This is one reason that you need a real defense expert, Perhacs explained: to tell you what to ask for. “I didn’t know the existence of the work sheets until years and years and years later,” he said, despite the Brady requirement, named after the case in which the Supreme Court ruled that if prosecutors have exculpatory evidence, they must provide it to the defense.8
The only witness he could get for $500, Andrew Payne, was a civil engineer by training, had no certification as a tool-mark examiner, and was blind in one eye. Impeded by his vision and his inexperience, he couldn’t figure out how to turn on the comparison microscope when he went to the lab, and then he couldn’t see the bullets. In withering cross-examination, he was ridiculed by the district attorney, who told the jury: “This man has no idea, he didn’t have a clue about what he was doing.… This is a one-eyed man, what kind of depth perception does a one-eyed man have? … He’s no expert, no expert at all.”9
Under the law, the trial judge could have eased the defense attorney’s workload by granting Perhacs’s requests to divide the two murder charges into separate trials, by assigning a co-counsel on each as authorized in capital cases, and by approving additional funds for an expert, which Perhacs requested. The judge, James Garrett, seemed unbothered by the obvious handicaps of the defense. He remembered the trial as fair, noting that Payne had been an expert witness in numerous product liability cases. “I thought his testimony was sufficient, and it set forth the issues that the defense wished to raise,” he told me. “Obviously, the state’s witnesses prevailed, because the jury came back with a guilty verdict.” And it took them less than two hours of deliberation.
Hinton’s case seemed so extreme that it was taken up on appeal by the Equal Justice Initiative of Alabama, which used charitable contributions to hire three respected tool-marks experts at a cost of about $30,000.10 Each concluded independently that the six bullets from the three crimes could not be matched to a single weapon, and that none had discernible characteristics that could link them to Hinton’s gun. When experts disagree, professional ethics require the state’s examiners to meet with the challengers to explain how they came to the original conclusion. But Hinton’s lawyers said the Alabama specialists refused to do so; nor did they try to rebut the three defense examiners’ assessments.11 Nevertheless, the Alabama courts kept denying Hinton a new trial until the state supreme court in 2008 sent the case back down for a hearing to determine whether Payne was, in fact, a qualified expert. In the lower court, the judge punted at first, saying she couldn’t make an independent finding different from that of the original trial judge. An appeals court then ordered her to decide, so she ruled that Payne was an expert, a finding upheld by the Criminal Court of Appeals. While his options were running out, Hinton sat on death row, waiting.12
The ballistics failure in the Hinton case reflects a broader pattern, revealed in an extensive study by the National Academy of Sciences that found incompetent police crime labs throughout the country. No forensic method other than DNA can reliably connect evidence to a specific individual, the study concluded, so the failures of other methods are partly scientific.13 But also rampant are sloppiness and outright fabrication, malfeasance that cannot be stopped unless defense experts mount expensive challenges with competing experts and testing. In Detroit, for example, the police lab was closed down in 2008 only after an audit found errors in nearly 10 percent of the shooting cases it handled. The audit was prompted by a retired Michigan State Police firearms expert, hired by the defense in a double homicide, who discovered that forty-two shell casings the Detroit lab thought had been fired by a single weapon had actually come from two separate guns.14 In 2009, the Supreme Court decided that a defendant had a constitutional right to summon forensic analysts to be cross-examined, to fulfill the Sixth Amendment’s guarantee of the right “to be confronted with the witnesses against him.”15
LOCATION, LOCATION, AND LOCATION
If you’re accused of a crime and can’t afford a lawyer, the quality of your defense (and whether you get counsel at all) depends almost entirely on geography. You’re better off in Washington, D.C., for example, than in parts of Texas and Georgia; anywhere in Alabama; and certain counties of New York, Michigan, and Pennsylvania. You’re usually more fortunate in federal than in state courts, and in local jurisdictions where indigent defense is funded by states rather than counties.16 As in the old adage about real estate prices, three factors determine how well you will be represented: location, location, and location.
