Public Interest News Bulletin – March 12, 2010

  • 3.11.10 – National Law Journal – budget cuts, hearing delays and staff constrictions in the Massachusetts court system are emblematic of serious fiscal problems confronting state judiciaries throughout the country, including: New York, where the governor’s recommendation to cut $130 million from the judiciary’s budget has drawn opposition from the state’s top judge; a handful of Midwestern states, like Michigan and Illinois, which are also facing budget cuts; and California, where a range of austerity measures is in place in courthouses up and down the state.  Link to article.
  • 3.11.10 – Associated Press – “Georgia’s public defender system is still trying to recover its financial footing five years after a courthouse gunman racked up a $3 million taxpayer-funded defense tab on the way to his conviction.   The state’s ailing system to defend the poor has struggled almost since its start in 2005, hamstrung not just by the costly Brian Nichols case but also because of the lukewarm support from legislators and a dismal economy.”  The statewide system was created in 2005 to help counties that were struggling to support indigent defense programs on their own.  Since its inception, though, it has experienced financial strains and endured criticism (and legal challenges) concerning its administration.  Death penalty cases can be especially problematic because they are so costly and time-consuming.  Link to article.  [Ed. Note: below, see Atlanta Journal-Constitution coverage of a recent Georgia Supreme Court argument concerning funding for an indigent defendant charged with a capital crime.]
  • 3.11.10 – National Law Journal – “Despite opposition from the American Bar Association and a coalition of more than 70 civil rights, fair housing, consumer and other legal groups, a Senate committee on Wednesday approved the nomination of Sharon Browne of the Pacific Legal Foundation to the board of directors of the Legal Services Corp.”  Browne works with the Pacific Legal Foundation, a nonprofit law office that supports conservative/libertarian causes.  According to critics, both the Foundation and Browne have in the past supported causes and advocacy that were in opposition to the mission of LSC.  Link to article. [Ed Note: the PSLawNet Blog covered both the initial opposition to Ms. Browne’s nomination and the Senate HELP Committee’s approval of her nomination in a post yesterday, including links to past coverage and a 3.10.10 LSC press release. ]
  • 3.10.10 – Baltimore Sun (“Second Opinion” Online Editorial Page) – “At a time when record numbers of Marylanders are struggling with foreclosure, eviction or loss of health and unemployment benefits, non-profit legal aid groups that help people pursue their rights in court are increasingly unable to do their job.”  IOLTA funding has fallen from $6.7 million in 2008 to a current $2 million.  This is one of the main reasons that the Maryland Legal Services Corporation, a funder of legal services statewide, “has seen its own funding drop 70 percent over the last 18 months.”  A proposal in the state General Assembly seeks to replenish legal services coffers by increasing a range of court filing fees, resulting in an anticipated $9 million in revenue.  Lawmakers should promote access to justice for the state’s poor by supporting this proposal.   Link to post.  [Ed. Note – the 3/11/10 edition of the Baltimore Sun contains in article on the state legislature’s consideration of these filing-fee increase proposals in order to shore up the legal and social services network.  Chief Judge Robert M. Bell supports measures to ramp up legal aid funding, but also cautioned about going too far with court filing fee hikes, noting that these efforts to improve access to justice for poor clients – through legal aid lawyers – can’t also be allowed to deny access to the courts to others on account of steep fees.  Link to article. ]
  • 3.10.10 – New York Times (Editorial) – Attorney General Holder was wise to tap Laurence Tribe as the head of a Department of Justice initiative to “look at ways indigent legal services can be improved, including by creating incentives for states to make better use of pro bono legal assistance, and help the growing number of people who represent themselves navigate the courts.”  Link to editorial.  [Ed. Note: this piece, while focusing mainly on the indigent criminal defense arena, also references the difficulties confronting civil legal services programs, implying that perhaps the DOJ initiative will focus on both.  Past reporting (NPR, Washington Post) suggests that indigent defense programs are the focus.  But based on our conversations with folks in the public interest community, it appears that the program’s scope is not as yet fully defined, and thus it could end up looking at access-to-justice issues in both the criminal and civil arenas.] 
