Closing the courthouse doors

by Erwin Chemerinsky

Dean , School of Law

University of California - Irvine

Closing the courthouse doors: "Two U.S. Supreme Court decisions about very different statutes, one in a criminal context and the other civil, show that the conservative majority of the current Court is aggressively closing the courthouse doors even when it requires a tortured reading of federal statutes to do so."

Chemerinsky is referring tothe AT&T case - barring consumer class actions by enforcing AT&T mobile's arbitration clause; and a death penalty case - Cullen v. Pinholster in which the majority reads the habeas corpus act to bar factual hearings on exculpatory evidence not considered in  the state court proceeding. Justice Sotomayor's dissent is compelling, in my view. - GWC

Suit claims public defenders too busy to defend | Seattle Times Newspaper

P.D. Sybrandy denies his work is substandard

Local News | Skagit County suit claims public defenders too busy to defend | Seattle Times Newspaper: "MOUNT VERNON, Skagit County — Approximately 1,000 misdemeanor cases cross the desk each year of public defender Richard Sybrandy, a volume that is more than double what the state bar says is a reasonable amount.

But as staggering as that caseload is, it is only about half of Sybrandy's total workload. In addition to being a contracted public defender for Mount Vernon and Burlington, he maintains a private practice of criminal cases.

His workload is so large, in fact, that an unusual class-action lawsuit filed last week in Skagit County accuses Mount Vernon and Burlington of violating defendants' constitutionally protected right to counsel"

ABA backs Right to Counsel for Civil Contempt in Child Support in Supreme Court filing

The American Bar Association has backed the right to counsel for someone facing jail time for contempt in a child support case.
ABA Brief Supports Right to Counsel for Civil Contempt Defendants Facing Possible Jail Time - News - ABA Journal
The case Turner v. Rogers was argued yesterday in the Supreme Court.  Michael Turner was $6,000 in arrears on his $60/week child support obligation when a South Carolina judge sentenced him to 12 months in jail for contempt of court in a civil contempt.  He could purge himself of the contempt by paying the $6,000.  Where he was supposed to get that money I don't know.  He was a drug user who had asked for a second chance.  This was his fourth time in the slammer for failure to pay child support.


Two law professors Benjamin Barton and Darryl Brown in an amicus brief urge reform of pro se representation - saying that extension of Gideon will raw resources from criminal defendants by putting greater burdens on public defenders, etc.


SCOTUS Blog previews the argument HERE.


The transcript of the argument is HERE

`A drop in the bucket' but NJ Law Journal supports $2M increased funding for DOJ Legal Orientation Program

Sen. Charles Schumer (D.NY) has proposed an amendment to HR 2487 - the appropriation bill for the federal departments of Justice and Commerce. The measure would add $2 million for the Department of Justice's Legal Orientation Program. Administered by the Vera Institute for Justice, the program offers four levels of service:

Group orientations by legal staff offer a broad overview of the immigration court process, relief from removal and ways to expedite removal.

Individual orientations allow participants to ask more detailed questions about the court process and specific forms of relief from removal.

Self-help workshops are small group classes that allow people who will represent themselves to prepare and practice with others pursuing similar defenses.

Referrals to pro bono attorneys are made for detainees who are unable to represent themselves or whose cases could especially benefit from legal representation.

The New Jersey Law Journal notes

Prof. Peter Markowitz reports in the Fordham Law Review , "One cannot exaggerate how overburdened and underresourced the immigration courts are and how pro se cases tap those scarce resources disproportionately. In fiscal year 2008, the nation's 214 immigration judges handled on average morre than 1,500 cases apiece. To assist them with this enormous docket, immigration judges shared, on average, one law clerk for every six judges. This flood makes a mockery of federal regulations ... which provide, 'The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter.'"

The New Jersey Law Journal Editorial Board, which supports direct federal funding of attorneys for aliens facing removal, nonetheless concludes:

Government spending on attorneys' representation of persons subject to removal is prohibited by federal statute, 8 U.S.C. 1362. But Sen. Charles Schumer, D-N.Y., has offered an amendment to HR 2487 — the appropriation bill for the Justice and Commerce Departments — that would increase LOP funding by $2 million. It may be a drop in the bucket, but every drop helps because the situation is dire. We urge Congress to support the Schumer amendment.

The crisis of unrepresented persons in removal proceedings

Cyrus Mehta, immigration attorney and Adjunct Professor at Brooklyn Law School, has summarized effectively HERE the crisis of representation of those in removal proceedings: a diffuse labyrinth that some 400,000 detainees will enter this year, some for long stays. It is a second, parallel prison system administered by the Department of Homeland Security.

The largest government agency, DHS bears a name with a Prussian ring. It is a bureaucratic monument to America's stunned, unifying, sometimes excessive, reactions to bolts from the blue, the brutal surprise attacks of September 11, 2001.