You don’t want to be in a place of financial shortages, overcrowded courts, or jurisdictions where judges invent ways to cut costs at defendants’ expense. Some judges withhold assignments from energetic defense attorneys who file lots of motions and petition for high experts’ fees. Others define “indigent” so uncharitably that you may not qualify for a court-paid lawyer even if you can’t afford one; the tactic is common in parts of South Dakota, Pennsylvania, and New York State. In numerous counties in Texas, you’re not considered poor if you can simply post bond. You get either a lawyer or pretrial freedom, not both.17
When the American Bar Association (ABA) held hearings on the problems, respected judges and attorneys stepped forward with grim descriptions of that assembly-line processing known in the trade as McJustice. To speed cases along, the prosecutor meets the accused briefly, with no defense lawyer present, pressing him to waive his right to counsel and plead guilty; the shortcut gets the judge’s acquiescence or encouragement as a way to ease the overloaded calendar.18 An ABA consultant witnessed a mass arraignment in Georgia for just that purpose: “The judge informed defendants of their rights and then left the bench. Afterwards, three prosecutors told defendants to line up and follow them one by one into a private room. When the judge reentered the courtroom, each defendant approached with the prosecutor, who informed the judge that the defendant intended to waive counsel and plead guilty to the charges.” No defense attorneys were anywhere in view to help the accused grasp what they were doing. Court clerks in another Georgia jurisdiction told defendants who didn’t read English that their cases wouldn’t be called until they signed complicated waiver forms, which judges routinely accepted without explaining the right the prisoners had forfeited.19
Guilty pleas are always the product of carrots and sticks, but guilty pleas without lawyers bear the particular scars of coercion. John Hardiman, chief public defender in Rhode Island, described a judge offering a defendant six months in jail without a lawyer, or three years if he insisted on his right to counsel. A municipal judge in Riverside, California, was quoted by Gary Windom, chief public defender there, as promising to let a group of defendants go home immediately if they pleaded guilty or, if they wanted lawyers, to lock them up for two days, then set a date for trial, and release them only if they could meet bail. Everybody took the plea.20
The egregious examples might be dismissed as sensational exceptions to the baseline of competent legal defense provided to the poor in many parts of the country. Yet the problem is even more insidious than the dramatic cases convey. The defects are nourished not just by individual malice but by systemic failure, an uncaring set of priorities that unbalances the adversarial process of criminal justice by pouring resources into one side—police and prosecutors—while leaving the other nearly as impoverished as its clients. It is hard to get taxpayers and their legislators excited about spending money on accused drug addicts, thieves, and assailants. The argument that the funds help maintain the integrity of the constitutional system doesn’t get much traction. The truism that jailing innocents leaves the criminals at large has little resonance, although it should be a security concern for the law-abiding. Upstanding citizens have trouble imagining that they, too, could one day find themselves without the rights that they have failed to defend for others.
There are three basic ways lawyers are brought to the defense of poor defendants: by appointment, under contract, or as full-time public defenders. Appointed lawyers place themselves o
n a list, from which they are assigned by judges on a case-by-case basis, usually at much lower rates than the market offers. Contract lawyers or law firms are retained by the court for a flat monthly fee to cover all defendants they’re sent, tempting them to hurry through indigent cases and back to private clients. Public defenders work as salaried attorneys of a government institution with its own office, clerks, and investigators. In the well-funded federal system, public defenders do better for their clients than appointed counsel, according to a study by a Harvard researcher: among federal prosecutions that were examined, cases did not drag on as long, sentences averaged eight months shorter, and the costs were lower—$5,800 less per case.21
Washington, D.C., may be the model. There, two bodies of full-time public defenders—one for federal, one for local courts—attract graduates of top law schools, including former Supreme Court clerks. They often work as teams, and the offices of the federal defenders, where I spent many weeks, bristle with a synergy far beyond what most paying clients receive from private lawyers.
