Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


You have the right to counsel... maybe

I wonder if there's a correlation here...

The Supreme Court's opinion two weeks ago in Wearry v. Cain began, "Michael Wearry is on Louisiana's death row."  It ended with his conviction vacated and his case sent back for retrial.

A retrial's not likely, because at this trial a lot of evidence will come out that the prosecutor hid at the first one.  Like the first three statements of their star witness, who claimed to have been at the scene of the crime.  Those statements "differed from the others in material ways" until his story at trial "bore little resemblance to the original account."  Or the statements by three other inmates that the star witness had told them he was lying to get out of prison.  Or the fact that the prosecution made a secret deal with another key witness, then told the jury that the witness "hasn't asked for a thing."

There's more, but you get the idea.  The dissent by Alito and Thomas seemed more focused on the summary nature of the Court's disposition:  the case was decided without briefing or argument.

Some can be.

Like I said, there is more, and the "more" is that the Court didn't even bother with Wearry's second claim, ineffective assistance of counsel.  Not that there wasn't any basis for it.  This is a capital case, remember.  Wearry's big defense was alibi:  he claimed to have been at a wedding reception at the time of the murder.  The defense attorney never tried to interview any of the guests, and actually didn't do any investigation at all, nor sought the employment of an investigator; he relied on what the state gave him.

Then I found out from the New York Times on Sunday that the guy might have actually been a real estate lawyer, working for free.

Louisiana has a budget problem, in the same way that the Kardashians have a talent problem:  there's a substantial and growing deficit.  Just a week ago, the Republican-controlled legislature grudgingly approved a measure containing tax increases - the ultimate apostasy in GOP circles - in an attempt to bridge a yawning deficit.  Schools, infrastructure, and services have been cut.

Budget cuts do not fall evenly, though.  You have to set priorities, and they are highly political.  If you cut the education budget, you could lose an election. 

You will never lose an election because you gave less money to people who defend criminals.

And so it is with the Louisiana public defender system.  Several offices have already been forced to close, and many more are approaching insolvency, forced to lay off attorneys in an effort to stay afloat.  Two months ago, the Orleans public defender's office, with its attorneys facing triple the caseloads recommended by the ABA, began refusing to accept any more serious felony cases, such as murder, rape, armed robbery.  At the time, the office had 350 such cases, spread among eight attorneys; 85 of the cases involved mandatory life sentences.  The result there, and elsewhere, is that judges have conscripted private attorneys, some of whom have never seen the inside of a courtroom, to represent indigents.  For free.  Meanwhile, many defendants languish in jail for weeks or even months, waiting to see an attorney, or even the judge:  the case can't proceed until an attorney is found.

As might be expected in our litigious society, this has the prospect of leading to litigation on multiple fronts.  Private attorneys are considering suit, probably premised on the notion that Lincoln freed the slaves some time ago.  The ACLU filed suit in Orleans, arguing that the system violates the 6th Amendment's right to counsel, as well as the right to due process and speedy trial. 

And, of course, there's the anticipated surge of claims by defendants of ineffective assistance of counsel.  If you're convicted of murder, I'm guessing you've got a pretty good claim on that score if your lawyer was intimately familiar with the tax code, but didn't know the difference between the 4th Amendment and the 4th Commandment.

Louisiana has the highest rate of incarceration in the country.  It also has the highest rate of exonerations.

I'll bet there's a correlation there, too.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses