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.