Judges gone wild, systems gone cold
The judge in Jackson, Mississippi kicks a public defender out of his courtroom. When the Chief responds by filing a pleading in the Mississippi Supreme Court challenging his unlawful action, he retaliates by taking cases away from public defender’s office and giving them to private lawyers, who may or may not get paid. When the office chief and a senior lawyer continue to try to represent their clients, he holds them both in contempt of court. North about 500 miles or so, judges in Ferguson, Missouri, impose fines on persons appearing in front of him on traffic tickets and other municipal violations, and then when those fines are not paid, orders the person to be locked up. If the person has a warrant from another of the many municipalities in St. Louis County, once the fine is paid off in one municipality, the person is taken to the next one until she can pay that fine. All this is done by a judge and without advocacy by a lawyer. Travel southwest and find judges in New Mexico who are sending people to jail without counsel for up to six months for violations of municipal ordinances. Or go to Colorado, where there are no lawyers in municipal court, and when fines go unpaid, people go to jail. In Louisiana, prosecutors have drafted legislation that would take death penalty cases away from the Louisiana Public Defender Board and give it to a new committee with no public defenders on it. Instead, the new governing committee would have judges and a prosecutors on it as well as a criminal defense lawyer. All would have to be death qualified.
What is going on here? Has it always been this bad? And is anyone doing anything about this? Fortunately, public defenders and public defense advocates are pushing back. I wanted to let you know of several actions by NAPD just in the month of May tackling these issues.
Amicus Brief succeeds. NAPD has a very active amicus committee headed by Sara Thomas, the State Appellate Defender of Idaho. This committee was asked by the Hinds County Public Defender’s Office to sign on to their brief in the Mississippi Supreme Court. Professor John Gross of the University of Alabama Law School agreed to draft the amicus brief. NAPD’s brief stressed that the actions of Judge Weill had violated the first principle of the ABA Ten Principles regarding the seminal importance of independence of the public defense function from the judiciary. Secondarily, the brief stressed the vital importance of continuous representation.
On May 21st, the Mississippi Supreme Court granted relief to the Hinds County PDO, declining to address his contention that the public defender he initially kicked out of his courtroom was incompetent to practice law, and further stating that “we are not persuaded that Judge Weill's allegations of inappropriate conduct justify the extreme sanction of excluding Kelly from representing indigent defendants in all future cases before him.” The Court also made the client-centered decision to allow the clients to choose whether to continue with the private lawyers appointed to them, or whether to return to the Hinds County PDO. The Court encouraged the system to function better, saying “We urge all the parties before us-Judge Weill as a member of the judiciary; Purvis-Harris as a member of the Bar and as the Hinds County Public Defender; and Kelly, as a member of the Bar-to carefully examine the issues and to consider ways to ameliorate the problems that exist, so the judiciary may achieve the orderly administration of justice, the public may have confidence in the judicial process, and so that when Purvis-Harris appoints Kelly to represent an indigent defendant before Judge Weill, the defendant, the victims, and their families will not be deprived of fairness or justice due to personal issues between the parties that are unrelated to the case.” The Court granted NAPD’s motion to file its amicus brief. Congratulations to Michele Purvis-Harris, to Allison Kelly, to the Hinds County Public Defender’s Office, and to the Amicus Committee for their outstanding advocacy. And our thanks go to Professor John Gross for his skillful brief writing.
Our thanks also go to Fred Friedman of NAPD’s Strike Force, who graciously gave his wise counsel throughout this situation. Fred continues to provide assistance to the Hinds County PDO.
Predatory Collections Statement released. Since Ferguson, a bunch of NAPD folks have been trying to figure out what to do about the fact that the system there was one of the primary causes of bitterness and loss of liberty. A group of people interested in the topic began to talk among themselves, and they coalesced into the Ferguson Fines and Fees Committee. Eventually, they decided that a statement from NAPD about what we initially called “poverty capitalism” after a NY Times article would be helpful to individual leaders fighting the issue across the country.
Janene McCabe of the Office of the Colorado State Public Defender and Thomas Harvey, Director of ArchCity Defenders, led this group from the discussion stage to a statement. Tim Young, Ohio Public Defender, and Ed Monahan, Kentucky Public Advocate, drafted the initial statement. Everyone on the task force eventually wordsmithed the statement, and May 13th, it was released. The full statement can be found here.
The statement focuses on several things. First, it calls for an end to jailing people for not paying fines or fees. Only when a person is found affirmatively to have the ability to pay can a court legally deprive them of their liberty. The statement also states that public defender agencies should not be paid from costs, fines, fees, traffic tickets, or any similar revenue mechanism coming from poor people. NAPD believes that funding indigent defense is a state responsibility, and that states should generally provide funding from their general fund. Finally, the statement calls for the end of monetary bond. In general, “Ending excessive costs and fines is good public policy, serves the interests of taxpayers, and fairly treats those who come before our courts.”
NAPD files statement in the Senate Judiciary Committee. There has been a lot of attention given to so-called bi-partisan criminal justice reform. Everyone from Rand Paul to Cory Booker to the Koch Brothers are talking about how important it is to reform the criminal justice system.
So it came as little surprise that the Senate Judiciary Committee, chaired by Sen. Charles Grassley of Iowa, would call for a hearing looking into the right to counsel in misdemeanors. Four witnesses, Professor Bob Boruchowitz of Seattle, Professor Erica Hashimoto of the University of Georgia, Professor David Singleton of Chase Law School and the Ohio Justice Police Center, Neil Fulton, federal public defender in South and North Dakota, and Justice Mark Cady of the Iowa Supreme Court, all testified. Together, they presented a powerful case that the right to counsel was being denied throughout America, that too many laws criminalized behavior that was being prosecuted in misdemeanor court, and that there was a growing problem of debtors’ prison.
Interested parties were allowed to give written testimony to fill out the record. NAPD filed a statement on May 19th primarily drafted by Steering Committee member Steve Hanlon. We raised the predatory collection practices in our municipal courts, many of which were no-lawyer courts, and we filed our Predatory Collections Statement. We raised the problem of no-counsel courts and the uncounseled guilty plea, and gave as evidence the data we received from NAPD leaders in response to a survey. And we talked about the seemingly intractable problem of excessive workloads, and filed our NAPD Statement on the Necessity of Meaningful Workload Standards, found here.
NAPD opposes draconian death penalty bill. I cannot believe they are pursuing this in Louisiana. Troubled that they are not killing more people, prosecutors in Louisiana decided to dream big and craft a statute to their liking. HB 605 would take away from the Louisiana Public Defender Board—that is the state public defender agency headed by James Dixon—oversight of all capital cases, and would give it to a newly created “committee.” No public defender would be on the committee. Instead, there would be three judges and one prosecutor as well as one criminal defense lawyer. All of the 5 members would have to be “death qualified.” That means none could be adamantly opposed to the death penalty, and all would have to be open to the possibility of the death penalty. They would be the ones setting standards, qualifications, devising a master plan, setting salaries, and generally overseeing the delivery of capital defense in Louisiana. It is absolutely audacious.
Not having any of it, Steering Committee Derwyn Bunton called on NAPD to state its opposition. NAPD has sent this letter to the House Judiciary Committee. Opposition to the bill was significant, and now the bill has morphed to a study.
Injustice abounds. And NAPD responded to it four times in May. Stay vigilant and strong.