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Criminal Justice

Should defendants without court-appointed lawyers be released? Should charges be dropped? Judge weighs remedies

By Debra Cassens Weiss

January 27, 2025, 3:06 pm CST

A Maine judge is considering how to remedy the state’s failure to provide lawyers to indigent defendants on a timely basis.

The American Civil Liberties Union of Maine is urging Judge Michaela Murphy of Kennebec County, Maine, to order the Maine Commission on Public Defender Services to provide counsel from the time that a defendant is charged. Murphy should give the organization 30 days to come up with an implementation plan, the ACLU said.

Defendants without a court-appointed lawyer after seven days should be released from jail, and those without a lawyer after 45 days should have their charges dismissed until a defense lawyer is available, the ACLU argued.

The Portland Press Herald (in stories here, here and here) and Maine Public Radio have coverage.

Murphy ruled Jan. 3 that Maine is violating the Sixth Amendment rights of criminal defendants who remain unrepresented after arraignment or first appearances. The judge had a three-day hearing focusing on remedies that ended Friday.

The state is arguing that remedies for the late appointment of a lawyer could be handled on an individual basis.

When Maine adopted a full-time public defender system in 2022, it was the last state to do so. But the state still has a hybrid system in which it relies on private attorneys to handle much of the work, the Portland Press Herald explains. The state also has a “lawyer of the day” program in which temporary lawyers represent defendants for their first court appearance when a permanent lawyer can’t be found.

In testimony on remedies, Walter McKee, an experienced criminal defense lawyer, said it was important to have permanent legal representation early in the case, according to Portland Press Herald.

“These are processes that are important to be dealt with, right from Day 1,” McKee said. “Law enforcement has had a significant amount of time to investigate and follow up. They’re way ahead of the defendant. Those delays are significant, right from the start.”

The ACLU case is State of Maine v. Robbins.

See also:

Defenseless: Lack of public defenders creates a crisis for indigent clients and increased caseloads for lawyers

Federal judge orders release of county’s unrepresented defendants, says problem is ‘complete tragedy’

Citing ‘Sixth Amendment nightmare,’ 9th Circuit allows pretrial release of defendants without lawyers

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3. DC Circuit allows trespassing charge used…

Criminal Justice

DC Circuit allows trespassing charge used to prosecute more than 1,400 Jan. 6 defendants

By Debra Cassens Weiss

October 23, 2024, 1:39 pm CDT

Prosecutors don’t have to show that a Jan. 6, 2021, trespassing defendant was aware that the U.S. Capitol grounds were restricted because of the presence of then-Vice President Mike Pence, a federal appeals court ruled Tuesday.

The federal trespassing charge at issue has been used in the prosecutions of more than 1,400 Jan. 6 defendants, Politico reports. About 95% of the Capitol riot defendants were charged under the law, according to Reuters.

The federal law bans unauthorized members of the public from entering safety zones that protect people guarded by the Secret Service.

The defendant, Couy Griffin, is the founder of Cowboys for Trump. He led a group of Capitol protesters in prayer, according to briefs cited by Law.com. He was convicted for knowingly entering a restricted building or grounds.

Griffin had argued that he did not “knowingly” violate the law because there was no showing that he knew that the area was restricted because of the presence of Pence, a Secret Service protectee. The U.S. Court of Appeals for the District of Columbia Circuit disagreed in a 2-1 decision.

“We hold that knowingly breaching the restricted area suffices, even without knowing the basis of the restriction—here, the presence of Vice President Pence at the Capitol on Jan. 6,” wrote Judge Cornelia Pillard for the majority.

Pillard is an appointee of former President Barack Obama. Judge Gregory Katsas, an appointee of former President Donald Trump, dissented.

The majority’s interpretation “ensnares a hotel guest who walks past an ‘area closed for private event’ sign in search of an open bar if, unbeknownst to the thirsty interloper, the first lady is expected to attend,” Katsas said. “Likewise, it ensnares an individual who stepped over temporary plastic fencing just outside the Capitol grounds on Jan. 5, 2021, to save a few steps on a walk home from work, even if he was unaware of the impending arrival of the vice president.”

The U.S. Supreme Court is more likely to agree to hear the case given Katsas’ dissent, according to Politico.

A CBS News review has found that hundreds of Jan. 6 defendants have been accused of assaulting members of law enforcement during the attack on the U.S. Capitol. Former President Trump’s comments praising them as “patriots” and calling them “hostages” have some police officers and Homeland Security analysts concerned. Scott MacFarlane reports.

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3. Only 1 out of 5 defendants in this Mississippi…

Sixth Amendment

Only 1 out of 5 defendants in this Mississippi county get court-appointed lawyers before indictment

By Debra Cassens Weiss

February 27, 2024, 8:22 am CST

The right to counsel is “tenuous” in a small Mississippi justice court in Yalobusha County, Mississippi, where two judges appointed lawyers for felony defendants in only 20% of the cases opened in 2022, according to an investigative report.

