Public Defense Reform

Excerpt adapted from: David Carroll and Scott Wallace, Implementation and Impact of Indigent Defense Standards (December 2003), Award No. 1999-IJ-CX-0049, National Institute of Justice, Office of Justice Programs, United States Department of Justice.

One spring night in 2001, an unidentified caller dialed 911 and hung up before words were exchanged.  The police were routinely dispatched to the apartment where the call originated.  They were greeted at the door by Mike (not his real name).  Mike appeared nervous, having used methamphetamines an hour earlier.  The police asked permission to enter to ensure that no actual emergency was in progress, and Mike consented.  The officers saw drugs in plain view.  Mike and an acquaintance Mary (not her real name) who was also present were arrested and charged with felonies.

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Publication Date: 2010

In 1972, the U.S. Supreme Court, in Argersinger v. Hamlin, held that Gideon's right to counsel must be afforded to any person facing incarceration for any amount of time, specifically including for a misdemeanor offense.

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Publication Date: 2010

In August of 2009, the Maryland state public defender was fired.  She served at the pleasure of a three-person board, and each of those three people were appointed to the board directly by the Governor.  After months of disagreement between the public defender and the board, they fired her on a 2-1 vote after she refused to implement cuts and reorganization demanded by the board that included increasing the caseload of staff public defenders, disbanding the capital defense and juvenile protection divisions, closing a community-oriented defender office in Baltimore, and firing an African-American division chief.

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Publication Date: 2010

On June 3, 1961, someone broke into a Panama City, Florida pool hall and stole alcohol and some change from a cigarette machine and a juke box.  Clarence Earl Gideon, a fifty-one-year-old drifter, was charged with a felony -- breaking and entering the pool hall with the intent to commit a misdemeanor.

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Publication Date: 2010

A flat-fee contract pays a lawyer a single lump sum to handle an unlimited number of cases.  This type of contract creates a direct financial conflict of interest between the attorney and each client.  Because the lawyer will be paid the same amount, no matter how much or little he works on each case, it is in the lawyer’s personal interest to devote as little time as possible to each appointed case, leaving more time for the lawyer to do other more lucrative work.  Worse yet, many flat-fee contracts require the lawyer to pay all case-related expenses out of the single lump sum.  In this situation, it is in the lawyer’s personal interest to incur as little expense on behalf of clients as possible, so that more of the lump sum payment can go toward the lawyer’s fee.  Finally, some flat-fee contracts require the lawyer to hire other lawyers out of the same single lump sum, such as when an additional lawyer is required to represent a co-defendant or in other conflict case situations.  Such contracts are oriented solely toward capping defense costs at the lowest possible level, without regard to the lawyer’s ethical and constitutional duties to the client.

Author/Organization: Jon Mosher
Publication Date: 2010

On June 17, 2010, NLADA released Effective Assistance of Counsel: Implementing the Louisiana Public Defender Act of 2007, a report concluding that the Louisiana Public Defender Act of 2007 has yet to take root in Louisiana’s 15th Judicial District.

The Louisiana legislature passed the Louisiana Public Defender Act of 2007 (“Act 307”) on a bipartisan and overwhelming vote, with the expressed intent of ensuring that “all indigent criminal defendants who are eligible to have appointed counsel at public expense receive effective assistance of counsel at each critical stage of the proceeding” and “that the right to counsel is delivered by qualified and competent counsel in a manner that is fair and consistent throughout the state.”

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Publication Date: 2010

In 1985, Eddie Joe Lloyd was convicted in Detroit of the rape and murder of a teen-age girl. The evidence of his guilt was overwhelming.  Eddie Joe Lloyd’s written confession gave specific information about the crime scene that only the perpetrator could have known.  Police had him on tape admitting to the brutal acts.  It was a slam dunk case.  The jury took less than an hour to convict him of 1st degree felony murder.  Lamenting the lack of the death penalty in Michigan, the judge sent Eddie Joe to a maximum security prison for the remainder of his life without the possibility of parole.  Justice was served… except for one small problem – Eddie Joe Lloyd was innocent.

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Publication Date: 2010

NLADA’s Justice Standards, Evaluation & Research Initiative (JSERI) evaluations have served as an impetus for a number of jurisdictions, including Louisiana and Michigan, to move toward establishing constitutionally effective indigent defense systems.

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Publication Date: 2010

NOTE: This article is abridged from a white paper submitted to the Nevada Supreme Court on September 2, 2008. The original paper can be found here.

The Right to Counsel

The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence."  In Gideon v. Wainwright, the United States Supreme Court stated that “reason and reflection require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”  The Court then held that the Sixth Amendment applied to the states - not to county or local governments -- by virtue of the Fourteenth Amendment and that the state of Florida thus had an obligation to provide Mr. Gideon with counsel for his defense.  National standards incorporate this aspect of the decision, emphasizing that state funding and oversight are required to ensure uniform quality. (See ABA Principle 2.)

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Publication Date: 2010

On June 18, 2008, NLADA released its report, A Race to the Bottom: Speed and Savings over Due Process: A Constitutional Crisis, which found that the state of Michigan fails to provide competent representation to those who cannot afford counsel in its criminal courts.  The state of Michigan’s failure to fulfill its constitutional obligations has produced myriad county public defense systems that vary greatly in defining who qualifies for services and the competency of the services rendered. Michigan ranks 44th in the nation for per capita public defense spending ($7.35), behind such states as Alabama and Georgia.

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Publication Date: 2010