CrimProf Blog

Guest blogger Robert C. Boruchowitz: On Public Defenders and Excessive Caseloads

By Robert C. Boruchowitz, Director of the Defender Initiative and Professor from Practice at Seattle University:

The Florida Court of Appeals this past week reversed a trial court order that would have allowed a public defender to withdraw from a single case because he was not able to work on the case because of his excessive caseload.  Florida v. Bowens, No. 3D09-3023 (July 7, 2010).

Even though the lawyer had more than 100 open felony cases and 900 per year, and had done no work on the case, the appellate court found that the defender had not demonstrated prejudice to the client “separate from that which arises out of an excessive caseload” and that by statute, such an argument was not permitted.

The court also found that neither the defender nor the trial court “has demonstrated that there was something substantial or material” that the defender attorney “has or will be compelled to refrain from doing.”

The court wrote that if it upheld the trial court’s order,

all that the PD11 [the Miami-Dade Public Defender] must do to show prejudice is swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the client’s speedy trial rights.

This case is disturbing on many levels.  The court impliedly did not accept the ethical integrity of a defender lawyer or office that asserts an inability to provide competent representation.  It ignored the factual findings of the trial court. And it refused to confront the constitutional implications of a statute that would force a defender to represent a client even when overwhelmed by cases. Instead it kicked the issue up to the state supreme court.

Florida has a statute that provides:

(1)(d) In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely on the inadequacy of funding or excess workload of the public defender.

Fla. Stat. Section 27.5303(1).

The appellate court certified to the state supreme court the question whether the statute violates an indigent client’s right to  effective assistance of counsel  and is a violation of the separation of powers as legislative interference with the judiciary’s inherent authority to provide counsel and the Supreme Court’s exclusive control over the ethical rules governing lawyer conflicts of interest.

The court should simply have found that the statute is unconstitutional because it requires lawyers to violate their ethical responsibility to provide competent representation and it seeks to prohibit judges from granting appropriate relief to lawyers who are overwhelmed by excessive caseload.

The appellate court also looked the other way in reviewing the trial court’s findings, and did not refer to them specifically. The judge had found that the number of cases assigned to the defender [Mr. Kolsky] “had a detrimental effect on his ability to competently and diligently represent and communicate with all his clients on an individual basis.” Florida v. Bowens, Case No. F090019364,Eleventh Judicial Circuit Court, October 23, 2009.  It noted that this begins at arraignment where the defender holds brief conversations, usually not confidential, with clients he is meeting for the first time.

Mr. Kolsky had between 105 and 164 pending felony cases during 2009.  In fiscal year 2008-2009, he had handled 736 felony cases in addition to 235 pleas at arraignment. Because of his caseload, he cannot meet with in-custody defendants until two months after arraignment, and then usually only for 30 minutes. The judge found that “The unrebutted testimony is that Kolsky has been able to do virtually nothing” on the case for which he was seeking an order of withdrawal. His only meeting with the client was at arraignment. He had not investigated the case or discussed discovery with his client. The client was facing a possible life sentence as an alleged habitual felony offender.

The trial court in analyzing the statute and a previous court of appeals decision wrote:

[T]here exists a cognizable difference between a withdrawal based solely on workload, and a withdrawal where an individualized showing is made that there is a substantial risk that a defendant’s constitutional rights may be prejudiced as a result of the workload. This distinction allows for judicial relief where prejudice to constitutional rights is adequately demonstrated.

The judge found that given that because of his workload Mr. Kolsky had not been able to investigate the case or file any motions and had had to request a continuance, giving up his client’s speedy trial rights, Mr. Kolsky had made the required individualized showing. The Court of Appeals ignored this finding.

