The Crucible of Adversarial Testing

216 Pages·2014·6.01 MB·English

THE CRUCIBLE OF
ADVERSARIAL TESTING
Access to counsel in
Delaware’s criminal courts
SIXTH
6AC
AMENDMENT
CENTER
Copyright © 2014 by the Sixth Amendment Center.
All rights reserved.
Publication Number: 2014.001
SIXTH AMENDMENT CENTER
PO Box 15556
Boston, MA 02215
www.sixthamendment.org
This study of the right to counsel in the state of Delaware was conducted by the Sixth
Amendment Center on behalf of the Office of Conflicts Counsel, a division of the Office of
the Public Defender, and made possible by a generous grant awarded by the U.S. Depart-
ment of Justice, Bureau of Justice Assistance. DOJ Office of Justice Programs Grant Award #:
2012-DB-BX-0005.
executive summary
In the 1963 case, Gideon v. Wainwright, the U.S. Supreme Court declared it an “obvi-
ous truth” that anyone accused of a crime and who cannot afford the cost of a lawyer
“cannot be assured a fair trial unless counsel is provided for him.” In subsequent cases,
the Court ruled that the right to counsel is the right to an effective attorney that works
within an indigent defense system with systemic safeguards to allow for zealous repre-
sentation.
In Delaware, able attorneys are working in a structure that prevents them from meeting
constitutional adequacy despite their commitment, dedication and hard work. System-
ic impediments clear out thousands of defendants each year who should be receiving
representation under the Sixth Amendment, but that are not. These defendants either
face subtle (or sometimes direct) pressure to forego the right to the assistance of coun-
sel, or unwittingly waive that right without knowing the full consequences of doing so.
Where defendants have not already relented to pressure to forego the right to counsel,
their lawyers are provided too late and with too little time to be the zealous advocates
that each defendant has as his privilege. And as a result, Delaware’s indigent defense
function fails to subject the prosecution’s case to “the crucible of meaningful adversar-
ial testing” rendering the entire adversarial process “presumptively unreliable.” (United
States v. Cronic, 466 U.S. 648 (1984).)
Findings
To help policymakers who may not be lawyers, or otherwise are not versed in consti-
tutional law, the American Bar Association (ABA) promulgated the Ten Principles of
a Public Defense Delivery Systems which, in the ABA’s own words, represent the “fun-
damental criteria necessary to design a system that provides effective, efficient, high
quality, ethical, conflict-free legal representation for criminal defendants who are un-
able to afford an attorney.” Our nation’s top law enforcement officer, Attorney General
Eric Holder, called the ABA Principles the “basic building blocks of a well-functioning
public defense system.”
This study of the right to counsel in the state of Delaware was conducted by the Sixth
Amendment Center (6AC) on behalf of the Office of Conflicts Counsel, a division
of the Office of the Public Defender, and made possible by a generous grant awarded
by the U.S. Department of Justice, Bureau of Justice Assistance (DOJ Office of Justice
Programs Grant Award #: 2012-DB-BX-0005). The goal of the BJA grant program is to
“identify gaps” to be addressed by the ABA Ten Principles.
iv The Crucible of Adversarial Testing: Access to counsel in Delaware’s criminal courts
Both the primary and conflict indigent defense systems in Delaware fail the vast ma-
jority of the ABA Ten Principles. In fact, the indigent defense system in Delaware only
meets one of the ABA Ten Principles in its entirety: Principle 2 (requiring state funding
and a mixed system of staff public defenders and private bar attorneys). Public defense
lawyers in Delaware begin substantive work on a case far too late in the criminal jus-
tice process to be effective (in violation of Principle 3) and the same attorney does not
provide continuous representation to each and every client once appointed through
to disposition (in violation of Principle 7). The violations of Principles 3 and 7 are a
direct result of attorneys not having sufficient time to handle cases properly, including
meeting with clients (in violation of Principle 4), because workload is not controlled to
permit the rendering of adequate representation (in violation of Principle 5). Defense
counsel, especially on the conflict side, are not supervised nor systematically reviewed
for quality against performance standards (in violation of Principle 10), partly because
there is no systematic training against such standards so that attorneys know what is
expected of them (in violation of Principles 6 and 9).
And, though the indigent defense system, and in particular the OPD, is viewed by other
criminal justice agencies as an equal partner in improving the criminal justice system
(meeting Principle 8, in part), the conflict system enters into contracts that have finan-
cial disincentives for lawyers to render quality services for all appointed clients and fail
to specify performance requirements and anticipated workload (in violation of Principle
8, in part).
