In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The Sixth Amendment outlines the procedural due process to be followed during criminal trials. The Sixth Amendment is popularly known for its protection of the right of the accused to an attorney. But it is much more than this. It also protects the right to be informed of the charges, the right to confront and obtain favorable witnesses, and the right to a speedy and public trial by an impartial jury of one's peers in the state where the crime was allegedly committed.
The following article talks about a case in which the Supreme Court refused to lift stay of execution over a Sixth Amendment issue. The accused man was sentenced to death by a judge. Courts are trying to decide whether or not he had the right to be sentenced by a jury instead.
U.S. high court refuses to lift stay of execution
By TONY RIZZO
The Kansas City Star
The planned execution of a convicted Kansas City killer was called off late Tuesday night after the U.S. Supreme Court refused to lift a stay of execution.
Roderick Nunley, who was sentenced to death for the kidnapping, rape and murder of 15-year-old Ann Harrison in 1989, was scheduled to be put to death by lethal injection at 12:01 a.m. today.
Ann’s father, Bob Harrison, said his family was not surprised by the Supreme Court’s decision because of the many legal twists and turns the case has taken over more than 21 years.
The decision came after a hectic day of appeals and counter-appeals in state and federal courts.
The Missouri attorney general’s office did not indicate what action it might take next, but the state could continue efforts to carry out the execution today. The state has until midnight tonight to carry out the execution order.
Missouri officials took the case to the Supreme Court on Tuesday night after the 8th Circuit Court of Appeals in St. Louis declined to lift the execution stay granted Monday by Chief U.S. District Judge Fernando Gaitan in Kansas City.
Gaitan ruled that the issue of whether Nunley, who had been sentenced to death by a judge, had the right to be sentenced instead by a jury needed to be studied further.
The Missouri Supreme Court had earlier denied Nunley a stay on the same grounds, but Gaitan ruled he could not determine if its order was legal without clarification from the Missouri court.
The attorney general’s office filed a motion Tuesday with the Missouri Supreme Court asking for that clarification. The issue is likely to be litigated today.
For members of Nunley’s family, the late night ruling by the U.S. Supreme Court brought relief after a tense day of not knowing if Tuesday would be his last day.
Darrell Kind Jr., Nunley’s nephew, expressed his condolences to Ann’s family. Nunley spoke on a live radio broadcast earlier in the day Tuesday to tell Ann’s family that he was sorry.
Nunley and co-defendant Michael A. Taylor kidnapped Ann as she waited for the school bus in front of her home.
No date has been set for Taylor’s execution.
To reach Tony Rizzo, send e-mail to trizzo@kcstar.com.
Read more: http://www.kansascity.com/2010/10/19/2332816/us-high-court-refuses-to-lift.html#ixzz13hK4nfji
Posted on Tue, Oct. 19, 2010 11:37 PM
The following commentary talks about the disparities and difficulties experienced in implementing procedural due process. The author calls for a federal forum to bring about reform in the public defense services.
Commentaries
Toward a Federal Forum for Systemic Sixth Amendment Claims
By Cara H. Drinan *
October 22, 2008
In 1963, the Supreme Court held in Gideon v. Wainwright that the Sixth Amendment requires states to provide indigent criminal defendants with legal representation, noting that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”[1] Today, in some states, one would think that Gideon had never been handed down. In Mississippi, for example, the state provides no money for non-capital cases, and cash-strapped counties must shoulder the burden of funding indigent defense.[2] As a result, a pre-trial defendant may spend months in jail before his case is resolved, and court-appointed lawyers routinely meet their clients for the first time on their trial day.[3]
Mississippi is not unique; the indigent defense crisis is national in scope. The academic literature is replete with documentation of the critical flaws in indigent defense services.[4] These flaws include: chronic under-funding of the defense function, enormous prosecutorial and defense resource disparity, excessive attorney caseloads, a lack of meaningful attorney-client contact, a lack of training and oversight for indigent defense counsel, and inadequate (or sometimes non-existent) investigative and expert assistance for defense counsel. In recognition of these problems, Louisiana,[5] Texas,[6] and Nevada[7] have recently taken steps to address acute indigent defense challenges, while Georgia,[8] Missouri,[9] and Florida[10] confront immediate defense funding crises.
While this may sound like a legislative problem-and it is, because it relates to resource allocation-legislative bodies have failed to respond to the unpopular and largely silent constituency of indigent defendants. In response, in recent years, public defender offices, non-profit organizations, and private law firms have taken the indigent defense crisis to the courts. These groups have brought state court class-actions to vindicate the Sixth Amendment rights of indigent defendants. Specifically, these challenges have relied upon accepted professional standards, such as the American Bar Association’s Ten Principles of a Public Defense Delivery System,[11] to delineate the inadequacies of various systems and to enumerate the remedies required in a given jurisdiction. These suits have generated meaningful reform in Connecticut,[12] Pennsylvania,[13] Massachusetts,[14] Washington,[15] and Montana.[16] Suits of this kind are pending in New York,[17] Michigan[18] and Kentucky.[19] What the plaintiffs in these suits do not have at their disposal-and need to have in some jurisdictions-is a federal forum for these systemic Sixth Amendment claims.
Thirty-nine states elect some or all of their judges.[20] Moreover, in some jurisdictions, judges must actively run for re-election.[21] If these judges are in jurisdictions where the populace is more concerned about victims’ rights than defendants’ rights, there is good reason to think that these judges are subject to the same pressure to be “tough on crime” that we know politicians feel.[22] Thus, federal judges insulated from this pressure may be better-suited to hear a systemic Sixth Amendment claim.
Despite the fact that, historically, the federal courts have been a refuge for women, African-Americans, and the imprisoned,[23] today, a federal forum is not available to indigent defendants seeking to vindicate their Sixth Amendment right to counsel on a systemic basis.[24] Federal courts that have considered challenges to an indigent defense system have declined to award injunctive relief to plaintiffs, citing principles of comity and federalism[25].
In Luckey v. Miller, the Eleventh Circuit rejected the plaintiffs’ request for a court order mandating an overhauled indigent defense system in Georgia.[26] The Luckey Court held that Younger v. Harris[27] required the federal courts to abstain from interfering with ongoing state criminal prosecutions to protect the “vital consideration of comity between the state and national governments.”[28] The Second Circuit took a similar position when considering a class-action challenge to the indigent defense system in Kings County, New York.[29] Despite evidence of systemic deficiencies, including excessive attorney caseloads, excessive delays in bringing cases to trial, and excessive bail, the Second Circuit denied injunctive relief. The Court explained: “This is not the proper business of the federal courts, which have no supervisory authority over the state courts and have no power to establish rules of practice for the state courts.”[30] The Fifth and Sixth Circuits have arrived at the same conclusion in similar cases.[31]
These federal courts have erred in refusing to hear these cases on federalism grounds. Not only should Younger not apply to these prospective Sixth Amendment claims, but, even if it does, the doctrine’s exceptions should permit the federal courts to hear these cases.
First, the Younger abstention doctrine itself should not bar a federal court from hearing a suit in which a class of indigent defendants seeks prospective, injunctive relief.[32] The Younger doctrine is based on two rationales: (1) “the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief,” and (2) the notion of comity, which the Court described as “Our Federalism.”[33] Neither rationale should preclude a suit designed to install future improvements to a state’s public defense system. A federal court could declare that funding indigent defense is the state’s responsibility; it could establish hiring and training guidelines for defense counsel; and it could announce attorney caseload guidelines without compromising ongoing state prosecutions.
