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232 Results
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The Right to Counsel in Armstrong County & Potter County, Texas
Texas has 254 counties, and the criminal justice system in each of those counties operates differently from all others. Texas state law requires the judges who have jurisdiction over criminal cases in each county to adopt by local rule countywide procedures for providing counsel to indigent defendants at trial and appeal for crimes punishable by incarceration. Texas state law also requires the county in which a criminal prosecution is instituted to pay the cost of appointed counsel and all reasonable and necessary expenses of the defense at both trial and appeal. The Right to Counsel in Armstrong County & Potter County, Texas: Evaluation of Adult Trial Level Indigent Defense Representation (November 2019), explains how Texas’s statutory scheme that delegates to counties and trial court judges the state’s Sixth Amendment responsibilities opens the door to the dangers of undue judicial interference with the right to counsel.
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The Right to Counsel in Wayne County, Michigan
In Wayne County, which includes Detroit, 75% of indigent felony defendants receive trial level representation from attorneys selected and overseen by trial court judges of the Third Judicial Circuit. The Right to Counsel in Wayne County, Michigan: Evaluation of Assigned Counsel Services in the Third Judicial Circuit (August 2019), explains how forcing trial court judges to design and directly oversee the system that provides attorneys to represent indigent defendants always opens the door to the dangers of undue judicial interference with the right to counsel. Every aspect of the Sixth Amendment right to counsel is impaired, in the felony assigned counsel services provided in the Third Judicial Circuit, by the lack of independence from the judiciary, leaving the personal interests of appointed private attorneys in conflict with the legal interests of the defendants whom they are appointed to represent. Repairing the felony right to counsel at trial requires greater authority and resources than county officials and trial court judges have under the legal and financial construct created by state law.
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The Right to Counsel in Maine
Maine is the only state in the country that provides all indigent defense services through private attorneys. There are two principal reasons that other states have moved away from using solely private attorneys. First, it is difficult to predict and contain costs in a private attorney system. Second, it is difficult to supervise private attorneys to ensure they can and do provide effective representation. The Right to Counsel in Maine: Evaluation of Services Provided by the Maine Commission on Indigent Legal Services (April 2019), explains how Maine struggles with both, as the Maine Commission on Indigent Legal Services is expected to oversee the representation by and cost of nearly 600 attorneys, handling more than 30,000 cases each year in 47 courthouses presided over by approximately 90 justices, judges, and magistrates, with a staff of just three people. Maine cannot guarantee effective representation in each and every case, as is their Sixth and Fourteenth Amendment obligation, as the failure to provide oversight often results in the interest of indigent defendants being in conflict with the financial interests of the attorneys appointed to represent them.
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The Right to Counsel in Oregon
Providing the Sixth Amendment right to effective assistance of counsel is a state obligation under the Fourteenth Amendment. The State of Oregon attempts to fulfill its obligation to provide effective right to counsel services in trial courts primarily through an array of contracts let by the Public Defense Services Commission (PDSC), and administered by the Office of Public Defense Services (OPDS), with public defender offices, private law firms, consortia of individual attorneys and law firms, non-profit organizations, and occasionally individual lawyers. The Right to Counsel in Oregon: Evaluation of Trial Level Public Defense Representation Provided Through the Office of Public Defense Services explains how, in doing so, the state has created a complex bureaucracy that collects a significant amount of indigent defense data, yet does not provide sufficient oversight or financial accountability. In some instances, the complex bureaucracy is itself a hindrance to effective assistance of counsel. Moreover, the report concludes that this complex bureaucracy obscures an attorney compensation plan that is at root a fixed fee contract system that pits appointed lawyers’ financial self-interest against the due process rights of their clients, and is prohibited by national public defense standards.
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The Right to Counsel in Rural Nevada
In the 14 counties and one independent city of Carson City that together make up rural Nevada, only 333,373 people reside over an area that is larger than all but ten states. In addition to the sparse population spread across a great geographic expanse, there is a paucity of attorneys, limited social services, and almost no public transportation. It is against this backdrop that the counties and cities of rural Nevada struggle to provide the effective assistance of counsel to indigent defendants, largely without guidance from or oversight by the State of Nevada. The Right to Counsel in Rural Nevada: Evaluation of Indigent Defense Services explains for the first time how indigent defense services are provided in every trial level court outside of Clark County (Las Vegas) and Washoe County (Reno). There are longstanding, deep-rooted problems in the rural courts, including: a dearth of public defense data, especially regarding caseloads; a prevalence of fixed fee contracts; a pervasive lack of independence of the defense function from undue political and judicial interference; and the failure to appoint attorneys early enough in the criminal process. The municipal courts in Nevada are a cause of particular concern where some judges chill the right to counsel by informing defendants that they will be charged for the cost of their representation.
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The Right to Counsel in Wayne County, Michigan
Attorneys with the State Defender Office of the Metropolitan Justice Center of Southeast Michigan are unable to put each and every prosecution to the “crucible of meaningful adversarial testing,” as is their ethical duty and constitutional obligation, because they lack sufficient time, resources, and support staff to properly prepare cases. Such is the conclusion of The Right to Counsel in Wayne County, Michigan: Evaluation of the State Defender Office of the Metropolitan Justice Center of Southeast Michigan. The Sixth Amendment Center (6AC), in cooperation with the Seattle University School of Law (SUSL), finds that State of Michigan and Wayne County share fault for this failure. 6AC and SUSL recommend that the state and county therefore share in the responsibility for providing effective representation in the future.
