My client showed up to do what he could to speed up the transition to the adoptive parents and to make sure that the child's mom would not get another chance to reunite with her son. He decided to voluntarily terminate his parental rights and that he would testify against the mother when he was called by the prosecutor to testify.

His motives are not entirely altruistic. As everyone in the courtroom was aware, if the court grants his voluntary termination of his rights, his child support obligation from that day forward will cease.

In the end, this ended up being an example of feeling put upon and preparing to make an argument (about effective assistance of counsel) that would have been an outlet for all of the righteous indignation boiling up inside for awhile but the time for it never came. We all spend a lot of time thinking about issues that never get heard.

This begs the question, I think, of if I knew I would be ineffective at trial, then how can I be providing effective assistance of counsel when my client is waiving his trial rights, especially trial rights that have consequences that last forever? Don't you still have to be familiar with the case in order to assist your client in weighing the benefits of trying the case versus waiving the trial?

In this case, my client was positive about what he wanted to do. I dealt with my concerns by talking on the record about how little time I have had with my client and despite that, my client wished to voluntarily terminate his parental rights. My client told the judge that he had been discussing this type of resolution with his mother and father for over five years. He told the judge thatI had offered to spend as much time with my him has he wished to have He told the judge that he made the decision and no one forced him to waive his rights, and on and on.

I am satisfied that my client is happy with what he did and that he understands what he did.

I have a nagging feeling though about how my advocacy for my client can be affected by my advocacy for my agency, or identity as a public defender.

In other words, my first exposure to this case yesterday involved a feeling of outrage based on my perception that a judge may have thought so little of our vocation that we could - or would -"wing" a TPR trial.

While my focus was ultimately rooted in providing good service to a client, I cannot deny that it was also rooted in being pissed off that I was being asked to sit next to a guy, unprepared, for a long trial, all the while other attorneys would be covering the cases I was prepared to handle in other courtrooms with a client who was expecting me, and all the while precious office time, research time, phone call time, jail visit time, would be slipping away.

I hate being put in a position by others to have to make excuses for crummy work - and I really do not like the idea that judges who see us every day would not think twice about putting us in a position in which they would never put privately retained counsel.

Thursday, September 28, 2006

"Self-Impressed Public Defender Hiring Committee"

Through Arbitrary and Capricious here and here, the awful experience of interviewing for a public defender position when the interviewers have some kind of bizarre ego/power trip is recounted. "Come to the interview! We'll abuse you!"

I had an experience like this in the interview for the job I got in Minnesota. I had been a defender for about three years in Wisconsin and had to move to the Twin Cities. I knew I didn't want to do anything else other than public defense, thought I knew what I was doing, thought I knew how to interview well, and thought I could communicate that I would be a good guy to have around the office.

Halfway through the interview, the panel of three breaks into an awful hypothetical where I am the lawyer interviewing two clients at the same time - husband and wife, both accused of being involved in the same incident. Two male interviewers play the couple. The man is ranting, yelling, and screaming at his "wife." The "wife" is whimpering, crying, and inaudible. I can't get a word in edgewise.

The goal of this role-playing is to test action under pressure. Am I able to respond to stress? Can I handle difficult people? (As if three years of public defending wouldn't have already demonstrated that.)

I kept thinking during the role play exactly how little I would like to work with these freaks. On the drive home, I was extremely depressed, because I thought I had a shot at the job. Completely the opposite of how you might usually feel when you're thinking you might just get a job offer this time. When a member of the hiring committee called the next day to offer the job, I accepted, but wasn't excited.

The person who offered the job called back the next day to make sure I was alright because she sensed I wasn't all that keen on the job. I said I was sad to be leaving my job in Wisconsin, which was true. It was where I became a defender. I had a lot of great mentors there and I was established in that community. I had a lot of people in my office there that I would be happy to go out to lunch with or drinks after work.

Now I was going to be working with a bunch of sadists. (I wasn't sure that "sadists" was the right word, but I googled it and it came back "Sadism is the ability to derive pleasure as a direct result of others' suffering." Exactly.)

Almost six years later, I work in the same district and I interview prospective attorneys. I promise to never forget that experience. I think and hope that we try to sell people on our office, thank them for taking the time to meet with us, and make sure they know that we are honored to be interviewing a person of their qualifications. We use the exact same hypothetical and only rarely role-play it - when we do, there is no sadism involved.

Thursday, September 21, 2006

State Investigator: Sherburne County Jail Screwed Up

A state investigation concluded, to not much surprise, that Sherburne County Jail should have taken more care in housing the man who allegedly killed a guy being held in jail on a no insurance charge last month.

