[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
      REPRESENTATION OF INDIGENT DEFENDANTS IN CRIMINAL CASES: A 
          CONSTITUTIONAL CRISIS IN MICHIGAN AND OTHER STATES?

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 26, 2009

                               __________

                           Serial No. 111-20

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
LUIS V. GUTIERREZ, Illinois          JASON CHAFFETZ, Utah
BRAD SHERMAN, California             TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin             GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
JERROLD NADLER, New York             TED POE, Texas
ZOE LOFGREN, California              J. RANDY FORBES, Virginia
SHEILA JACKSON LEE, Texas            TOM ROONEY, Florida
MAXINE WATERS, California            BOB GOODLATTE, Virginia
STEVE COHEN, Tennessee               DANIEL E. LUNGREN, California
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 26, 2009

                                                                   Page

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Ranking Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     4
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................    10
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................    11

                               WITNESSES

Judge Dennis Archer, Chairman of Dickinson Wright, PLLC, former 
  Michigan Supreme Court Justice, Past President, American Bar 
  Association, and Past President, State Bar of Michigan, 
  Detroit, MI
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16
Mr. David J. Carroll, Director of Research, National Legal Aid & 
  Defender Association, Washington, DC
  Oral Testimony.................................................    51
  Prepared Statement.............................................    54
Ms. Nancy J. Diehl, Past President of the State Bar of Michigan, 
  and Chief of the Trial Division, Wayne County Prosecutor's 
  Office, Detroit, MI
  Oral Testimony.................................................    63
  Prepared Statement.............................................    66
Mr. Erik Luna, Professor, Washington and Lee University School of 
  Law, Lexington, VA
  Oral Testimony.................................................    68
  Prepared Statement.............................................    71
Ms. Regina Daniels Thomas, Chief Counsel, Legal Aid and Defender 
  Association Juvenile Law Group, Detroit, MI
  Oral Testimony.................................................    78
  Prepared Statement.............................................    80
Ms. Robin L. Dahlberg, Senior Staff Attorney, American Civil 
  Liberties UNION, NEW YORK, NY
  Oral Testimony.................................................    83
  Prepared Statement.............................................    86

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Louie Gohmert, a 
  Representative in Congress from the State of Texas, and Ranking 
  Member, Subcommittee on Crime, Terrorism, and Homeland Security     5
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Chairman, Committee on the Judiciary...........................    11

                                APPENDIX

Material Submitted for the Hearing Record........................   107

                        OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

A study submitted by the Honorable John Conyers, Jr., a Representative 
    in Congress from the State of Michigan, and Chairman, Committee on 
    the Judiciary. The study, entitled ``A Race to the Bottom: Speed & 
    Savings Over Due Process: A Constitutional Crisis,'' Evaluation of 
    Trial-Level Indigent Defense Systems in Michigan, June 2008, 
    National Legal Aid & Defender Association, is not reprinted in this 
    hearing record but is on file with the Subcommittee and also can be 
    accessed at:

    http://www.mynlada.org/michigan/michigan_report.pdf.


      REPRESENTATION OF INDIGENT DEFENDANTS IN CRIMINAL CASES: A 
          CONSTITUTIONAL CRISIS IN MICHIGAN AND OTHER STATES?