Of the 300,000 who now face deportation every year only 40% are represented by counsel. Of those detained only 10% are represented Mehta cites the powerful observation of Federal Appeals Judge Robert Katzmann in Aris v Mukasey, 517 F.3d 595 (2d Cir. 2008):

The importance of quality representation is especially acute to immigrants, a vulnerable population who come to this country searching for a better life, and who often arrive unfamiliar with our language and culture, in economic deprivation and in fear. In immigration matters, so much is at stake – the right to remain in this country, to reunite a family, or to work.

Katzmann, himself inspired by the experience of his grandparentst who fled the Nazis, addressed the City Bar, calling for a competent corps of volunteer attorneys has inspired a movement among lawyers to provide volunteer assistance to those who are unrepresented. The Varick Street Project was born, as recounted in the Times HERE.

Our borders cannot, of course, be open the way they were when my great grandparents arrived from Galway at Castle Clinton at The Battery. But the fact is that millions are here, their lives entwined with ours in blended families of immigrants and native born, trapped in the labyrinth that self-defense, aspiration, evasion, ineffective immigration controls, xenophobia, and harsh enforcement have created.

Fortunately the pro bono efforts of many lawyers makes a difference. But there is no just alternative to the politically unlikely demand we on the Editorial Board of New Jersey Law Journal have VOICED: create a federally-funded corps of competent attorneys to represent those facing removal from the United States.

"Deportation without Representation" NJ Law Journal calls for "corps of competent lawyers" to represent immigrants in removal proceedings

The New Jersey Law Journal Editorial Board has called on Attorney General Eric Holder to go beyond his reversal of Bush Administration policy which denied that deportees were entitled to 5th Amendment due process.

The crush of cases is such and immigration law's complexity so great that pro bono volunteers lawyers, non-profit advocacy groups, and immigrants themselves will never be able to furnish enough competent lawyers to assure an adequate hearing for those facing deportation, said the Board in its September 3 editorial:

Deportation Without Representation

New Jersey Law Journal

Every year, 300,000 aliens face removal from the United States in proceedings before 200 immigration judges. Many are in detention pending deportation; others are granted the privilege of voluntary departure. Many appeal to the Justice Department's Board of Immigration Appeals (BIA) and then petition the circuit courts for review.

Circuit judges have responded critically. Second Circuit Judge Robert Katzmann described as a "tsunami" the flood of immigration cases, which had gone from 4 percent to 39 percent of the Second Circuit's docket. In 2006, John Mercer Walker, then chief judge of the Second Circuit, pointed out, "For the BIA to keep current on its docket, even with streamlining so that the disposition is by a single judge, each judge must dispose of nearly 4,000 cases a year — or about 80 per week — a virtually impossible task."

The problem is compounded by the fact that many immigrants cannot afford lawyers and that frequently the quality of the lawyers retained leaves much to be desired. Judge Katzmann said last year, "By the time we get the case, it's often too late. It's often hard to get a good night's sleep when you feel the lawyering in a case has not been good."

The problem was mitigated by the BIA's 1988 ruling, in Matter of Lozada , that ineffective assistance of counsel could be a basis for reopening or setting aside an adverse removal or deportation order. Most circuit courts have embraced that approach, including the Third Circuit, which held in Fadiga v. Attorney General, 488 F.3d 142 (2007), that incompetence of counsel may make the proceeding fundamentally unfair and give rise to a Fifth Amendment due-process objection.

Although former Attorney General Michael Mukasey repudiated Lozada , Eric Holder has reversed that position in a formal opinion, 25 I&N Dec. 1 (A.G. 2009), and has embraced the Fifth Amendment assurance of a fair hearing, which may be jeopardized by ineffective assistance of counsel.

But although there is a statutory "privilege" to hire a lawyer, 8 U.S.C. 1362, the law provides that it must be "at no expense to the government." Reviewing courts therefore have no ability to provide counsel at public expense.

Volunteer attorneys and the financial resources of often impoverished immigrant aliens will never adequately assure the availability of competent counsel to those facing deportation. Many of those facing removal are children who know only America. Others are noncitizen parents who gave birth here to children who are natural-born American citizens. The complications are many, the rules complex and the consequences of removal often drastic.

To deal competently and fairly with the millions of foreign nationals living here who may be subject to removal, a competent corps of lawyers is needed. No court order will bring about such a corps. That is the province of Congress. We know how grave are the budget issues facing the nation. But we know too that democracy depends on the ability to effectively assert rights. We therefore urge the attorney general to bring the problem to the attention of the Congress, and to study how competent assistance of counsel can be afforded to persons facing removal from the United States.

Republished here with permission. c. 2009 Incisive Media US Properties, LLC. All rights reserved. Further duplication without permission is prohbited.