Illinois adopts a "civil Gideon" pilot program

The Chicago Daily Law Bulletin is reporting today that Gov. Patrick J. Quinn has signed legislation that will make Illinois the second state in the nation to offer court-based legal counsel in some civil cases. The measure goes into effect immediately although the program is only in a pilot stage. For now, the program is technically in its pilot phase, so court-provided civil attorneys will be limited to one circuit court in each of the five appellate districts.

Yale Law Journal Symposium on Right to Counsel Fifty Years after Gideon v. Wainwright

The Yale Law Journal's final issue of the academic year is a thorough symposium called: "The Gideon Effect - Rights, Justice, and Lawyers Fifty Years After Gideon v. Wainwright." It is over 600 pages of articles by 25 leading authors. It is available in print and also for Kindle (Amazon) and Nook (Barnes & Noble) devices.

One of the articles is by a friend on mine, Bruce Green, a professor of legal ethics at Fordham University School of Law.  His article is called Gideon's Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?  Here is the abstract:

In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the right to a defense lawyer — a right that is fundamental to a fair trial and to avoiding wrongful convictions and which most states had already recognized as a matter of state law by the time Gideon was argued. Although Gideon was special, there have been recent Supreme Court criminal cases in which progressive government lawyers might similarly have supported recognition of the procedural right in issue. This Essay identifies philosophical, practical, and political reasons that might explain government lawyers’ unwillingness to take the defense side on questions before the Court, but argues that these rationales are not entirely convincing. The Essay concludes that, consistent with their duty to seek justice, government lawyers should play a stronger role in promoting criminal procedural fairness by occasionally serving as Supreme Court amici on the defense side.

Would U.S. legal ethics rules prevent a U.S. lawyer from advising Snowden on where he could go to minimize the chance of extradition and how to get there with least risk of capture?

Would U.S. legal ethics rules prevent a U.S. lawyer from advising Snowden on where he could go to minimize the chance of extradition and how to get there with least risk of capture? Go here for a discussion on the issue.

The Atlantic: "What is the most important Supreme Court case no one's ever heard of?"

The Atlantic Magazine asked a number of "experts" (law professors, lawyers, judges, authors, etc) for their opinion on the most important, yet not widely known, Supreme Court case.  Their responses are very interesting and you can read them here.  One author picked Strickland v. Washington, stating that

Decided in 1984, Strickland v. Washington created a procedural rule that makes it virtually impossible for a criminal defendant to successfully argue that he or she has been denied the “effective assistance” of counsel—and thus the Sixth Amendment right to a fair trial. The ruling is directly responsible for thousands of Americans’ incarceration after trials in which their lawyers drank, or were using drugs, or were sleeping, or were otherwise clearly incompetent.

More comments on the state of access to representation in criminal cases

As you probably remember this year we are celebrating the 50th anniversary of Gideon v. Wainwright, the case that recognized the right to counsel in criminal cases and the state of access to counsel by indigent defendants. I have posted on some of the many comments on the state of access to representation here, here, and here. 

Unfortunately,  much coverage focuses on the unfulfilled promise of access to representation.  (I also reported (here) on the possibility of a lawsuit against the state of Utah for its failure to provide funding for legal representation of the poor.)

Adding his voice to the chorus, Paul Butler, a professor of law at Georgetown University and a former federal prosecutor, has published an Op-Ed piece in the New York Times in which he argues that "fifty years after the Supreme Court, in Gideon v. Wainwright, guaranteed legal representation to poor people charged with serious crimes, low-income criminal defendants, particularly black ones, are significantly worse off."  You can read his full editorial here.


Thanks to George Conk for the link.

Utah may be facing a lawsuit for failing to provide legal defense for indigent defendants

According to a story in the San Francisco Chronicle, available here, the state of Utah could be vulnerable to a lawsuit for falling short on its role to provide legal defense for poor people because it is one of only two states that does not fund or provide oversight for its system to supply defense attorneys to those who can't afford them. Thanks to the Legal Ethics Forum for the link.

Even more comments on the right to counsel

 A few days ago I posted a few links to articles commenting on the 50th anniversary of the case that recognized the right to counsel in criminal cases and the state of access to counsel by indigent defendants.  Unfortunately, as I said in my previous post, much coverage focuses on the unfulfilled promise of access to representation.  Here are a few more links: 

ReligiousLeftLaw:  The 50th Anniversary of Gideon v. Wainwright

The PopTort:  Gideon, Legal Aid and Contingency Fees

Blog of the Legal Times:  Kagan, Holder Address the Five Decades Since Historic Gideon Decision

The Huffington Post: Gideon v. Wainright 50th Anniversary: Serious Problems Persist In Indigent Legal Defense

More comments on the state of the right to counsel

A few days ago I posted a link to an editorial in the NY Times on the state of the right to counsel (here).  As we celebrate the 50th anniversary of the case that recognized the right to counsel in criminal cases, a few other comments on the subject have been published.  Sadly, the common theme in all of them is that even though there is a right to counsel, poor defendants still have inadequate access to representation.  The New York Times published an article called Right to Lawyer Can Be Empty Promise for the Poor.  Meanwhile, NPR featured  a segment called 50 Years After Key Case, Problems Defending The Poor Persist.

NY Times: The Right to Counsel, Badly Battered at 50

A couple of days ago, The New York Times published a good editorial on the state of the right to counsel.  It starts:

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge. The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.” The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.” 

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency. 

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases. This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

 You can read the full article here.

Obama administration drops attempt to regulate the representation of Guantanamo detainees

Back in September, I wrote about the Obama administration's attempt to interfere and regulate the representation of Guantanamo detainees. See here. Some time later, a federal court refused to go along. See here. Now comes news the administration has dropped its appeal. Go here for the full story.