Moreover, consistent with the past, federal courts can address state criminal process failings without stalling the state’s prosecutorial function. In Gerstein v. Pugh, the Supreme Court held that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.”[34] In its opinion, the Gerstein Court noted:
The District Court correctly held that respondents’ claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions [required by Younger]. The injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits.[35]
When plaintiffs have attempted to leverage Gerstein in the indigent defense context, the federal courts have been unreceptive.[36] In dismissing a class action challenging a state public defender office, the Fifth Circuit noted that the appropriate remedy for indigent defendants was to “challenge the legality of their custody via federal habeas corpus, subject, of course, to prior exhaustion of state remedies.”[37] Suggestions of this kind in the indigent defense context are disingenuous. Not only does a state habeas claim depend upon a well-preserved trial record (something unlikely to exist when one has received ineffective, if any, assistance at trial), but also, in some of the most egregious ineffective assistance of counsel cases, the record is irrelevant because it is precisely what counsel has failed to do that is the essence of the claim. To add insult to injury, in some jurisdictions, the state does not guarantee post-conviction representation.[38] Indigent defendants seeking prospective, injunctive relief therefore do not have an adequate remedy at law in state court, nor can they raise systemic issues, like excessive caseloads, that compromise the quality of their representation in the course of their own defense. Younger, then, should not bar federal courts from hearing a prospective suit seeking reform of a public defense system.
Second, even if Younger applies to these suits, the doctrine permits at least one exception that should allow a federal court to award injunctive relief to a class of indigent defendants. While the exceptions to the abstention doctrine announced in Younger itself are incredibly narrow and are not especially useful in this context,[39] subsequent federal court decisions have announced procedural exceptions that may defeat the application of Younger in this setting. “Federal courts have found that when the injury protected by the Constitution results from the proceeding itself, allowing the state proceeding to go forward does not serve the purposes of ‘Our Federalism.’”[40] For example, in Mannes v. Gillespie, the Ninth Circuit held that Younger did not require the District Court to abstain from hearing the defendant’s double jeopardy claim.[41] Other courts have applied a similar rationale to claims based on a defendant’s right to a speedy trial.[42]
A class-action claim by indigent defendants seeking prospective improvements to the state defense function fits squarely within this line of procedural exception cases. In these cases, the “injury protected by the Constitution results from the proceeding itself,”[43] namely, ineffective assistance of counsel, an injury which subsequently hinders a defendant’s ability to employ the appellate and habeas process. If these procedural exceptions are to have any meaningful application outside the speedy trial and double jeopardy settings, they should apply to prospective Sixth Amendment claims.
Finally, abstention is a prudential doctrine,[44] and federal courts should not allow a state to invoke federalism as a shield with which it can deflect its constitutional responsibility to provide effective representation for its poor citizens. At some point, the principles of equity and comity must yield to the Sixth Amendment itself. Could a state require its counties to provide indigent defense representation and then stand by while the counties refused to do so? In some states, like Mississippi, something very close to that scenario is the status quo.[45] And accordingly, where plaintiffs can demonstrate systematic deprivations of the right to counsel, injunctive relief should be available in federal court.
Some may wonder why a plaintiff would want to be in federal court at this point in time,[46] while others may argue that the federal courts have not been very effective at overseeing social policy reform through structural injunctions in the past. I offer three responses to these arguments. First, regardless of whether one thinks that federal judges have been effective at instituting reforms, like desegregation or improving prison conditions, there is good reason to think that these judges would be uniquely skilled at overseeing the implementation of a revamped public defense system. While a judge may know very little about education policy, she certainly knows a great deal about lawyering-what counts as good lawyering and what resources a good lawyer needs at her disposal. Second, as to the idea that federal courts may be hostile to class-action Sixth Amendment suits, there is reason to believe otherwise. Even the most devout federalist judge may very well be equally committed to textual integrity and rule of law. Where states blatantly fail to safeguard the Sixth Amendment-the right that has been deemed essential to safeguarding all others-even conservative federal judges may be willing to step in. Third, even if the current federal bench does not seem likely to offer a sympathetic ear to indigent defendant plaintiffs, its composition is neither static nor permanent.
In some jurisdictions, a federal forum may be required to bring about lasting reform of public defense services. Federal judges should not shy away from the responsibility to hear these cases on abstention grounds, especially where plaintiffs can demonstrate historical and ongoing miscarriages of justice.
--------------------------------------------------------------------------------
* Assistant Professor of Law, Columbus School of Law, The Catholic University of America (Drinan@law.edu).
[1]. 372 U.S. 335, 344 (1963).
