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2013 FEDERAL CRIMINAL PRACTICE SEMINAR

2013 FEDERAL CRIMINAL PRACTICE SEMINAR. The Right To Counsel 50 Years Later: An Unfulfilled Constitutional Right. “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Powell v. Alabama , 287 U.S. 45, 68-69 (1932).

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2013 FEDERAL CRIMINAL PRACTICE SEMINAR

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  1. 2013 FEDERAL CRIMINAL PRACTICE SEMINAR

  2. The Right To Counsel 50 Years Later:An Unfulfilled Constitutional Right “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” Powell v. Alabama, 287 U.S. 45, 68-69 (1932)

  3. AP – On the 50th Anniversary • “It is not the happiest of birthdays for the landmark Supreme Court decision that, a half-century ago, guaranteed a lawyer for criminal defendants who are too poor to afford one.”

  4. Ohio Caseloads Continue to Grow 1999 – 269,854 cases 2004 – 392,625 cases 2012 - 411,657 cases

  5. Two Components to Meet Gideon’s Promise • Structure • Funding

  6. Ohio Lacks Organized Structure • 88 Counties • All Different • Local Rates • No measure of quality • No measure of efficiency • No Transparency • No Leadership • No Systemic Challenges • Lack of Training • Lack of Supervision • Lack of Support

  7. Workload – Some PDs • 1000 misdemeanors per year • Equals less than 1.4 hours per case

  8. Independence • ABA Ten Principles • Independence is listed first . . . For a reason • Without independence a lawyer can never be fully dedicated to the client.

  9. Court Appointments • Judge Picks Attorney and approves the Pay. • Appearance of Impropriety – Nevada Supreme Court; Austin, Texas.

  10. Strickland v Washington • Decision undermines the right to counsel • Drunk • Asleep • Openly racist

  11. Delayed Representation • No lawyer for days, weeks or months • Evidence becomes stale • Pressure to plea just to get out • Process becomes the punishment • Loss of job, dwelling, family • Costs are significant • Jail • Lost of tax revenue • Social services increase

  12. No Counsel Courts • “You don’t want a lawyer, do you?”

  13. It’s Broken – And We Have Known For Some Time • “We have concluded the present system is neither efficient nor cost-effective in many areas throughout Ohio.” • Report of the Supreme Court Task Force to Study Court Costs and Indigent Defense, submitted to the Ohio General Assembly by Justice Craig Wright, September 1992

  14. And, Just in Cases We Thought Something Had Changed • “It is the opinion of this task force that the system of providing counsel to indigent criminal defendants is inefficient and ineffective, and in need of significant improvements.  The time has come for systemic changes to occur.  The absence of a fully-funded, effective system creates the risk of denying an individual’s constitutional right to counsel.” • Report and Recommendations of the Ohio Supreme Court Task Force on Pro Se & Indigent Litigants, April 2006

  15. The Answer is Also Known – For Some Time • “State-operated regional offices would assist local public defender commissions in several areas, including investigative services, social workers, and expert witnesses.” • The Wright Report (1992)

  16. II. Funding • Resource Inequities • Pay Inequities • Federal Grants to Police and Prosecutors • Low Level Crimes

  17. Resource Inequities • Facilities • Experts • Investigators • Forensic Testing

  18. Ohio Indigent Defense Expenditures – User Pays 1999 – $62,809,925 2012 – $126,180,010 GRF - $26,797,386 GRF - $5,586,314

  19. Pay Inequities • On average prosecutors make 10 to 30% more than public defenders • Many appointed counsel rates are 30 years old without any increase • High turnover rates • Second jobs • Client’s are harmed

  20. Appointed Counsel Rates in Ohio • 30 Years Old • Caps that reduce hourly rates to minimum wage or below. • 21 Counties pay 25K or less for death penalty cases (total for both lawyers)

  21. Still True? • "It costs substantially more per case to provide representation by assigned counsel than it does through a public defender“ • The Wright Report (1992)

  22. State, Not Local, Obligation • “Because crimes are prosecuted in the name of the state and prosecutors are representing the state … the state should make a firm commitment to gradually assume the responsibility for funding all expenses associated with providing representation of indigent defendants.” • The Wright Report (1992)

  23. Federal Grants GAO Report • 50% goes to fund law enforcement and prosecution activities. • Less than 1% percent for public defenders or to assist those who cannot afford legal representation on their own.

  24. Clarence Earl Gideon acquitted after representation by a lawyer on retrial

  25. Contact Info TIM YOUNG State Public Defender Office of the Ohio Public Defender 250 East Broad Street - Suite 1400 Columbus, Ohio 43215-2998 www.opd.ohio.gov (614) 466-5394

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