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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). - PowerPoint PPT Presentation
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2013 FEDERALCRIMINAL 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)
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.”
Ohio Caseloads Continue to Grow
1999 – 269,854 cases
2004 – 392,625 cases
2012 - 411,657 cases
Two Components to Meet Gideon’s Promise
Structure
Funding
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
Workload – Some PDs 1000 misdemeanors
per year
Equals less than 1.4 hours per case
Independence ABA Ten Principles
Independence is listed first . . . For a reason
Without independence a lawyer can never be fully dedicated to the client.
Court Appointments Judge Picks Attorney
and approves the Pay.
Appearance of Impropriety – Nevada Supreme Court; Austin, Texas.
Strickland v Washington Decision undermines
the right to counsel
Drunk Asleep Openly racist
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
No Counsel Courts “You don’t want a lawyer, do you?”
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
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
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)
II. Funding Resource Inequities
Pay Inequities
Federal Grants to Police and Prosecutors
Low Level Crimes
Resource Inequities
Facilities
Experts
Investigators
Forensic Testing
Ohio Indigent Defense Expenditures – User Pays
1999 – $62,809,925
2012 – $126,180,010
GRF - $26,797,386
GRF - $5,586,314
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
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)
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)
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)
Federal GrantsGAO 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.
Clarence Earl Gideonacquitted after representation by a lawyer on retrial
Contact Info
TIM YOUNGState Public Defender
Office of the Ohio Public Defender250 East Broad Street - Suite 1400
Columbus, Ohio 43215-2998www.opd.ohio.gov
(614) 466-5394
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