New American Constitution Society Issue Brief on Excessive Public Defender Workloads

American Constitution Society has released another issue brief on this topic. The document is avaiable via this ACS page, and here is a description:

ACS is pleased to distribute “When Excessive Public Defender Workloads Violate the Sixth Amendment Right to Counsel Without a Showing of Prejudice,” an Issue Brief by Laurence A. Benner, Professor of Law and Managing Director of Criminal Justice Programs at California Western School of Law. This paper is part of a series of Issue Briefs that ACS is publishing focused on ideas for a role that the federal government can play in helping improve indigent defense systems around the country. This series builds on the interest in pursuing reform expressed by Attorney General Eric Holder, Congress, and other federal policymakers to address the crisis in indigent defense that has existed since the Supreme Court’s 1963 decision in Gideon v. Wainwright, the landmark case establishing the right to counsel for indigent defendants.

In his Issue Brief, Professor Benner explains how, by focusing on the absence of counsel at a critical stage of proceedings, rather than on the ineffectiveness of counsel, a set of claims could be considered outside of the analysis required by Strickland v. Washington. Strickland’s two-pronged test requires that ineffective assistance of counsel claims demonstrate that counsel’s deficient performance be both professionally unreasonable and prejudicial. As Professor Benner explains, his litigation strategy avoids the prejudice prong:

As Gideon v. Wainwright and its progeny established, the Sixth Amendment guarantees the assistance of counsel at each critical stage of the proceedings against an accused. The strategy outlined here is premised upon the argument that the period between arraignment and trial—the investigatory stage—is a critical stage at which the accused is entitled to counsel’s assistance. In sum, the argument is that because excessive caseloads make it impossible for defense counsel to conduct a reasonable investigation into factual innocence and/or mitigating circumstances relevant to punishment, this inability to provide “core” assistance of counsel renders counsel constructively absent at a critical stage of the proceedings.

The author describes how the aforementioned litigation strategy could be incorporated into the federal government’s response to the indigent defense crisis via legislation such as the Justice for All Reauthorization Act, which would, among other things, create a federal cause of action for equitable and declaratory relief to address patterns of deprivations of Sixth Amendment rights.

Click Here to Download the Issue Brief.

US Supreme Court - Crawford related opinion today

Michigan v. Bryant (09-150) – By a vote of six to two  (with Justice Kagan recused), the Court vacated and remanded the decision of the Michigan Supreme Court.  In an opinion by Justice Sotomayor, the Court held that a statement given to police by a wounded crime victim identifying the person who shot him may be admitted as evidence at the trial if the victim dies before trial and thus does not appear.  The Court concluded that because the  primary purpose of the interrogation was to enable police to deal with an ongoing emergency, the statements resulting from that interrogation were not testimonial and could be admitted without violating the Confrontation Clause.

Justice Scalia and Justice Ginsburg each filed separate dissents.

"Do you know Sarah Johnson?" DPA Social Worker profiled by The Morehead News

Addiction costs state millions of dollars - The Morehead News

If you talk to the district and circuit court judges, the commonwealth or county attorney or the jailer about treatment options for addicts, they’ll invariably all ask the same question: “Do you know Sarah Johnson?”

    Her name has become synonymous with genuine, and professional, advocacy for people in legal trouble because of crimes committed in addiction.

    The master clinical social worker at the Kentucky Department of Public Advocacy—the public defender’s office—is well known for thorough and personalized work to find treatment options for indigent clients.

    The DPA social worker program came about as a means to lessen the taxpayer burden of overcrowded prisons and jails, according to an agency report. Johnson is one of 12 social workers throughout the Commonwealth that work in the DPA offices to assess and refer clients to appropriate treatment options.

    “Our role is to work as an agent of the attorney to assess cases where there’s apparent mental health and substance abuse and when the attorney feels a person would benefit more from treatment than incarceration,” Johnson said.