With forty-five to sixty-five cases simultaneously, though, each lawyer can get stretched thin. One of them, Carlos Vanegas, gave me a snapshot of a few typical days and nights: all day Saturday and most of Sunday in the office, a suppression motion filed Monday, a witness visited and interviewed Monday evening, and a conference with a client until 9:30 p.m. Vanegas left the office about midnight and ran out of time to prepare for an upcoming cross-examination.
His office is staffed by skilled investigators and has enough funds for experts to mount rebuttals as effective as private clients could buy. In one gun possession case, for instance, the public defenders tried to get a confession suppressed by paying a psychologist $225 an hour for testimony that the accused suffered from severe stress during questioning—an ingredient of coercion—as he waived his rights to silence and to counsel. The judge listened attentively to the psychologist, then rejected the argument and deemed the waiver “knowing and informed.” The tactic sometimes works, and defense attorneys are obligated to try. A wealthy defendant would certainly have borne the expense; for the impoverished in most parts of the country, it would have been a luxury beyond reach.
All but a handful of federal judicial districts have public defenders who are paid the same as federal prosecutors, so representation in federal courts is generally competent. Exceptions exist, especially in districts along the southern border, where illegal immigrants from Mexico, once processed and deported administratively (and therefore not entitled to government-funded lawyers), have increasingly been charged with federal crimes, swamping prosecutors, judges, and public defenders. Nearly one-quarter of all federal prosecutions in the first half of fiscal year 2011 were for illegal reentry by previously deported aliens. In one of the busiest districts, Texas South, the number of criminal immigration prosecutions jumped by more than six times in two years, from 2,967 in 2002 to 18,092 in 2004, then to an annual rate of 27,000 in 2010. Most troubling, in 2004 and 2005, the median number of days taken to resolve the cases was zero, suggesting that public defenders had no time to defend and that federal magistrates who heard most of the cases moved them through the system on the same day on a conveyor belt of dubious process.22
Furthermore, the assistant U.S. attorneys in the districts were so overwhelmed by the immigration offenses they had been ordered to charge that they transferred a lot of serious drug and gun cases to state and local systems where public defender services were minimal.23 In many states those systems are underfunded, salaries are low, and benefits are tilted in favor of prosecutors, who are entitled to weeks of training at a federally funded institute in South Carolina and can be forgiven their federal Perkins loans for law school.
Public defenders get no such privileges. Idealism lasts as long as the bank balance, and after gaining experience, many lawyers have to move to private practice, leaving the services understaffed and lacking in expertise. Overburdened public defenders have protested by refusing to take new cases in parts of at least eleven states.24 This has denied defendants investigations while leads are still warm and witnesses’ memories are fresh. In Miami-Dade County, average annual caseloads rose to more than triple the recommended maximum (500 as opposed to 150 per attorney).25
Courts have come down on both sides. Some judges have held public defenders in contempt for these refusals, but others have ruled that excessive caseloads constitute ineffective assistance of counsel, and have issued threats to release prisoners who are being denied their constitutional rights to lawyers and to speedy trials. Before retiring in 2008, Chief Justice Pascal F. Calogero Jr. of the Louisiana Supreme Court told the state legislature that “unless adequate funds are available in a manner authorized by law, upon motion of the defendants the trial judge may halt the prosecution in these cases.… The courts, as guardians of a fair and equitable process, must not let the state take a person’s liberty without due process.”26 A superior court judge in Washington State imposed a settlement in a class action suit to limit each public defender’s annual caseloads in Grant County to 150 a year per lawyer, and to fund an investigator for every four attorneys.27
The hardships worsen during recessions, as in the downturn that began in 2008. “When the economy goes bad, more people qualify for public defenders at a time when counties and localities have less in resources,” noted David Carroll, research director for the National Legal Aid and Defender Association. Yet public defenders are less willing to protest. “They’re thinking they can’t afford to lose their jobs in this economy,” he said.