Contrast the Florida court’s approach with that of a trial judge in Mohave County, who after finding that the public defender’s caseload prevented effective assistance of counsel, wrote that in the future, motions to withdraw need not be accompanied by hundreds of pages of exhibits or extensive legal citation, but that its policy would be “to grant motions and sign appropriate Orders based upon the briefest possible reference to this Order, not to exceed one sentence in length.” Arizona v. Lopez et al, Case No. Cr-2007-1544,Mohave County Superior Court, December 17, 2007

The Mohave County judge, having heard a three-hour evidentiary hearing with expert testimony and reviewed many documents, respected the public defender’s integrity in presenting motions to withdraw based on inability to provide effective representation. The Florida Court of Appeals, despite the record its trial court had made after evidentiary hearings and legal argument on three different days, rejected such an approach.

The caseload Mr. Kolsky carries is staggering and unacceptable. The trial judge recognized that and allowed him to withdraw in the single case presented to him. The Florida Court of Appeals had previously required that challenges to a defender’s competency to proceed must be resolved on a case-by-case basis, not by a challenge to the office’s ability as a whole.[1]  When the office did present such an individual case challenge and the trial court granted the motion, the Court of Appeals ignored the reality and the denial of rights to Mr. Kolsky’s client.

The Florida Supreme Court should rapidly reverse the Court of Appeals and grant the Miami-Dade Public Defender’s office the relief to which it is entitled in order to represent its clients effectively.

*****

[1] State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798 (Fla. 3d DCA 2009), review granted, No. SC09-1181 (Fla. May 19, 2010).

Ball on the Civil Case at the Heart of Criminal Procedure

W. David Ball  (Santa Clara School of Law) has posted Civil, Criminal, or Mary Jane: Stigma, Legislative Labels, and the Civil Case at the Heart of Criminal Procedure on SSRN. Here is the abstract:

In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt. This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.” Civil statutes, however, can deprive an individual of her liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof. If Apprendi is, indeed, functional, why is it limited to formally criminal cases? Why does it not apply to all punishments, no matter whether they are called civil, criminal, or Mary Jane?

One often-proposed answer is that Apprendi derives its holding exclusively from the Sixth Amendment, and the Sixth Amendment applies only to “criminal prosecutions.” Apprendi is not, however, just a Sixth Amendment case. Its “beyond a reasonable doubt” requirement comes from due process - specifically, from a formally civil case, In re Winship, which explicitly rejects the idea that civil labels can insulate a state from heightened procedural obligations. Apprendi’s application cannot, therefore, be limited on formal grounds to criminal cases. To determine the limits of its application, one must instead return to the interests that both Winship and Apprendi identify as worthy of protection: the imposition of stigma and the deprivation of liberty.

This Article examines the due process roots of the Apprendi line and proposes that stigma is the substantive concern that separates retribution from regulation, punishment from public safety. Using sociology’s modified labeling theory, I provide a substantive definition of stigma and explore how a unified due process approach, with stigma at its heart, might provide a more meaningful way to separate punishment from risk management. This approach would move judicial discourse away from empty, taxonomic arguments about legislative labels towards an examination of the effects laws have on the lives of those subjected to them, a conversation which would more accurately and comprehensively address the values and interests at the heart of the justice system.

"UK strengthens test for stop and search of terror suspects"

The story is in Jurist.

"‘Grim Sleeper’ Arrest Fans Debate on DNA Use"

The story is in the New York Times:

LOS ANGELES — The arrest in the case of the “Grim Sleeper” — a serial killer who terrorized South Los Angeles for two decades — has put one of the hottest controversies in American law enforcement to its first major test.

Only two states, Colorado and California, have a codified policy permitting a so-called familial search, the use of DNA samples taken from convicted criminals to track down relatives who may themselves have committed a crime. It is a practice that district attorneys and the police say is an essential tool in catching otherwise elusive criminals, but that privacy experts criticize as a threat to civil liberties.

"Pot Revenue"

Kent Scheidegger at Crime and Consequences comments on a new RAND Corporation study on the issue:

I was disappointed that the "alternatives" section of the report does not discuss legalization through a government-run monopoly, as "hard liquor" is presently sold in some states and as we presently have with the numbers racket state lottery in many states.