                              ----------                              


                        THURSDAY, MARCH 26, 2009

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:08 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Conyers, Nadler, Jackson 
Lee, Gohmert, and Goodlatte.
    Staff present: Bobby Vassar, Subcommittee Chief Counsel; 
Karen Wilkinson, Majority Counsel; Kimani Little, Minority 
Counsel; Rich Hertling, Minority Deputy Chief of Staff; and 
Sarah Kish, Minority Staff Assistant.
    Mr. Scott. Good morning, the Subcommittee will now come to 
order. And I am pleased to welcome you today on the hearing 
before the Subcommittee on Crime, Terrorism and Homeland 
Security on the title, ``Representation of Indigent Defendants 
in Criminal Cases: A Sixth Amendment Crisis in Michigan and 
Other States?''
    The criminal justice system has been referred to as a 
three-legged stool, supported by judges, prosecutors and 
defense. If you remove one of those three legs, the stool 
collapses. We are here to talk today about the third leg of the 
stool, the defense, and whether that leg has collapsed in 
Michigan and other states.
    The National Legal Aid & Defender Association recently 
completed a yearlong study of indigent defense systems in 10 
diverse Michigan counties. They concluded that not one of the 
10 was providing constitutionally adequate indigent defense. 
The constitutional problems facing the state indigent defense 
systems in Michigan are not unique to Michigan and they are not 
new. In 1999, a Department of Justice report concluded that 
indigent defense was, quote, in a chronic state of crisis.
    A 2004 study by the American Bar Association similarly 
found that caseloads for public defenders far exceeded national 
standards in many cases, making it impossible for even the most 
industrious of attorneys to deliver effective representation in 
all cases. A recent New York Times article reported that public 
defenders' offices in at least seven states either had refused 
to take new cases or had filed lawsuits to limit their 
caseload.
    Everyone agrees that indigent defense, as a whole, needs 
more funding. The studies clearly show that lack of adequate 
funding has led to excessive and questioned caseloads; 
insufficient pay for defense attorneys; lack of proper training 
and oversight of defense attorneys; insufficient funding for 
investigators, experts and mental health professionals; lack of 
independence by defense and ultimately the wrongful conviction 
of innocent men and women.
    And the case of Eddie Joe Lloyd shows why we cannot accept 
this situation. In the early 1980's, he sent a letter to the 
Detroit Police suggesting that he had information on a murder 
case. He wrote the letter from his bed in the Detroit 
Psychiatric Institute, where he had been committed. To make a 
painfully long story short, he so-called confessed to the 
killing, was charged with murder and appointed a lawyer.
    The lawyer was paid $150 for pretrial preparation and 
investigation. The lawyer paid $50 to an ex-felon to 
investigate the case. The lawyer made no inquiry into Mr. 
Lloyd's mental state, did not investigate the crime scene and 
hired no experts. Eight days before the trial, he withdrew from 
the case; a new attorney was appointed and they went to trial. 
The new attorney did not cross-examine the police officer who 
took the so-called confession, he offered no defense witnesses, 
and he gave a closing argument that lasted less than 5 minutes.
    Mr. Lloyd was quickly convicted, served 17 years in prison 
before DNA evidence exonerated him. He died a couple of years 
after his release. Wayne County ended up paying $4 million to 
Mr. Lloyd's estate to settle the case, and the real perpetrator 
has never been found.
    The situation has not improved over the last 20 years. The 
NLADA's report found that, in some counties, defense attorneys 
still were paid only $270 to investigate and prepare for a 
murder trial. Many experienced defense attorneys refuse to 
accept appointments in these cases because they know it is 
impossible to competently represent someone for that amount of 
money.
    Lack of funding also results in excessive caseloads for 
many defense attorneys. Some defense attorneys, appointed by 
judges, accept far more cases than they can competently handle 
just to make a living wage. Some public defenders' offices take 
far more cases than they can handle because they fear that if 
they object their office will be closed or the supervisor 
fired. Many systems have no ceiling limits on the number of 
cases that can be assigned to an attorney.
    Other problems are less related to funding but are caused 
by the structure of the system. We use the word system very 
broadly. One of the problems, especially in states like 
Michigan, is that they delegate to the counties all of the 
responsibility for indigent defense at the trial level, and 
there is no organized system. It is a hodgepodge of local 
practices with little or no adherence to any standards and 
little or no oversight. Not surprisingly, when faced with 
limited budgets, many courts focus on efficiency and speed of 
process rather than competent representation.
    Such a practice came under criticism in the NLADA's report 
involving the selection of defense attorneys by the very same 
judge who would be presiding over the case. This practice 
created an untenable conflict of interest with the defense 
attorney, who, depending on the facts of the case, could be 
forced to choose between keeping his employer, the judge, happy 
by processing the case very quickly or abiding by his ethical 
responsibility to competently represent his client, which might 
include many complicated pretrial motions and a long trial.
    Researchers estimate that between 80 and 90 percent of all 
state criminal defendants rely on indigent defense system for 
counsel. This is a staggering number and likely to go only 
higher with our increasing rate of unemployment and lost 
savings.
    While indigent defense system--if our indigent defense 
systems fail, they will drag the entire criminal justice system 
down with them. So assuming the situation has reached the level 
of constitutional crisis, as some of our witnesses will 
suggest, what is the solution?
    The right to counsel is a constitutional right; it cannot 
be ignored. Funding is a big part of the answer, but who should 
pay? How much of the burden should be on the Federal 
Government? Do we make the situation worse by giving billions 
of dollars to states for local law enforcement and prosecutors 
while not requiring states to use a portion of that money for 
their indigent defense system? Do we need to condition money to 
states on compliance with certain standards, such as the ABA's 
Ten Principles? Those involved with the system have to do their 
part in ensuring the constitutional right to counsel is met.
    In 2006, the ABA issued an ethics opinion stating that 
public defenders were ethically held to the same standards as 
other attorneys. If they could not competently handle all of 
their cases, they must withdraw or refuse to take new cases. 
And we need to enforce this opinion.
    And how do we stop elected judges, who are vulnerable to 
political forces, from contributing to the problem? Judges, 
perhaps more than anyone else, are in the best position to 
ensure the sixth amendment is not violated in their court. And 
as officers of the court, prosecutors also have an ethical 
obligation to ensure that justice prevails.
    This problem has been growing for decades and little has 
been done. Do we ignore the problem until the ACLU or others 
file lawsuits in all 50 States? We need to take a hard look at 
these questions, and I look forward to hearing from our 
witnesses about the problem and what we need to do to start 
heading in the right direction.
    I know that many people wanted to be heard today but could 
not be accommodated on the panel because of time limitation. I 
hope to continue this dialogue in the future and provide all 
who wish to make statements an opportunity to be heard.
    To that end, numerous organizations and individuals, 
including Edward Pappas, president of the State Bar of 
Michigan, the National Association of Criminal Defense Lawyers, 
and the Michigan State Appellate Defender Office have submitted 
written statements of transcripts for the record. The Michigan 
Campaign for Justice has also submitted a package for the 
record that includes statements from numerous groups and 
individuals.
    I am going to read the list of groups that have taken the 
time to write statements for this hearing because the list 
reflects the importance of this issue to many diverse groups. 
Those groups include the Detroit branch of NAACP, the Brennan 
Center for Justice at the NYU School of Law, Michigan Council 
on Crime and Delinquency, Criminal Defense Lawyers of Michigan, 
Michigan Jewish Conference, National Association of Social 
Workers, Michigan County Social Services Association, 
Association of Children's Mental Health, Michigan Judges 
Association, Michigan Association for Children with Emotional 
Disorders, Michigan Innocence Clinic, Citizens for Traditional 
Values, Prison Fellowship for Michigan, and the Michigan 
Council of Private Investigators. And without objection, all of 
these statements will be included in the record.
    Now my pleasure to recognize the Ranking Member of the 
Subcommittee, the gentleman from Texas, Judge Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman. If I might ask the 
Chair a question--that excellent opening statement, what were 
the three legs of that three-legged stool? Judges----
    Mr. Scott. Prosecution and defense.
    Mr. Gohmert. Okay, thank you.
    Mr. Scott. The judge is recognized---- [Laughter.]
    Mr. Gohmert. All right----
    Well I just think I have been part of that system that--you 
got your appellate courts, you have got your juries, you have 
got your witnesses--it seems to be a pretty complex three-
legged stool. But today's hearing is supposed to focus on the 
legal representation of indigents in state and local criminal 
prosecutions. This hearing was called in response to a recent 
report that alleged that the State of Michigan systematically 
failed to provide adequate representation to indigent criminal 
defendants.
    June 2008, the National Legal Aid & Defender Association, 
or NLADA, released a report entitled, ``Race to the Bottom: 
Speed & Savings Over Due Process: A Constitutional Crisis.'' 
The NLADA reportedly conducted a year-long study of 10 counties 
in Michigan.
    Michigan's system for indigent defendants requires county 
governments to provide lawyers for poor defendants in criminal 
prosecutions. Counties meet this responsibility in various 
ways. Many counties in Michigan utilize a flat-fee contract 
system where private attorneys agree to accept all or a fixed 
portion of the indigent defendant cases for a predetermined 
fee. Other counties have dedicated county-funded public 
defender offices to represent indigent defendants. Some 
counties have a mixed-system with both types of lawyers.
    The report takes great issue with the flat-fee system and 
argues that it creates a conflict between a lawyer's ethical 
duty to zealously defend each client and their financial self-
interest to take on numerous clients to maximize profit. The 
report also alleged a number of other deficiencies in 
Michigan's indigent defense system. Those reported deficiencies 
included judges hand-picking defense attorneys, defense lawyers 
being appointed to cases for which they were unqualified and 
the failure of defense attorneys to properly prepare for trials 
or sentencing hearings.
    Although many observers have taken this report at face 
value, there have been many--been some criticism of its 
accuracy. One public defender in Ottawa County, the guy who was 
the subject to the report, wrote a series of critiques of the 
report for various Michigan newspapers. I have here an article 
from the Holland Sentinel by Joseph Legatz, about such 
situation and ask unanimous consent that it be concluded or, I 
am sorry, included in the record.
    Mr. Scott. Without objection.
    [The information referred to follows:]

    
    
    
    
    
    
    
    
