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Former Judges Challenge Proposition that Toddlers Can Represent Themselves in Immigration Court

Three former immigration judges have challenged the assertion by a Justice Department official that 3-year-olds and 4-year-olds can represent themselves in court and don't have a right to a lawyer in deportation proceedings, The Washington Post's Jerry Markon reports.

The judges made their argument in a brief filed with the U.S. Court of Appeals for the Ninth Circuit, which is hearing an appeal on whether immigrant children are entitled to taxpayer-funded attorneys. The judges wrote in their brief "'children are simply incapable of representing themselves in immigration proceedings. Absent effective representation for a child, it is impossible for anyone in an immigration court — including the Immigration Judge — to investigate and develop the child’s case to a degree that would permit the fair adjudication that due process requires,"' Markon reports.

The American Civil Liberties Union and other groups are trying to get the government to provide appointed counsel to every indigent child in immigration court proceedings, but the Justice Department is opposing their lawsuit.

Jack H. Weil,  an assistant chief immigration judge in the Justice Department office that sets and oversees policies for the nation’s 58 immigration courts, was offered as an expert witness in the lawsuit by the Justice Department. According to the Post, Weil said in a deposition in the lawsuit that "'I’ve taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.”'

Court Orders Lawyers for Juveniles Seeking Parole

The Massachusetts Supreme Court, 5-2, has ruled that inmates serving life sentences for murders committed while they were juveniles are constitutionally entitled to be represented by lawyers and to have access to expert witnesses at their parole hearings, NECN reports. The 5-member majority said providing defendants access to lawyers and to experts would ensure they have meaningful access to argue for parole.

The court also ruled that inmates can appeal parole denials, although judges could not order that parole be granted--only order new parole hearings.

The U.S. Supreme Court has ruled that mandatory life sentences for juveniles without the possibility of parole is unconstitutional. 

Charles Koch's Surprising Views on Criminal Justice

Charles Koch, one of the wealthiest Americans and a prodigious supporter of conservative causes, told his hometown newspaper, the Wichita Eagle, that he thinks the American justice system has "been over-criminalized with too many laws and too many prosecutions of nonviolent offenders, not only for him but for everybody." Koch said his family and he are going to expand on the money they give to the National Association of Criminal Defense Lawyers to work on other efforts to reverse the trends in criminal justice that have led to 2.2 million people being incarcerated in the United States. Koch also has concerns that "the Sixth Amendment right to an attorney has been impaired by allowing public defender offices to be underfunded and overwhelmed, including by government prosecutors with more far more resources at their disposal," the Wichita Eagle's Roy Wenzl reports.

Just Minutes Spent in Court on Misdemeanor Cases

There have been a flood of misdemeanor cases in American courts because of tough-on-crime legislation and tough policing, The Wall Street Journal's John R. Emshwiller and Gary Fields report. The result has been assembly lines in court. Just minutes are spent adjudicating the cases and defendants, who have a constitutional right to legal counsel, often are not provided lawyers. The U.S. Supreme Court has ruled that a misdemeanor defendant facing a potential jail sentence has the right to a lawyer, WSJ reports, but "what that means for the nation’s crowded courts is a topic of debate among judges around the country." Jean Hoefer Toal, chief justice of the South Carolina Supreme Court, told the WSJ her state doesn't have the money to provide lawyers in every misdemeanor case as envisioned by the U.S. Supreme Court "and that chief justices from other states have told her the same."                 

Ninth Circuit Rejects Tribal-Court Convictions Without Lawyers

The Ninth Circuit has ruled that past criminal convictions in American Indian courts can't count as proof of a defendant's criminal history if defendants weren't guaranteed the right to an attorney, The Guardian reports. Michael Bryant Jr. was convicted of domestic assault in Northern Cheyenne Tribal Court but didn't have an attorney. While the Eighth and Tenth Circuits have found that tribal convictions aren't governed by the American Constitution, the Ninth Circuit has ruled that Bryant's conviction wasn't legal because the Sixth Amendment guarantees the right to an attorney.

