2013 FEDERALCRIMINAL PRACTICE

SEMINAR

The Right To Counsel 50 Years Later:An Unfulfilled

Constitutional Right

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.”

Powell v. Alabama, 287 U.S. 45, 68-69 (1932)

AP – On the 50th Anniversary “It is not the happiest of birthdays for the

landmark Supreme Court decision that, a half-century ago, guaranteed a lawyer for criminal defendants who are too poor to afford one.”

Ohio Caseloads Continue to Grow

1999 – 269,854 cases

2004 – 392,625 cases

2012 - 411,657 cases

Two Components to Meet Gideon’s Promise

Structure

Funding

Ohio Lacks Organized Structure 88 Counties All Different Local Rates No measure of quality No measure of

efficiency No Transparency

No Leadership No Systemic

Challenges Lack of Training Lack of Supervision Lack of Support

Workload – Some PDs 1000 misdemeanors

per year

Equals less than 1.4 hours per case

Independence ABA Ten Principles

Independence is listed first . . . For a reason

Without independence a lawyer can never be fully dedicated to the client.

Court Appointments Judge Picks Attorney

and approves the Pay.

Appearance of Impropriety – Nevada Supreme Court; Austin, Texas.

Strickland v Washington Decision undermines

the right to counsel

Drunk Asleep Openly racist

Delayed Representation No lawyer for days,

weeks or months Evidence becomes

stale Pressure to plea just

to get out

Process becomes the punishment

Loss of job, dwelling, family

Costs are significant Jail Lost of tax revenue Social services

increase

No Counsel Courts “You don’t want a lawyer, do you?”

It’s Broken – And We Have Known For Some Time

“We have concluded the present system is neither efficient nor cost-effective in many areas throughout Ohio.”

Report of the Supreme Court Task Force to Study Court Costs and Indigent Defense, submitted to the Ohio General Assembly by Justice Craig Wright, September 1992

And, Just in Cases We Thought Something Had Changed “It is the opinion of this task force that the system of

providing counsel to indigent criminal defendants is inefficient and ineffective, and in need of significant improvements.  The time has come for systemic changes to occur.  The absence of a fully-funded, effective system creates the risk of denying an individual’s constitutional right to counsel.”

Report and Recommendations of the Ohio Supreme Court Task Force on Pro Se & Indigent Litigants, April 2006

The Answer is Also Known – For Some Time “State-operated regional offices would

assist local public defender commissions in several areas, including investigative services, social workers, and expert witnesses.”

The Wright Report (1992)

II. Funding Resource Inequities

Pay Inequities

Federal Grants to Police and Prosecutors

Low Level Crimes

Resource Inequities

Facilities

Experts

Investigators

Forensic Testing

Ohio Indigent Defense Expenditures – User Pays

1999 – $62,809,925

2012 – $126,180,010

GRF - $26,797,386

GRF - $5,586,314

Pay Inequities On average prosecutors make 10 to 30% more than

public defenders Many appointed counsel rates are 30 years old without

any increase High turnover rates Second jobs Client’s are harmed

Appointed Counsel Rates in Ohio 30 Years Old

Caps that reduce hourly rates to minimum wage or below.

21 Counties pay 25K or less for death penalty cases (total for both lawyers)

Still True?

"It costs substantially more per case to provide representation by assigned counsel than it does through a public defender“

The Wright Report (1992)

State, Not Local, Obligation “Because crimes are prosecuted in the

name of the state and prosecutors are representing the state … the state should make a firm commitment to gradually assume the responsibility for funding all expenses associated with providing representation of indigent defendants.”

The Wright Report (1992)

Federal GrantsGAO Report

50% goes to fund law enforcement and prosecution activities.

Less than 1% percent for public defenders or to assist those who cannot afford legal representation on their own.

Clarence Earl Gideonacquitted after representation by a lawyer on retrial

Contact Info

TIM YOUNGState Public Defender

Office of the Ohio Public Defender250 East Broad Street - Suite 1400

Columbus, Ohio 43215-2998www.opd.ohio.gov

(614) 466-5394