Poverty drains justice from the system, because most of those arrested for street crimes and drug offenses cannot afford lawyers. In Alabama, one of a dozen states without statewide public defender systems, over two-thirds of criminal defendants are poor enough to be provided with court-appointed attorneys.28 Nearly three-quarters of those locked up in Jefferson County, which includes Birmingham, are awaiting trial, a financial drain at some $60 a day per inmate; the backlog could be eased legitimately by a corps of full-time public defenders. The county attorney’s staff recommended as much in a 2001 report; hearings were held, and the Jefferson County Commission stepped to the brink of approval, even picking an office. Most judges objected, however. They were reluctant to forfeit their power to toss favors to defense lawyers, who are often contributors to the judges’ election campaigns.29
“You don’t get that good counsel with an appointed system,” said Joe Curtin, an author of the report and a consultant to the county’s Criminal Justice Coordinating Committee. “In criminal court, always sitting in the first row are guys looking for appointments. There are guys right out of school, the files are in the back of their car.”
You can get good counsel if the appointed or contract system is well funded and monitored by the state, counters David Carroll. He cites Massachusetts, where defense attorneys go through training and submit their case files for review, and Oregon, where a contract system is run at the state level, entirely divorced from the judiciary. Taking judges out of the mix seems desirable; the Nevada Supreme Court did so in a 2008 administrative order.30
But the key is to keep caseloads low, which costs money, and impoverished convicts have no political constituency. They’ve lost their right to vote, and they’re despised by most taxpayers. Since the early 1970s, Alabama’s repeated attempts to create a public defender system have stalled in the legislature or have been thwarted by judicial districts. “What we keep hearing is, it ain’t popular,” Curtin said. “Nobody cares about these dudes in jail.” He pulled out a summary of the county’s inmate population on that day: 223 white, 602 black.
CONFLICTS OF INTEREST
Legal ethics require that multiple defendants in a case have separate lawyers, and that witnesses who need representation during a trial retain their own attorneys individually. The interest of one is not always identical to the interests of all, so in multi-defendant cases a public defender service represents only one of the accused while the ot
hers receive assigned, private counsel. Judges are supposed to enforce the practice, and courts have thrown out convictions where lawyers have shown divided loyalties.
But in some parts of the country, the ABA found, law firms that have contracts for indigent defense routinely represent several defendants in a single case, reasoning that the conflict is eliminated when different lawyers within the firm advocate for different clients. It’s hard to imagine a law firm doing that in a million-dollar civil suit, but apparently it’s good enough for poor people on trial for their freedom.
Defendants just above the poverty line, barely able to pay, don’t necessarily get conflict-free lawyers either, as Lydia Diane Jones discovered as she faced a life sentence without parole. It was a drug-trafficking charge, the penalty enhanced by a prior conviction. First with money from her boyfriend, Ronnie Cook, then with $25,000 from the sale of a house that her mother and aunt had inherited, she hired Cook’s attorneys, led by J. Stephen Salter, who found themselves wedged uncomfortably between the competing needs of their two clients: Jones and Cook, who was her chief witness. The money did not buy her an exemplary defense.
Like many women at the edge of poverty, Jones had not chosen her men very well. When she was twenty and married to a violent alcoholic, he had dragged her out of bed one morning at two o’clock, forcing her at gunpoint to drive him to a store and wait outside while he entered, stole a purse, then jumped back into the car for the getaway. From the stolen checkbook she forged two checks.
“I was very scared of him. He was very abusive,” she told me. “He had a gun on me, so he made me write the checks. I had never been in trouble with anybody. I had never had a traffic ticket or anything. Once I got to court, they made me do eighteen months.” Worse, the crime was counted as three felonies: one for the stolen purse and one for each of the two checks. Under Alabama law, the fourth felony defines you as a habitual offender to be locked up for life.
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 13