[Vision2020] The Nation's Public Defender Crisis: Idaho Makes Progress on Standards and Funding

Ted Moffett starbliss at gmail.com
Fri Apr 1 19:03:54 PDT 2016

Another important principle in the justice system that should be addressed
if we are to truly have a "Justice" system and not a system often dominated
by prosecutors who view winning rather than justice as their main goal, is
embodied in the SCOTUS *Brady v. Maryland*, 373 U.S. 83 (1963) decision.
involving due process.  Apparently the Brady decision is not followed
consistently by prosecutors in our justice system; winning, not justice,
often dominates prosecutorial conduct..

The following website offers discussion of this issue:  I pasted in a few
paragraphs, but the discussion beyond that is quite long .  It is dated
Aug. 20, 2015, and I don't know what new legal developments have happened
since then:

Vision2020 Post: Ted Moffett

Supreme Court Should Take Action To Rehabilitate Brady Rule in Georgiou v.
United States


Justice requires that the Supreme Court shore up the foundations of one of
its landmark due process cases, *Brady v. Maryland*, 373 U.S. 83 (1963).
Otherwise, *Brady*, one of the seminal due process cases of the 20th
Century, will be “more honor’d in the breach than the observance.”

In *Brady*, the Court ruled that prosecutors could not hide material
exculpatory evidence from defendants. It is founded on the simple concept
that a fair trial requires that a jury be presented with unbiased evidence,
and the Government cannot, consistent with due process, prevent important
exculpatory evidence from reaching the jury.

Over the years, prosecutors have largely resisted the concept that they
share evidence in their possession that could assist the defense.  This
reflects a fundamentally flawed approach to the criminal justice process –
too many prosecutors view winning a prosecution as the ultimate goal, when
in fact achieving justice – win or lose – is the *sine qua non *of the
criminal justice system of which they are part and parcel.

It is well-known that obtaining exculpatory evidence from prosecutors can
be like pulling their teeth, and it has been documented that the failure to
follow the simple *Brady* mandate is a common occurrence.  The courts,
which are entrusted to assure the *Brady* rule is followed, have been
unduly neglectful of this key oversight role, showing an unseemly
willingness to accept *Brady *violations under a range of rationalizations.

On Fri, Apr 1, 2016 at 12:13 PM, Nicholas Gier <ngier006 at gmail.com> wrote:

> Greetings:
> For those who do not take the Daily News below is my biweekly column. It
> also appeared in the Sandpoint Reader and the Los Cabos Daily News.  It may
> appear soon in the Idaho State Journal in Pocatello.
> I'm grateful to our very own Sunil Ramalingam who led me to the best
> contacts for this column.
> Happy Spring (there are goslings in the new UI Arboretum!),
> Nick
> *The Nation’s Public Defender Crisis*
>             For almost a century the American Civil Liberties Union has
> been in the forefront in protecting the people’s constitutional rights. For
> this column I will focus on the Sixth Amendment, which guarantees full due
> process to criminal defendants and their right to legal counsel.
>             In the 1963 case *Gideon vs. Wainwright* Supreme Court
> rendered a unanimous decision clarifying the right to counsel.  Justice
> Hugo Black wrote that “reason and reflection require us to recognize that
> in our adversary system of criminal justice, any person hauled into court,
> who is too poor to hire a lawyer, cannot be assured a fair trial unless
> counsel is provided for him.”
>             The ACLU has filed suits in Connecticut, Michigan, New York,
> Washington, Idaho, California, and most recently in Louisiana, arguing that
> these states have failed to provide adequate counsel for their indigent
> defendants.
> On June 17, 2015, in its first action against an entire state, the ACLU
> sued Idaho because its public defenders are “under resourced,
> overburdened, and often overworked.” In addition to citing the lack of
> enough investigators and expert witnesses, the ACLU suit also states that
> “our plaintiffs have had to go before a judge for bail hearings, and even
> to enter pleas of guilty and be sentenced, without a lawyer present.” Many
> of them sit in jail because they cannot afford bail.
> In July 2015 the ACLU filed yet another suit against Fresno County, where
> an under staffed public defender office serves 25,000 clients. According to
> an ACLU news release, plaintiff Peter Yepez “did not see a public defender
> until he had spent almost a month in jail. He had nine different public
> defenders between his arraignment and sentencing, some of whom told him
> they did not have time to work on his case and advised him to plead guilty
> despite strong evidence that he was innocent.”
> On January 14 of this year the ACLU sued the City of New Orleans for
> severe deficiencies it its Public Defenders Office, one financed primarily
> by the fines that many of its poor clients have to pay.  Because of the
> crisis, 60 defendants sit in jail without legal representation, and the
> state-wide waiting list has grown to 2,300. In Louisiana and California a
> great majority of these defendants are people of color.
> There used to be ten public defenders in Vermilion Parish, Louisiana, but Natasha
> George is now the only one. District Court Judge Jerome Winsberg
> despairs: “Things were not good before, but they are in a terrible place
> now.” The average public defender caseload used to be twice that of
> national standards, but it is now threefold.
> Returning now to Idaho, the Legislature passed two bills this session.
> One will hold the counties to higher standards for indigent legal
> representation, and it will allow the Public Defense Commission to take
> over the programs of any county that doesn’t meet them.
> The second bill allocates $5.4 million for the Commission, which
> heretofore had no funding at all. It provides $4.3 million for grants to
> counties that meet the new standards. The balance of the funds will go to
> extraordinary litigation, and there is $550,000 to encourage small counties
> to merge their services.
> The bills have had the support of the Association of Criminal Defense
> Lawyers, and the ACLU’s Kathy Griesmyer announced that her organization
> was grateful for the new funding. However, she added: “We will be back here
> advocating for additional dollars as well as reminding folks that this is
> an incremental step in addressing deficiencies in the public defense
> system.”
> Ian Thomson, former Executive Director of the Public Defense Commission,
> is less sanguine: “I would be encouraged if this were a first step towards
> meeting the challenge of our public defense problems, but I fear that this
> may be the last step.”
> Nick Gier of Moscow taught philosophy at the University of Idaho for 31
> years.
> --
> A society grows great when old men plant trees whose shade they know they
> shall never sit in.
> -Greek proverb
> “Enlightenment is man’s emergence from his self-imposed immaturity.
> Immaturity is the inability to use one’s understanding without guidance
> from another. This immaturity is self- imposed when its cause lies not in
> lack of understanding, but in lack of resolve and courage to use it without
> guidance from another. Sapere Aude! ‘Have courage to use your own
> understand-ing!—that is the motto of enlightenment.
> --Immanuel Kant
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