[2]. NAACP Legal Defense and Educational Fund, Inc., Assembly Line Justice: Mississippi’s Indigent Defense Crisis 6 (2003) [hereinafter Assembly Line Justice].
[3]. Id.
[4]. See generally Standing Comm. on Legal Aid and Indigent Defendants, Am. Bar Ass’n, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (2004) [hereinafter Gideon's Broken Promise], available at http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/ fullreport.pdf; Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57 Hastings L.J. 1031 (2006).
[5]. Johnny Gunter, Study Cites Improved Public Defending, The News-Star, July 20, 2008, available at http://www.nlada.org/DMS/Documents/1217945522.99/807200321.
[6]. Editorial, Public Defenders Office Was Created In Short Time, The Lubbock Avalanche-Journal, Sept. 7, 2007, available at http://www.lubbockonline.com/stories/090707/edi_090707012.shtml.
[7]. Nevada Supreme Court Mandates Sweeping Changes in Indigent Defense Practices, Jan. 4, 2008, available at http://www.nvsupremecourt.us/info/news/index.php?contentID=204.
[8]. Greg Bluestein, Ga. Public Defenders Reluctantly Agree to Cuts, Forbes, Sept. 26, 2008, http://www.forbes.com/feeds/ap/2008/09/26/ap5477584.html.
[9]. Editorial, Missouri is Ducking its Responsibilities to Fund Public Defenders, Kansas City Star, Aug. 3, 2008, available at http://voices.kansascity.com/node/1780.
[10]. Susannah A. Nesmith, Dade Public Defender: Caseload is untenable, Miami Herald, July 31, 2008, available at http://www.nacdl.org/public.nsf/defenseupdates/Florida085.
[11]. Standing Comm. on Legal Aid and Indigent Defendants, Am. Bar Ass’n, The Ten Principles of a Public Defense Delivery System (2002), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbooklet.pdf.
[12]. Press Release, American Civil Liberties Union, Settlement Reached in ACLU’s Class-Action Lawsuit Alleging Inadequacy of CT Public Defender System (July 7, 1999), available at http://www.aclu.org/crimjustice/gen/10138prs19990707.html.
[13]. American Civil Liberties Union: The ACLU and Rights of the Poor, http://www.aclu.org/rightsofthepoor/31177res20051107.html (last visited Oct. 21, 2008).
[14]. Lavallee v. Justices in the Hampden Superior Court, 812 N.E.2d 895 (Mass. 2004) (holding that defendants were being deprived of right to counsel and limiting time during which defendants could be held without assigned counsel).
[15]. Press Release, American Civil Liberties Union, Following ACLU of Washington Lawsuit, Grant County Agrees to Overhaul Public Defense System (Nov. 7, 2005), available at http://www.aclu.org/rightsofthepoor/indigent/21705prs20051107.html.
[16]. Montana Public Defender Act, Mont. Code Ann. § 46-8-211 et seq. (2005) (passed in the wake of a systemic Sixth Amendment challenge).
[17]. See Class Action Complaint, Hurrell-Harring v. State, No. 8866-07 (Albany County Sup. Ct., Nov. 8, 2007).
[18]. See Complaint, Duncan v. State (Ingham County. Cir. Ct., Feb. 22, 2007).
[19]. Deborah Yetter, Public Defenders Must Take Cases, Court Rules, The Courier-Journal, Sept. 20, 2008, available at http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20080920/NEWS01/309200007/1008.
[20]. Am. Bar Ass’n, Fact Sheet on Judicial Selection Methods in the States, available at http://www.abanet.org/leadership/fact_sheet.pdf.
[21]. Id.
[22]. See generally Stephen B. Bright, The Politics of Capital Punishment: The Sacrifice of Fairness for Executions, in America’s Experiment with Capital Punishment 117 (James R. Acker et al. eds., 1998).
[23]. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1284 (1976) (describing the breadth of public law litigation).
[24]. Note, Gideon’s Promise Unfulfilled: The Need for Litigated Reform of Indigent Defense, 113 Harv. L. Rev. 2062, 2077 (2000) (”A serious obstacle to the future viability of litigated reform . . . is the lack of a federal forum to hear such claims.”); see also Adele Bernhard, Take Courage: What the Courts Can Do to Improve the Delivery of Criminal Defense Services, 63 U. Pitt. L. Rev. 293, 332-33 (2002).
