You Know Who We Haven’t F$%^ed Over In Awhile? Poor People!

I don’t know who sponsored HB 153 in the Maryland Senate.  But if I did, I’d probably give a few maniacal guffaws before ordering them to stand and deliver:

HB 153 was already adopted by the House of Delegates and was the subject of a hearing before this Senate committee on Wednesday, March 27, 2013 at which John Gross, Indigent Defense Counsel at the National Association of Criminal Defense Lawyers (NACDL), testified. The legislation’s primary purpose is the erection of bureaucratic, procedural hurdles for Marylanders to secure and retain counsel when they are accused of a crime and cannot afford an attorney. Specifically, under Maryland’s current Public Defender Act, an indigent accused is entitled to court-appointed counsel when they go before a district court judge for a bail hearing (which itself can mean an accused is behind bars for up to 72 hours without a lawyer). If HB 153 becomes law, those defendants who had already qualified for court-appointed counsel will lose that counsel upon being released on their own recognizance or posting bail, and will have to duplicate the very same qualification process with the Office of the Public Defender.

Great.  So why is this a problem, you ask?  If they’re not in court, why would they need the services of an attorney?

The proposed legislation leaves defendants without representation during a critical stage of the proceedings against them. The inability to perform a prompt investigation into the facts and circumstances surrounding the defendant’s arrest creates the very real possibility that evidence will be lost. It is hard to imagine why the legislature would impose more red tape at taxpayer expense on a public defender system whose resources are already strained beyond capacity.

Oh, right.

NACDL President Steven D. Benjamin, who delivered the above rebuke, has given us the quick and dirty of why criminal defendants—especially poor people without any resources to pay for their own defense—need a lawyer from Day 1, and need them to stick around for the spaces between arraignment and trial (if there even is one).  Diligent attorneys can investigate a client’s case while the client is busy trying to keep a roof over their heads.  If they qualify for a pulic defender, chances are they work at a shitty entry-level job somewhere on the south side of town which barely pays the bills.  Few people who qualify for a Public Defender have the time, resources, or experience to dedicate to their own case.  And the nature of the human experience in advanced capitalist societies dictates that those who have more of one of these things will probably have less of the other two.

Why certain members of the Maryland legislature want a bill that will f#$% over poor people accused of crimes is beyond my ken.  Forcing indigent clients to re-file for representation twice during the same case a giant waste of time and money in addition to compromising the client’s defense.  Every criminal defense attorney has stories about clients who decided to accept a plea from the prosecutor’s office because they were scared of the charges filed against them.  Granted, in many cases, this is a rational decision—if the prosecutor is offering to let you plea to 20 misdemeanors instead of a 106 counts including a handful of felonies?  Why would you risk going to trial in those circumstances, and lose everything?  And most of the time, that’s with an attorney representing the Defendant.  Now imagine what the case would be if the police and prosecutors had a small window of time during which they could scare the Defendant into taking a plea, Missouri v. Frye be damned.

A good defense attorney can stop a client from doing something that’s against their own interests in the twilight hours after the bail hearing.  In his book, Indefensible, David Feige recounts the tale of his first murder trial, in which his client all-but confessed to the police, and was prepared to submit herself to the mercy of the State.  After asking some brief questions, Feige realized that the client was actually a victim of domestic violence, and had a very good self-defense claim.  Feige took the rare step of putting his client on the witness stand during Grand Jury proceedings, and after hearing his client’s story, the members of the Grand Jury refused to indict his client.

If Feige’s client had been left in the dust after her bail hearing, the case may not have been resolved in the same fashion.  Given the state of indigent defense in America, forcing clients to sign up for a new lawyer increases the chances that their case will wind up in the bin of a public defender who’s case load is so large that he simply doesn’t have the time to conduct even a cursory investigation into the facts of the case.  In her 2012 law review article, Funding Gideon’s Promise By Viewing Excessive Caseloads As Conflicts Of Interest, 39 Hastings Const. L.Q. 421 (2012), Heidi Reamer Anderson of Florida Coastal Law School discussed the case of a Florida public defender who’s caseload was so excessive that he filed a motion in 2009 attempting to withdraw from representation of a felony murder case.  Between 2008–2009, he had handled 736 felony cases, and 235 pleas at arraignment, more than quadrupling the ABA standard for annual felony representations (which is 150).  This particular Florida Defender noted that he “had no time to obtain a possible witness list, to take a deposition, to visit the crime scene, to consult with any expert, to prepare a mitigation package, or to file any defense motions.”  In other words, his client might as well’ve been not represented at all.

And in case you were wondering, stories like this aren’t unique.  Kaitlin C. Gratton, in her article Desperate Times Call for Desperate Measures: Reclassifying Drug Possession Offenses in Response to the Indigent Defense Crisis, 53 Wm. & Mary L. Rev. 1039 (2012), recalled the story of a Louisiana public defender who told a judge in 2005, “[I]f you divide the number of hours in a day by the number of cases [I have,] I would be allowed to devote eleven minutes to each [client, and] it’s just not humanly possible for me to do that.”

So it does make a difference having a lawyer who will stick by you from start to finish.  In many cases, Public Defenders have little time to devote to their clients’ cases as it is, without the state-imposed burden of having to play catch-up with the first attorney you were originally assigned to.  But the sponsors of HB 153 are apparently more concerned with making sure they can throw as many poor people in jail as possible.  Given the unfortunate reality that Retributivist thinking still dominates the political culture of America, No one should be surprised if they succeed.  Then again, a boy can hope.

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