Hawaii Opens Public Defender Program To Out-Of-State Lawyers

 In a unique move, to deal with the dire need for public defense lawyers, Hawaii has announced a new pilot program to allow out of state lawyers (not licensed in Hawaii) to work in Hawaii public defender’s office, the Hawaii attorney general’s office or county prosecution offices.  To apply for limited admissions to practice in one of those offices, lawyers must have an active license from another state, must have graduated from an ABA accredited law school and must be in good standing. The two year program starts next week, on August 14.

For more information go to the ABA Journal or Above the Law.

Money for court-appointed federal criminal defense lawyers is depleted; some lawyers leave program

 This is not good news.  The ABA Journal is reporting that money for court-appointed federal criminal defense lawyers is depleted and that some lawyers leave program.  You can read the story here.

New trial ordered for criminal defendant after attorney failed to provide effective assistance of counsel and failed to seek to suppress evidence

 Here is an interesting fact scenario.  A criminal defense lawyer does not effectively represent a suspect during a police interview, and the police obtains information useful to the prosecution.  The lawyer then realizes that he should try to fix the problem but doing so would require him to file to suppress evidence from that interview on grounds of ineffective assistance of counsel.  But this would mean the lawyer has to admit their own ineffective assistance which would be self-incriminating (and would probably require the lawyer to testify in a fact finding hearing).  So the lawyer does not file to suppress the evidence and continues to represent the defendant.  After the defendant is convicted, represented by a different lawyer, the defendant asks for the conviction to be overturned.  What should the court do?

In a recent case with similar facts, the Massachusetts Supreme Court upheld an order for a new trial. Go here to read about the case and access a link to the opinion.  The Legal Profession Blog has a summary and some key passages here.

Brady violation allegation leads to dismissal in case against Alec Baldwin

As reported in The Guardian (here), "Alec Baldwin’s involuntary manslaughter trial came to a dramatic end on Friday, after a New Mexico judge dismissed the case against the actor and found that the state had improperly withheld evidence related to how live rounds of ammunition ended up on the film set where the cinematographer Halyna Hutchins was fatally shot.  Just days after courtroom proceedings had begun, Judge Mary Marlowe Sommer ruled in favor of the defense and agreed that the charges against Baldwin should be dropped, finding that the state had concealed evidence that would have been favorable to the actor. The dismissal, made with prejudice, puts an end to the involuntary manslaughter case against Baldwin."

Law & Crime has more on the story here.  According to this account, the motions hearing "eventually spiraled into something like a Russian nesting doll of discovery violations" and near the end of the hearing it was revealed that the "first chair" prosecutor — the one who gave the prosecution’s opening statement during the trial — had resigned.

Now the question is whether the prosecutor(s) will have to face discipline for their conduct.  I guess we will have to wait and see.  

MSNBC has more on the story here.

Podcast on the right to an attorney and the role of public defenders in the criminal justice system

 Here is a 50 minute NPR program on the right to an attorney and the role of public defenders in the criminal justice system.

The Marshall Project report on the practice of charging indigent defendants to pay for fees related to representation by state appointed counsel

 I have blogged before about the unfortunate reality that even 60 years after Gigeon v. Wainwright, there are still deficiencies in the process to get access to representation for people who can't afford it. See here, for example, and the section on right to counsel for lots more on the subject.

Today I am writing, unfortunately, to point out a new article in The Marshall Project on how many defendants are getting charged fees to pay for their "free" appointed counsel.  

According to the report, the reality is that legal representation by appointed counsel is rarely free. The Supreme Court has found the Constitution guarantees the right to counsel but allows states, in most cases, to try to recoup the costs and that more than 40 do so, according to a 2022 report by the National Legal Aid and Defender Association.  

The report focuses on the practice in Iowa, which it says takes these efforts to the extreme.  According to their investigation, not only does Iowa impose some of the highest fees in the nation — affecting tens of thousands of people each year — it also charges poor people for legal aid even if they are acquitted or the cases against them are dropped.

Articles on why the allegations against Fani Willis are irrelevant to the criminal case

 If you have been watching the news about the case against former president Trump in Georgia, you know that the defendant has argued the case should be dropped or that the prosecutor should be disqualified because of certain alleged inappropriate conduct. 

The conduct in question should be taken seriously but it is irrelevant to the case in question.