Lawyers Will Now Be Provided to Youths Facing Deportation

The Obama administration is going to start a program to provide lawyers for youths under the age of 16 facing deportation: 100 lawyers and paralegals will be funded with $2 million in grants, the New York Times reports. The surge in providing counsel reflects a "surge of unaccompanied children that has overwhelmed border officials as well the nation’s family and immigration court systems," the Times reports.

Advocates said the intiative will only hlep a fraction of the children appearing for deportation hearings.

Solutions to Bad Lawyering? Tough Direction in One State, Deploying Marketplace in Another

The New York Times' Adam Liptak writes on the difficulties in protecting the constitutional right to have counsel paid for in criminal cases when you can't afford your own lawyer. For example, in Washington, a federal judge has found two cities violated the constitutional right to counsel by having lawyers handle 500 cases at a time. The judge has imposed a federal monitor to improve the situation. In Texas, a pilot program is starting to allow defendants to pick their own lawyers among a pool of qualified counsel.

Does U.S. Supreme Court Decision Leave Right to Counsel a 'Right Without Remedy'?

Andrew Cohen, in a blog for The Atlantic, argues that the U.S. Supreme Court's unanimous decision to reject "a claim by a convicted murderer who argued that she was denied her Sixth Amendment right to the 'effective assistance of counsel' because her lawyer counseled her to reject a manslaughter plea deal without first adequately investigating the facts of her case" turns the constitutional right to counsel into a right without a remedy.  Cohen expounds: "Your lawyer may have violated ethical rules; he may have failed to timely consult with other attorneys; he may have not adequately investigated your case; he may have given you bad advice that leads you to withdraw a guilty plea. And yet the legal standards imposed by the Supreme Court declare that you still aren't entitled to any meaningful relief by the courts. In law school, they call this 'a right without a remedy.' In real life, it's called injustice."



Questions Raised Over For-Profit Indigent Defense During Phila. City Council Hearing

Submitted by Amaris Elliott-Engel on Mon, 10/07/2013 - 22:39

Several witnesses during a Philadelphia City Council hearing Monday morning questioned how a for-profit law firm could provide adequate representation to poor Philadelphians whose constitutional rights are at stake in criminal and family cases.

The city of Philadelphia is preparing to contract with one law firm to handle the cases in which the Defender Association of Philadelphia has a conflict.

Attorney Jeffrey Lindy, who is involved with the appointment of defense counsel in federal criminal cases, testified he supports Mayor Michael Nutter. But Lindy said “this is not a good idea. Good people can make bad decisions and this is one of those bad decisions.”

Philadelphia Bar Association Chancellor Kathleen Wilkinson said that adequate representation can't be provided if $10 million would be expended for 22,000 cases. That would work out to be about $450 per case, Wilkinson said.

The Nutter administration is reportedly close to contracting with Daniel-Paul Alva to form a new law firm, but Everett Gillison, Nutter's chief of staff and deputy mayor for public safety, said during his public testimony that he would not comment on a contract that is still being negotiated.

But Gillison said that there is an opportunity to provide additional services by going to a consolidated model of legal representation for conflict cases.

"Right now the opportunity before me is to raise the level of practice and have the services that need to be had for the next party,” Gillison said.

Due to “economies of scale,” more resources could be provided to poor Philadelphians guaranteed to have their lawyers paid for by city government, Gillison said.

He also said that dependency practice in which parents' rights to their children can be terminated for neglect or abuse “is completely and totally in need of additional rescues.” One law firm could staff courtrooms and have social workers and investigators available on cases, Gillison said.

"Right now quite frankly, we as a city and we as a state, don't provide the kinds of resources we're supposed to provide,” Gillison said ”I'm not trying to boil the ocean here. I'm trying to get something additional and better."

Any defendants with which the Defender Association or the proposed conflict-counsel law firm would have a conflict would still be represented by court-appointed counsel, Gillison said. The city does not have the ability to provide additional services for those defendants right now, he said.

Gillison also questioned the argument that the for-profit legal model would be problematic. Currently, the city has “the equivalent of many hundreds of private law firms doing the work” instead of one law firm.