                               __________

    Mr. Gohmert. Thank you.
    Public defender stated that the NLADA ``researchers'' 
failed to gather objective facts about performance of county 
public defenders, did not observe the defenders in court 
proceedings and failed to spend much time actually speaking to 
public defenders about their experiences. One letter to the 
editor, the public defender wrote that the NLADA researchers 
deliberately distorted facts ``in an effort to validate the 
conclusion that it reached long before its field evaluator 
stepped foot in Michigan. No defender `--and that would be no 
public defender program in Michigan--' is acceptable.'' I have 
copies of these articles, and I would appreciate those being 
included.
    In addition to the media coverage of the NLADA report on 
Michigan, there have also been news articles describing the 
burdensome workload of public defenders in other states. 
According to a recent article from The New York Times, the 
public defenders' offices in at least seven states are refusing 
to take on new cases or have sued to limit the number of cases 
assigned to each attorney, citing overwhelming workloads.
    However, this is not a new problem. Over the last decade, a 
number of states have taken measures to reform their indigent 
defense systems. In 2002, Texas conducted an overhaul of the 
state's county-based system of providing lawyers for poor 
defendants. This decision came after a study found that some 
defendants had waited months before getting a lawyer and that 
some attorneys weren't qualified or underpaid.
    Under the new system, Texas sets aside state money, up to 
$19.7 million, to help its 254 counties pay for indigent 
defense. In 2003, Georgia created an 11-member state board to 
oversee its public defender's office. It also committed the 
state to increase funding to help counties meet the cost of 
providing indigent defense.
    More recently in 2008, South Carolina took steps to improve 
its patchwork indigent defense system. The new system created 
public defender positions whose pay and benefits are on par 
with government prosecutors. The new system is designed to 
provide accountability, both for money and the quality of 
representation that defendants get.
    I understand that the speaker of the Michigan House and the 
chairman of the Michigan House Judiciary Committee recently 
agreed to create a new subcommittee which will focus on issues 
surrounding legal representation for indigent criminal 
defendants in Michigan. That is all positive developments. I 
urge the Michigan subcommittee to look at the innovative ways 
that other states have reformed their indigent defense 
services.
    This is a state problem that warrants a state and not a 
Federal solution. But once again we are rushing to step in to a 
state matter in a state court. And having personally been a 
judge back at the time when this study was conducted in Texas, 
it sure appeared to me that the study had reached their 
conclusions and then did their study and that they came and 
talked to me; they talked to some defense attorneys and not 
others. They didn't bother to come sit in and watch full trials 
to see what kind of defense was being provided.
    They actually underrated some of the quality defense work 
that was being done by some defense attorneys. There are some 
defense attorneys, or as it appeared to me, probably shouldn't 
have been doing defense work. And that should be taken care of 
and addressed through both local state bars and state systems.
    So, I think it does help put attention to this issue, one 
that deserves attention, because we should not be locking up 
innocent people. Everyone should have a proper defense. That is 
constitutionally provided and mandated and is part of, in my 
estimation, actually having due process.
    So I appreciate the witnesses being here today. I 
appreciate the hearing, but I do not want to lose sight of the 
fact that the Federal Government shouldn't be dictating to the 
states, even if there are some states that are willing to sell 
their constitutional soul in order to get Federal money.
    With that, I yield back.
    Mr. Scott. Thank you.
    The Chairman of the full Committee, the gentleman from 
Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Chairman. As we can see, this 
Subcommittee, which is very important, is constituted of 
representatives from Michigan, Texas, Virginia, New York and it 
is very instructive to me. I have been favorably impacting on 
Judge Gohmert during the course of our careers here on the 
Judiciary Committee, and I am looking forward for all of us 
working together on how we can improve this part of the justice 
system that requires that we provide counsel for those who 
clearly aren't able to provide adequate counsel themselves. And 
it is important and a delicate matter.
    I welcome former mayor of Detroit, Dennis Archer, who was 
the first African-American president of the American Bar 
Association. I remember it was Justice Kennedy that, at that 
meeting of the bar, that welcomed him into his leadership role, 
which he has been discharging with great ability across the 
years.
    I also remember, Mr. Mayor, when you and I and Trudy were 
in Richmond for the swearing in of the first African-American 
governor of Virginia. And you are now sitting in the seat that 
was occupied by the late John Hope Franklin, who of course 
passed, and whose contributions here were enormous, 
particularly in the University of Michigan, the segregation 
cases, where he--where I last heard him, he was on the witness 
stand for about an hour and a half. And the lawyers--nobody 
wanted to have any cross-examination or further inquiry with 
him when he, in his great style and experience and wisdom, 
delivered his remarks.
    But this is important. And how we relate, as the judge 
indicated, to our state peers is important too. We think, in 
Michigan, we have worked a way out on that. I was with legal 
defenders last fall in Michigan and I think it may have had 
something to do with this hearing that we have got here, 
because there is a great story. And I ask unanimous consent 
that this study by the National Legal Aid & Defender 
Association be made part of the record, that----
    Mr. Scott. Without objection, so ordered.*
---------------------------------------------------------------------------
    *Note: The information referred to, ``A Race to the Bottom: Speed & 
Savings Over Due Process: A Constitutional Crisis,'' Evaluation of 
Trial-Level Indigent Defense Systems in Michigan, June 2008, National 
Legal Aid & Defender Association, is not reprinted in this hearing 
record but is on file with the Subcommittee and also can be accessed at 
http://www.mynlada.org/michigan/michigan_report.pdf.
---------------------------------------------------------------------------
    Mr. Conyers [continuing.] That we begin to understand this 
sort of underside of the justice system. And so I am happy to 
see everybody here. And I will ask unanimous consent that my 
written remarks be entered into the record.
    Mr. Scott. Without objection.
    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
in Congress from the State of Michigan, and Chairman, Committee on the 
                               Judiciary

    The right of a criminal defendant to legal counsel is one of the 
hallmarks of our Constitution. Over 45 years ago, in Gideon v. 
Wainwright, the Supreme Court held that States must appoint counsel 
when a defendant can not afford one. States are struggling to meet this 
constitutional mandate.
    In many States, including my home state of Michigan, lack of proper 
funding for indigent defense systems has created a crisis. It is in 
this context that I would like to make three important points about the 
deficiencies in the indigent defense system, especially as it pertains 
to Michigan.
    First, funding for indigent defense must increase. Last year, the 
National Legal Aid and Defender Association, NLADA, studied indigent 
defense in 10 counties in Michigan.
    The title of their report, ``A Race to the Bottom: Speed and 
Savings over Due Process: A Constitutional Crisis,'' says it all. They 
found that none of the counties were providing competent representation 
to indigent defendants.
    Instead, they found that Michigan ranks 44th out of 50 States in 
public defense funding. Michigan spends only $7.35 per capita, which is 
38 % less than the national average.
    In parts of Wayne County, an appointed attorney will get only $270 
for preparing and investigating a murder one case.
    Some lawyers no longer accept murder cases, because they can't ``do 
the job right'' for this amount of money.
    In 2004, the American Bar Association found that caseload sizes for 
public defenders far exceeded national standards in many States.
    According to the NLADA report, some appointed defense lawyers in 
Michigan have caseloads that are 5 times higher than the national 
average. They can only spend an average of 32 minutes on each case. 
This is not acceptable.
    Second, we all suffer from an underfunded public defense system. 
The risk of wrongful convictions increases when systems value speed and 
assembly-line due process over competent legal representation.
    Researchers at the University of Michigan studied 340 documented 
exonerations of innocent defendants. Each defendant served an average 
of ten years in prison before release.
    The authors could not estimate the number of false convictions in 
the last 15 years, but made a ``plausible guess'' that the number 
``must be in the thousands, perhaps tens of thousands.''
    Not only are we paying to imprison innocent men and women, but the 
real culprits are roaming our streets free to commit more crimes.
    Third, we know what we need to do. Back in 1974, the Department of 
Justice released a report with guidelines for indigent defense. Groups 
like the NLADA and the ABA have also issued guidelines and standards 
for States to consider.
    The ABA has distilled the most important of these guidelines into 
its Ten Principles. We need to listen to these experts.
    I sincerely hope that this hearing will allow us to examine this 
problem with an eye toward finding meaningful solutions. So I look 
forward to hearing from our distinguished witnesses.
                               __________