    According to a 2008 report, the social worker program has proven cost-savings. Kentucky saved $3.25 for every $1 invested in the social workers’ salaries.

    More than 10,000 days of incarceration were saved as social workers worked with the public defenders, prosecuting attorneys and judges to divert clients into long term residential treatment, outpatient treatment and other community treatment alternatives.

    While Johnson is concerned with the economic cost savings, she is also concerned with helping people recover their lives from addiction.

    “I really care about my clients and advocate for them to find the appropriate programs,” Johnson said.

    “My education and training has prepared me to find individualized options for people, each of whom are unique and valuable. All addicts are not the same,” she added.

    Usually, Johnson first encounters defendants when they are in jail. She goes to them and conducts an assessment and works with them to identify the most appropriate options for resolving legal problems and for helping them move into recovery.

    She then works with the public defender, the prosecuting attorney and the judge to recommend the best options. Oftentimes, residential or outpatient treatment is recommended for defendants with drug-related offenses.

    Johnson said she doesn’t stop at the recommendation, however.

    “I help our clients through the process. I don’t set treatment up for people. I give them options and work with them to make a good decision,” she said.

    “If they are comfortable with me talking to families, I do. There are many needs beyond just getting a person into treatment,” she added.

    Johnson said the success of the DPA social worker program goes far beyond reducing the jail and prison population.

    “My clients are people who suffer from addiction and because they suffer they committed a criminal offense.

    “If we invest in them and allow them to make something of themselves, I believe they can,” she said.

Kentucky's purchase of sodium thiopental challenged as violating injunction - AP story

Lawyer seeks to stop Ky. from using execution drug - AP

Kentucky appears to have violated a judge's order stopping all executions and preventing the state from taking any action to carry out a lethal injection by purchasing a key drug used in the process, an attorney for several death row inmates said Thursday.

Public defender David Barron wants to bar the state from ever using the 18 grams of sodium thiopental the state acquired this month

Thursday News Roundup

Kentucky - State acquires key drug used in executions

The state has acquired enough of a key drug used in executions to put three condemned inmates to death.

Kentucky and other states have had to look for other sources of the drug, an anesthetic called sodium thiopental, after the sole U.S. maker said in January it would not resume production.

The Justice and Public Safety Cabinet announced Tuesday the state had bought 18 grams of the drug from CorrectHealth, a Georgia correctional health care company.

Missouri - Judging reality: Possible reform for the public defender crisis inches forward

The Missouri Supreme Court has confirmed that the Public Defender Commission, which oversees the public defender system, is empowered to set maximum caseloads and, using a special protocol, allowed to refuse appointments when limits are exceeded.

Kentucky Penal Code Reform Bill Filed

Newspaper coverage of the bill

Louisville Courier Journal  Bills aim to cut prison costs, improve drug treatment

Lexington Herald Leader Kentucky drug laws would change under new proposal

Below is a summary of the bill by former Public Advocate Ernie Lewis ( caveat - I have been reviewing numerous drafts, and could easily have made a mistake in the summary. If you have a question about a provision, please go online to read the entire bill.) HB 463 and SB 161

There are several very progressive reforms undertaken in this legislation, including the following:

  • Establishes quantities for trafficking in controlled substances.
  • Changes the 1000 yards to 1000 feet in 218A.141.
  • Eliminates the enhancer for possessory drug offenses. 
  • Lowers penalties for trafficking 2nd, creating a mini-Class D for first offenses.
  • Lowers penalties for trafficking 3rd.
  • Lowers penalties for possession 1st to a mini-Class D.
  • Creates deferred prosecution as a preferred alternative for possession 1st cases and 2nd, with presumptive probation as the other alternative.   Presumptive probation is required for second offenses unless the person is ineligible.
  • Marijuana possession is a Class B misdemeanor punishable by 1-45 days.
  • Significant changes are made to pretrial release.  For example, if presumptive probation is the possible sentence, the court must release the defendant on an OR or unsecured bond unless written findings are made.
  • Deferred prosecutions are created similar to pretrial diversion.
  • Evidence based practices, including the use of risk and needs assessments, permeate the bill.  This is especially so for probation and parole. 
  • Changes are made to eliminate double enhancements.  Possession cannot be PFO'd, although it can be used as a prior.
  • Citations will be required for all Class B misdemeanors and most Class A misdemeanors. 
  • Pretrial release is changed significantly.  If a person is indigent he must be released on an OR or unsecured bond unless he is not a flight risk, a danger to himself or others, or unlikely to appear for trial. 
  • A system of graduated sanctions is created for persons on probation and parole whereby revocations won't have to take place.  Probation and Parole will also have an administrative caseload with lesser supervision and an early means of termination for persons on probation. 

Thursday National News Roundup -- Drug Dogs, Intoxilyzer, and Capital Defense Weekly

Handlers' beliefs influence drug-sniffing dogs' performance - San Francisco Chronicle

The study, published in the January issue of the journal Animal Cognition, found that detection-dog teams erroneously "alerted," or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present.

"It isn't just about how sensitive a dog's nose is or how well-trained a dog is," says Lisa Lit, a postdoctoral fellow in the Department of Neurology and the study's lead author. "There are cognitive factors affecting the interaction between a dog and a handler that can impact the dog's performance."

Fla. Supreme Court won’t review DUI machine Source Code Ruling – Subpoena for Intoxilyzer Source Code Upheld

The Florida Supreme Court declined to review an appeals court decision that a Manatee County Circuit judge properly allowed defense attorneys to subpoena the Intoxilyzer 8000’s manufacturer for the code. The high court didn’t give a reason for its Jan. 26 denial, but said it would not reconsider the decision.

Defense attorneys praised the court’s action Monday, saying it puts further pressure on CMI Inc. to turn over the code after years of refusing to do so. Prosecutors and law-enforcement agencies say nothing has changed as a result of the decision, and they will continue to use the machine to arrest and prosecute intoxicated drivers.

A Coral Gables attorney for CMI, based in Owensboro, Ky., did not immediately respond to a telephone call and e-mail seeking comment.

 

Capital Defense Weekly

Miguel Soto's death sentences vacated - AP article and order

Death sentence tossed in slaying of former in-laws AP

A judge threw out the death sentence on Tuesday of a Kentucky inmate convicted of killing his former in-laws more than a decade ago after concluding that a juror gave inaccurate statements during pretrial questioning.

Oldham County Circuit Judge Karen Conrad also found that the same juror in the case of 39-year-old Miguel "Mickey" Soto failed to follow his oath and consider mitigating evidence in the case. Conrad ordered a new sentencing hearing for Soto.

Read the Order

Update on Kentucky and the search for sodium thiopental - Lexington Herald-Leader

Kentucky executions could be delayed months, official says

If Kentucky is to continue executing Death Row inmates, it must find a new source of a drug used in lethal injections or revise the rules to substitute another drug.

The state has lost its supplier of sodium thiopental, an anesthetic used in executions.

Changing the mix of drugs used in an execution would require revising state regulations, a process that would take time and open the door for challenges by defense attorneys and anti-death penalty advocates.

The changes and challenges could take much of the year to resolve, said the Rev. Pat Delahanty, chairman of the Kentucky Coalition to Abolish the Death Penalty.

"I don't think there'll be executions in 2011" in Kentucky, Delahanty said.

Hospira, a Lake Forest, Ill., company, announced last week it would not resume production of sodium thiopental.