Experts estimate that the national rate of lawyer appointments is 80% in felony cases, at some point in the legal process, according to the article by the Marshall Project, which was produced in partnership with the Northeast Mississippi Daily Journal and ProPublica.

Felony defendants make their first appearance in justice court or municipal court in Yalobusha County, where judges are tasked with evaluating whether the defendant can pay for a lawyer and to appoint one if necessary. A review of court files in the county found 63 cases in which defendants appeared before a justice court judge in 2022. Two cases were excluded because it was unclear whether a listed lawyer was appointed or hired.

The appointment rate in the remaining cases was 20%. In 61% of the cases, the defendant had no attorney, whether privately hired or publicly funded, the article reports.

The cases move to a circuit court after an indictment. Out of 15 cases now in the circuit court that were initiated in 2022, only four defendants received appointed lawyers in justice court. Thirteen defendants got court-appointed lawyers in the circuit court, the article reports.

The two justice court judges, Judge Trent Howell and Judge Janet Caulder, did not comment on their appointment rates to reporters working on the investigative report.

Caulder said, however, that she tells defendants about their right to a lawyer. But she doesn’t ask whether they can afford one, and she doesn’t appoint one unless they request it.

“I don’t question them. I don’t try to force indigency on them,” she said.

Howell said he has a duty to spend taxpayer money wisely. He is more likely to appoint a lawyer if a defendant is in jail, he said. In one case in which a woman accused of shooting and wounding her stepfather, Howell said, “She just didn’t strike me as an indigent person.”

“Mississippi is among the worst states in the country in providing attorneys for poor criminal defendants,” the article reports. “It’s one of a handful of states where public defense is managed and funded almost entirely by local governments, and the way they do so varies greatly from county to county. Defendants in some places see appointed lawyers quickly and remain represented thereafter; elsewhere, sometimes right over the county line, defendants can wait months just to see a lawyer or can go long periods without having one at all.”

The Mississippi Supreme Court has issued several rules intended to improve the process.

“But it is up to locally elected judges to carry out those mandates, and there’s no oversight to make sure they’re doing it right,” the article reports.

Lisa M. Wayne, executive director of the National Association of Criminal Defense Lawyers, told the Marshall Project that Mississippi is an outlier.

“We don’t hear from many places other than Mississippi of judges simply ignoring or deferring the question of whether the right to counsel applies,” Wayne said.

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3. Prosecutors are ‘quitting in droves,’ and…

Prosecutors

Prosecutors are ‘quitting in droves,’ and it’s bad news for defendants, law prof says

By Debra Cassens Weiss

January 26, 2024, 8:57 am CST

Prosecutors are “quitting in droves,” while the offices that employ them are getting a fraction of the applications that they have in the past, according to a law professor who studied the problem.

Vacancies in prosecution offices are higher than 15% in Houston and Los Angeles; higher than 20% in Fort Lauderdale, Florida, and Detroit; at 25% in Alameda, California; and at 33% in Miami.

Adam Gershowitz, a research professor at the William & Mary Law School, provided those statistics in a Slate article and a paper posted at SSRN.

Some vacancies may be due to the “George Floyd effect,” according to Gershowitz. Floyd, a Black man, died in Minneapolis in May 2020, while a police officer pinned him to the ground and pushed a knee into his neck. Since then, more law students favor jobs as public defenders than as prosecutors, Gershowitz said.

The result has been plummeting job applications at prosecution offices. Also discouraging applicants are huge caseloads made worse by COVID-19 pandemic backlogs; low pay that is typically at about $70,000 for entry-level positions; the lack of remote work; and time-consuming discovery obligations stemming from technology, such as police body cameras and video footage.

Vacancies are also a problem when progressive prosecutors are elected and those in their office leave because of policy disagreements. And fewer people are available to apply because of a decline in the number of law school graduates and the percentage of people passing the bar during the pandemic.

The number of prosecutor applicants in Miami-Dade County, Florida, for example, had decreased to 300 people per year in 2023. A top prosecutor in the office told Gershowitz that in 1991, when he was hired, there were 2,000 applicants for 23 job openings.

In Colorado’s 17th Judicial District, north of Denver, the district attorney sought to fill 10 job openings in August 2021. He received only one or two applications, and all the positions were still unfilled in March 2022.

The vacancies “are actually bad news” for criminal defendants, Gershowitz wrote.

Overworked prosecutors will take longer to recognize when a defendant is innocent, have less time to screen cases to send to drug court, and have less time to determine which defendants are less culpable and deserving of a favorable plea deal.