Here are two articles that explain why:

Why Fani Willis Is Not Disqualified Under Georgia Law, in Just Security, by Norman L. Eisen, Joyce Vance and Richard Painter

Defendants in the Georgia election case have no reason to complain — even if the Fani Willis allegations are true, in CNN, by Bruce Green

Was the Army’s first-ever lead special trial counsel fired for urging lawyers to act ethically?

 I recently read a story that, if accurate, is disturbing.  According to the story, published in The Hill, Brigadier General Warren Wells was relieved of his position as the Army’s Lead Special Trial Counsel over a single decade-old email in which he encouraged army lawyers to do their jobs zealously and ethically.  The message, sent back in 2013, encouraged a group of fellow defense attorneys to uphold their duty to represent their clients zealously and read in part, “hopefully a Soldier will be able to get a fair trial. You and your teams are now the ONLY line of defense against false allegations… [y]ou literally are the personal defenders of those who no one will now defend, even when all signs indicate innocence.”

Maybe I am missing something - after all, this is a story that flew under my radar - but it seems to me that this is what we expect, and should expect, from all lawyers - particularly criminal defense lawyers, and, therefore, that getting fired over this message sends a wrong impression about what is important to the leaders of the military justice system.  

Sixty years After Gideon v. Wainwright, there still a need to bridge the gap in access to justice

 This year marks six decades since the landmark Supreme Court ruling in Gideon v. Wainwright, in which the Supreme Court held that states must provide counsel to people who cannot afford an attorney in criminal cases.  The principle was later extended to cover misdemeanor charges and delinquency proceedings.  Yet, as discussed in a recently published short article in The Hill, there is no question that access to public defense in the United States remains elusive and unequal.  You should read the article here.

Sadly, this is not the first time I post this exact same sentiment.  Ten years ago the same issue was discussed in various articles "celebrating" the 50th anniversary of the decision in Gideon.  I posted comments here, and here.

Recent study in Ohio finds nearly 100 prosecutors who were found to have violated their duties, but none were sanctioned

NPR has published a long, disturbing article, titled "Ohio prosecutors broke rules to win convictions and got away with it" (see here) detailing the results of a study that found that state courts determined that about 100 prosecutors across Ohio had violated standards meant to preserve a defendant's civil rights in criminal trials and yet the state Supreme Court has not imposed sanctions on any of them.  The study also found, among other things, that (1) most misconduct resulted from failing to disclose evidence and making inappropriate comments in closing arguments, (2) in nearly 80% of the cases, the misconduct was ruled not egregious enough to warrant a reversal, (3) none of the prosecutors involved in repeated improper-conduct cases was sanctioned by the Ohio Supreme Court and (4) all of the prosecutors found to have repeatedly acted improperly have continued to practice as attorneys, with some moving into more powerful positions, including two who became judges tasked with ensuring fair trials.

You should read the full article here.  

Illinois doubles its compensation for lawyers appointed to represent indigent parties

Citing its commitment to improving access to justice for all and especially indigent parties, the Illinois Supreme Court announced last week an amendment to Supreme Court Rule 299 regarding compensation for attorneys appointed to represent indigent parties. Amended Rule 299 doubles compensation for an attorney appointed by a court to represent an indigent party to $150 per hour (from its previous minimum of $75 per hour) and $150 per hour for time reasonably expended out of court (from its previous minimum of $50 per hour).  More on the story here, here and here.

Justice Says Mississippi Court Rule to Give Poor Defendants Lawyers Isn’t Working And there isn’t much the court can do to enforce it

 Justice says Mississippi court rule to assign lawyers to poor defendants isn't working and there isn’t much the court can do to enforce it.  The Marshall Project has the story here.

Courts in two separate cases in Louisiana deny motions to dismiss in cases against prosecutors for wrongful convictions

A federal judge recently denied the New Orleans District Attorney’s motion to dismiss a wrongful conviction claim by a man who spent 26 years in prison for murder based on the acknowledged unconstitutional suppression of favorable evidence by prosecutors under a former D.A.  You can read the ruling here.

Meanwhile, in another case, a federal court declined to dismiss a former criminal defendant’s misconduct claims against a prosecutor after the man was freed from 44 years spent in prison for two rapes he did not commit. The prosecutor allegedly fabricated a police report to defeat the former prisoner’s alibi, behavior that would be excepted from prosecutorial immunity.  You can read the ruling here. 

Things keep getting worse and worse for Rudy Giuliani: two of his lawyers withdraw (or try to) from his representation in Georgia

Oct 4, 2023

If you have been following the news, or this blog, you know that things are getting pretty desperate for Rudy Giuliani, (see here, and here, for example) and they just got worse in the past few days.  Here is the latest:

Last month, Giuliani's former lawyers in one of his many ongoing cases sued him for nearly $1.4 million for outstanding legal bills.  See here.