    Mr. Scott. I understand the Chairman of the Constitution 
Subcommittee has a brief statement. This is obviously almost 
joint-jurisdiction between our two Subcommittees, so I 
appreciate him letting me Chair the hearing.
    The gentleman from New York.
    Mr. Nadler. Well, thank you, and I appreciate the statement 
by the gentleman, and I appreciate this hearing.
    Let me just say I wasn't planning to make a statement, but 
I want to make a very brief comment on what I heard in the 
opening statement from Judge Gohmert. I don't know what the 
best means of financing indigent defense is, but I was rather 
startled to hear that the responsibility is entirely on the 
states.
    This is a Federal constitutional right we are dealing with 
and the Federal Government has the responsibility of making 
sure that right is vindicated either by funding indigent 
defense or making--or assuring that the states fund it 
adequately, one way or the other. But it is a state--it is the 
United States Constitution, it is a Federal Constitution 
responsibility, and we can't get by by simply saying it is up 
to the states if they don't do the job properly. We can 
delegate it to the states assuming they do the job properly, 
but if they don't, we must either mandate and enforce that they 
do it properly or do it ourselves or some combination of both.
    I thank you. I yield back.
    Mr. Scott. Thank you.
    Without objection, all Members can make opening statements 
part of the record at this point.
    We have a distinguished panel of witnesses here today to 
help us consider the important issues before us, and I ask each 
of the witnesses to recognize the little timing device in front 
of them, which will start with green, go to yellow, and then to 
red after 5 minutes are up.
    Our first panelist will be Dennis Archer, who is currently 
the chairman of Dickinson Wright, a large Detroit-based law 
firm with offices throughout the United States and Canada. He 
served two 4-year terms as mayor of the City of Detroit, was 
named public official of the year by Governing magazine. He was 
an associate justice in the Michigan Supreme Court and was 
named the most-respected judge by Michigan Lawyers Weekly. He 
served as president of both the Michigan Bar Association and 
the American Bar Association. He received his Bachelor of 
Science degree in education from Western Michigan University 
and Juris Doctorate from Detroit College of Law.
    After he testifies, our next panelist will be David 
Carroll, who is director of research and evaluation for the 
National Legal Aid & Defender Association. He conducted 
indigent defense assessments in numerous counties and states 
and has provided assistance in the Nevada Supreme Court task 
force on indigent defense and the Idaho State Criminal Justice 
Planning Commission. He and the NLADA also worked with the 
Louisiana Bar Association to improve indigent defense in post-
Katrina New Orleans. He has an undergraduate degree from the 
University of Massachusetts at Boston and a masters degree in 
philosophy from Boston College. He received the Philosophy 
Department book award for excellence in ethics, social and 
political philosophy.
    Our next panelist will be Nancy Diehl, who is a career 
Wayne County prosecutor with over 25 years of experience. She 
is the chief of their trial division, past president of the 
State Bar of Michigan and serves on numerous boards and 
committees, including the Judicial Tenure Commission, the 
Governor's Task Force on Children's Defense, the Guidance 
Center and Kids-TALK. She serves as chair of the Wayne County 
Council Against Family Violence and has co-authored four 
booklets relating to children and the legal defense system--in 
the legal system. She has received her undergraduate degree 
from Western Michigan University and Juris Doctorate from Wayne 
State University of Law.
    Our next panelist is Erik Luna, who will be introduced by 
the gentleman, my colleague from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Well, thank you, Mr. Chairman, for holding 
this hearing, and thank Chairman Conyers for his keen interest 
in this subject.
    I am pleased to introduce one of my newest constituents, 
who I have, in fact, not had the opportunity to meet yet but I 
am delighted that he is here. He is a distinguished educator. 
Erik Luna is the professor of law at Washington and Lee 
University School of Law, and he graduated summa cum laude from 
the University of Southern California. He also received his 
J.D. with honors from Stanford Law School, where he was an 
editor of the Stanford Law Review.
    Upon graduation, he was a prosecutor in the San Diego 
District Attorney's Office and a fellow and lecturer at the 
University of Chicago Law School. In 2000, Professor Luna 
joined the faculty at the University of Utah College of Law 
where he was named the Hugh B. Brown chair-in-law and was 
appointed co-director of the Utah Criminal Justice Center.
    Professor Luna has served as the senior Fulbright Scholar 
to New Zealand, and he has been a visiting professor with the 
Cuban Society of Penal Sciences in Havana, Cuba. In 2007, he 
was a visiting scholar at the Max Planck Institute for Foreign 
and International Criminal Law in Freiburg, Germany. Professor 
Luna is an adjunct scholar with the Cato Institute and a member 
of the U.S. Chamber of Commerce's working group on criminal law 
issues. In early 2009, Professor Luna accepted a permanent 
faculty position at Washington and Lee University School of 
Law, and I am delighted to welcome him to my district and to 
this hearing today.
    Thank you, Mr. Chairman.
    Mr. Scott. Thank you, Mr. Goodlatte.
    Our next panelist will be Regina Daniels Thomas, native 
Detroiter. She received her Bachelor of Science degree from 
Tennessee State University and Juris Doctorate from Vanderbilt 
University School of Law. She has many years of experience 
representing children in various types of hearings, including 
abuse and neglect hearings as well as delinquency hearings. She 
was appointed assistant attorney general in Michigan, 
representing the Michigan Department of Human Services in child 
protection proceedings. She now works as chief counsel in the 
Juvenile Law Group and for the--working with the Legal Aid and 
Defender Association in Detroit is responsible for about 50 
percent of juvenile delinquency work in Wayne County.
    Our final panelist will be Robin Dahlberg, who is a senior 
staff attorney for the ACLU. She has served as lead counsel in 
class-action lawsuits, challenging the constitutionality of 
public defender services in Connecticut, Pennsylvania and 
Montana. Each lawsuit has resulted in increased resources for 
and improved administration of public defender programs. She 
currently is lead counsel in a class-action lawsuit challenging 
public defender programs in three Michigan counties. She has 
advised on reform efforts in Oklahoma, Massachusetts, 
Louisiana, Nevada, Texas, Florida, Kentucky and Maine. She 
serves on the board of directors of the Michigan Campaign for 
Justice and is a graduate of Stanford University and New York 
University School of Law.
    Our first witness will be Judge Archer.