More than any other reason, the failure to meet the majority of the ABA Ten Principles
and the large number of people going unrepresented are both the direct result of the
state of Delaware’s failure to ensure the independence of the defense function (in viola-
tion of Principle 1). Most states have surpassed Delaware in its evolution of the right to
counsel by insulating the chief executive of the indigent defense system under an inde-
pendent commission made up of members selected by diverse appointing authorities
such that no single branch of government has the ability to usurp power over the chief.
In Delaware, the chief defender is a direct gubernatorial appointee.
Report Guide
Part One of the report (Chapters 1 through 4; pages 13-100), explores the constitutional
requirement to provide defendants with early access to counsel (ABA Principle 3). The
right to counsel attaches, according to the Supreme Court, at “a criminal defendant’s
initial appearance before a judicial officer, where he learns the charge against him and
his liberty is subject to restriction.” In Delaware, therefore, the right to counsel attaches
in criminal proceedings where nearly all criminal matters begin: the Justice of the Peace
Court.
Though defendants are advised of the right to the assistance of counsel at their initial
appearance, no formal activation of that right occurs unless the defendant is unfor-
tunate enough to remain incarcerated pretrial. As a result, many out-of-custody de-
Executive Summary v
fendants appear at subsequent critical stages in the Court of Common Pleas without
representation – perhaps more without counsel than with. There they face subtle, and
often overt, pressure to discuss potential plea arrangements with the prosecution or to
waive due process rights, without the advice of a lawyer, and all for reasons that appear
to have more to do with keeping the whole process moving than with a desire to ensure
the fairness of the result.
This problem also occurs in Family Court for children in delinquency proceedings.
Children failing to call the public defender’s office for an interview in advance of their
arraignment are considered by the prosecutors to be pro se – they have effectively
defaulted on their right to the assistance of counsel. But allowing children and their
parents to meet with prosecuting attorneys to discuss plea deals – or, worse, pressuring
them to do so – is a clear violation of the right to counsel, and cannot be permitted.

Part Two (Chapters 5 & 6; pages 101-148) details how systemic deficiencies prevent
those defendants who do manage to invoke their right to counsel from getting adequate
representation.
Delaware practices “horizontal” representation – a system in which one attorney
handles one part of a case and then passes the client on to another attorney in assem-
bly-line fashion. Horizontal representation is in violation of ABA Principle 7, in part,
because it fosters long periods of time where defendants have representation in name
only. In New Castle County, for example, public defenders provided at preliminary
hearings on felony matters in the Court of Common Pleas file no motions, launch no
investigation, interview no witnesses, and only meet with the client in order to convince
him to waive his right to the preliminary hearing. Either that, or they often advise him
to take the plea being offered by the state, despite meeting the client for the first time
that morning. So, for any case proceeding to trial in the Superior Court, the defendant
may have had a lawyer assisting him at the preliminary hearing but he certainly did not
have someone substantively advocating on his behalf.
Excessive caseloads further leave public defenders and conflict attorneys with insuffi-
cient time to properly work on all of their cases. For example, in Sussex and Kent coun-
ties’ Family Courts, individual public defenders were found to be carrying the caseload
three full time attorneys should handle per national caseload standards. Public defend-
ers handling adult misdemeanors caseloads in the Court of Common Pleas are equally
overwhelmed.
Part Three (Chapters 6 & 7; pages 149-184) details Delaware’s lack of on-going training
and supervision of the lawyers representing the indigent accused. Without a rigorous
training structure, any organization will develop its own set of values from within. Over
time, that which may have once been grudgingly accepted, like saving investigation for
only the most serious cases, presuming that all clients have the same views toward their
case outcomes and, based on that assumption alone, entering guilty pleas on behalf of
those clients only moments after meeting them in court – all of which we found occur-
ring throughout Delaware – now becomes the established standard.
vi The Crucible of Adversarial Testing: Access to counsel in Delaware’s criminal courts
This new “norm” has been allowed to take root in Delaware because the system lacks
accountability. There are two parts to accountability: accountability of the attorneys
within the system and accountability of the system itself. To start, there are no formal
performance standards in Delaware telling attorneys what is expected of them. But even
if there were performance standards, the Office of Conflicts Counsel has no mecha-
nism to review the performance of the attorneys it hires against said standards. Some
attorneys we spoke with expressed concern at this. “We need some systemic controls
to ensure that, if there’s going to be a conflict appointment, the representation is going
to be where it needs to be,” said one. Accountability of the primary public defender is a
work in progress.
