Understanding judicial interference with the defense function – ABA Principle 1

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Judicially controlled indigent defense systems often follow or adjust to the needs of each judge in each court, rather than focusing on providing constitutionally effective services for each and every defendant. Although no two indigent defense structures are identical, generally undue judicial involvement takes the form of: judges hand-selecting and qualifying attorneys to take cases; judicial determinations of how much the attorneys are paid and by what method (e.g., by annual contract or hourly fee); and/or, determining if a request for an expert witness or an investigator has merit and will be funded.

Fearing the loss of their jobs by not pleasing the judge who hired or supervises them, defenders will often take on more cases than they can ethically handle, will delay working on a case, and will triage their hours available in favor of some clients but to the detriment of others, thereby failing to meet the parameters of ethical representation owed to all clients. And so, it does not take a judge to say overtly: “Do not file motions in my courtroom.” Defense attorneys will bring into their calculations what they think they need to do to garner favor with a judge in order to get the next appointment or contract. When public defense attorneys take into consideration what must be done to please the judge to get their next appointment or contract, by definition they are not advocating solely in the interests of a client, as is their ethical duty.

In the experience of the 6AC, most undue judicial interference occurs under the above scenario where judges are not overtly trying to control the defense of the indigent. But, overt interference is a possibility when a system is structured to have judges overseeing defense services. For example, a 2000 study commissioned by the State Bar of Texas1 reports that “[n]early four in ten (39.5 percent) judges indicate that their peers occasionally appoint an attorney because he or she is a friend, while roughly one-third of judges sometimes consider whether the attorney is a political supporter (35.1 percent) or has contributed to their campaign (30.3 percent).” There is simply no place in criminal justice systems for such undue judicial and political interference in the delivery of the right to counsel.

The United States Supreme Court agrees. The Court has determined that states have a “constitutional obligation to respect the professional independence of the public defenders whom it engages.” Specifically, Strickland v. Washington states that “independence of counsel” is “constitutionally protected.”

To fully understand the weight of this statement on the potential undue interference of the judiciary over the public defense function, Strickland should be read in conjunction with another case heard and decided on the same day: United States v. Cronic. Cronic sets out the systemic deficiencies that may result in a constructive denial of counsel – e.g., the inability of a defender system to subject the state’s case to the “crucible of adversarial testing” even when a lawyer is present to represent the indigent accused. To demonstrate the type of systemic deficiencies they mean, the Cronic court points to the systemic deficiencies that occurred in Powell v. Alabama.

Though there are a number of issues the Powell Court raises with the defense, the involvement of the trial judge in selecting and directing counsel was of particular importance. In Powell, the Court directly questions the efficacy of judicial oversight and supervision of the defense, asking: “[H]ow can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that, in the proceedings before the court, the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.”

The Powell quotation underscores the fact that it is not that judges who directly oversee indigent defense services are somehow “bad” people. On the contrary, it is simply that a judge can never know everything about a case to determine if an independent decision, for example, to file or not file a particular motion is the stated interest of the particular client because the judge cannot review the case file, or interview the client privately, or conduct a separate investigation of the facts.

National standards of justice reflect the aims of the U.S. Supreme Court. The ABA Ten Principles explicitly require that the “public defense function, including the selection, funding, and payment of defense counsel, is independent.” In the commentary to this standard, the ABA notes that the public defense function “should be independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel” noting specifically that “[r]emoving oversight from the judiciary ensures judicial independence from undue political pressures and is an important means of furthering the independence of public defense.”

The constitutional imperative for defender independence and the prohibition of judges from oversight of indigent defense services does not mean that judges do not have a critical role to play in the delivery of public defense services. They do. Judges have a unique view of defender performance in the courtroom. Unprofessional conduct, habitual tardiness, and general unpreparedness should not be tolerated whether it occurs in the prosecution or defense of the indigent. Judges should alert the management of both sides of the aisle if lawyer conduct or actions are disruptive. In constructing an indigent defense system, a regular procedure should be constructed to require judges an avenue to regularly comment on attorney performance. One example of this is the 2013 legislative initiative that created the Michigan Indigent Defense Commission and states: “The delivery of indigent criminal defense services shall be independent of the judiciary but ensure that the judges of this state are permitted and encouraged to contribute information and advice concerning that delivery of indigent criminal defense services.”

The U.S. Supreme Court is not solely concerned with undue judicial interference on the defense function. An indigent defense system also needs to be free of undue political interference too. National standards suggest that the best way to protect defense counsel independence – either on the municipal, county or state level – is by establishing an independent public defender commission.

  1. Allan K. Butcher and Michael K. Moore, Muting Gideon’s Trumpet: The Crisis in Indigent Criminal Defense in Texas (Sept. 22, 2000)