Read more

Kentucky Public Advocate Ed Monahan installed as Chair of American Council of Chief Defenders

KENTUCKY PUBLIC ADVOCATE TAKES OVER AS LEADER OF NATIONAL INDIGENT DEFENSE GROUP

WASHINGTON, DC, January 5, 2011 - The National Legal Aid & Defender Association (NLADA) is pleased to announce that Kentucky’s chief public defender, Ed Monahan, has been named to lead the American Council of Chief Defenders (ACCD), a section of NLADA and the preeminent national voice for indigent accused. Monahan was elected chair of ACCD on January 1, 2011. He was appointed KY Public Advocate by the Governor on September 1, 2008 for a four year term.

“Ed’s commitment and leadership as Kentucky’s chief public defender raises the bar for all leaders in the public defense community,” said Jo-Ann Wallace, president and CEO of NLADA. “His stewardship of the ACCD will ensure that it will continue to play a vital role in supporting quality public defense services and working to ensure fairness throughout our nation’s criminal justice systems.”

Monahan was elected to head the NLADA section that comprises a national community of public defense leaders dedicated to securing a fair justice system and ensuring high quality legal representation for people facing loss of life, freedom or family. The ACCD is charged with the preservation of the constitutional right to counsel for people accused of a criminal offense who cannot afford to hire an attorney and speaks as a national voice for public defense; promotes best practices in the leadership, management, and the administration of justice; and supports development and reform of public defense systems.

“I’m pleased that Ed was chosen to serve in this national defender leadership role,” said Jerry J. Cox, Chair of the Public Advocacy Commission and Second Vice-President of the National Association of Criminal Defense Lawyers. "It is fortunate to have someone of Ed Monahan's caliber leading this important national group of public defender leaders. His national leadership will bring Kentucky defenders the best nationally. It will keep the Kentucky public defender program improving according to the national standard of practice.”

Monahan said, “As ACCD chair in 2011, I look forward to working with chief defenders from across the country to collaborate with the American Bar Association, especially the Standing Committee on Legal Aid and Indigent Defense, and the National Association of Criminal Defense Lawyers Indigent Defense efforts to promote meaningful counsel for indigent defendants facing a loss of liberty. In Kentucky and nationally, defenders face significant resource challenges. We have to balance the scales. So chief defenders will campaign in 2011 to protect America’s right to counsel by advocating that governments meet the constitutional mandate to provide a defense attorney to those who cannot afford one. In 2011 ACCD will also advance our advocacy on pretrial release, immigration and mental health issues. ”

Monahan has been a member of the Executive Committee of ACCD since 2008 and chaired its Leadership and Development Committee from 2008 - 2010. He began as a Kentucky public defender in 1976. Governor Beshear appointed Monahan Kentucky public advocate in 2008. Ed is president of the Kentucky Association of Criminal Defense Lawyers, past chair of the Kentucky Bar Association’s Criminal Law Section, a member of the KBA Ethics Committee (2000-2007; 2008-present). He is a member of the NLADA Defender Policy Group and chairs its Communications Committee. Among his publications, Monahan with James J. Clark, Ph.D. authored “Coping with Excessive Workloads,” Ethical Problems Facing the Criminal Defense Lawyer: Practical Answers to Tough Questions, Rodney J. Upoff, Editor (1995).

Monahan is a native of Ludlow, Kentucky, a 1976 graduate of Washington D.C.’s Catholic University of America’s Columbus School of Law and a 1973 graduate of Northern Kentucky’s Thomas More College.

American Council of Chief Defenders, a section of NLADA, is composed of the nation’s chief public defenders and is dedicated to promoting fair justice systems by advocating sound public policies and ensuring quality legal representation to people who are facing a loss of liberty or accused of a crime and cannot afford an attorney.

The National Legal Aid & Defender Association (NLADA), founded in 1911, is this country’s oldest and largest nonprofit association of individual legal professionals and legal organizations devoted to ensuring the delivery of legal services to the poor. For nearly 100 years, NLADA has secured access to justice for people who cannot afford counsel through the creation and improvement of legal institutions, advocacy, training and the development of nationally applicable standards. NLADA serves as the collective voice for both civil legal services and public defense services throughout the nation.