TESTIMONY OF JUDGE DENNIS ARCHER, CHAIRMAN OF DICKINSON WRIGHT, 
 PLLC, FORMER MICHIGAN SUPREME COURT JUSTICE, PAST PRESIDENT, 
  AMERICAN BAR ASSOCIATION, AND PAST PRESIDENT, STATE BAR OF 
                     MICHIGAN, DETROIT, MI

    Judge Archer. Good morning, I want to thank the Chairman of 
the Judiciary Committee, the Subcommittee Chair, the Ranking 
Member and the Members of the Subcommittee for scheduling this 
important hearing on the crisis in providing counsel for 
indigent criminal defendants.
    I am here today on behalf of the American Bar Association, 
for which I served as president in 2003-2004. I also appear in 
my capacity as past president of the State Bar of Michigan, as 
a former mayor of the City of Detroit, as a former justice of 
the Michigan Supreme Court and as a practicing attorney.
    In 1963, then Minnesota attorney general, Walter Mondale, 
led 22 state attorneys general in filing an amicus brief in 
support of Earl Gideon's handwritten request to the United 
States Supreme Court for an attorney. Earl Gideon's unlikely 
allies recognized that Gideon's request went to the very heart 
of American justice and fundamental fairness. No one should 
face the prospect of losing his or her life or liberty without 
the guiding hand of counsel.
    More than five decades since Gideon v. Wainwright, the 
American Bar Association has developed important standards and 
guidelines, establishing what competent counsel must do to 
adequately represent his or her clients. It has published white 
papers describing the state of public defense in America, and 
finally, the American Bar Association has provided technical 
assistance to every state to improve its systems for delivering 
competent indigent defense counsel to those in need.
    Thirty years ago, the American Bar Association recommended 
that the Federal Government establish and fund an independent, 
nonprofit Center for Defense Services to administer matching 
grants and other programs to strengthen the services of public 
defenders, private assigned counsel and contract defenders. The 
American Bar Association envisioned that the proposed center 
would be funded by Congress and be governed by an independent 
board of directors appointed by the United States president. 
Establishing such a program is still a goal of the American Bar 
Association.
    In an effort to speak directly to policymakers, we 
developed an ABA Ten Principles of a Public Defense System. The 
Ten Principles describe what a sound public defense system must 
look like. I have attached the ABA Ten Principles to the 
hearing record in my longer and written report. It is a 
constitutional floor below which no system should go. These Ten 
Principles provide a template to measure a system's health, 
diagnose what is wrong with it and then prescribe how to fix 
it.
    The Ten Principles are now used across the country in 
jurisdictions large and small. They have been used to improve 
public defense systems in Nevada, Montana and even post-Katrina 
Louisiana. And they have been used to evaluate the health of 
existing systems, more recently that of my home state, 
Michigan.
    Michigan fails nearly all of the principles. The ABA report 
recommended that to fulfill the constitutional guarantee of 
effective assistance of counsel, the Federal Government should 
provide substantial financial support to provide indigent 
defense services in state criminal and juvenile delinquency 
proceedings. While some Federal funding reaches state criminal 
defenders and defenders' office under the Byrne Grant, Justice 
Assistance Grant programs, indigent defense services have 
remained a ``poor stepchild,'' compared to state prosecutors 
and prosecutorial resources funded through the administration 
of those programs. The ABA believes that state indigent defense 
should be made a priority area of support for these critical 
Federal programs.
    Let me briefly describe to you what is happening in 
Michigan. Two years ago, the National Legal Aid & Defender 
Association, with the State Bar of Michigan, conducted the 
first comprehensive study of the state's public defense system 
in response to a bipartisan request by the Michigan 
legislature. The report's conclusions were devastating, 
describing a system failing nearly every way. This in a state 
that once led the Nation in providing assigned counsel to its 
citizens.
    In the 1850's, Michigan became the first state to provide 
paid appointed counsel to indigent criminal defendants. It 
placed the cost and method of providing counsel on county 
government, a policy that was practical and efficient in the 
1800's. Today, that method of funding has resulted in a 
patchwork of underfunded, unaccountable systems where the 
private bar remains the primary method of providing counsel.
    The noble, practical and constitutional vision expressed by 
Earl Gideon and those 22 attorneys general remain unfulfilled. 
In Michigan, our counties cannot fund our public defense 
system. Likewise, we know that states cannot fund their systems 
without help from the Federal Government.
    We are all in this struggle together. We, at the ABA, know 
that learned lessons can be shared and implemented. The result 
will not only be a justice system that meets our standards of 
fundamental fairness, but a system that is effective and 
efficient at all levels and in all corners of our country.
    Thank you.
    [The prepared statement of Judge Archer follows:]

                  Prepared Statement of Dennis Archer









                              ATTACHMENT 1





















                              ATTACHMENT 2













































                               __________

    Mr. Scott. Thank you.
    Mr. Carroll?