Gillison said that he has tried to answer questions about the conflict-counsel proposition openly and honestly, but Councilmen Dennis M. O'Brien, joined by Councilman Bill Greenlee, argued that their questions about the proposal have not received responses from the administration. They also questioned why the contract was being negotiated as a one-year contract with the option to renew; otherwise a multi-year contract would necessitate City Council approval. Both councilmen co-sponsored the resolution for the hearing Monday.

Legal representation for Philadelphians who don't get public defenders is woefully inadequate, Wilkinson said, including because they do not get the resources of investigators, social workers and  paralegals.

Other issues with the new model include ensuring that there are not potential conflicts of interest for part-time lawyers who have their own practices on the side or conflicts of interest from criminal or family-law clients being “mined” to make referrals in civil lawsuits or other legal work, Wilkinson said. She did not take a position on whether a for-profit law firm was per se a bad idea.

Lindy called it impossible to protect criminal defendants' Sixth Amendment rights to effective assistance for counsel if $9.5 million is expended on 22,000 cases by the city of Philadelphia. In comparison, the federal government expended $5 million for 580 cases, Lindy said.

Lindy also said that the current model was not working well in Philadelphia because some attorneys are trying to make a living on court-appointed cases, resulting in corners being cut, defendants not being visited in the Philadelphia Prison System, defendants' parents' phone calls not being returned or crime scenes not being investigated in person.

"You're not going to be doing that stuff if you're handling a heavy diet of court-appointed cases," Lindy said.

Chief Public Defender Ellen Greenlee testified that the amount paid for conflict-counsel lawyers, including for dependency counsel is an “absolute disgrace.”

There also was some disagreement during the hearing on whether the First Judicial District had given up its power to appoint counsel along with its unilateral decision that it would no longer pay counsel out of its budget. The Philadelphia courts did not send a representative to testify, Gillison said that the court had given up its appointment power, and O'Brien said that it was only the responsibility to pay court-appointed counsel that the courts surrendered.

Philadelphia Court of Common Pleas Judge John W. Herron, administrative judge of the trial division, said in a September 24 e-mail to me that “the court will no longer receive or disburse funds for court appointed counsel, but the court will continue to review and approve fee petitions and refer these to the city for payment.”

In his opening remarks, O'Brien said that in 2013, which marks a half-century since the U.S. Supreme Court ruled those too poor to afford their own lawyers must be provided government-paid counsel in order to protect their constitutional rights, that City Council is working to preserve those rights by questioning the administration's conflict-counsel proposition.

Privatizing legal representation for poor defendants may set a dangerous precedent

Submitted by Amaris Elliott-Engel on Thu, 10/03/2013 - 09:52

My piece for Philadelphia City Paper on a proposal to change how poor family-court litigants and criminal defendants get their lawyers:

Since last year, Mayor Michael Nutter’s administration has quietly sought to revolutionize how court-appointed lawyers are provided to poor Philadelphians, through a new office of conflict counsel. But on Monday, Oct. 7, City Council will hold a hearing to air concerns about the plan.

And there are lots of them.

Since the city put out — and then extended — its request for proposals (RFP) for the contract, it received only one substantive bid. Two of Philly’s major nonprofit legal organizations declined to bid. The one comprehensive bid that the city did receive, and which it appears prepared to accept, came from two ex-prosecutors now in private practice. And even before their bid was accepted, one of the co-bidders withdrew in the wake of a scandal.

“This has been tainted by collusion, lack of transparency and the conflicts we see by creating a private law firm,” says Councilman Dennis O’Brien. O’Brien, who sponsored legislation calling for the hearing, argues that the very RFP was designed to bypass City Council input, and therefore public scrutiny. 

Contracts for a year or less, like the one proposed for the conflict office, don’t require Council approval.

In an interview with City Paper earlier this year, Nutter’s chief of staff, Everett Gillison, himself a former public defender, described the new office as his brainchild. “I know that the public-service attorneys that do this work need additional resources, and that’s why I want to bring this different model to the conflict counsel,” he said, citing the lack of funding for support staff such as paralegals and investigators. 

