Sixth Amendment

Court-appointed lawyers in Wisconsin are getting a raise in an order meant to address a chronic lack of attorneys willing to take on public defense cases.

Court proceedings with an inmate on television screen (top left)

In May, the Wisconsin Supreme Court ordered that private attorneys assigned to defend cases must be paid $100 an hour—up from $70—beginning in 2020. While defense lawyers welcome the higher rate they say it may not reach far enough, as the court declined to declare lower rates unreasonable.
The Wisconsin Public Defender’s Office assigns about 40 percent of its cases to private attorneys, but it also pays the lowest rate in the nation, only $40 an hour—lowered from $50 in 1995, according to NPR.
The state struggles to find lawyers at this rate, which results in criminal defendants remaining in in jail for months despite the U.S. Constitution’s guarantee of a speedy trial.
“If our legislature fails to act, we will see the deepening of this constitutional crisis and a collapse of the system itself,” lawyers John Birdsall and Hank Schultz wrote in a statement for the Wisconsin Association of Criminal Defense Lawyers, which petitioned the court.
“The cost to reconstruct after that forgone occurrence will be astronomical—compared to the meager price of simply paying lawyers a minimally reasonable hourly rate,” they continued.
The court also refused the association’s petition to index the new rate to inflation and prohibit flat-fee contracts. Justice Daniel Kelly and Justice Rebecca Bradley wrote a dissenting opinion, stating that while the current compensation is “absurdly inadequate,” the court shouldn’t trespass on “authority that belongs to others,” meaning the Wisconsin lawmakers.
In what seems like a warning to the legislature, the order not only lays out the summary of the problem it responds to but also recounts how other states have had to address the same issues following expensive class action litigation.
Ultimately, the problem isn’t just in finding lawyers to take public defense cases but in getting them to focus their energy when they do.
“If you have a financial conflict that you’re going to lose more money the more you work on a case, it’s going to have a tendency to try to get the lawyer to get the person to plead quicker,” said David Carroll, with the Boston Based Sixth Amendment Center.
According to a 2015 survey of Wisconsin criminal defense lawyers, they do in fact spend less time with public defense clients than with private clients. About half of those surveyed are taking fewer public defense cases than in years past.

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http://sanquentinnews.com/prosecutors-accepting-guilty-pleas-death-penalty-no-executions/

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The U.S. Supreme Court has ordered a new trial, despite evidence of the man’s guilt, in a case where the defendant testified he is innocent while his lawyer argued he is guilty.

Robert McCoy was charged with three counts of murder in Louisiana. The three victims were his estranged wife’s family members. Lewinston police apprehended McCoy in Idaho a few days later.

McCoy pleaded not guilty and maintained his innocence. Throughout the court proceedings, McCoy said he was out-of-town when the homicides happened and corrupt police committed the murders in a drug deal gone bad.

Attorney Larry English took over the case from another attorney who McCoy reported having difficulties with. After reviewing the case, English felt the evidence against McCoy was overwhelming and the best strategy to avoid the death penalty involved conceding guilt.

McCoy objected to English conceding his guilt and tried to terminate his lawyer. English tried to get himself released from the case as well. The trial judge refused and set trial to start two days later.

At trial, English told the jury, “Robert McCoy committed these crimes,” but he also asked for mercy in light of McCoy’s “serious mental and emotional issues.” The jury voted for death penalty on all three counts.

McCoy moved for a new trial, alleging that defense counsel’s concession of guilt violated his Sixth Amendment right to the effective assistance of counsel.

Louisiana’s lower courts found the concession proper because the defense counsel had a reasonable strategy to avoid the death penalty in light of the evidence.

On May 14, six Supreme Court justices decided that it is a structural error (an automatic reversal without showing prejudice) when a defendant insistently maintains his innocence to counsel and the court and his lawyer concedes his guilt to the jury anyway. (See McCoy v. Louisiana, 200 L.Ed. 2d 821.)

The high court recognized that under the Sixth Amendment’s constitutional right to counsel, the defendant has a right “to decide that the objective of the defense is to assert innocence,” Justice J. Ginsberg wrote.

“Because the error was structural, a new trial is the required corrective”

The defense attorney may make many strategic decisions, the high court noted. But the right to assert innocence, testify on one’s own behalf and forgo an appeal are decisions reserved for the client alone.

“The state typically spends $71,000 a year to house an inmate. It costs about $5,000 total to help put one [incarcerated] student through community college”, reports Fast Company.

“These are not strategic choices … they are choices about what the client’s objectives in fact are,” Ginsberg wrote. “The trial court’s allowance of English’s admission of McCoy’s guilt despite McCoy insistent objections was incompatible with the Sixth Amendment.”

This case differs from a previous 2004 ruling in Florida v. Nixon (543 U.S. 175). In that case, trial counsel informed the defendant of the strategy to concede guilt and the defendant was non-responsive. The Supreme Court ultimately ruled that trial counsel didn’t need to obtain the defendant’s express consent to pursue a reasonable trial strategy based on conceding guilt.

McCoy’s case was remanded back to the Louisiana state courts for a new trial.

Justice Alito dissented. He was joined by Justices C. Thomas and J. J. Gorsuch.

“Because the error was structural, a new trial is the required corrective,” wrote Justice J. Ginsburg, who delivered the opinion of the court.

Normally, when an ineffective assistance of counsel claim is alleged, the person making the claim must prove both that the lawyer failed to provide effective assistance and that, if not for the error, the defendant is likely to have won trial. (Strickland v. Washington, 466 U.S. 668, 692 1984).

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