The investigation stated that the jail should have assigned a higher custody level to Bruce Christenson because 1) he was being transported from MCF-Oak Park Heights, Minnesota's most secure facilty and the place where inmates go when they have had trouble in other prisons, and 2) he was brought to Sherburne County on a charge of assault with a dangerous weapon.

The Star Tribune article is here. The Pioneer Press article here has more detail, including this nugget at the end:

"[Carl] Moyle [the victim] had been jailed because he had a third violation of driving without insurance, and Elk River police policy calls for the driver to appear before a judge.
But neither the police nor the jail was required to keep Moyle in custody until his court appearance, which was scheduled for the next day, said Bill Ward, chief public defender for the 10th Judicial District, which includes Sherburne County."

Wednesday, September 20, 2006

Two Minutes A Client

I am a defender in a county that handles new in custody defendants' appearances at 10:30 a.m. every morning. People arrested on new offenses, picked up on warrants for missing court, picked up on warrant for alleged probation violations, or picked up alleged release condition violations are brought before a judge to have bail conditions and next hearing dates set.

Every public defender wherever they work has some version of this calendar. I have been a public defender in two states and in a few different counties. This "jail calendar" sucks wherever it is.

In my current county, there is a lot good about the process that is better than other places. We are provided with a list of the defendants set for hearing. The list gives us sketchy but useful information in order to help us figure out where the client's case is procedurally. We aren't a huge county, so the daily lists range from 20 to 35 defendants, which is much better than horror stories I hear from bigger jurisdictions.

We get the list about 60 minutes before the hearing. We have one or two attorneys, ideally, handling the calendars, but over the past few years we have not had attorney staff to handle the calendars. We have law students, who are permitted by Supreme Court rules to handle court appearances, represent our clients on the jail calendar. I help train the students and feel confident that they do a good job. But it isn't the way it should be. Defendants should have attorneys at their bail hearing. It's hard to think of a more crucial hearing (other than trial) than that, in the client's eyes anyway.

The attorneys/law students walk into a 20' x 20' room filled with dozens of men - some drunk, high, mentally ill, scared, sleepy, mad, and everything else - all wondering when they're getting out of jail. They want to tell you about their alibi, that their cat that isn't getting fed, the job interview they have, that Jim Morrison is talking to them, that the girlfriend that had it coming, their sadness, and everything in between.

We have two minutes with each client if we are going to be in the courtroom when the judge starts calling cases - three minutes if we're lucky. Sometimes the judge waits. That time is important. We talk all the time about what it takes to establish trust with our clients. We cut to the chase.

"Today will not be the day to fight your case. Today is the day I am going to try to get you out of jail. What I ask you is what I have to know in order to make the best possible argument to get you out of jail."

That shuts up the chatter. The room is quiet and people listen.

I wish there was a better way to do it.

Monday, September 11, 2006

"You can usually spot these imposters right away. Most of them are dressed inappropriately for court."

Juvie Journal vents about public pretenders in a recent post. The post rails against lawyers failing to appreciate the consequences of taking an "it's only juvenile court" attitude in juvenile cases. The focus is public defenders, but, I think, it really applies to any attorney who thinks they can "wing" an appearance in juvenile court.

The stakes in juvenile court are no longer small. "Get tough on crime" has morphed into "get tough on kids" without any regard for the fact that kids are just different than adults but they are now facing lifelong consequences in many cases. Our best juvenile court defense attorneys in Minnesota are public defenders, without a doubt. Most of the local private defense bar will refer well-heeled parents to our office rather than take a juvenile court case (which brings up the issue of whether public defenders should be representing kids of parents with resources to hire counsel - since the kid is the client, we should be on these cases so the client has an advocate independant of the wishes of the parent).

I liked the way the writer (who is, based on a response to a comment on her post, also a public defender) indentified dress and appearance as an indicator of an attorney failing to understand the importance of what they do. There are some attorneys that are incredibly brilliant legal minds and great with clients but they undercut their effectiveness by looking ridiculous.

I am completely sensitive to the fact that we make very little money to spend on clothes, precious haircuts, and whatever other fancy accessories pretty people wear. After housing and student loans there isn't a lot left at the end of the month to replace a suit with one that isn't worn in the knee. I'm no fashion plate so I'm hesitant to even raise this issue due to the risk of being labeled a hypocrite.

But, just dress as well as you can. Wear a clean suit, comb your hair, and use breath mints (we do so much whispering, you simply gotta have those - that mixture of coffee and cigarette smoke coupled with last night's booze just ain't appealing.)

Dress like Reed Hadley (pictured above) in "Public Defender." He looks just fine.

