Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and commentary editor at The Marshall Project.
As a recent New Jersey ruling shows, the justice system still doesn't grasp the importance of fair counsel.
Earlier this month, the New Jersey Supreme Court issued a ruling in a case that didn't generate much publicity in the Garden State or anywhere else. It was just another opinion, about another indigent criminal defendant whose case was processed through a justice system that was relentlessly more concerned with efficiency than with justice. Sadly, it's not big news today when our nation's judges permit a person's fair trial rights to be violated in a way that both shocks the conscience and violates the Constitution.
In State v. Terrence Miller, four justices of the state supreme court—over a lone dissent—affirmed the conviction of a man indicted on drug charges who met his lawyer for the first time for a few minutes in a stairwell at the courthouse on the morning of trial. The lawyer had not tried a criminal case in seven years and had been appointed to Miller's case only four days before trial. He never spoke to any witnesses, or to Miller's former attorney, or to investigators in the public defender's office. He didn't know what his client would say on the witness stand.
Twice, the defense attorney asked the trial judge for a continuance so that he could adequately prepare for trial. Twice, the trial judge refused the request even though there were other cases he could have tried during that time. He had his docket schedule to worry about, the judge said, and the case was not complex. The judge was frustrated, court records revealed, with the "higher ups" in the public defenders office. He thought they were trying to play him. Lost in the middle of this turf war was Miller. He bore the brunt of the judge's frustration.
To their credit, prosecutors did not oppose the adjournment, but of course they did not complain when it was denied by the judge. The trial proceeded. Miller never had a chance to present his best defense, whatever it was, and was quickly convicted. All of this, the state supreme court declared, satisfied the defendant's constitutional right to counsel first expressed in Gideon v. Wainwright. Miller, the court said, got a fair trial. His trial judge, the justices concluded, should have delayed the trial but did not "abuse his discretion" when he didn't.
Words v. Deeds
If you spend any time at all at the Justice Department’s website you’ll notice that the Obama Administration has been quite vocal in recognizing that the constitutional right to counsel plays in our justice systems. Over and over again, Department officials at the highest levels have issued proclamations praising the United States Supreme Court’s landmark decision in Gideon v. Wainwright while candidly acknowledging the gulf that exists today between the promise of that ruling and the practical effect of it for millions of Americans.
And, when posting to their own website isn’t enough, Justice Department officials have sought to spread the gospel through mainstream media. Attorney General Eric Holder himself, in an op-ed piece published in August in The Washington Post, said he joined “with those judges, public defenders, legal scholars and countless other criminal justice professionals who have urged Congress to restore these resources, to provide needed funding for the federal public defender program and to fulfill the fundamental promise of our criminal justice system.”
And, when writing op-eds isn’t enough, the feds have filed court papers asserting that there is a federal interest "in ensuring that all jurisdictions—federal, state, and local—are fulfilling their obligation under the Constitution to provide effective assistance of counsel to individuals facing criminal charges who cannot afford an attorney." All of these words, pleas, and earnest remonstrations, are far more than what the Bush Administration lawyers did when confronted with the same problems during their tenure. But they are not nearly enough.
When it comes to indigent defense,the Obama Administration gets an "A" for candor and an "F" for results. The feds know there is a terrible problem. And they know how to solve the problem. But they won't spend, or push Congress to spend, what it would take to do it. This year, for example, the Justice Department proudly announced it would give $1.8 million in grants to “improve access to criminal legal services and strengthen indigent defense across the nation.” This is not remotely enough. Funding for legal aid and criminal defense "should be a priority," Justice Sonia Sotomayor said Tuesday. She's right.
No One Stood Up For Miller
So much went wrong in the case of Terrence Miller that it's hard to know where to begin. No one involved in the process acted to protect his constitutional rights. Here's how Justice Barry T. Albin, the lone dissenter, described the relationship between lawyer and client: "[T]he two never discussed the upcoming motion to suppress or trial. They did not converse about a defense, trial strategy, or whether witnesses should be called or subpoenaed. The attorney did not prepare his client for testimony he might give on the stand."
