Monday, August 13, 2012

High Court Looking at Failures of Indigent Defense

      Michael Coles was an overworked public defender in Columbia, Mo., in fall 2007 when he was assigned to represent Galin Frye, then a student at St. Louis Community College, on a charge of driving without a license. The Boone County prosecutor handling the case sent Coles a written offer on Nov. 15 to settle the case, Frye’s third offense, on a guilty plea with either a minimal jail term of 90 days or three years’ probation with 10 days in jail as “shock time.” The prosecutor said the offer would expire on Dec. 28.
      Coles logged the offer in the case file, but never told Frye about it – either by letter or phone call, even though Frye’s address and phone number were in the file. By the time the offer expired, Frye had been stopped again in a different county for the same offense. Eventually, Frye pleaded guilty before a Boone County judge, who sentenced him to three years in prison.
      Once Frye learned of the uncommunicated plea bargain, he filed a petition for postconviction relief based on a violation of his Sixth Amendment right to “effective assistance” of counsel. This year, the Supreme Court agreed that Coles’ representation was “deficient” and sent the case back for the local court to figure out how to remedy the constitutional violation.
      Frye’s case, Missouri v. Frye, was one of four criminal cases that the Supreme Court ordered reopened during the past term after finding “ineffective assistance of counsel” by court-appointed lawyers. In a companion case the same day (March 21), the court gave a Michigan man, Anthony Cooper, a chance to get out of a 15- to 30-year prison sentence for assault with intent to commit murder. Cooper went to trial, the court found, after rejecting a more lenient sentence based on his lawyer’s incorrect reading of state law that he could not be convicted of the most serious charge (Lafler v. Cooper).
      Those two rulings gained front-page attention as the Supreme Court’s first precedents for establishing a general right to effective assistance of counsel in the plea-bargaining process, which is the criminal justice system for most defendants. One day earlier, the court had ruled that an Arizona inmate, Luis Martinez, could raise an ineffective-assistance claim in a federal habeas corpus proceeding after his state court lawyer failed to pursue it (Martinez v. Ryan). And two months earlier the court revived a postconviction proceeding by an Alabama death row inmate, Cory Maples, after finding that his local attorneys and two Wall Street lawyers handling the case pro bono had effectively abandoned him (Maples v. Thomas).
      Together, these decisions provide heartening evidence that the Roberts Court is taking the Sixth Amendment right to counsel more seriously than in the past. But the right established nearly 50 years ago in Gideon v. Wainwright (1963) remains for many criminal defendants more an aspirational goal than actual reality. “Not only do you deserve to have a warm a body, but an effective body,” says Lisa Wayne, a Denver lawyer and immediate past president of the National Association of Criminal Defense Lawyers.
      The past year’s cases illustrate the various problems in indigent defense. Alabama is notorious for providing inadequate representation for indigents in capital cases. As Justice Ruth Bader Ginsburg pointed out in Maples’ case, court-appointed lawyers in capital cases in Alabama are not required to have any experience or special training in death penalty law and are paid a paltry $70 an hour. The legal blunder by the private lawyer in the Michigan case is the kind of mistake that can be seen in courthouses around the country by court-appointed attorneys. Many of these lawyers take on these cases precisely because they lack the training or skills to attract and retain paying clients.
      As for public defender offices, they are underfunded and understaffed in many jurisdictions, including Missouri. As the American Bar Association noted several years ago in its critical report Gideon’s Broken Promise (2004), high caseloads “make[ ] it impossible for even the most industrious of attorneys to deliver effective representation in all cases.”
      The Missouri state public defender’s office has struggled for several years with growing caseloads without corresponding increases in staffing. In the fall of 2008, the state’s Public Defender Commission took a step recommended by the state supreme court and announced that regional offices should decline to accept new cases if their caseloads exceeded recommended levels three months in a row.
      A judge in Springfield challenged the edict in 2010 by assigning the regional public defender a routine burglary case over the office’s objection. Eventually, the defendant pleaded guilty, but the Missouri Supreme Court ruled late last month (July 31) that the judge had exceeded his authority. In a 4-3 decision, the state justices said judges faced with public defender offices stretched beyond their capacity should “triage” their dockets — weeding out the less serious cases one way or another so that public defenders can devote adequate resources to the remaining cases.
      Coles has left the public defender’s office. To the system’s credit, another public defender, Emmett Queener, took over Frye’s case and successfully argued in Frye’s behalf before the Supreme Court. As with the other Supreme Court decisions, however, the result is a Band-Aid solution that leaves the fundamental problem of indigent criminal defense unsolved.


  1. JOHN S. WALLENSTEIN,ESQ.August 16, 2012 at 3:53 PM

    While I would not quarrel with your assertion that the error in Lafler is something seen around the country by court-appointed attorneys, I think that (here in NY,at least)the type of error committed there is much more often the result of general practitioners,real estate attorneys,etc practicing far out of their depth and comfort zone.

  2. Thanks you for the article. The indigent defense in so many counties in California has come down a training program for how to talk someone into a plea.

  3. As a public defender with a high workload, I think it's unfair to name the PD who made an honest mistake and owned up to it.