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The Right to Counsel in Mississippi
Felony defendants throughout Mississippi are arrested and then routinely wait from typically two months to up to a year before a lawyer begins working on their behalf. When a felony lawyer is finally appointed, the attorney is too often under-resourced, overworked, and financially conflicted between working on behalf of the defendant’s legal interests and doing what the attorney needs to do to please the judge to secure the next contract or appointment. The Right to Counsel in Mississippi: Evaluation of Adult Felony Trial Level Indigent Defense Services explains how the vast majority of indigent persons accused of felony crimes in Mississippi never have an attorney working on their behalf prior to their arraignment in circuit court. Instead, during the entire period between a felony arrest and the arraignment on indictment, indigent felony defendants fall into a “black hole” in which they are not represented by an attorney.
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The Right to Counsel in Indiana
In Indiana, counties and cities are responsible for funding and administering all indigent defense services. Indiana counties (but not cities) may, if they so choose, receive a partial reimbursement from the state for their indigent defense costs – excluding misdemeanors, for which the state provides no reimbursement at all — in exchange for meeting standards set by the Indiana Public Defender Commission (IPDC). However, counties are also free to forgo state money and avoid state oversight. What many Indiana counties have realized is that they can contract with private counsel on a flat fee basis for an unlimited number of cases for less money than it would cost to comply with state standards (even factoring in the state reimbursement). Thirty-seven of Indiana’s 92 counties (40%) choose not to participate in the state’s reimbursement program as of June 30, 2015, more than 20 years after the state reimbursement program began. The Right to Counsel in Indiana: An Assessment of Trial Level Indigent Defense Services explains objectively and in detail how and why this hybrid system for right to counsel services, known as the “Indiana Model,” where lawyers for some indigent defendants are required to meet standards conducive to constitutional effectiveness while lawyers for other defendants are not, both institutionalizes and legitimizes counties’ choices to not fulfill the minimum parameters of effective representation required by the U.S. and Indiana constitutions.
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The Right to Counsel in Utah
Utah’s trial courts do not uniformly provide counsel at all critical stages of criminal cases as required by the U.S. Supreme Court, with many defendants – particularly those facing misdemeanor charges in justice courts – never speaking to an attorney. Those defendants who do receive representation too often receive an attorney operating under multiple conflicts of interest (financial and other) arising from unfair contractual arrangements that create incentives against zealous representation. The challenge of providing effective representation for each client can be exacerbated by excessive caseloads that reduce the time a lawyer can spend on an individual case. And these appointed attorneys generally lack appropriate independence from undue state and local government interference in securing the necessary resources to put the state’s case to the test. The Right to Counsel in Utah: An Assessment of Trial-Level Indigent Defense Services shows that the primary cause for the institutionalization of these practices is the lack of accountability inherent in the system, allowing significant structural flaws to linger uncorrected. Future attempts to remedy widespread systemic conflicts cannot succeed without first addressing the lack of constitutionally-mandated defender independence.
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Justice Shortchanged
Wisconsin lawyers appointed to represent the accused have significant financial conflicts imposed upon them by the state. The evidence suggests financial considerations may have trumped the constitutional imperative for independent, conflict-free public defense services. As a result, Wisconsin’s ability to provide constitutional right to counsel services is undermined. Justice Shortchanged: Assigned Counsel Compensation in Wisconsin demonstrates that unreasonable compensation rates and flat fee contractual arrangements to represent the poor in criminal courts are constitutional violations because each pits the attorney’s financial well-being against the client’s right to conflict-free representation.
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The State of the Right to Counsel in Mississippi
Mississippi is one of only six states that do not contribute any money for non-capital, trial-level right to counsel services. In 2011, the state legislature took initial steps toward state oversight of indigent defense services by establishing the Mississippi Office of the State Public Defender (OSPD), and mandated that this new office examine the delivery of trial-level indigent defense services across the state. Specifically, the OSPD is to “coordinate the collection and dissemination of statistical data” and to “develop plans and proposals for further development of a statewide public defender system in coordination with the Mississippi Public Defenders Task Force. With no state resources dedicated to the task at hand, OSPD retained the assistance of the 6AC (initially under a grant from the American Bar Association, and then under a grant from the United States Department of Justice, Bureau of Justice Assistance) to assist with the research and technical assistance. The product of that technical assistance effort is The State of the Right to Counsel in Mississippi: Report & Recommendations. (First produced in October 2013 for internal use by the State Public Defender, the updated version is now made widely available.)
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Criminal justice issues that disproportionately harm poor people, such as wrongful convictions and over-incarceration, cannot be fixed if indigent defendants are given attorneys who do not have the time, resources, or qualifications, to be a constitutional check on government. Yet, investment in improving indigent defense services remains largely neglected. The Sixth Amendment Center is the only nonprofit organization in the country that exclusively examines, uncovers, and helps fix the root of the indigent defense crisis in which inequality is perpetuated because poor defendants do not get a fair fight.
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