"Arizona Challenge Does Not Focus on Profiling"

The story is in the New York Times:

Justice Department officials and legal experts say the government, political consequences aside, faced up to cold legal practicalities. Racial profiling claims are difficult enough to prove, let alone before a law takes effect, and there are no examples that prosecutors can point to of legal citizens whose lives were disrupted by the Arizona law because they looked like an illegal immigrant to a police officer.

Dennis Burke, the United States attorney here, said in an interview that focusing the case on “pre-emption,” the legal doctrine based on the Constitution’s supremacy clause that elevates federal law over states’, was the surest route to suspending the law before it goes into effect July 29. The federal government has successfully used the pre-emption argument in several cases, but this would be the biggest test in an immigration case.

Lain on Evolving Standards

Corinna Lain  (University of Richmond - School of Law) has posted Lessons Learned from the Evolution of 'Evolving Standards' (Charleston Law Review, Vol. 4, p. 661) on SSRN. Here is the abstract:

This symposium contribution traces the evolution of the "evolving standards of decency" doctrine to question the textual defense of the doctrine and the constraining power of law itself. The cases that paved the way to "evolving standards" as a measure of substantive Eighth Amendment protection show the Justices time and again rejecting the result that a cold reading of the law would provide in favor of what they thought was right. In turn, what they thought was right has tended to change with the sensibilities of the time. Herein lies the rub. We can get rid of the "evolving standards" doctrine, but decisions that follow our evolving standards of proper punishment practices are here to stay.

"Talks on a Rapid End to Russian Spy Case"

The story is in the New York Times. In part:

Prosecutors have not accused the defendants of passing classified information to their Russian handlers. But a resolution would allow the United States government to avoid a long legal battle in which sensitive information about intelligence techniques could be exposed.

Such a deal would also eliminate the possibility that a high-profile case would serve as an irritant to relations between the United States and Russia. Although both countries have made clear they do not expect the charges to damage relations, the case has dominated worldwide news accounts in the past week, and indictments and potential trials could keep the case on the front pages for months to come.

"Suit against the new Chicago anti-gun laws"

David Kopel at The Volokh Conspiracy has this link to the complaint.

Complaint in DOJ challenge to AZ immigration law

is here, thanks to the website of the Arizona Republic.

"Defendants Squeezed by Georgia’s Tight Budget"

Adam Liptak's column is in the New York Times.

When the State of Georgia ran out of money to pay the lawyers for a man facing the death penalty, the prosecutor, of all people, had an idea. He asked the judge to appoint two overworked public defenders instead, identifying them by name.

The judge went along. The Georgia Supreme Court, by a 4-to-3 vote, endorsed the arrangement in March, saying the defendant, Jamie R. Weis, should have accepted the new lawyers to help solve the state’s budget impasse.

"Feds to challenge Arizona immigration law"

The story is on CNN.com:

Washington (CNN) -- The Justice Department is expected to file a legal challenge Tuesday against Arizona's controversial immigration law, according to an administration official.

The law, which is scheduled to take effect at the end of July, requires immigrants to carry their alien registration documents at all times and allows police to ask residency status of people in the course of enforcing another law. It also targets businesses that hire illegal immigrant laborers or knowingly transport them.

"Canada court orders government to remedy Khadr rights breach"

Jurist has this story on the court's request for recommendation on how to remedy violation of Khadr's rights. He has been held at Guantanamo since his 2002 capture at the age of 15 facing murder and terrorism charges.

Jaros on Criminal Orders of Protection

David Michael Jaros  (University of Baltimore School of Law) has posted Unfettered Discretion: Criminal Orders of Protection and Their Impact on Parent Defendants (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:

The last two decades have witnessed an astonishing increase in the use of the criminal justice system to police neglectful parents. Recasting traditional allegations of neglect as criminal charges of endangering the welfare of a child, prosecutors and the police have involved criminal courts in the regulation of aspects of the parent child relationship that were once the sole province of family courts. This Article explores the legal implications of vesting judges in these cases with the unfettered discretion to issue protective orders that criminalize contact between a parent and her child. I argue that procedures for issuing protective orders that were once justified by the challenges of fighting domestic violence cannot constitutionally be applied to parents charged with criminal neglect. Instead, criminal courts and legislatures should look to family court, the forum traditionally empowered to police neglectful parents, for guidance on how to properly intervene on behalf of neglected children.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	349	Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction Margaret Colgate Love, Gabriel J. Chin, Law Office of Margaret Love, University of Arizona James E. Rogers College of Law, Date posted to database: April 16, 2010
2	309	War and Peace in the Jury Room: How Capital Juries Reach Unanimity Scott E. Sundby, Washington and Lee University - School of Law, Date posted to database: May 12, 2010
3	240	Vigilante Justice: Prosecutor Misconduct in Capital Cases Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman, CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services, Date posted to database: April 5, 2010
4	176	Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws Melissa Hamilton, University of South Carolina - School of Law, Date posted to database: April 5, 2010
5	162	Two Kinds of Retributivism Mitchell N. Berman, University of Texas School of Law, Date posted to database: April 20, 2010
6	121	Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice Dan Markel, Chad Flanders, Florida State University College of Law, Saint Louis University - School of Law, Date posted to database: April 14, 2010 [7th last week]
7	113	From TRIPS to ACTA: Towards a New 'Gold Standard' in Criminal IP Enforcement? Henning Grosse Ruse-Khan, Max Planck Institute for Intellectual Property, Competition & Tax Law, Date posted to database: May 4, 2010 [10th last week]
8	112	The Swan Song of Universal Jurisdiction in Spain Ignacio de la Rasilla del Moral, Royal Complutense College in Harvard, Date posted to database: April 16, 2010
9	101	The Conscience of a Prosecutor David J. Luban, Georgetown University Law Center, Date posted to database: May 24, 2010 [new to top ten]
10	96	The Demand Side of Overcriminalization – A Celebration of Bill Stuntz Daniel C. Richman, Columbia Law School, Date posted to database: April 1, 2010 [new to top ten]

Roach on Terrorism Prosecutions

Kent Roach  (University of Toronto - Faculty of Law) has posted The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation between Intelligence and Evidence (Kent Roach, RESEARCH STUDIES OF THE COMMISSION OF INQUIRY INTO THE INVESTIGATION OF THE BOMBING OF AIR INDIA FLIGHT 182, VOL. 4, Supply and Services, 2010) on SSRN. Here is the abstract:

The focus in this study isle on the unique challenges presented by terrorism prosecutions especially those relating to the disclosure of otherwise secret intelligence.. The first part of this paper will provide an historical outline of thinking about the distinction between security intelligence and evidence. The second part of this paper will outline some of the competing goals that should inform the relationship between security intelligence and evidence. The third part of this paper will examine issues related to the use of information collected by the Canadian Security Intelligence Service (CSIS) as evidence while intelligence is generally collected under less demanding standards than evidence. The fourth part of this paper will examine disclosure requirements as they may be applied to intelligence. The fifth part of this paper will examine possible legislative restrictions on disclosure and through the expansion or creation of evidentiary privileges that shield information from disclosure. The sixth part of this paper will examine existing means to secure nondisclosure orders to protect the secrecy of intelligence in particular prosecutions. The seventh part of this paper will examine the procedures used in the United States, the United Kingdom and Australia to resolve claims of national security confidentiality, with a view to understanding how the approaches used in those countries differ from those used in Canada and whether they provide a sounder basis for maintaining a workable and reliable relationship between security intelligence and evidence. The conclusion of this paper will assess strategies for making the relationship between intelligence and evidence workable. The strategies include both front-end strategies that will affect the collection of intelligence and back-end strategies relating to partial non-disclosure of intelligence that is not used as evidence. All of these issues are united by the need to establish a reliable, workable and fair relationship between intelligence and evidence. They raise fundamental questions about the viability of criminal prosecutions as a response to the threats of, and to acts of, international terrorism such as that which resulted in the bombing of Air India Flight 182.