Tuesday, September 5, 2006

Law Broken In Cleveland

Badgers win season opener 35-14.

In other less trivial (but not as fun) news, the recent discharge of a contract public defender handling a Wisconsin homicide case has led to difficulties in finding a replacement attorney. The reason: no one will take it at $40 an hour. I used to work in Wisconsin as a full-time defender. I didn't make $40 an hour there and I don't in Minnesota. But I also don't have to pay overhead and probably wouldn't have to balance a completely full caseload while handling a murder case.

I think most folks will read this article, and articles like it, and roll their eyes about the poor lawyers who can't do a job for $40 an hour. I can't blame them. I just wonder though, is there a better way to make the case that $40 an hour isn't enough? I also think that these articles highlight what a bargain full-time defenders are (without saying it). We are so damn good - and so cheap too.

Wednesday, August 30, 2006

Ineffective assistance?

Our public defender agency is guided by state statute on the types of cases we handle. We represent on any criminal matter, juvenile delinquency cases, child in need of protection and services (CHIPS), and termination of parental rights (TPR) cases. On the latter two types, we represent children ten or older and any parent who financially qualifies for our services. The latter two cases are also the only civil matters we handle.

There are two other types of civil cases that, because we don't handle, our clients get screwed compared to clients represented by private counsel (and this, of course, is coming from a guy who vehemently believes that we provide better (not just "as good") service as private counsel.

We do not handle implied consent matters to contest a DUI-related driver's license revocation. These are civil matters and are handled in a different court than criminal matters. We also do not handle civil forfeiture actions related to the seizure of property or cash as the result of a drug, DUI, or fleeing-type offense.

I don't feel right breaking the news to my clients about "we don't handle" these two types of cases. It feels like saying "that's our policy" without any good reason behind the policy. The truth is that we don't do it because we are not funded to do it. The effect, for example, is that our DUI representation is deficient compared to that provided by a good private attorney who knows what they're doing on these implied consent matters.

At the implied consent hearing, the issue is whether there was probable cause for the officer to make a DUI arrest. If not, then the driver's license cannot be suspended. This is a big deal for many reasons. First, there is a $680 reinstatement fee for DUI-related suspensions. Second, the DUI-related license suspension can be used to enhance future DUI charges to a gross misdemeanor (maximum one year jail) and/or a felony (maximum seven years prison) even if the defendant is acquitted on the criminal DUI case.

The implied consent hearing also gives the lawyer a shot at cross-examining the arresting officer which is obviously valuable discovery for the criminal case in preparation for suppression motions or cross at trial.

But we don't do them and I'm torn. It makes our advocacy for our clients in DUI cases not as good as it could be. On the other hand, how can we do them when we aren't authorized to do them and our agency isn't budgeted to handle these things?

The civil forfeiture matters are similar in that if an officer believes there is probable cause that a drug crime has occured and the value of the drugs is $25 or more, the officer can seize for forfeiture any property or cash associated with the incident. The client has a very short time period from the time of the arrest to give notice of intent to challenge these forfeitures. Sometimes that time has ran even before the criminal case is charged. The law is set up to make it easy for law enforcement agencies to enrich their coffers. The money and property are then used for drug buys, to pay informants, and is something that the public generally doesn't know much about.

This has come into play, for example, when a client is pulled over on a Harley, taken into custody on an outstanding warrant, searched, and a gram of meth is found on the Harley-rider. A gram is usually valued at about $100. This means that it is very likely the officer will seize the Harley and give notice of intent to pursue a forfeiture of the Harley. But because the prosecutor sometimes waits until receiving a confirmed positive test of the meth at the crime lab, the case may not be charged for weeks or months. By the time the criminal case is charged and the defendant gets around to hiring a lawyer or qualifying for a public defender (now that they no longer possess a Harley), the time to challenge the forfeiture has run. Even if our agency is on the case before the time to challenge the forfeiture has passed, we cannot litigate that issue

It is frustrating. The forfeiture statute is really good business for the state. I see the use of it increasing in the future. I also think lawmakers will come up with more collateral/civil consequences (such as a $680 "fee" to reinstate your license after a DUI suspension) that really are part of a criminal action but evade litigation/challenges because the citizen is not legally entitled to counsel simply because these matters are classified as "civil matters."

I can't tell you how many people have looked at me like I'm crazy when I explain that their forfeiture is a "civil matter" or their license suspension from the DUI arrest is a "civil matter." I am sure I seem like "one of them" to those clients. Just another lame government bureaucrat saying, "I'm sorry, it's outta my hands. It's our policy."

It really sucks.