 TESTIMONY OF DAVID J. CARROLL, DIRECTOR OF RESEARCH, NATIONAL 
        LEGAL AID & DEFENDER ASSOCIATION, WASHINGTON, DC

    Mr. Carroll. Thank you, Congressman Conyers, Subcommittee 
Chairman Scott, Ranking Member Gohmert and the entire 
Subcommittee for calling today's hearing. Your concern 
regarding the state's failure to ensure a meaningful right to 
counsel, as illustrated by Michigan's failure to fulfill its 
constitutional duties under Gideon, is shared by everyone who 
expects the criminal justice system to produce verdicts that 
are fair, correct, swift and final.
    Many of the systemic deficiencies identified more than 
three quarters of a century ago by the U.S. Supreme Court in 
the Scottsboro Boys case still permeate the criminal courts of 
Michigan today--judges handpicking defense attorneys, lawyers 
appointed to cases for which they are unqualified, defenders 
meeting clients on the eve of trial and holding nonconfidential 
discussions in courtroom corridors, failure of defenders to 
properly prepare for trial and sentencing, attorneys violating 
their ethical obligation to zealously advocate for clients and 
a lack of sufficient time, training and resources to properly 
prepare for a case in the face of a state court system that 
values speed over due process.
    Michigan is just one of seven states that requires its 
counties to shoulder the entire burden for paying for the right 
to counsel at the trial level. Since less affluent counties 
tend to have a higher percentage of their population qualifying 
for public defender services, the counties most in need of 
indigent defense services are often the ones that can least 
afford to pay for it. Indigent defense systems in cash-strapped 
counties are too often under-resourced, which in turn increases 
the opportunity for mistaken convictions and waste of 
taxpayers' dollars. Financially strained counties often choose 
low bid, flat-fee contracts which pay a single lump sum 
regardless of how much or too often how little work the 
attorney does or how many cases he or she is assigned.
    Forty-one of Michigan's 83 counties now use such a system. 
These flat-fee contracts are more often than not entered into 
between a public defender and the judge before whom he will 
practice, in direct violation of the ABA standards requiring 
independence of the defense function. Attorneys in such systems 
quickly learn that filing motions make trials longer, reduces 
the attorney's profit and incurs the judge's displeasure. 
Without regard to the necessary parameters of ethical 
representation, the attorney's caseload creeps higher and 
higher, and the attorney is in no position to refuse the 
dictates of the judge or risk his ability to put food on his 
family's table.
    One of the most glaring aspects of Michigan's failed sixth 
amendment policies is what passes for justice in Michigan's 
District Court. This is where all misdemeanors are heard and 
where all felony charges begin. Poor people are routinely 
processed through the criminal justice system without ever 
having talked to a lawyer.
    The district courts employ a variety of means to avoid 
their constitutional duties, including using uninformed waivers 
of counsel, requiring defendants to speak to prosecutors before 
appointing counsel and using the threat of personal financial 
strain through the imposition of unfair fines, all of which are 
documented in the NLADA report, ``A Race to the Bottom.''
    And as harmful as inadequate representation is for adults, 
it is even more detrimental for children. Children who come in 
contact with delinquency courts too often have been neglected 
by the professionals and institutions that are supposed to help 
at-risk children succeed. When they are brought to court and 
given a public defender who has no resources and a caseload 
that dictates that he disposes of cases as quickly as possible, 
the message of neglect and worthlessness continues and the risk 
that the juvenile will commit more and worse crimes increases. 
Thus, inadequate representation in the juvenile system can have 
the perverse effect of actually decreasing public safety and 
increasing the chance that young people will fall into a 
lifetime of crime and imprisonment.
    Although we are focusing today on the sixth amendment 
crisis in Michigan, I could be talking about the crises related 
to public defender work overload in Kentucky, Tennessee, 
Missouri or Florida, or the lack of enforceable standards in 
Mississippi, Maine, Arizona, Utah or South Dakota. Our focus 
could have been on the difficult decisions county managers face 
in Ohio and Nevada when state government continually breaks its 
promise of financial support for the right to counsel or the 
way elected officials unduly impact the independence of defense 
providers in Illinois or New Mexico.
    We could have discussed the prevalence of flat-fee 
contracts in rural California or highlighted how a judge in 
Pennsylvania financially benefited from unfairly sending 
juveniles to detention centers, in part because the State of 
Pennsylvania has completely washed its hands entirely of its 
constitutional obligations under Gideon. Instead of focusing on 
Michigan, we could just have easily been hearing on the failure 
of state policymakers in New York to ensure Gideon's promise in 
the hundreds of town and village courts, despite the passage of 
nearly 3 years since New York's then Chief Justice Kaye 
declared the system in crisis and in need of a complete 
overhaul.
    In sum, the sixth amendment crisis is not limited to 
Michigan. It is national in scope and will require Federal 
involvement to ensure the fundamental constitutional right. In 
Gideon v. Wainwright, the U.S. Supreme Court stated the right 
of one charged with crime to counsel may not be deemed 
fundamental and essential to fair trials in some countries, but 
it is in ours.
    Thank you very much.
    [The prepared statement of Mr. Carroll follows:]

                 Prepared Statement of David J. Carroll





















                               __________

    Mr. Scott. Thank you.
    Ms. Diehl?

TESTIMONY OF NANCY J. DIEHL, PAST PRESIDENT OF THE STATE BAR OF 
    MICHIGAN, AND CHIEF OF THE TRIAL DIVISION, WAYNE COUNTY 
                PROSECUTOR'S OFFICE, DETROIT, MI

    Ms. Diehl. Let me try that again. Good morning, thank you 
to Chairman Conyers, Subcommittee Chair Scott, Ranking Member 
Gohmert and all of the Members of the Subcommittee for 
convening this very important hearing. I am Nancy Diehl and I 
am honored to be here today on behalf of the Wayne County 
Prosecutor's Office, Detroit, Michigan, as well as on behalf of 
the State Bar of Michigan as a former president.
    You could say that the reason I am a prosecutor is because 
of Perry Mason. I grew up on Perry Mason. He defined the role 
of defense attorneys for years. Each show ended with justice 
being served. When I was in high school, when I knew I was 
going to be a lawyer, I knew that I would be a defense 
attorney. He had inspired me to right the wrongs by defending 
the accused. I started at the Misdemeanor Defenders Office 
while I was in law school and continued there as a lawyer when 
I graduated in 1978.
    I learned defense strategy in the depths of the Detroit 
criminal court building--the Frank Murphy Hall of Justice. But 
I also learned that it was the prosecutor who seemed to wield 
an awful lot of power in the courtroom. My dream of righting 
wrongs seemed to be better suited on the other side. To make a 
long story short, I was appointed an assistant Wayne County 
prosecutor in 1981.
    Because our system of American jurisprudence is based on an 
adversarial court process, competent defense lawyers are 
necessary to scrutinize and challenge the arresting officers' 
tactics, the police investigation, the lawfulness of any search 
and seizure, the eyewitness identification procedure, 
credibility of evidence and prosecutor's theory of a case. 
Arguably, it is because of this strong adversarial process that 
the United States is in the forefront of cutting-edge public 
safety technologies, like DNA, technologies that help to 
exonerate the innocent and to convict the guilty. However, in 
many jurisdictions in our country and certainly in the state of 
Michigan, we are lacking these checks and balances.
    In Michigan, the present fee structure in Wayne County does 
not appropriately compensate defense lawyers. The common lament 
from the lawyers is that the plan does not reimburse adequately 
for the time necessary to prepare, interview witnesses and to 
handle the trial. When you look at the present fee schedule and 
take a look at the typical time it takes for a lawyer to handle 
a capital case--it is a case with a life maximum--it ends up 
working out to approximately $10 an hour.
    That is just unfair, and that unfair compensation has 
resulted in the Wayne County experienced lawyers refusing to 
take any assigned cases at all or severely limiting the number 
of cases that they are willing to take. The present fee 
schedule also encourages abuse. It forces the lawyers to take 
on too many cases in order to earn enough money to support 
themselves, and they don't have the time to effectively 
represent their clients.
    When there is an inadequate defense, bad things can happen. 
If the defense is ineffective, evidence may be admitted that 
should not have been. If proper preparation and cross-
examination are lacking, an innocent person may be convicted. 
If the wrong person is convicted, it means a guilty person 
remains free to continue to commit crimes. An unskilled defense 
attorney also puts an additional burden on an already too 
burdened prosecutor. It becomes part of our responsibility to 
try to watch out for the rights of the accused.
    Ineffective representation also prolongs the appellate 
process. Cases are drawn out over long periods of time. Cases 
are reversed based on ineffective assistance of counsel. 
Prisoners remain incarcerated for crimes they did not commit. 
New trials are granted. There is no closure for victims and 
their families; their wounds are reopened. Memories fade and 
justice is less likely to be served.
    In closing, let me state that our criminal justice system 
works best with both a strong prosecution and a strong defense. 
This ensures that the rights of all citizens are protected.
    In these most challenged economic times, prosecutors 
themselves are increasingly strapped for resources that we need 
to be effective. As stated in the NLADA June 2008 report, ``A 
Race to the Bottom,'' ``It is our general observation that 
prosecuting attorneys in Michigan are underpaid, overworked, 
lack sufficient training, and work under stringent time 
guidelines which make the proper administration of justice 
difficult.''
    Prosecutors and defenders both need additional resources to 
ensure that the criminal justice system operates fairly and 
appropriately. To uphold our Nation's principles of law and to 
promote public safety, we must come together and find a remedy 
that adequately funds both. Justice demands no less.
    Thank you.
    [The prepared statement of Ms. Diehl follows:]

                  Prepared Statement of Nancy J. Diehl







                               __________

    Mr. Scott. Thank you.
    Mr. Luna?