[25]. See infra notes 26-31 and accompanying text.
[26]. Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992).
[27]. 401 U.S. 37, 44 (1971).
[28]. Luckey, 976 F.2d at 676; see also id. at 676-79 (addressing and rejecting plaintiffs’ various arguments as to why Younger need not bar the relief requested).
[29]. Wallace v. Kern, 499 F.2d 1345 (2d Cir. 1974).
[30]. Id. at 1351.
[31]. See Gardner v. Luckey, 500 F.2d 712, 715 (5th Cir. 1974); Foster v. Kassulke, 898 F.2d 1144, 1148 (6th Cir. 1990).
[32]. Donald H. Zeigler, An Accommodation of the Younger Doctrine and the Duty of the Federal Courts to Enforce Constitutional Safeguards in the State Criminal Process, 125 U. Pa. L. Rev. 266, 290-300 (1976) (outlining instances when Younger doctrine should not apply, including those cases when “the relief sought entails virtually no interference with substantive aspects of pending state judicial proceedings, even if other aspects of the state criminal process are involved.”); see also Rodger Citron, Note, (Un)Luckey v. Miller: The Case for a Structural Injunction to Improve Indigent Defense Services, 101 Yale L.J. 481, 494-96 (1991).
[33]. Younger v. Harris, 401 U.S. 37, 44 (1971); see also Citron, supra note 32, at 494.
[34]. 420 U.S. 103, 114 (1975).
[35]. Id. at 108 n.9 (citations omitted).
[36]. See, e.g., Luckey v. Miller, 976 F.2d 673, 678-79 (11th Cir. 1992).
[37]. Gardner v. Luckey, 500 F.2d 712, 715 (5th Cir. 1974).
[38]. See generally Sarah L. Thomas, Comment, A Legislative Challenge: A Proposed Model Statute to Provide for the Appointment of Counsel in State Habeas Corpus Proceedings for Indigent Petitioners, 54 Emory L.J. 1139 (2005).
[39]. Younger v. Harris, 401 U.S. 37, 46-49 & 53-54 (1971) (limiting the exceptions to cases of immediate, “irreparable injury” and a showing of “bad faith and harassment”).
[40]. Daniel Jordan Simon, Comment, Abstention Preemption: How the Federal Courts Have Opened the Door to the Eradication of “Our Federalism,“ 99 Nw. U. L. Rev. 1355, 1364 (2005).
[41]. 967 F.2d 1310, 1312 (9th Cir. 1992) ( “The Fifth Amendment’s protection against double jeopardy . . . ‘is not against being twice punished, but against being twice put in jeopardy.’ Because full vindication of the right necessarily requires intervention before trial, federal courts will entertain pretrial habeas petitions that raise a colorable claim of double jeopardy.”) (citations omitted); see also Sprague v. Oregon, No. 06-1277-TC, 2007 WL 1138462, at *5 (D. Or. April 16, 2007) (discussing this exception).
[42]. See, e.g., Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973) (allowing defendant to bring speedy trial claim in federal court rather than requiring him to raise the claim as an affirmative defense when and if the state brought him to trial).
[43]. Simon, supra note 40, at 1364.
[44]. Adibi v. Cal. State Bd. of Pharmacy, 461 F. Supp. 2d 1103, 1111 (N.D. Cal. 2006) (citations omitted).
[45]. See generally Assembly Line Justice, supra note 2; Gideon’s Broken Promise, supra note 4; see also The Spangenberg Group, State Indigent Defense Commissions 5 (2006) (describing the different funding mechanisms in the various states and endorsing full state funding with few exceptions).
[46]. See generally, Erwin Chemerinsky, Closing the Courthouse Doors to Civil Rights Litigants, 5 U. Pa. J. Const. L. 537 (2003) (discussing the Supreme Court’s recent hostility to civil rights litigants and its general impact on the (un)availability of a judicial forum for these suits).