  • 3.9.10 – Atlanta Journal-Constitution – a lawyer appointed to represent an accused double murderer urged the Georgia Supreme Court to either dismiss the charges or prohibit the prosecution from seeking the death penalty because the state’s indigent defense fund has “been unable to pay for attorneys fees, investigators, or expert witnesses.”  The Gwinnett County district attorney agreed that the state’s public defense system, which was created by the legislature in 2003, is broken, and went so far as to argue that “the indigent defense statute violates the separation of powers because it transfer[s] control of funding capital cases from trial judges to the Georgia Public Defender Standards Council.” But, the prosecuting attorney contended that the matter should be sent back to trial as a capital case.  Link to article.
  • 3.9.10 – Dover Post –  a brief Q&A with Delaware Public Defender Brendan O’Neill touches upon the public perception of defenders “trying to get the bad guy off the hook” as opposed to being guardians of all citizens’ rights, the overwhelming caseloads which many defenders are carrying, and his motivation for the career path he’s chosen.  Link to article.
  • 3.9.10 – Philadelphia Inquirer – “Alarmed at a Philadelphia court system plagued by low conviction rates, entrenched witness fear, and a high number of fugitives, the state Supreme Court has appointed a blue-ribbon panel of legal experts to help craft a reform agenda.”  The Inquirer’s investigative reporting had earlier found “that nearly two-thirds of all violent-crime cases in the city end without a conviction on any charge.”  Also, Philadelphia has one of the nation’s highest fugitive rates, and courts have “made almost no effort” to collect forfeited bail funds.  Link to article.   [Ed. Note: Also see a 3.7.10 Inquirer story suggesting that Philadelphia’s Municipal Court reform efforts may be informed by the practices of local suburban courts.]
  • 3.9.10 – Blog of the Legal Times – the ABA’s Death Penalty Representation Project has been struggling in the recent past to recruit pro bono counsel at precisely the time when public defense appellate offices are feeling the strains of budget cuts.  Link to post.
  • 3.8.10 – Newark Advocate (Ohio) – in Licking County, Ohio, “defense attorneys representing indigent criminals billed for almost $1.4 million in fees in 2009,” 72% of which was paid with county funds, with the rest paid by state funds.  Nevertheless, court-appointed attorneys in Licking County are among the lowest paid appointed counsel in the state.  Over the years, fewer funds have flowed from state coffers to finance indigent defense programs, putting a strain on Ohio counties.  This has led to continuous questioning about whether an appointed counsel model is still preferable to creating a public defender’s office.  Link to article.
  • 3.8.10 – National Law Journal – “At least 10 states are considering bills that would require drug testing for various government benefits.  Some want to screen welfare and food stamp recipients, while others want to test the jobless seeking unemployment benefits.  Some want to hit all three.”  A 6th Circuit decision emanating from a Michigan case held in 2002 that a state law requiring drug testing of welfare applicants violated the 4th Amendment.  Now, though, an Arizona law takes a slightly different tack.  Welfare applicants are required to complete a questionnaire about drug use.  “If any red flags go up, the person is required to take a drug test.”  The “red flags” give state authorities “reasonable cause” to test for drugs, which is required by the statute, and which proponents of drug-testing for public benefits think may pass constitutional muster.  Proposals in various states come in different shapes in sizes.  [Ed. note: they are surveyed in the story.]  The ACLU has emerged as the chief opponent of tying public benefit eligibility to drug testing.  Link to article. Note: access to article restricted
  • 3.8.10 – New York Law Journal –  In a report issued last week, the New York City Bar and the City Bar Justice Center detailed progress made through their Deferred Associate Law Extern Support Project, which took form in 2009 to connect deferred associates to the public interest community and to provide ongoing support to help ensure that their public-service placements were fruitful both for them and their host organizations.  Surveys of deferred associates were illuminating.  They expressed broad-based satisfaction with their placements overall – “[n]early 92 percent said they would recommend their placement to deferred associates in the future” – but gave lower ratings on measures of their integration into their host organization’s culture.  Associates also expressed frustration with lack of communication from their law firms.  Link to article.  [Ed. Note: the report itself is available here.] 
  • 3.7.10 – National Public Radio – “Increasingly, [in Massachusetts,] companies that plead guilty to crimes that harm the community – polluting, for example – are being required to publish an apology as part of their punishment.”  Shaming has for years been used in punishing individuals for any number of offenses, and in the legal community the debate about whether this form of punishment serves retribution or deterrence goals is alive in the context of shaming business entities.  Shaming may still lead to ostracizing just as it may with individual people, but, as one criminal law professor notes, a corporation does not feel and can not be emotionally scarred as a person may be.  Link to story (audio and print).  