     TESTIMONY OF ERIK LUNA, PROFESSOR, WASHINGTON AND LEE 
            UNIVERSITY SCHOOL OF LAW, LEXINGTON, VA

    Mr. Luna. Thank you, Chairman Conyers, Subcommittee 
Chairman Scott, Ranking Member Gohmert, Members of the 
Committee and Subcommittee. I appreciate the opportunity to 
speak with you today.
    I want to begin by expressing my agreement with much of the 
critical commentary in this area, including the opinions of my 
fellow panelists. There are American jurisdictions where the 
accused receives the facade of legal representation, which at 
best meets the letter of Gideon but certainly not its spirit, 
and at worst it fails to maintain even the pretense of 
constitutional compliance.
    The ABA and other organizations have proposed solutions to 
the problems of indigent defense that are, by and large, 
unobjectionable, placing the onus on elected and appointed 
officials of the relevant states. After all, state and local 
governments are the ones who are directly responsible for the 
current dilemma, and they have the power to solve it by 
providing the necessary resources for defense counsel, by 
paring down their bloated penal codes and reducing lengthy 
sentences and by being more prudent in the enforcement of 
criminal laws on the street and in courtrooms.
    I have concerns with one recommendation, however, the 
notion that Congress should become directly involved presumably 
by funding indigent representation in state criminal justice 
systems. This might sound like a good idea, but it may be 
motivated by a widely held and erroneous assumption, namely 
that any crisis in America necessarily requires congressional 
action. Indeed, there are circumstances when Federal 
involvement might not only fail to improve a particular problem 
but may exacerbate a larger structural infirmity.
    To help conceptualize this issue, let us consider the 
congressional funding of indigent defense in a given 
jurisdiction as a sort of bailout. Although nowhere near as 
provocative as the recent corporate bailout, a sixth amendment 
bailout has a particular troubling aspect. The primary bailee, 
state legislatures, have it within their means to meet their 
constitutional obligations but have chosen not to do so, 
doubtlessly because such actions would be viewed as bad 
politics.
    There is a real question of fairness if the Federal 
Government were to bail out states that have failed to hold up 
their constitutional responsibility. Why should citizens in a 
state that meets its sixth amendment-based financial 
obligations have to pay for the state that does not? Under many 
circumstances, it would be unthinkable for the Federal 
Government to provide funding to a state precisely because it 
violates the constitution.
    Imagine, for example, a county sheriff's department that 
has the ability to provide inmates adequate food, clothing, 
shelter and so on but refuses to do so for political reasons. 
The appropriate response would not be to provide the sheriff 
Federal funds so that he may maintain humane conditions of 
confinement. Instead, he should be given an ultimatum: meet the 
constitutional requirements or face, among other things, civil 
rights litigation.
    A congressional bailout in the current context may also 
create a perverse set of incentives. If a given state does not 
bear the full cost of its criminal justice decisions, instead 
is able to externalize a politically disagreeable expense on 
another entity, in this case passing along the funding of state 
indigent defense to the Federal Government, state officials may 
have little incentive to temper their politically self-serving 
decisions that overextend the criminal justice system. And 
along the way, a troubling precedent is set for those states 
that have, in fact, met their financial obligations.
    Now, this is more than just a public policy question. It is 
an issue of federalism, a basic constitutional principle that 
limits the power of the national government and prevents 
Federal interference with the core internal affairs of the 
individual states, including the ordinary administration of 
justice.
    Federalism is not a law-and-order, anti-defendant, 
political gimmick but instead applies to all forms of Federal 
involvement in state affairs, whether Congress wants to 
incentivize or even command local police and prosecutors to 
pursue particular crimes or instead seeks to fund and possibly 
direct indigent representation in state courts. There are 
numerous arguments in favor of federalism in this area, such as 
the value of local decision-making in a pluralistic society, 
where citizens of different jurisdictions are likely to have 
distinct views on the substance and process of criminal 
justice.
    Federalism and its allied doctrine, the separation of 
powers, create multiple levels of government, all duty bound to 
the people rather than to each other. This provides structural 
checks on every level of government, preventing the 
accumulation of too much power in too few hands, a problem that 
may not seem relevant here but all too often manifests itself 
in the criminal justice system.
    Now all of this may be cold comfort for indigent defendants 
and their counsel in financially delinquent states. But to be 
absolutely clear, federalism in no way relieves a jurisdiction 
of its obligations to comply with other constitutional 
principles, such as the right to counsel.
    So let me reiterate: the states can and must ensure that 
criminal defendants receive the type of representation demanded 
by the sixth amendment. And that said, Congress can play a 
meaningful but limited role, as evidenced by today's laudable 
hearing. It also can provide a role model function by paring 
back its own criminal justice system by reducing the over 4,500 
or near 4,500 Federal crimes in the U.S. Code, especially those 
that duplicate state laws or dispense with traditional 
constraints on culpability and as well as reforming the Federal 
sentencing system that is in dire need of overhaul.
    And by doing that, Congress would be providing a valuable 
and perfectly constitutional service to the states. The Federal 
Government would be a role model, not a dictator or an 
underwriter.
    Again, thank you for the opportunity to speak today, and I 
look forward to answering any questions that you may have.
    [The prepared statement of Mr. Luna follows:]

                    Prepared Statement of Erik Luna















                               __________

    Mr. Scott. Thank you.
    Ms. Thomas?

 TESTIMONY OF REGINA DANIELS THOMAS, CHIEF COUNSEL, LEGAL AID 
    AND DEFENDER ASSOCIATION JUVENILE LAW GROUP, DETROIT, MI

