Thinking of this article from The Atlantic, on the failing to properly fund the public defender program in Louisiana. Law articles, for obvious reasons, get my attention. And so did this, for many disturbing reasons.
I am not a criminal defense attorney. I have never done any trial work associated with criminal defense. However, I do appellate criminal work, and my work, contractual with the courts, could be considered as an appellate public defender, as it is almost always for indigent criminal defendants, convicted of a crime (or having pled guilty), seeking relief through an appeal, which, in Indiana, they have the right to do.
The right to do. I think that's the operative phrase for me when thinking about these issues. As mentioned in the article, the Sixth Amendment to the United States Constitution, one of those ubiquitous "Bill of Rights" we so often hear about, guarantees, among other things, the right to counsel for an individual charged with a crime. In the 1963 Gideon case mentioned in the piece, this right was applied to all state court proceedings in addition to federal court proceedings.
The Right.
I often get asked how it is that I can "defend" (which is not really what an appeal is) or represent individuals who have been convicted of crimes, sometimes very heinous and despicable crimes. Perhaps its naivete on my part (or simply overconfidence in what other people know about history and, thus, know about the rights given and enshrined in the Constitution), but I'm often taken aback by the question. The individuals in question have these rights - the right to a fair trial, the right to competent counsel at all proceedings before a trial court, the right to appeal to seek review of their case. Why do they have this right - to make sure that the government, in the prosecution of crimes, doesn't overstep its bounds; that it does everything in the right and correct manner.
As with the other Bill of Rights' amendments, this right goes to the very core of the ideals of the American Revolution, and thus to the very core of what we, in a civic sense, believe our country stands for. Yet, if those rights are going to apply to someone who is accused of something horrible (and did it), we don't see the need. Such always seems counter-intuitive to me - to me, it seems showing that we give those rights regardless of person or circumstance demonstrates our commitment to those rights (and ideals). It demonstrates that we mean it, as opposed to simply paying lip-service to it.
Yet, that seems to be exactly the case with Louisiana (and other states I'm sure; Indiana also includes a court fee specifically to help fund the public defender program, with the same consequence - contempt of court and possible jailing - for non-payment of all fines and fees). And I get the politics of why its impossible to raise money for this type of program - not a particular voting constituency any politician has to worry about - but acknowledging that reality doesn't make it any less sad, and frustrating. The law, our judicial system, is supposed to operate outside the world of politics; to not be subject to the whims of popular sentiment of the moment, but to apply reasoned, rational thought and application of the rule of law to people and situations equally and fairly. Not funding public defender programs, regardless of political reality, cuts against this ideal.
This makes me think about another piece of news I've read in the past week - Donald Trump's statements (attacks?) on the judge that is handling a civil case involving Trump University. (see here and here ). The short version - Trump, a candidate for President, and thus a candidate for leader of the branch of government that appoints federal judges to the bench, criticized a federal judge for a decision in a case in which Trump has a personal stakel. The kicker, though, is that Trump's criticism wasn't founded on a differing legal interpretation or reasoned analysis of facts and law, but personal on the judge, who he referred to as a Mexican (which, considering Trump's history, has to almost be considered an intended slur), and that the government should look into him (the judge, that is).
That judge, as the articles point out, has an extensive legal career that more than qualifies him for the position he is in. And he happens to be a native of Indiana, born to immigrant parents, and rose to a seat on the federal judiciary. Such seems cause for celebration that the "myth" of the American Dream still happens from time to time, and this judge's success speaks to those possibilities. Instead, there is name calling and bullying from the Presidential candidate.
And how is this all connected? It may not be - but I think about how Trump has no problem affording counsel, and probably good counsel, and when he gets a preliminary decision from a judge that he disagrees with (for whatever reason), he makes personal attacks. And then we have those who have the constitutional right to counsel, and we don't make sincere and authentic efforts to provide adequate funding for that right for those individuals. It feels like two separate but distinct attacks on the unique judicial system in America - the defunding of a constitutional right that goes with a whisper because no one cares about the rights of "poor criminals;" and the bullying of the judiciary branch by, possibly, the executive branch, which damages the idea of an independent judiciary.
The cause of both possible realities - the politics of the moment. The politics that make us forget that constitutional rights apply to all citizens, not just some. The politics that make us forget the very sound and necessary reasons to have the separation of powers and check and balances that exist among and between our branches of government.
It makes me nervous about the future of the rule of law.
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"The rule of law bakes no bread, it is unable to distribute loaves or fishes (it has none), and it cannot protect itself against external assault, but it remains the most civilized and least burdensome conception of a state yet to be devised." - Michael Oakeshott
"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." – U.S. Supreme Court Justice Hugo Black (1964)
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