Key ruling 50 years later

The Youngstown Vindicator
Januray 6, 2013

This month marks the 50th Anniversary of the argument of Gideon v. Wainwright before the U.S. Supreme Court. In Gideon, a landmark decision, the U.S. Supreme Court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer.

The decision is recognized as one of the most important of the 20th century. The decision brought into the national lexicon a line known by anyone who has ever watched a television crime drama, “[Y]ou have the right to an attorney if you cannot afford an attorney, one will be appointed for you ...”

Did the Gideon decision alter the legal landscape a half-century ago?

Sixth Amendment

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.”

In 1932, the U.S. Supreme Court decided Powell v. Alabama. The court ruled that the U.S. Constitution requires defendants in capital cases be given access to counsel upon request.

Ten years later in Betts v. Brady the court refused to extend the right to counsel to criminal charges other than capital murder. In Betts, it was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not violate the U.S. Constitution.

Then came Clarence Earl Gideon, a 51 year-old drifter and petty-thief. He was charged with breaking and entering in Florida. The charge was a felony and when Gideon first appeared before the court he was without funds, without counsel and he asked the court to appoint him a lawyer.

The judge apologized to Gideon and said that Florida law only provides for counsel in capital cases. Gideon replied, “The United States Supreme Court says I am entitled to be represented by counsel.”

Gideon represented himself, was convicted and appealed to the Florida Supreme Court. His appeal was denied and his case made its way to the U.S. Supreme Court. The U.S. Supreme Court appointed a very capable attorney, Abe Fortas, to represent Gideon. Fortas would one day take a seat on the Supreme Court.

Fortas’ argument before the court was deliberate, learned and convincing. Fortas told the court that the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges.

state statutes

He also pointed out that 37 states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, 22 state attorneys general joined Gideon in urging the court to establish an absolute constitutional right to counsel in criminal cases. Only five states — Florida, Alabama, Mississippi, North Carolina and South Carolina — did not provide counsel for indigent defendants.

Justice George Sutherland wrote in Powell some 30 years before Gideon, “Even the intelligent and educated layman has small and sometimes no skill in the science of law.” Fortas argued in Gideon, “You cannot have a fair trial without counsel.”

The concept was not new. More than a century earlier Abraham Lincoln said, “A person who represents himself has a fool for a client.” Fortas also ably pointed out that when Clarence Darrow, one of the greatest trial lawyers in American jurisprudence, was charged with a crime, “he hired a lawyer.”

By modern standards Justice Hugo Black’s opinion in Gideon was not very long, only about 2,500 words. In contrast, the opinion this summer regarding President Obama’s health care plan, including dissenting opinions, was 392 pages.

Effective Counsel

Fifty years after Gideon the focus has evolved from merely the right to counsel — to the right to effective representation. That representation has turned from insuring a fair trial to insuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.

The more important issue today — as states and local municipalities struggle with declining budget revenues — how will public defenders and court appointed counsel react to fewer dollars for indigent defense?

Will Gideon’s promise of fairness and justice be strained as revenue disappears?

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Maryland panel proposes gun seizures from some mentally ill

A 17-member task force, created by the Maryland General Assembly, was charged with examining the state's laws that prohibit gun purchases by some people who have been hospitalized for mental illnesses, reported the Baltimore Sun.

In particular, the panel was asked to look at whether the laws effectively protect the public, safeguard civil rights, and give law enforcement appropriate access to mental health records. And it was asked to recommend whether the access laws should be stricter.

The panel did not answer those questions. Patrick Dooley, task force co-chair and chief of staff at the Department of Health and Mental Hygiene, said members found insufficient data to suggest that mentally ill people should for that reason alone be denied access to firearms.

"There wasn't that overwhelmingly strong connection," Dooley told the Sun. "We chose instead to focus on people who are making credible threats." The panel included law enforcement officials, gun-rights advocates, mental health experts, attorneys and policy experts.

The task force did propose authorizing police to seize firearms from individuals deemed a credible threat to themselves or others. Such seizures, the panel said, would take place after law enforcement "substantiated" reports from mental health providers, social workers and other professionals.