With this report the Sixth Amendment Center is, in essence, performing a systemic
performance audit of Delaware’s indigent defense system because there is no institu-
tionalized structure to perform this function from within. This report identified gaps in
services, pointed out systemic deficiencies, and questions policies that prevent attorneys
from being effective. But Delaware needs to be doing this on an on-going basis or these
problems will mount over time to the point where the efficacy of the whole criminal
justice system is called into question.
Recommendations
1. Insulate the provision of right to counsel services from undue political and judicial
interference, and establish proper ethical screens between the indigent defense system’s
chief executive and the primary defender system, and between the chief executive and
the conflict defender system.
2. The Family Court should adopt a rule prohibiting children in delinquency matters
from waiving the right to the assistance of counsel.
3. The indigent defense system should adopt and implement regulations requiring that
counsel is appointed as soon as possible after “attachment,” as required by Rothgery v.
Gillespie County, 554 U.S. 191 (2008), for any defendant facing loss of liberty as a poten-
tial sentence under law, and the vertical representation of all clients.
4. The indigent defense system should promulgate standards for quality representation,
create a comprehensive training program based on such standards, and measure com-
pliance against those standards to demonstrate, on an ongoing basis, the effective use of
taxpayer dollars. And the indigent defense system should establish workload limits to
permit the rendering of effective attorney performance in all case types.
vii
TABLE OF CONTENTS
ix Preface
3 Introduction
13 Part One. Early Appointment of Counsel
15 Chapter 1. Early Appointment of Counsel, and the Critical
Stages of a Case
29 Chapter 2. Early Appointment of Counsel, and Misdemeanor
Arraignments
55 Chapter 3. Early Appointment of Counsel, and Felony Preliminary
Hearings
77 Chapter 4. Early Appointment of Counsel, and Juvenile
Arraignments
101 Part Two. Effective Representation of the Client
103 Chapter 5. Ongoing Representation of the Client by the Same
Attorney
131 Chapter 6. Sufficient Time to Ensure Quality Representation
149 Part Three. Accountability
151 Chapter 7. Attorney Qualification & Training
171 Chapter 8. Accountability & Independence
185 Part Four. Conclusion & Recommendations
197 Appendices
viii The Crucible of Adversarial Testing: Access to counsel in Delaware’s criminal courts
about the
sixth amendment center
The Sixth Amendment Center (6AC) is a Massachusetts-based nonprofit 501(c)3 organiza-
tion that seeks to ensure that no person faces potential time in jail without first having the
aid of a lawyer with the time, ability and resources to present an effective defense, as re-
quired under the United States Constitution. We do so by measuring public defense systems
against established standards of justice. When shortcomings are identified, we help states
and counties make their courts fair again in ways that promote public safety and fiscal
responsibility.
Jon Mosher
Deputy Director, Sixth Amendment Center. Now in his tenth year working on right to
counsel issues, Jon Mosher is an expert on the standards for the delivery of indigent defense
services, and the methods utilized by state and local government in providing for those
services. He is the primary author of the report and project manager of the study.
David Carroll
Executive Director, Sixth Amendment Center. David Carroll is a nationally recognized ex-
pert on the standards and methods for the delivery of right to counsel services, with fifteen
years of providing technical assistance to policymakers at the federal, state and local levels.
He has led numerous research and evaluation projects, authored several papers and reports,
and has testified on right to counsel issues before a number of state legislatures and the U.S.
Congress.
nicholas chiarkas
Public Defender Emeritus, Wisconsin State Public Defender. Nick Chiarkas began his
professional career as a New York City police officer, before attaining his law degree and
multiple masters and doctorate-level degrees in criminal justice and sociology. He served
for 22 years as Wisconsin State Public Defender, before retiring. Chiarkas also served as
a consultant to Israel in establishing and enriching Israel’s first National Public Defender
and to Japan as it introduced a public defender system. He is a current member of the 6AC
Board of Directors.
Preface
“Liberty and Independence,” the motto on the Great Seal of the State of Delaware, is a
fitting maxim for the first state to ratify the United States Constitution. The Constitu-
tion, after all, distinguished a new form of government that would no longer follow the
dictates of foreign governments of the 18th century that placed power in the hands of a
few at the expense of the many. The fledgling country, and its new Constitution, instead
insisted upon protection of personal liberty and independence from the potential tyr-
anny of big government. All people, the Constitution argues, should be free to express
unpopular opinions or choose one’s own religion or to take up arms to protect one’s
home and family without fear of retaliation from the state.
