indigent defense need-blind justice by Yarek Waszul

Illustration by Yarek Waszul

Last month, I reported that attorney Larry Hammond and others are seeking to establish an Arizona indigent defense commission. The unfilled need is dire, he said, and growing worse. He asked the State Bar to step up and create a body that will study and propose alternatives. (The Bar is considering it.)

So timely, a New York Times article this Sunday explored two states’ responses to the crushing problem. Here is how Adam Liptak opens his piece on Need-Blind Justice:

“Fifty years ago, in Gideon v. Wainwright, the Supreme Court ruled that poor people accused of serious crimes were entitled to lawyers paid for by the government. But the court did not say how the lawyers should be chosen, how much they should be paid or how to make sure they defended their clients with vigor and care.”

“This created a simple problem and a complicated one. The simple one is that many appointed lawyers are not paid enough to allow them to do their jobs. The solution to that problem is money.”

“The complicated problem is that the Gideon decision created attorney–client relationships barely worthy of the name, between lawyers with conflicting incentives and clients without choices. Now a judge in Washington State and a county in Texas are trying to address that deeper problem in ways that have never been tried in the United States.”

“Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.”

“The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.”

“The county calls it ‘client choice.’ Another name: Gideon vouchers.”

Read Liptak’s whole story here.

It was Justice Louis Brandeis who mused that states could serve as laboratories for democracy, where they might try “novel social and economic experiments without risk to the rest of the country.” It seems that Washington and Texas are doing just that, all in service to a problem affecting countless residents.

Two questions arise:

  1. Which approach, if either, offers the greatest likelihood of success?
  2. Where is Arizona’s approach? Will it be one of those two, or an entirely different strategy that a new commission may devise?

In Arizona Attorney Magazine, we’d like to cover the developing conversation. So what do you think?

Larry Hammond speaks at the State Bar Board of Governors meeting, Oct. 25, 2013

Larry Hammond speaks at the State Bar Board of Governors meeting, Oct. 25, 2013

At the most recent meeting of the Board of Governors of the State Bar of Arizona, attorney Larry Hammond rose to shed light on a vital issue: legal representation for those who cannot afford it.

He is the chair of the Indigent Defense Task Force, and on October 25, he asked the board to form a State Indigent Defense Commission. It would be charged with examining that intractable problem and suggesting solutions.

How intractable? Well, as Larry noted, we are in the 50th anniversary of Gideon v. Wainwright and we’re still wrestling with it.

In fact, I wonder how much has changed since the issuance of noteworthy reports like Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice” (2003) and Gideon Undone: The Crisis in Indigent Defense Funding” (1982)?

(All of that, and more, are available on an ABA page dedicated to studies of the indigent defense system in the United States.)

Here is one of the things Larry said to the Governors in his appeal to create a commission:

“It is not just the duty of defense lawyers and victim advocates. We all must believe that competent, adequately funded representation is a part of all of our jobs.”

Do you agree?

I’ve invited Larry to write something for Arizona Attorney Magazine on the topic, both the crisis and the recommended response. I’ll keep you informed.

Larry_Hammond

Larry Hammond

I should have shared this before, but at noon today, the ASU Law School is the site for what looks to be a compelling speaker panel.

Then, Then & Now: Reproductive Rights Before and After Roe and In Our Future” is the second installment of a three-part speaker series. Organizers say the discussion “will focus on the social and legal impact of the landmark Roe v. Wade decision, in honor of its 40th anniversary.”

(I wrote about the panel last year.)

Among those who will speak is attorney Larry Hammond, law clerk to Justice Lewis Powell at the time Roe was decided.

Where: The Great Hall at the Sandra Day O’Connor College of Law at ASU.

When: Noon – 1:30 p.m., Tuesday, March 5

Food: Yes! Lunch will be catered by Carolina’s Mexican Food.

The event is open to the public and no RSVP is necessary.

More detail is here.

William Macumber

John Faherty, in yesterday’s Arizona Republic, did a phenomenal job retelling the tale of one of Arizona’s most notorious murders. It was riveting, exhaustive and incisive. Not only that, it was timely, as we learned at the end of the article—for another step in the case is still being played out decades after the crime.

The murder was actually plural—there were two. Joyce Sterrenberg and Tim McKillop were both 20 years old and dating that May night in 1962 when they decided to pull off the main road and park Joyce’s Chevy Impala on a dirt stretch, close by the intersection of Scottsdale and Bell roads. That turned out to be a tragic decision; they were found near the car the next day, shot dead.

It took police until 1975 to arrest someone for the apparently motiveless crimes, and that man was William Macumber.

Faherty weaves all of that, plus far more, into a coherent and gripping narrative. Along the way, he tells about a young lawyer—later Judge—who represented another man whom the attorney believed committed the crimes that led to a life sentence for Macumber.

That is what takes us to modern-day Arizona. Thomas O’Toole the lawyer had represented a man he believed to be guilty for those crimes. But his client had been convicted for another rape and murder, and attorney–client privilege prevented O’Toole from doing anything with the extra information anyway.