“My focus is on the person that needs the lawyer,” he said. “I want them to have the investment that’s necessary.” 

The conflict office would come into play in cases the nonprofit Defender Association of Philadelphia doesn’t handle. That includes cases where the Defender has a conflict of interest, such as representing one of several co-defendants, and cases of parents whose kids are being removed by the Department of Human Services. 

Up until now, finding qualified lawyers to take on these cases has been a challenge. That is “largely a function of the miserable rates we’ve been paying for years,” says Philadelphia Court of Common Pleas Senior Judge Benjamin Lerner. Last year, the Philadelphia courts refused to continue appointing defense lawyers and paying them out of the court budget. That left the city paying the tab for the more than 20,000 attorney appointments made in Philadelphia every year. 

That, in turn, set the stage for the city’s request for “creative and innovative” conflict-counsel proposals. And that led to the one substantive bid submitted: a $9.5 million plan for a new law firm run by Daniel-Paul Alva, founder of the four-member Alva & Associates law firm, and Scott DiClaudio, who also has his own firm. It is not entirely clear why the Alva-DiClaudio bid was the only substantive one submitted (one bid was just to handle the administrative process and another involved fewer than half a dozen attorneys). Nor is it clear how it was vetted. The administration declined to comment. 

DiClaudio -— who sources say is known for his business acumen and passion, if not perfect propriety — resigned from the project after the Legal Intelligencer reported on two Facebook postings he had made. In one post, DiClaudio shared a page titled “American White History Month 2” with an avatar, “Never Apologize for Being White.” In another, he commented that he had spent almost 20 years “representing scum.” (He told the newspaper that the first post had been an accident, and the second was a joke.) DiClaudio also had a past disciplinary history for failing to file appellate court papers on time or at all, failing to provide a written fee agreement to a client and “for making false and misleading statements” to the state bar’s Office of Disciplinary Counsel. 

In an interview, Alva said, “Scott has voluntarily resigned from the project.” DiClaudio confirmed that he had stepped back, but declined to comment further. 

Lerner, who before becoming a judge was the chief public defender, says he is not certain, given the costs involved, that the math works on Alva’s proposal. 

Catherine Carr, executive director of Community Legal Services, says her organization considered bidding to expand its representation of parents in family-court cases, but decided against it because “the money per case is very low.” Carr did not think CLS could do high-quality legal work within the budget constraints. Lerner and others said the Defender Association was asked by the city to run a separate conflict-counsel office, but decided against it. The Association did not respond to requests for comment. 

But Lerner is also hopeful. He says he’s impressed because Alva’s proposal involves a “significant number of really excellent lawyers.” Alva says that no lawyers with less than 10 years of experience will be hired: “We really wanted to go blue chip.”

He argues that the new office will benefit clients, because its salaried attorneys would have no incentive except the client’s best interest. Currently, court-appointed lawyers get paid more if they take their cases to trial — even if it would be better to settle, Alva says. Further, he argues that salaried lawyers can handle more cases by being assigned to one courtroom throughout the day.

Court leaders and Alva’s team have already started to meet to discuss centralizing cases, according to both Lerner and Alva. But, critics say, before things move further many questions ought to be answered. For starters: Is the plan even an appropriate way to handle conflict cases? “I don’t understand the words ‘for profit’ in the same sentence as ‘indigent defense’,” says Marc Bookman, a former defender who’s now a leading advocate for sufficient pay for lawyers appointed in capital cases. Poor clients’ interests are served well by nonprofits, he says. But a for-profit firm has conflicting motivations: “Do you maintain your profit? Or do you properly represent your client, which often costs resources and money?” 

O’Brien hopes the hearing, though late in the game, could highlight alternative conflict-counsel systems. He would prefer a system like the federal one, in which an independent panel certifies that defense lawyers have sufficient expertise. He’d also like to see court-appointed counsel get a checkup every three years. 

Councilman Bill Greenlee, who joined O’Brien in calling for a hearing, says, “We don’t want to have fights with the administration all the time.” But, he adds, despite Nutter’s stance that “transparency is the best policy,” Council still does not have the answers it needs.

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