According to the Sun, other suggestions by the task force include:

•Preventing someone without immediate access to guns from purchasing them if he or she is deemed a credible threat.
•Mandatory reporting of threats by mental health professionals and others.
•More mental health training for police officers.
•More education on firearm laws for mental health providers.
•Establishing mental health crisis teams similar to one Montgomery County.
•Using revenue from gun permits and licenses to pay for training.
•Crafting a way for people who lose access to guns to get them back.
•Additional studies to look at the prevalence of mental illness among criminals as well as links among substance abuse, mental health and violence.

To read more: http://www.baltimoresun.com/news/maryland/politics/bs-md-guns-and-mental-illness-20130102,0,4708217.story  

Psychologist: 'Killing of innocent people can't necessarily be prevented'

"There is no instrument that is specifically useful or validated for identifying potential school shooters or mass murderers,” Stephen D. Hart, a psychologist at Simon Fraser University in Vancouver who is the co-author of a widely used evaluation tool. told the Washington Post. “There are many things in life where we have an inadequate evidence base, and this is one of them.”

Even when someone has a history of threatening behavior, the killing of innocent people can’t necessarily be prevented.

The task of identifying violence-prone individuals is even trickier with young people, who have shorter histories and whose normal development often includes a period of antisocial behavior.

Psychologists and psychiatrists have been working for decades to try to figure out whether there’s a link between mental illness and violence, and if so, which people are likely to act. Using an ever-changing tool kit of theories and questionnaires, they’ve made some progress, according to the Post.

It’s now fairly clear, for example, that people with severe mental illness, such as schizophrenia, bipolar disorder and some personality disorders, are more likely to commit violent acts than others. But the risk is small. The vast majority of mentally ill people won’t commit assault, rape, arson or homicide, although the risk rises sharply among those who abuse drugs and alcohol.

To read more: http://www.washingtonpost.com/national/health-science/predicting-violence-is-a-work-in-progress/2013/01/03/2e8955b8-5371-11e2-a613-ec8d394535c6_story.html?hpid=z2

The Cautionary Instruction: Murder moves to the suburbs

The Pittsburgh Post-Gazette/Ipso Facto
January 4, 2013

Homicide totals across the country were a mixed bag in 2012. As totals fluctuated from city to city and year to year one thing is certain, the suburbs are no longer safe havens from violence and greater Pittsburgh is a prime example.

Murders in New York have dropped to their lowest level in over 40 years. Homicides are down 20 percent from last year alone.

There were 416 recorded homicides in 2012, compared with 515 for the same period in 2011. That is a striking decline from murder totals in the low-2,000s that were common in the early 1990s.

Although murder rates in urban areas are at an all-time low, some other major cities were not as fortunate as New York in 2012. Two of these cities I wrote about several months ago.

In Chicago there were more than 500 homicides in 2012, a 17 percent increase over 2011. In Detroit, 379 murders in 2012 a 10 percent increase over last year.

Baltimore was unable to match last year’s significant milestone of dropping below 200 homicides, but officials see reasons to remain optimistic that declines will resume. The city recorded 217 killings, 10 percent more than last year's 197, but still the second-lowest population-adjusted rate of killings since the late 1980s.

Houston averaged slightly more than four murders a week during 2012, inching up from 2011 when the total dropped to the lowest point since 1966. Police reported 216 murders for 2012 -- up from 198 in 2011.

When Philadelphia Mayor Michael Nutter took office in 2008, homicides dropped nearly a quarter and shootings by 15 percent. The flush of early success has been tempered by recent totals. The homicide count for 2012 was 337, up from 324 in 2011, the third straight year of increase.

Even though some cities have experienced a slight up-tick in homicides, the overall decline in homicides has been unprecedented.

Yet that decline has overshadowed the rise in homicide in the suburbs. Between 2001 and 2010, homicide fell by 16.7 percent in big cities, according to a federal Bureau of Justice Statistics study, examined by the Wall Street Journal. But homicides rose 16.9 percent in suburbs during the same period.

Today, suburban murders—from domestic violence to robberies gone bad to shooting rampages—make up about a quarter of all homicides nationwide, up from 20.7% in 2001.

The sharpest increases in violent crime are in the suburbs, including Pittsburgh. There were 96 homicides last year in Allegheny County. That is about an average year for the county, except killings are moving out of the city and into the suburbs.