Last week, the judge overseeing the RICO case in Georgia in which Giuliani is one of 19 defendants, granted a motion to withdraw filed by one of Giuliani's lawyers.

Yesterday, a second lawyer representing Giuliani in that case filed a motion to withdraw.  See here.  If that motion is granted, the Giuliani will be left without a Georgia based lawyer in the case.  The only lawyer left would be a New York-based lawyer.  I don't know if there is a requirement that a defendant must have local counsel to "sponsor" the out of state lawyer.  If so, it is possible the judge will deny the motion to withdraw.  We'll have to wait and see.

It was also reported this week that Hunter Biden has sued Giuliani.  See here and here.

But Giuliani is fighting back.  He denies that he has a drinking problem.  See here and here.  And he has filed a defamation lawsuit against President Joe Biden for calling him a “Russian pawn” during a presidential debate nearly three years ago.  See here and here.   Given everything else, this strikes me as a desperate move, which I predict will be dismissed promptly because the court will find that the statement is political speech, and rhetorical hyperbole or a statement of opinion.  The more interesting question is whether the court will also find that the claim is frivolous and impose sanctions, which will, again, make things even worse for Giuliani.  Someone should remind him he is already in a big hole, and should stop digging.

UPDATE 10-5-23:  MSNBC has a short comment on the most recent news here.

Former Assistant District Attorney: "Trump’s newest lawyer John Lauro seems confused about what his job actually is"

 In an interesting, short, Op-Ed piece, Glenn Kirschner, a former assistant U.S. attorney for D.C., writes about John Lauro, Trumps newest attorney who has been making appearances on TV all over the place.  Kirschner argues that Lauro is "confused about his job" because he has taken the position that he is representing "the American people" by representing Trump.

You can read the article here.

One interesting question I have that is not mentioned in the article, though, is at what point do Lauro's comments to the press violate a rule like Model Rule 3.6?

The rule states that a "lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

Everyone knows that it is "standard procedure" for lawyers in high profile cases to talk to the press; but everyone also knows that the efforts here are to "try the case in the court of public opinion" (ie, to influence the jury pool with misleading arguments and facts or alternative facts that may or may not make it to the trial).

If that is the case, isn't the conduct likely to be materially prejudicial to the administration of justice?

Federal public defenders warn budget cuts may threaten their ability to represent clients

 NPR reports that federal public defenders warn budget cuts may threaten their ability to represent clients. Go here for the full story and here for a short audio report on the story.

Mississippi says poor defendants must always have a lawyer, but few courts are ready to deliver

A rule requiring poor criminal defendants to have a lawyer throughout the criminal process took effect last week.  The Marshall Project has the details on the story here.

Mississippi Supreme Court rules that the state's public defender system must be fixed to prevent defendants from spending unreasonable amounts of time before indictment

Poor defendants in Mississippi are routinely jailed for months, and sometimes even years, without being appointed an attorney due to the state’s inadequate public defender system. The Mississippi Supreme Court now says this practice must end.  The state’s highest recently rules that criminal defendants who can’t afford their own attorney must always have one before an indictment.  You can read the opinion here and a comment on the opinion here.

Sixty years since Gideon v. Wainwright, defendants still face obstacles in their right to an attorney

Last week we celebrated the 60th anniversary of the decision in Gideon v. Wainwright, which recognized that defendants accused of serious crimes have the right to get an attorney appointed by the state.  

Yet, the celebration of the landmark case and the right it recognized is often hard to vindicate because of the obstacles faced by public defenders.

This unfortunate reality was highlighted in a couple of articles this week:

You have the right to a lawyer, but public defenders note a lack of resources, respect (NPR)

Reframing the Indigent Defense Crisis (The Harvard Law Review Blog)

NY Times editorial criticizes lack of accountability for prosecutorial misconduct

 About three weeks ago I reported that the organization "Accountability New York" filed a lawsuit in federal court in Manhattan arguing that the basis for the city’s pushback against the organization's work to hold prosecutors accountable for misconduct was unconstitutional.  See here. 

The issue has not gone unnoticed.  Two days ago, the New York Times published an editorial critical of the City's position and of the lack of accountability for prosecutorial misconduct in general.  It also suggests that the Justice Department’s office of professional responsibility needs an overhaul.  You can read the article here. It is called "How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?"