Central to the core idea of “liberty and independence” is the notion that no one’s free-
dom can ever be taken away in a criminal procedure without the process being fair. A
jury made up of everyday citizens, protections against self-incrimination, and the right
to have a lawyer advocating on one’s behalf are all American ideas of justice enshrined
in the Bill of Rights.
In 1963, the fear of state tyranny over the liberty and independence of the individual
led the United States Supreme Court to unanimously declare it to be an “obvious truth”i
that the indigent accused cannot receive a fair trial unless a lawyer is provided at no
cost. “The right of one charged with crime to counsel may not be deemed fundamental
and essential to fair trials in some countries,” the Court announced in Gideon v. Wain-
wright, “but it is in ours.”ii Accordingly, Gideon made it incumbent upon states through
the Fourteenth Amendment to provide Sixth Amendment right to counsel services to
any person of limited means facing a possible loss of liberty and independence in the
criminal justice system.
Delaware created a statewide, state-funded public defender system in the immediate
wake of the Gideon ruling. (It was the second state to do so.) The Supreme Court’s
watershed decision was handed down on March 18, 1963. Delaware’s House Bill 177,
“An Act to Create a Public Defender and Making a Supplemental Appropriation,” was
introduced a mere 15 days later. The bill was signed into law in January 1964, with the
Office of the Public Defender opening its doors that summer.

And, if the story ended there, Delaware would be rightly celebrated as a model protec-
tor of “liberty and independence” nationwide. But even while creating the new public
i Gideon v. Wainwright, 372 U.S. 355 (1963).
ii Ibid.
x The Crucible of Adversarial Testing: Access to counsel in Delaware’s criminal courts
defender system, the rest of the state’s method for providing right to counsel services
was not given the same level of care and attention.
Delaware was one of 35 states that appointed counsel in felony matters even before the
Supreme Court required such appointments with the Gideon decision. By creating the
Office of the Public Defender in 1964, the state replaced the then-primary method for
providing public counsel to accused persons – private attorneys, paid hourly or under
contract, and managed by the judiciary – with a new method, and one better suited to
meeting the state’s needs going forward.
But of course not all people who stood accused before Delaware’s courts in 1964 re-
ceived the benefit of the state’s Office of the Public Defender. For example, a public
defender system cannot ethically represent people charged as co-defendants in the same
crime because the interests of one of the accused directly conflict with the interests of
the other. Just think of one co-defendant pointing a finger at the other as being more
culpable of the crime they are both accused of having committed. And so, from 1964
onward, Delaware has maintained two distinct indigent defense systems. One being the
primary public defender system and the other being the judge-administered system,
now preserved to provide for conflict representation.
As readers will learn, national standards of justice bar judges from the oversight and ad-
ministration of indigent defense services because of the bias – either real or perceived –
that they are controlling defense attorneys’ actions and otherwise not remaining neutral
between the battle of two adversaries. Nationally, attorneys working in such non-inde-
pendent systems often take into account what they must do to please a judge in order
to get their next assignment rather than advocating solely on behalf of their clients, as
required under the Sixth Amendment. So, from the outset, without a comparable level
of concern for their needs as for clients of the primary system, conflict defendants were,
in effect, second-class citizens of the criminal justice system in Delaware.
In January 2011, Chief Justice Myron Steele sought to end Delaware’s undue judicial
interference in the state’s conflict indigent defense system by transferring responsibility
for the administration of the conflict panel to the Office of the Public Defender (OPD).
Unfortunately, OPD was in no position to take on the new responsibilities. Back in
1964, a single public defender office could handle the bulk of Delaware’s indigent
defense cases with little difficulty. However, the onslaught of cases that began with the
extension of Gideon to misdemeanor cases and beyond, and exploded with the “tough
on crime” movement of the 1980s and 1990s, required indigent defense systems to
adapt accordingly. Delaware’s public defender system, for the most part, did not. As this
report makes clear, OPD started triaging justice incrementally, over time focusing on
the Gideon mandate by putting most of its resources into felony representation while
neglecting less serious cases. In short, in 2011 an unorganized conflict system was graft-
ed onto an overloaded primary system, without enough care given to needed ethical
screens between the two parts of the indigent defense system.