Not Your Typical Criminal Defendant

The Sixth Amendment “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

Gideon’s Muted Trumpet  Guaranteeing the Right to an Attorney  The Failure to Realize Gideon v. Wainwright  No right to meaningful counsel at any phase of the criminal legal process  No constitutional obligation that the government must pay

Gideon’s Muted Trumpet cont.  The Supreme Court and “effectiveness of counsel”  Problems with Indigent Defense  Lack of proper training  Fewer Resources  Imbalance in salaries

Why politics matters? Focus on “tough on crime” over equal justice Focus on “tough on crime” over equal justice $97.5 Billion spent annually on criminal justice $97.5 Billion spent annually on criminal justice Half of these funds go to police & prosecutors Half of these funds go to police & prosecutors Only 1.3% of annual federal funds and only 2% of combined federal and state funds go to Indigent Defense. Only 1.3% of annual federal funds and only 2% of combined federal and state funds go to Indigent Defense.

Kentucky’s Indigent Defense System In 1990, the state spent $162 per indigent criminal case = $11.4 million annually In 1990, the state spent $162 per indigent criminal case = $11.4 million annually 1/1000 of the state budget, and a full 4 million less than the University of Kentucky’s athletic budget. 1/1000 of the state budget, and a full 4 million less than the University of Kentucky’s athletic budget.

What happened to the right?  The Rehnquist Court  Right to counsel not guaranteed before adversary proceedings  Right to counsel ends after 1 appeal, even in death penalty cases  Sixth amendment not designed to “improve the quality of legal representation”  Ineffective counsel claims rarely succeed in the courts  The Warren Court  Right to counsel guaranteed at all critical stages of the criminal justice process

“Defaulting” the Right  Procedural Default  Blame-the indigent defendant approach  Wrongful convictions and sentences

The Case of Anthony Porter  50 hours away from execution when he won a reprieve from the Illinois Supreme Court in late  Anthony Porter was granted a reprieve NOT because of ineffective counsel but because of the fact that he was determined to be mentally retarded.  On February 3, 1999, Alstory Simon confessed on videotape to the murder of Jerry Hillard and the accidental shooting of Marilyn Green.  In Chicago's Cook County, court-appointed counsel get an in-court hourly rate of $40 and $30 out-of-court.  Since 1976, 13 poor, typically non-white defendants in Illinois were found factually innocent of crimes that they were wrongfully sentenced to death for.

Congress’s Actions In 1996, Congress cut funding for the nations 20 death penalty resource centers, eliminating major resources for indigent defendants. In 1996, Congress cut funding for the nations 20 death penalty resource centers, eliminating major resources for indigent defendants. Now, only about a dozen of the 38 states with the death penalty have state-organized public defender programs that handle capital cases. Now, only about a dozen of the 38 states with the death penalty have state-organized public defender programs that handle capital cases. Only 8 states have specialized death penalty units that serve all or part of the state. Only 8 states have specialized death penalty units that serve all or part of the state.

Bad Lawyering is System-Wide in Capital Cases  Liebman national study of error in capital cases ( )  The overall rate of serious errors involving a capital defendant’s guilt in Illinois is less than the national average (66% v. 68%).  Why is the rate of serious error so high?  defense lawyers’ incompetence  prosecutor misconduct

Innocence  Since 1973, there has been an average of 3 exonerations per year  62 of 123 persons exonerated were African-American  Details Details

Bad Lawyering is System-Wide in Capital Cases  Since 1973, there have been 123 exonerations: 63 have involved African- American defendants.

Remedies  Funding  “Competent to try a criminal case of the complexity involved”