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Lawyers Turn Down Cases to Uphold Sixth Amendment Right to Counsel

Every day, public defenders give teeth to the Sixth Amendment right to effective assistance of counsel by representing indigent criminal defendants without a fee. But now, public defenders are attempting to preserve the Sixth Amendment in a manner that seems counter-intuitive: by turning cases down, rather than taking them on.

As the New York Times reports, public defenders' offices in at least seven states are either refusing to take on new cases or have sued to limit them, arguing that the lack the resources renders the constitutional right to assistance of counsel essentially meaningless. At least one judge in Florida was receptive to this argument, ruling that the public defenders' office in Miami-Dade County could refuse to represent many of those arrested on lesser felony charges so its lawyers could provide a better defense for other clients.

Of course, the Florida solution isn't ideal. It merely condones a type of triage that preserves resources for the most serious crimes, rather than shoring up the public defenders' program with more funding. As Deborah Wright, president of the Association of Legal Aid Attorneys told the New York Times, hurried processing of misdemeanor claims can have serious consequences for the accused. Even if defendants receive no jail time, a conviction can impact immigration status or some public benefits.

The problem isn't limited to public defenders' offices. In some instances, court-appointed attorneys have asked to turn cases down where lack of funding would preclude effective representation.  In Florida, the ACLU is asking a court to release accused gang member Terry Green, who was arrested five months ago, until it can find an attorney to represent him  [Source:  Herald Tribune].  Because of a conflict of interest, the public defenders' office is barred from representing Green, and court-appointed lawyers have resisted the case, which will require at least 500 hours of time, thus reducing the effective court-appointed rate to about five dollars an hour.   The court appointed Bradenton attorney Greg Hagopian to accept the case, but Hagopian is appealing, arguing that a compulsory appointment in the case would financially ruin his practice.

It's ironic, of course, that at a time when so many lawyers are unemployed, we'd have a problem with providing effective assistance of counsel.  While volunteer efforts won't cure this problem long term, training and utilizing currently unemployed lawyers on a volunteer basis to handle misdemeanor cases or ease the burden on lawyers forced to represent defendants at cut rates, might provide a stopgap measure to the crisis in criminal representation.

Posted by Carolyn Elefant on November 10, 2008 at 11:10 AM | Permalink | Comments (0)


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