Gideon Alert: Connecticut backslides on right to counsel

BY David Carroll on Wednesday, July 27, 2011 at 9:46 AM
Like indigent defense systems throughout the country, Connecticut has recently had to let go forty-two public defender employees, including 23 lawyers, and is planning to eliminate 33 more positions, as reported in  the July 21, 2011 Boston Globe.  This is the result of what the Globe summarized as “a funding crisis for the nation’s judicial systems,” while government officials and state employee unions in Connecticut battle for power over the too few remaining dollars (see the June 30, 2011 New York Times).  The difference between Connecticut and other states where similar lay-offs are occurring is that Connecticut’s right to counsel system has been closer than most states to fulfilling the promises of the Sixth Amendment.
Connecticut has had a statewide public defender system since 1917.  It was the first state public defender system in the country.*  On the heels of the Argersinger v. Hamlin decision, in 1975 the state established the Division of Public Defender Services, which still carries out the right to counsel throughout the state today.
In 1995, the state’s public defense system suffered from many of the same failures seen today in the right to counsel systems of most states.  The Connecticut Civil Liberties Union and the ACLU sued the then-governor and the Public Defender Services Commission, alleging that they had failed to provide sufficient funding for public defense services.  The Rivera v. Rowland complaint was filed on behalf of all people who would be represented by the public defense system attorneys, alleging:
Public defenders are not able to spend adequate time interviewing their clients, counseling their clients, or even explaining the basic information to their clients about the upcoming court proceedings.  Forced excessive caseloads and inadequate resources prevent public defenders from spending adequate time reviewing each client’s file, conducting necessary legal research, conducting necessary fact investigation and witness preparation, pursuing motions for speedy trials, preparing for trial, filing certain pretrial motions, exploring pretrial alternatives to incarceration as well as sentencing options, and prosecuting habeas petitions in a timely and effective manner.
The misdemeanor public defenders were alleged to be handling an average of 1,045 cases each per year, where national public defense standards required an attorney to handle no more than 400 misdemeanors per year.  Attorneys representing juveniles were averaging 716 cases per year, where national standards called for a maximum of 200 cases.  And, where national standards mandated no more than 150 felony cases per attorney per year, in Connecticut it was alleged that the average felony caseload per attorney in one court was 271 major felony cases.
For those cases considered to be conflicts, private criminal defense lawyers were hired as “special public defenders” to provide counsel.  These conflict attorneys were paid by the hour in some cases, while others were hired under contracts that provided a single flat fee per case regardless of the amount of time and work required.  The complaint alleged that these hourly rates and flat fees were so low that they created a disincentive for the attorneys to provide effective defense services meeting minimum standards of representation.
The Rivera complaint exhaustively detailed the many ways in which Connecticut’s public defense system was, in the late 1990s, failing to fulfill its obligation to clients.  During the four years following the lawsuit being filed, the State made significant changes to the right to counsel system.  Connecticut provided funding to hire an additional 80 attorneys and support staff; increased special public defender compensation rates; substantially revised the methods of evaluating and overseeing attorneys’ work; and improved the quality of training; among other improvements. Importantly, the State agreed to stringent caseload guidelines, for example no more than 75 major felonies per attorney per year, with death-eligible cases counting as 10 felonies.  In light of all these improvements, the parties entered into a settlement agreement in 1999 that dismissed the litigation.
From 1999 up until these most recent staffing cutbacks, Connecticut’s Division of Public Defender Services has been considered to meet the basic requirements of the Sixth Amendment, as measured by compliance with the American Bar Association’s Ten Principles of a Public Defense Delivery System.  The Division is governed by the seven-member Public Defender Services Commission. The Commission sets policies, appoints all of the Division personnel including the chief public defender, and oversees compensation.  The Division, led by the Chief Public Defender in Hartford,  provides attorneys to indigent clients in death penalty cases at the trial level; appeals; habeas corpus; juvenile post-conviction and reentry; and mental health (representation of persons facing involuntary commitment to a state mental health facility); in addition to juvenile delinquency cases and adult felonies and misdemeanors.   There is a branch public defender office in each of the state’s 13 judicial districts.  Conflict cases and cases that would exceed the allowable caseload limits of public defenders are handled by private attorneys, still known as Special Public Defenders, who are overseen by the Director of Special Public Defenders.
The Division of Public Defender Services has: independence (ABA Principle 1); the active participation of the private bar (Principle 2); early appointment of counsel (Principle 3); attorney qualification standards (Principle 6); continuous representation (Principle 7); and, a system of training and supervision (Principles 9 & 10); among others. And, the Connecticut public defenders have continued to have firm limits on the number of client cases they can undertake in a given year (Principle 5), as a direct result of the Rivera v. Rowland lawsuit.
As the Boston Globe story correctly points out, the budget cuts mean that Connecticut “public defenders’ caseloads are already at or above state guidelines set in 1999 in response to [the Rivera] lawsuit that said the public defender system was so overwhelmed that it could no longer fulfill clients’ constitutional rights to an adequate legal defense.”  The harm caused by cutting indigent defense funding is not some theoretical debate about whether an individual attorney can handle 75 or 150 or 271 cases.  The true harm is done to clients, crime victims, and taxpayers alike when our criminal justice systems fail to ensure an effective right to counsel that produces just and reliable outcomes.  
Each client is constitutionally entitled to be represented by a public defense attorney who has sufficient time and resources to provide the minimum obligations of effective representation.  In over-simplified terms, this means the attorney is able to: meet and interview the client; prepare and file necessary motions; receive and review the prosecutions responses to motions; conduct a factual investigation, including locating and interviewing witnesses, locating and obtaining documents, locating and examining physical evidence; perform legal research; conduct motion hearings; engage in plea negotiations with the state; conduct status conferences with the judge and prosecutor; prepare for and enter a plea or conduct the trial; and prepare for and advocate at the sentencing proceeding when there is a guilty plea or conviction following trial.  These obligations, owed by each criminal defense attorney to each individual client, are explained in detail in the national criminal defense performance standards.  
Each attorney in Connecticut’s public defense system represents numerous clients, all at the same time, but the attorney owes the same full set of duties to each one of those clients.  This is why, in May 2006, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 06-441, stating that “[a]ll lawyers, including public defenders, have an ethical obligation to control their workloads so that every matter they undertake will be handled competently and diligently.”  If an attorney does not have any time and resources remaining to dedicate to the next client’s case, then the attorney must not take that next case.  And, this is why national standards, as reflected in ABA Principle 5, require that the public defense system must control the workload of each attorney within the system and of the system overall.  This ability to control the workload of each public defense attorney -- an ability that has been firmly in place for over a decade -- is currently in jeopardy in Connecticut.  The ACLU is monitoring the situation.
* While Connecticut created the first statewide public defender system in 1917, the system did not provide full services in all right to counsel cases until after the Argersinger decision. The Rhode Island Public Defender was created in 1941 when the Rhode Island General Assembly passed P.L. 1941, ch. 1007. It is believed to be the first statewide full service public defender office established in the United States. 

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