UPDATE 11 pm: The SCOTUS Blog has more on the story here.

Judge rejects government's request to change rules on attorney/client communications at Guantanamo

A few days ago I reported that the US District Court for the District of Columbia held a hearing regarding a challenge to new restrictions on lawyers representing Guantanamo Bay detainees. The new restrictions would require in some cases that a lawyer sign a "memorandum of understanding" to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer.  My original post, which has links to the memorandum and other sources, is available here.

Yesterday, however, in what has been called "a strong rebuke against the government," the judge in the case refused to change the rules that have long governed communication and meetings between Guantanamo Bay detainees and their lawyers.  The judge's opinion is available here.  He agreed with the detainees' counsel, calling the government's effort to modify existing rules an "illegitimate exercise of Executive power."

For more on the story go to the Blog of the Legal Times and the SCotUS blog.

UPDATE 1:22 p.m.: For more go to the Jurist, The New York Times and How Appealing, which has links to eigth different articles on this. 

Court considers changes to rules regarding representation of detainees at Guantanamo -- UPDATED

Last Friday, the US District Court for the District of Columbia held a hearing regarding a challenge to new restrictions on lawyers representing Guantanamo Bay detainees who have had their habeas corpus challenges denied or dismissed. Reportedly, lawyers for detainees argued they are concerned that the federal government is moving to "hamstring" the rights of detainees at the Guantanamo Bay detention center.  According the reports, Chief Judge Royce Lamberth expressed skepticism about the new restrictions, which in some cases require a lawyer to sign a "memorandum of understanding" (MOU) to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer. A copy of the MOU is available here.  For more (and more links) on this story go the the Jurist and the Blog of the Legal Times.

UPDATE (8/20):  There is another article on the subject in the SCotUS blog.

Minnesota Supreme Court holds defendant is entitled to due process in the process of waiving right to counsel

This would seem to be obvious but here is a new case from the Minnesota Supreme Court holding that a defendant is entitled to (and in this particular case was denied) appropriate due process protections in the process of waiving the right to counsel.  The case is called Minnesota v. Krause.  For more on the story go to the Legal Profession blog.

Washington Supreme Court Adopts Standards for Indigent Defense

The Legal Ethics Forum is reporting that  the Supreme Court of Washington has adopted new standards for indigent defense.  Go here for the details.

Should state guarantee counsel for indigent parents in abuse and neglect proceedings?

For decades poor parents in New Hampshire were provided lawyers if they could not afford them, but funding was cut during the last legislative session.  The issue is now before the state's supreme court and the First Amendment Center is reporting today that the oral arguments on whether indigent parents have a right to court-appointed counsel in abuse and neglect proceedings will be open to the public.  Unfortunately, I don't have the name of the case or any more information.

NYT editorial criticizes Obama administration policy on extrajudicial killing

I have been following the critical reaction to the very problematic argument that the Obama administration has inherent (and pretty much absolute) power to order extrajudicial killings.  See here, here and here. 

Today, the New York Times added its voice to the debate.  It criticizes Obama's position in an editorial that starts by stating that "President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability."  Go here to read the full text.

More comments on Obama administration's policy on extrajudicial killings

A few days ago, I wrote about the Attorney General of the United States' speech in which he tried to explain why it would be OK for the President to order someone to kill you without having a trial or even having charged you with any crime. (See here and here).  Today Johnathan Turley is reporting here that FBI Director Robert Mueller declared before Congress that he simply does not know whether the current policy would allow the killing of citizens in the United States.  Go here for more.

Another comment on Eric Holder's speech

Yesterday I wrote about Eric Holder's speech on the Obama administration's policy on extrajudicial killing.  Professor Jonathan Turley published a longer comment on the subject today which you can read here.

Eric Holder on why it is OK for the President to order someone to kill you

The Attorney General of the United States spent a little time trying to explain why it would be OK for the President to order someone to kill you without having a trial or even having charged you with any crime. But, Jonathan Turley explains, at least "Holder promised not to hunt citizens for sport."

Kevin Underhill takes the speech apart in a piece in Forbes and then again in Lowering the Bar, where he writes, in part that:

The lowlights of the speech, I think, were Holder's promise that no citizen would be blown up unless the government had determined (among other things) "that the individual poses an imminent threat of violent attack against the United States," and his somewhat unusual definition of "due process."

First, it turns out that "imminent" doesn't mean what you think it means (or what the dictionary thinks it means). Rather, the concept "incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States." If you see anything in there that has to do with being "imminent," please let me know. The "future" is a big place, and just because something might be in it does not make that thing "imminent."

Second, Holder did promise that nobody would be killed without "due process." Comforting! But no! Because this also doesn't mean what you think it means. "'Due process' and 'judicial process' are not one and the same," Holder said, "particularly when it comes to national security. The Constitution guarantees due process, not judicial process." Oh. So what process are we due? Executive process. But have no fear, you won't be put on a death list without a "thorough and careful review" of the (secret) evidence against you by the Executive Branch, Holder basically promised. So there's really no need to get those other branches involved. Let's just keep this between us.

Here is a video of the speech.

Obama proposes budget increase for Legal Services but it is still less than what the agency says it needs

A couple of weeks ago I reported that last November the federal government enacted a bill that slashed federal funding for civil legal assistance to the poor by about 14% — from $404.2 million to $348 million, which is the lowest level since 2007.

Today, the blog of the Legal Times is reporting that President Obama has urged Congress to give the Legal Services Corp. $402 million for fiscal 2013, which is a 15.5% increase from the current $348 million budget.

If approved, that would be the good news.  The bad news is that the new budget would still be $68 million under  the budget proposed by the LSC, the independent agency that provides civil legal aid to the poor.