Sunday, September 22, 2013

The Crime Report: The DOJ Takes on Indigent Defense

Matthew T. Mangino
The Crime Report
September 17, 2013

The Department of Justice (DOJ) has filed a Statement of Interest  in a U.S. District Court case in the state of Washington, advocating specific remedies—including an independent monitor— should the court find that public defender services in two Washington cities have fallen short of Sixth Amendment guarantees.

While Statements of Interest are neither surprising nor unusual, this one is, as some have described it,  “nothing short of historic.”

 The DOJ’s position is rooted in the landmark Gideon v. Wainwright case. In that 1963 case, the Supreme Court  ruled unanimously that defendants accused of a felony were entitled to free legal counsel if they could not pay for an attorney.

The decision was premised on the Sixth Amendment, in which the framers of the U.S. Constitution provided, "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense."

This summer, Attorney General Eric Holder, joined the growing group of advocates and legal experts who have argued that the Gideon decision has left large loopholes.

“Despite the undeniable progress our nation has witnessed over the last half-century – America’s indigent defense systems continue to exist in a state of crisis,” Holder told a gathering  at the American Film Institute in Washington, DC.

The crisis is a reflection of a system under duress.

Judge Julia Gibbons of the Court of Appeals for the Sixth Circuit, and chairwoman of the U.S. Judicial Conference’s budget committee, told a Senate subcommittee this summer that the nearly $350 million in cuts to the courts this year under the across-the-board government spending reductions called sequestration, have been “devastating” and “painful.”

“If funding levels remain flat or decline, it compromises the constitutional mission of the courts,” Gibbons testified.

The Washington state case, in which the DOJ intervened, is just one of many tragic illustrations around the country of Gibbons’ argument.  According to facts presented to the court, he the cities of Burlington and Mount Vernon have just two part-time public defenders handling 2,000 misdemeanor cases.

New Orleans is another example. The New York Times editorial board recently lamented the plight of indigent defendants in that city, noting that in 2009, part-time public defenders in Orleans Parish handled the equivalent of 19,000 misdemeanor cases per attorney annually. The Times estimated that the average time spent per case was about seven minutes.

The problem is bound to get worse.

Federal public defenders will be forced to terminate up to half their employees and close branch offices if funding stays at the same level in the upcoming federal budget starting October 1.

According to Michael Nachmanoff, a federal public defender from Virginia, “If action is not taken immediately to save the program, the federal defender system will be devastated.”

In western Pennsylvania, where I’m from, some counties outside of Pittsburgh pay as little as $40 an hour for court-appointed indigent defense counsel. These attorneys are called upon when there is a conflict of interest with the public defender’s office.

Try getting a plumber to come to your house for $40 an hour. Yet a defendant accused of armed robbery, facing up to 20 years in prison, can expect no better.

What the DOJ is proposing is unprecedented.

DOJ lawyers have urged  the Court, if the plaintiffs prevail, to appoint an independent monitor for public defender workloads, the first time ever in a federal case.  The proposed remedy is similar to what is going on in New York City as a result of the controversial “stop-question and-frisk” court decision, where a federal judge designated an independent monitor to ensure police practices observe the rights of minorities .

In an interview with National Public Radio,  Jocelyn Samuels, who leads the DOJ civil rights unit, explained: "We are absolutely committed to the principle that every indigent person who is accused of a crime is entitled to his or her constitutional right to effective assistance of counsel,.
The problem is resources.

Unless the federal government—as well as state and local governments— are prepared to make a substantial investment in indigent defense, the protections afforded by the Sixth Amendment will be worthless.

Seven minutes of preparation.  A woeful $40 an hour.  Fifty years after Gideon, , America should  to expect more and better from the criminal justice system.

Matthew T. Mangino,  former district attorney for Lawrence County, PA, is of counsel with Luxenberg, Garbett, Kelly and George.  You can read his blog at and follow him on twitter @MatthewTMangino). He welcomes comments from readers.

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