“Sadly, today the majority holds that the right to effective assistance of counsel guarantees nothing more than the presence of an appointed attorney at counsel’s table . . . .”
Client, ‘I hardly knew ye.’
With that, New Jersey Supreme Court Justice Barry T. Albin began his dissent in a case where the majority upheld the drug conviction of an indigent man who’d only first met his public defender when they spent about 25 minutes in a vacant courthouse stairwell the morning of the trial. And though they met afterward for a second time for half-an-hour, it was to discuss a plea offer — not to strategize about the upcoming motion to suppress or trial.
Justice Albin was especially displeased that his colleagues took the view that efficient docket management trumped “a just trial, affirming a judge’s decision that denied an adjournment to a woefully unprepared appointed attorney who was forced to stumble through a suppression hearing, calling his client without having spoken with him about the case and not calling any witnesses to support his client’s account.” See State v. Terrence Miller (A-35-11) (068558)
So much for the unanimous promise of Gideon v. Wainwright. And the fundamental right of an indigent criminal defendant to essential assistance of counsel to ensure a fair trial. In Gideon, a unanimous U.S. Supreme Court held that the trial and conviction without the the assistance of counsel violated the Fourteenth Amendment.
It’s now been 50 years since U.S. Supreme Court Justice Hugo Black pronounced, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.
“From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”
As news spread about State v. Miller, The criminal defense blogosphere lit up. One anonymous public defender even misdirected his vitriol by tossing f-bombs at the appointed public defender — for not standing up to the judge and risking sanctions for refusing to proceed. This from a guy who understandably blogs anonymously so he can keep his day job without fear of consequence. The caustic blogger also denounced appointed counsel’s “meet and greet practice.”
And then there was the more identifiable pundit Andrew Cohen writing at The Atlantic who also decried the justices for their “cramped interpretation of Gideon.” In addition, he took a shot at the Obama Administration for too much talk — not enough action, giving it “an ‘A’ for candor and ‘F’ for results when it comes to indigent defense.”
And ‘enough already’ with Attorney General Eric Holder and his Justice Department’s dog ‘n pony shows. Talk less and do more to aggressively advance indigent defendants’ “restoration of a reasonable right to counsel,” he wrote.
And while agreeing with Cohen that the ultimate fault lies with the judges, yet another lawyer-blogger took exception — not with Cohen’s critique of the justices or with Holder’s protracted lip-service to Gideon – but with Cohen’s Tweet that “no one stood up for Miller INCLUDING his PD.”
Cohen went too far, wrote Scott Greenfield at the criminal defense blog, “Simple Justice.” He wrongly placed “the burden of being jailed for refusal on the shoulders of the public defender.”
“Unhappy the land in need of heroes.”1
But lost in all the finger-pointing was the fact that except for Justice Albin, there were no white-hatted heroes here.
For one, what of the prosecution? Aren’t prosecutors supposed to hew to a duty to seek justice, not merely to convict? Oh, I forgot, cue the one-handed applause, “The prosecutor did not object to the application for an adjournment.”
And what about the predictable deference reviewing courts give to the trial judge’s abuse of discretion standard? Is it a “rubber stamp”? Unquestionably, it’s the most deferential standard of review.
Appellate Courts review questions of trial court discretion under this standard — but as one commentator famously admonished, an appellate court “would be remiss in [its] duties if [it] chose only to rubber stamp such orders of lower courts.”2
Sure the abuse of discretion standard3 is broad, overly defined and admittedly, even rather confused.4
Is it legal error? Or is it merely the unreasonable, arbitrary or capricious garden-variety exercise of judicial discretion? All the same, it’s the elephant in the room.
To its credit, however, the New Jersey Supreme Court didn’t completely ignore the pachyderm in the parlor. Nevertheless, the majority found no prejudice to Miller’s case from the trial court’s denial of his adjournment motion.
Certainly, they haltingly conceded, “it would have been preferable for the trial judge to have postponed the commencement of the suppression hearing.” But non-postponement didn’t rise to abuse of discretion – “in light of the history of the case, the defendant’s brief meeting with his counsel before the pretrial hearing and the newly-appointed attorney’s representation that he was prepared to proceed.”
Besides, the majority said, the constitutional right to counsel “does not equate to a guarantee of attorney-client rapport.” Backstopping itself with all manner of case authority on “constitutional principles,” the majority explained, “There is, in short, no federal constitutional right to a “meaningful relationship” between a criminal defendant and his or her attorney.”
The knottier problems.
But what about the even larger scale of the indigent defense problem? Those problems encapsulate and extend beyond what happened to Terrence Miller. Yet, they’re infrequently mentioned even by bleeding-hearts with their skivvies bunched up in knots.
For example, when it comes to equal justice for the indigent, what about the overwhelming lack of legal representation accorded misdemeanor defendants in this country? Compared to felonies, there are by some estimates 10 times more of those prosecutions. And this — even though the right to counsel applies in those cases, too, since defendants also face possible jail time.
And what about as law professor Douglas Colbert puts it, the lack of “a lawyer’s informed and compelling advocacy” at the bail stage? Colbert contends that the criminal defense bar needs to step up to help make Gideon‘s promise a reality, especially at the state level where “few criminal cases are tried and virtually every local criminal defendant appears at a first appearance judicial hearing.” See “When the Cheering (for Gideon) Stops: The Defense Bar and Representation at Initial Bail Hearings.”
Ultimately, a half-century after Gideon v. Wainwright, the right to assistance of counsel remains not fully realized even as trial judges have “the obligation” to ensure that defendants receive a fair trial.
As for Terrence Miller, Justice Albin described – “an impoverished defendant . . . treated as just another fungible item to be shuffled along on a criminal-justice conveyor belt,” and concluded:
“But Miller is more than another dispositional entry on a docket sheet, more than another statistic in some inexorable, impersonal process that knows no delays for justice. He is an individual clothed with constitutional rights, such as the right to a fair trial and the right to the effective assistance of counsel. That the majority turns a blind eye to this fundamentally flawed and appalling process by upholding Miller’s conviction will surely disappoint those who believe that this Court is the guardian of our constitutional rights.”
And leaving no scathing words unsaid, he added, “The proceedings in this case are an affront to our long-established tradition of what constitutes a fair trial. No person, if placed in Miller’s position, would believe that he or she was dealt fairly by our system of justice. The foreseeable consequence of the majority’s opinion will be to undermine the public’s perception of the integrity of the criminal justice system.”
 Quote by Bertolt Brecht
 Wilson v. Volkswagen of America, Inc., 561 F.2d 494,. 505-506 (5th Cir. 1977)
 What Judge Friendly called “a more generous standard of review” is found at: “Abuse of discretion” is a phrase which sounds worse than it really is. All it need mean is that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” In re Josephson, 218 F.2d 174, 182 (1 Cir. 1954); Also see Childress, “Endless definition and recitation adds nothing and eventually may confuse.” Steven Alan Childress & Martha S. Davis, 1 Federal Standards of Review [sections] 1.01, at 1-15 (1992)
 Waterman, An Appellate Judge’s Approach When Reviewing District Court Sanctions Imposed for the Purpose of Insuring Compliance with Pretrial Orders, 29 F.R.D. 420, 424-5.
Photo Credit: “Garbos Kisses,” by THOR geishaboy 500, at Flickr via Creative Commons-license requiring attribution.
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