Meanwhile, the trial judge, who has since retired, also abdicated his responsibility to protect Miller's fair trial rights. He twice refused to reschedule the trial because he was, to use Justice Albin's characterization, "frustrated by trial delays and intent on making a point that the Public Defender's Office could not usurp his calendar." And the public defenders also later acknowledged blame. "We agree that our office should have appeased the trial judge" by making a more formal request for a continuance, Dale Jones, a public defender in Mercer County (who was not Miller's trial attorney) told me last week.
But the biggest failing of all was the failure of the appellate judges to recognize and rectify these serious mistakes. The majority opinion here is one of the most indefensible I have ever read. The trial judge "would have better served the competing interests at stake" by adjourning the trial, the justices declared, but did not "abuse his discretion" when he didn't. How can this be? Because the United States Supreme Court, in a series of cases that have undercut the premise of Gideon, have sent the unmistakable signal to lower court judges that the right to counsel is some malleable proposition. Tell that to a man who goes to trial with a public defender who doesn't know a thing about his case.
Here's how Justice Albin described it. Put yourself for just a moment in Miller's shoes, as an indigent defendant whose lawyer is changed just days before trial, before a judge who is irate with the public defenders' office about scheduling matters, preparing for a case that could send you to prison, with no control over any part of it:
No attorney can provide effective representation at a motion-to-suppress hearing if he has not spoken with his client beforehand, listened to his account, interviewed his witnesses, or prepared him for his testimony. Miller had witnesses waiting in the wings but his attorney could not call them because he had not spoken with his client. Sitting next to Miller was a total stranger who happened to be his state-appointed attorney. The failure of the attorney to consult with Miller in any meaningful fashion, to prepare him for his testimony, and to present corroborating witnesses at the motion-to-suppress hearing rendered the attorney per se ineffective.
Now, tell me—if we are to have a right to counsel in America, if we are to preen and preach about it as some grand noble measure of due process, should it, at the very least, encompass the basic level of representation that Justice Albin is talking about here? Can a lawyer ever be deemed constitutionally "competent" if he doesn't know anything about his client, his client's case, the witnesses for and against his client, or the evidence against his client? That the New Jersey Supreme Court answered this question "yes" tells us that there really is no right to counsel. Or at least that it's going to take sea change to restore it.
Money Alone Won't Help
As the Miller case tells us, however, money isn't the only problem. Money for more public defenders, or for more judges to handle more indigent defense cases, won't overturn the Supreme Court precedents upon which New Jersey relied in precluding Terrence Miller from a fair trial. The state justices held that a lawyer doesn't have to know the facts of the case, or have any connection with any witnesses or evidence, for the client to be competently represented at trial. All the attorney has to do is show up, and declare himself prepared, and that's that. Money alone, I submit, simply can't overcome this level of crazy.
These injustices will continue unless and until the Supreme Court reverses itself and moves away from its cramped interpretation of Gideon. Do yourself a favor and read through the majority opinion in Miller here. Read the litany of cases in which the New Jersey courts, sanctioned by the justices in Washington, have countenanced as a matter of law what any reasonable observer would described as gross negligence on the part of defense attorneys. This is what the Attorney General should be railing about in court. This is where Justice Department attorneys should be focusing their briefs.
Nor, for that matter, is there time for the empanelling of yet another blue-ribbon commission to study the problem of indigent defense. It's too late for all that. Late last month, a group of lawyers and advocates wrote to the Attorney General urging him to say less and to do more about these cases. "Everyone knows what needs to be done," the letter writers told Holder. "The task is not to recompile, reissue or reorganize" the standards governing indigent defense protocols "but to put them into practice, state by state, county by county and municipality by municipality."
Here's one vote for starting that effort in Mercer County, New Jersey, the jurisdiction that gave us the disgrace that was the Miller trial. Jones, the public defender, says his office will file a petition for certiorari with the Supreme Court in Washington seeking to reverse the New Jersey court's ruling. The justices should grab this case, reverse this unjust result, and grant Miller the fair trial that he (that each of us) deserves. I look forward to that High Court review -- and to the passionate brief filed by the Justice Department in support of Miller and the restoration of a reasonable right to counsel the justices promised us 50 years ago.
This post originally appeared on The Atlantic.