  • 3.7.10 – Boston Globe – “Nationally, 43 of the top 100 [law] firms have delayed the start dates of new associates hired last year … and almost all large commercial law firms in Boston deferred the contracts of new recruits.”  Some firms have helped facilitate their deferred associates’ placements in nonprofit or public sector organizations.  Goodwin Procter’s “Make a Difference” program attracted 86 of the firms deferred associates to work for a year in public service settings.  Ropes & Gray’s “New Alternatives” program is similar.  Not all deferred associates are using public service placements for personal development; one newly minted lawyer who was deferred from Edwards Angell Palmer & Dodge competed in the Iditarod race in Alaska.  Link to article.
  • 3.7.10 – Dayton Daily News – The Ohio 2nd District Court of Appeals has reversed six cases, presided over by one Montgomery County District Court judge, in which “defendants facing possible jail time were being run through the system without attorneys.”  In those cases, there was not sufficient evidence that the defendants had waived their right to counsel.  In some hearings, an appellate judge noted, there was not even evidence that a prosecutor was there.  One local law professor who also has worked as an acting judge, thinks this problem is “a symptom of a massive docket overload … There is a temptation to cut corners.  There’s a lot of incentive to move cases through the system.”  Link to article.
  • Albany Times Union (New York) – “[S]tate funding cuts threaten to slash Albany County’s homelessness prevention funding … Housing advocates warn the cuts not only will cause a surge in the already rising number of people forced from their homes amid the nation’s worst economic downturn since the Great Depression, but will also cost taxpayers more in the end” because of the financial burdens associated with social services that the newly homeless will use.”   Link to article.
  • 3.5.10 – WDSU Television Station Website (New Orleans) – New Orleans Parish’s chief public defender “said in the next two months half his staff will have to refuse new felony cases because the…office is saddled with more than it can handle. Lawyers are handling an average of 300 felony cases a year. That’s twice the amount for state and national standards.  The reason: the public defender’s office needs more money.”  In addition to underfunding, another strain on the defender’s office is the district attorney’s practice of accepting a high percentage (90%) of cases for prosecution.   Link to story (text and video report).  [Ed. Note: The PSLawNet Blog interviewed Chief Defender Derwyn Bunton earlier this year, and asked him about funding issues in the long-term.  Mr. Bunton expressed cautious optimism, but of course the bar is pretty low because indigent defense funding in Louisiana has historically been weak.]   
  • 3.6.10 – NJ.com Website (New Jersey) – Cumberland County’s new top prosecutor plans to cut some costs in light of a county government budget crisis, and reducing a backlog of criminal cases on the courthouse’s docket, which contributes to strains on the jail system as defendants, as well as crime victims and their families, wait extended periods of time for their day in court.  The county prosecutor, Jennifer Webb-McRae, also recognizes that making plea deals, while perhaps not fitting the public’s expectations about being tough on crime, is necessary to keep the wheels of justice turning.  Link to article.    
  • 3.6.10 – Palm Beach Post (Florida) – State Attorney Michael MCAuliffe, Palm Beach County’s chief prosecutor for the past year, has shaken up his office’s traditional practices by taking an “aggressive tack on exacting higher penalties for offenders,” engaging directly (and frequently) with the media, forging a stronger relationship with law enforcement, and paring down on attorneys and staff, which included “ordering them out of the office on the same day.”  Some in the legal community are concerned that line prosecutors’ morale is low, and that they feel constrained in handling their docket because of McAuliffe’s emphasis on getting convictions instead of plea-bargaining.  McAuliffe is unapologetic, and does not entertain questions about whether he has future political aspirations.  Link to article.
  • 3.5.10 – New York Times “City Room” Blog – new guidelines from NYC Mayor Michael Bloomberg on how cases will be assigned to indigent defense organizations have stirred debate about whether “the new rules will take work from experienced lawyers and overburden less experienced ones.”  Previously, the Legal Aid Society or other nonprofit defender services accepted what cases they could, and other case divvied our through an assigned counsel system.  The new guidelines could funnel more cases to the Legal Aid Society and counterpart organizations, and also lawyers who participate in the assigned counsel program “will be expected to provide a larger network of services [for indigent defense cases], such as social workers, paralegals and investigators.”  Attorneys who have served in the assigned counsel program question whether they have the resources to meet such expectations.  Link to blog post.  

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