Review of a published court of appeals decision; case activity
Issue (composed by On Point)
Wis. Stat. § 970.038 (2011-12) makes hearsay evidence admissible at a criminal defendant’s preliminary examination and permits the probable cause determination and bindover decision at a preliminary examination to be based “in whole or in part” on hearsay evidence. Do these provisions violate a criminal defendant’s constitutional rights to confront adversary witnesses, compel testimony by favorable witnesses, and have the effective assistance of counsel?
Attorney Marcus Berghahn wrote an On Point guest post about the court of appeals decision and what it means for criminal defendants in Wisconsin courts. So if you’re looking for a terrific, detailed analysis of the issue, click here.
How many misdemeanor cases is too many for one public defender to take in one year? Is it okay to advise a client to take a fantastic plea bargain without having a confidential conversation with him first? What about skipping the investigation of a client’s story? In Wilbur v. City of Mount Vernon, Case No. C11-1100RSL (12/4/13) the Western District of Washington slammed the “meet and plead” public defense systems in place in the cities of Mount Vernon and Burlington. It placed the blame for shabby representation of indigent defendants squarely on the cities’ shoulders.
Mere appointment of counsel to represent an indigent defendant is not enough to satisfy the Sixth Amendment’s promise of the assistance of counsel. While the outright failure to appoint counsel will invalidate a resulting criminal conviction, less extreme circumstances will also give rise to a presumption that the outcome was not reliable. For example, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, if there is no opportunity for appointed counsel to confer with the accused to prepare a defense, or circumstances exist that make it highly unlikely that any lawyer, no matter how competent, would be able to provide effective assistance, the appointment of counsel may be little more than a sham and an adverse effect on the reliability of the trial process will be presumed. Cronic, 466 U.S. at 658-60; Avery v. Alabama, 308 U.S. 444, 446 (1940). Slip op. at 13.
The Court finds that the combination of contracting, funding, legislating, and monitoring decisions made by the policymaking authorities for the Cities directly caused the truncated case handling procedures that have deprived indigent criminal defendants in Mount Vernon and Burlington of private attorney/client consultation, reasonable investigation and advocacy, and the adversarial testing of the prosecutor’s case. The Cities are therefore liable under § 1983 for the systemic Sixth Amendment violation proved by plaintiffs. See Miranda v. Clark County, 319 F.3d 465 (9th Cir. 2003) (finding that county could be liable for constitutional deprivations arising from funding and case assignment policies); Clay v. Friedman, 541 F. Supp. 500, 502, 505-06 (N.D. Ill. 1982) (finding that administrative head of public defender’s office could be liable for non-representative decision-making and that county could be liable for promulgating policies and customs that led to the constitutional deprivation). Slip. op. at 16.
The real story might just be the court’s decision to tell the Cities specifically how to reform the public defense systems at issue. Interesting stuff. Click here for the district court’s decision. See also Plaintiffs’ brief, City’s brief, Amicus brief.
Cuts in public defender programs cause Sixth Amendment violations, says federal judge. Sort of “no duh,” but it’s a big story. Read more here.
Forty two states get an “F” in judicial ethics, according to a new report by The Center for Public Integrity. Guess which side of the line Wisconsin fall on? You guessed right, but we’re by no means the lowest “F” in the class. Click here.
“Remarkable new HRW report details massive ‘trial penalty’ due to mandatory minimums in federal system.” That’s right. Drug offenders who go to trial and lose receive sentences 3 times longer than those who plea bargain. Click here to read more.
High-profile exception to the rape-shield law. James, Winston, Kobe & Florida’s Rape Shields Rule. Here on the Evicenceprof Blog.
“Treating Juveniles Like Juveniles: Getting rid of transfer and expanded adult court jurisdiction.” This is a new article on the subject.
How to build a white-collar criminal defense practice. Not that we want you to stop representing the indigent. No indeed. But you might find this an interesting way to supplement your income.
Have a good weekend.