Of those 96 homicides, 42 occurred in the city compared to 54 in suburban Allegheny County. According to law enforcement, it’s a sign that criminal elements are moving into untapped regions.

Criminologists and public officials seem to agree. They cite weaker and more resource-strapped law enforcement in the suburbs which attract criminals looking for easier places than relatively well-policed cities to commit crimes.

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Philadelphia looks to change appointment of conflict counsel

On the 50th anniversary of Gideon v. Wainwright, the City of Philadelphia wants to overhaul how it provides legal counsel to indigent defendants by implementing a controversial process by which firms bid for work now handled individually by hundreds of lawyers, reported the Philadelphia Inquirer.

Officials say a new system could improve the defense that poor people get. But the lawyers who now do the work predict it will lead to worse outcomes in court.

Currently, when a conflict prevents the Defender Association of Philadelphia from representing someone, the courts assign the client a lawyer. Such conflicts arise when clients' legal interests diverge and the association cannot represent all the parties.

The city spends $8 million to $10 million yearly on so-called conflict counsel, who work in family and criminal courts. Under city fee schedules in effect last summer, private lawyers were paid a flat fee of $350 to defend misdemeanor cases and $600 for defendants facing felony counts, reported the Inquirer.

From July 1, 2010, through June 30, 2011, there were 22,441 conflict appointments in Philadelphia's Family, Criminal, Municipal, Orphans, and Traffic Courts, according to the city's proposal.

Lawyer Samuel Stretton said he was prepared to sue the city if it moved forward with the plan, for which bids are due Jan. 18. He believes such a new system would seek only to save money and not to provide high-quality representation, which could trample on the rights of poor people.

"It doesn't make any sense, this proposal, and I'm really kind of taken aback that the city would do this without talking to people like myself and others who are involved in this kind of work," Stretton told the Inquirer. "This is a proposal where they think they can get something cheaper, and it's impossible."

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Michigan makes it easier to expunge juvenile records

More juvenile offenders in Michigan can now get their criminal records expunged under a bill that received rare unanimous agreement by the state House of Representatives and Senate, reported the Detroit Free Press.

The law changes rules for juvenile offenders, allowing them to request that their records be cleared if they have three or fewer misdemeanors or one felony conviction. Prior rules allowed for the request on only one misdemeanor.

Offenders also will be able to ask that their records be cleared one year after they've completed their sentence and probation, instead of the five years in current rules. But if they committed a crime that would be punishable by life in prison in the adult court system, they aren't eligible to get their record cleared.

People with juvenile records often have a tough time finding jobs, getting into college or entering the military because of their records, even if their records have been clean for years afterward.

To read more:
http://www.freep.com/article/20130101/NEWS15/301010064/New-law-on-expunging-records-helps-Michigan-s-juvenile-offenders-make-a-clean-start?odyssey=mod

Arizona Attorney General: Arm School Principals

Arizona's attorney general proposed arming one principal or employee at each school to defend against attacks such as the recent Sandy Hook school massacre, reported CNN.

"The ideal solution would be to have an armed police officer in each school," Attorney General Tom Horne said in a recent news release. But budget cuts have limited the number of Arizona schools with "school resource officers" on campus, he said.

The "next best solution," Horne said, "is to have one person in the school trained to handle firearms, to handle emergency situations, and possessing a firearm in a secure location."

A school would be invited to send the principal "or another designee" to "training in the use of firearms and how to handle emergencies such as that which occurred in Newtown," Horne's release said. Horne's office would oversee the free training with help from sheriffs, according to CNN.

"The designated individual (no more than one per school) would then be authorized to keep a firearm locked in a secure place, and would have adequate communication to be alerted to an emergency in any part of the school," the release said.

Several Arizona sheriffs have joined in to support the proposal, Horne said.

Legislation to allow it will be introduced by the Republican leader in the state House, he said.

"This proposal presents a golden mean between two extremes," Horne told CNN. "One extreme is to allow all teachers to bring guns to school, which could create more dangers than it prevents. The other extreme is to do nothing, which everyone will regret if a preventable incident like Newtown would occur in the future."

To read more: http://www.cnn.com/2012/12/26/us/arizona-armed-principals/index.html