Clarence Gideon, a second story man, wrote out by hand a petition for writ of habeas corpus. He had been denied his constitutional right to counsel, guaranteed by the United States Supreme Court. He was one step ahead of the court, which appointed Abe Fortas to present the constitutional argument which spawned Gideon v. Wainwright (1963). It declared that a defendant facing jail has the right to a lawyer, and that if he cannot afford one, the court will appoint one. The Supreme Court soon clarified that the 6th Amendment right to counsel meant the effective assistance of counsel.
Across the country Public Defenders carry that burden. Kimberly Hurell-Harring was told by a public defender to plead guilty to a felony that wasn’t even a felony. The PD had problems - he suffered from bouts of depression and had neglected civil clients. None of that was known when the County commissioners accepted his bid for the annual $50,000 contract. It was the low bid, the New York Times reports HERE.
The New York Civil Liberties Union has used Kimberly Hurell Harring as the poster child for a system that, it alleges in a class action suit, fails to provide effective assistance of counsel. The New York Court of Appeals will soon hear the case, in which the defendant State of New York asserts that the trial judge Eugene P. Devine, the former Albany county Public Defender, is biased in favor of the challengers and should recuse himself. Devine denied the motion.
The State's defense is made difficult by the 2006 conclusion of a commission to study the problem, which reported to the Chief Judge of the Court of Appeals that "[t]he amount of monies currently allocated within the State of New York for the provision of constitutionally-mandated indigent defense is grossly inadequate".
For the gold standard of adequate defense by public defenders, look to the New Jersey Public Defender's capital defense unit. Over 25 years, in 228 capital trials, and 60 death sentences, none was executed. Finally - in December 2007 the Legislature repealed the death penalty and replaced it with life without parole for aggravated first degree murders. See my essay Herald of Change and the proceedings of the symposium at which it was presented.
Criminal, soldier, or unlawful combatant? That trichotomy frames the current hyperbolic and fear-mongering debate about the “Christmas Day bomber” and his “Miranda rights”. The attack from the right is that treating prisoners like Umar Farouk Adbdulmutallab as criminals is being “soft on terror”. We are “at war” we are often told.
The “we are at war” stance was problematic from the first because the 1949 Geneva Convention III relative to the Treatment of Prisoners of War requires in Article 13 that prisoners of war “must at all times be protected, particularly against acts of violence or intimidation”, and in Article 14 are said to be ‘entitled in all circumstances to respect for their persons and honor”.
Therefore when the Bush/Cheney administration formulated its policy they declared that “terrorists” are not prisoners of war but “unlawful combatants” not entitled to review by any court of the United States. And, impliedly, not entitled to “respect for their persons and honor”. That stance led to the travesty at the Abu Ghraib prison, international outrage over the conditions of confinement at Guantanamo, and finally, repudiation by the courts of the United States, and renunciation of the policy by the incoming Obama administration.
We are told that treating as a criminal the apparent perpetrator of the failed airplane bomb plot is a sign of weakness, though nearly 200 accused of terrorist acts were so treated in the Bush/Cheney years. Abdulmutallab, arrested at the Detroit airport, is in jail, facing trial, and in the custody of the FBI presumably received the customary warnings known to everyone who has watched a single episode of Law & Order or NY PD Blue.
The strongest popular appeal is that the accused has been given rights to which he is not entitled - to silence, and to counsel. The suggestion is that telling Abdulmutallab he had the right to remain silent and to counsel deprived us of information he would otherwise have given. There is of course no evidence for such a statement. One can assume that such a commando would expect in the event of capture to be beaten, and to have “hardened” himself for such and event.
Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer.
Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system.
I concur.