But in 1974, when O’Toole read that Macumber had been arrested for the 1962 murders, the then-Judge was stunned. He contacted lawyer Larry Hammond, who had just established the Arizona Justice Project, “which would work to free the wrongly convicted or unfairly sentenced.” The Judge said that if Hammond was looking for something to work on, he should examine the Macumber conviction.

Read the entire story here. It’s broken into three parts—kudos to the Republic for hanging tough with this long but important story.

As I read Faherty’s great tale, though, I was struck by a few things.

One is our fascination with murder stories. And it seems that every one ultimately continues to hold mysteries that resist unraveling.

In Arizona Attorney Magazine, we have published our share of bloody Arizona stories.

In 2008, Gary Stuart excerpted a chapter of his book on the 1991 Buddhist Temple Murders.

And also in 2008, Judge Bill Schafer wrote “Murder in the Desert” for us, detailing the 1966 trial of Charles Schmid, who killed a girl “to see if he could get away with it.”

Murder stories may be instructive, but they are also lurid, and they can raise the hairs on the back of your neck.

But I thought last night about another aspect of stories like this. And it made me wonder about Faherty’s story.

How many unsolved murders are there? Quite a few, I’d bet. And how many get coverage reaching back decades? Again, not many. But what would the chances have been if the intersection had not been Scottsdale and Bell roads? How slim would those chances be if the intersection had been much farther south, maybe below Van Buren? Or what if the crime had occurred on the reservation? Experience and a wealth of news stories demonstrate that it is quite likely that crime would never have been solved—or even investigated well. And a dearth of news stories tells us that the crime would probably not have been covered in any major newspaper—in 1962 or today.

Although it’s typically better to be right up front at noteworthy events, some events are great enough that any seat is a good one. That was my experience at today’s luncheon at the Hyatt Regency Phoenix, where the Learned Hand Awards were, well, awarded.

Sponsored by the Arizona chapter of the American Jewish Committee, this ceremony has grown to be one of the best-attended legal events of the year. And for good reason.

First, they select great people for the three categories. In public service, community service and emerging leadership, the honorees’ names cause you to slap your head and say, “Of course!” This year’s winners were Keri Lazarus Silvyn, E.G. “Ted” Noyes, Jr., and Debbie Hill.

Second, the selection committee is a who’s who of legal talent. Choosing the honorees must be hard work, but if they could carve out some extra time in their busy schedules, this brain trust should be put to work solving even tougher issues, so the cratering state economy. But I suppose that will be left to the “professionals.”

Finally, the main reason that this affair is a cool gig is the format they select: Each honoree chooses on their own whom to ask to give their introductory speech. Two winning speeches for the price of one! So we first get to hear from a great orator (or at least someone who brought their A game), and then we get to hear from the winner herself.

Understand, each of the speakers is a legal luminary in his or her own right. And speakers really have learned to spend the time to craft a great message.

This year, for instance, we got to hear from Toni Massaro, formerly the dean at the UA Law School. She introduced Keri Silvyn, the “emerging leader.” Massaro spoke eloquently, as always. Today, she talked about the “suffering of our institutions” in the economic downturn, and why leaders are more important than ever. FDR was wrong, she offered: We need not fear only fear itself, but we must fear passivity and jingoism, simplistic reasoning that resists nuance, and an exaggerated sense of our own exceptionalism that forgets the past. Last year, Toni Massaro was an honoree herself, and her speech wowed the room then. This was a worthy encore.

And Keri Silvyn followed, joking about how her “years of bossiness” are “apparently called ‘leadership’ now.” She also chided her father, esteemed zoning lawyer Larry Lazarus, for his less-than-charitable commentary early in her career when she called with legal questions. “You don’t know that yet?” he would ask. Soon, Silvyn laughed, she learned to take her questions to her own law firm colleagues, who suppressed her pater’s urge to tell her it was a stupid question.

Ted Noyes also was a worthy choice. He was introduced by Noel Fidel, and then Noyes spoke. The former appellate judge had retired and gained a position as a prosecutor in the Attorney General’s Office – not a supervisor, just a line prosecutor. He reminded the crowd that, “The government wins whenever justice is done.” He also recalled the “benediction for those in public service” uttered at his own judicial investiture in 1983: “In service to others, correct the wrong and live and inspire the right.”

Finally, Debbie Hill was introduced by Larry Hammond, who spoke movingly of Hill’s work representing prisoners and others in need. When she rose to speak, she opted to say nothing about her current work or about service generally. Instead, she launched a video—“The Girl Effect”—which suggests a powerful way to effect change in the world.

Hill concluded by reminding the listeners of Sandra Day O’Connor’s words: “We don’t accomplish anything in this world alone.”

A great event, and quite a few good messages.

Follow

Get every new post delivered to your Inbox.

Join 2,317 other followers