    Ms. Thomas. Good morning, I would like to thank Chairman 
Conyers, Subcommittee Chair Rob Scott, Ranking Member Gohmert 
and Members of the Subcommittee for holding this hearing today. 
I am Regina Daniels Thomas and I am honored to appear on behalf 
of the Legal Aid and Defender Association of Detroit, Michigan.
    In most counties where counsel is provided for juveniles, 
the system compromises on a daily basis the ability of 
attorneys to provide adequate and competent representation. 
Society has already recognized that children are different and 
incompetent to make decisions about a number of life issues.
    Add this reality to the fact that the children who find 
themselves in juvenile court come from some of the most 
challenging backgrounds, and you have a recipe for disaster. 
Our clients come from educational environments that are failing 
them; communities where violence occurs regularly; environments 
of abuse and neglect. Our clients also have to deal with poor 
health, mental illness and domestic violence.
    The children and families we see in court are surviving, 
not living. They are not savvy when it comes to the juvenile 
justice system, and they lack the knowledge to navigate the 
system to achieve successful outcomes. I would like to tell you 
what happens on a daily basis in our juvenile court.
    On a typical day in juvenile court, you will find hundreds 
of children and parents attempting to navigate a system which 
is already operating at full capacity. Attorneys are handed a 
stack of files and told, ``these are your cases for the day.'' 
Attorneys meet their clients in the hallways if they are not in 
custody and in holding if they are in custody, in an area that 
is not private, no matter what the offense is.
    Both of these meetings are superficial, and the amount of 
time that is spent is limited. The amount of information that 
is gathered is minimal at best and does not take place in an 
environment that is confidential. These meetings are further 
limited by the court's desire to move cases forward as quickly 
as possible.
    Based upon these meetings, attorneys have to help their 
clients decide very quickly and with very little information 
how to proceed on a case. The attorneys must also determine if 
there are any mitigating circumstances or viable defenses. Is 
the client competent? And what, if any, are the collateral 
consequences of a child-client being found responsible?
    Most of these answers to these questions can be garnered 
with proper time and adequate training, but that is not what is 
taking place in Michigan. Attorneys are expected to, on a daily 
basis, do exactly what Gideon doesn't stand for.
    I have personally encountered children with cognitive 
deficiencies who have pled to offenses where I have, after 
meeting them, questioned their competency. One young man in 
particular was charged with unarmed robbery. The charging 
document described the incident as one in which the child-
client put his hand in the pocket of a schoolmate and took $3 
and a cell phone. This was his second offense, and he was 
already a committed youth.
    A cursory review of the court file yielded information that 
the young man had been involved in a serious car accident some 
years prior and did in fact have a closed-head injury which 
caused him to be cognitively impaired. One specific area which 
was affected was his impulse control. Despite the fact that 
this child was already a committed youth, I believe the issue 
of competency needed to be addressed.
    The court disagreed and pointed to the fact that the client 
had already pled responsible to the charge of unarmed robbery 
on a previous occasion. This young man required treatment 
intervention beyond what is typically available within the 
juvenile justice system, but with limited options to divert 
this case to a more appropriate forum, the county and the state 
have undertaken the responsibility to provide services.
    The lack of competent representation is not specific to 
court-appointed attorneys in juvenile delinquency cases. I have 
also personally observed retained counsel have a child-client 
with organic brain damage plead to an offense as charged 
because he had cases in another courthouse and wanted to 
resolve the matter as quickly as possible.
    While these cases on their face seem extreme, this sort of 
thing occurs on a routine basis, particularly in cases where 
developmental delays are not immediately apparent. There is 
also a problem with continuity of representation. In the 
current system, particularly in the largest county in the state 
of Michigan, a child will meet a minimum of two attorneys prior 
to his actual court date.
    All of these issues have created what I call a perfect 
storm for our clients. Adequate, competent advocacy during and 
after trial increases the odds of clients involved in the 
juvenile justice system to succeed once they reach adulthood. 
Without adequate, competent representation, the chips are being 
stacked against these children in an environment where 
involvement in the juvenile justice system is no longer 
confidential and rehabilitative but is open and punitive.
    And the consequences of being involved are increasing, 
consequences such as being unable to enter the armed forces, 
the inability to enter a nursing program, problems with 
immigration status, the inability to apply for certain types of 
jobs and even the inability to take advantage of advanced 
educational opportunities. These consequences are preventing 
children from being able to become productive adults living 
successful lives.
    Thank you.
    [The prepared statement of Ms. Thomas follows:]

              Prepared Statement of Regina Daniels Thomas









                               __________

    Mr. Scott. Thank you.
    Ms. Dahlberg?

TESTIMONY OF ROBIN L. DAHLBERG, SENIOR STAFF ATTORNEY, AMERICAN 
              CIVIL LIBERTIES UNION, NEW YORK, NY

    Ms. Dahlberg. Thank you, thank you, Chairman Scott--but 
thank you, I am sorry--thank you, Chairman Conyers, 
Subcommittee Chairman Scott and Ranking Member Gohmert, as well 
as other Members of the Subcommittee.
    I am pleased today to testify on behalf of the American 
Civil Liberties Union, its 53 affiliates and its more than 
500,000 members nationwide concerning the failure of states, 
such as Michigan, to adequately fund and administer their 
indigent defense programs. The inadequacies of such programs 
are of concern not only to the ACLU and this Subcommittee but 
to all Americans who expect their criminal justice system to 
produce fair and accurate results in the most cost-effective 
manner.
    Researchers estimate that between 80 and 90 percent of all 
of those accused of criminal wrongdoing by state prosecutors 
must rely upon state indigent defense programs for 
representation. As a result, the failure of states to 
adequately fund and administer their indigent defense programs 
infects the entire criminal justice system.
    Poorly performing indigent defense programs compromise 
public confidence in the criminal justice system. In 2007, more 
than 80 percent of those surveyed nationwide reported little or 
no confidence in that system.
    When public defenders do not have necessary resources, they 
cannot engage in adversarial advocacy. Without adversarial 
advocacy, their clients are wrongfully convicted, they plead 
guilty when they should not, and they spend too much time in 
jail or prison.
    For example, Michigan resident Allen Fox received a 12-
month sentence for trying to steal two cans of SPAM from a 
convenience store. Mr. Fox sat in jail for 6 months before he 
saw an attorney. Michigan resident Darryl Lynn Blakely was 
forced to pay--actually I should say the relatives of Michigan 
resident Darryl Lynn Blakely were forced to pay Mr. Blakely's 
court-appointed attorney $2,500 to ensure that he received a 2-
year sentence for unlawful driving of an automobile. At their 
first meeting, Mr. Blakely's attorney told him that if he did 
not pay the money, he would receive a 5-year sentence.
    Poorly performing indigent defense systems perpetuate 
racial disparities in the criminal justice system. People of 
color are more likely than Caucasians to live in poverty, to 
have to rely upon indigent defense systems when charged with 
criminal wrongdoing and more likely to feel the consequences 
when such programs are underfunded and poorly administered. In 
2007, both nationally and in Michigan, African-Americans were 
three times more likely than Latinos and five times more likely 
than Caucasians to be jailed or imprisoned.
    Poorly performing indigent defense programs waste taxpayer 
dollars. To the extent underfunded programs result in wrongful 
conviction, unnecessary incarceration, inappropriate sentences 
and legal errors, taxpayers must pay--taxpayers are 
responsible. For example, I believe Subcommittee Chairman Scott 
mentioned the case of Eddie Joe Lloyd, released from a Michigan 
prison after DNA testing confirmed his innocence. He spent 17 
years in jail because his lawyer did not present a defense. His 
wrongful conviction cost Michigan taxpayers over $4.5 million.
    In 2007, Patrico Ramonez was released from Michigan prison 
after the United States Court of Appeals for the 6th Circuit 
ruled that his public defender had failed to interview 
witnesses who could have supported his defense. Mr. Ramonez's 7 
years behind bars cost Michigan taxpayers approximately one-
half million dollars. Between 2003 and 2007, attorneys from the 
Michigan State Appellate Defender Office found sentencing 
errors in one third of the guilty plea appeals assigned to 
their office. By correcting these errors, they saved Michigan 
taxpayers almost $4 million.
    The ACLU would like to encourage--ask Congress to take 
steps to encourage states to adequately fund their indigent 
defense programs. As one of my colleagues here mentioned--well, 
actually, one of my colleagues mentioned that funding of state 
indigent programs should belong to the states. However, 
Congress funds to the tune of hundreds of millions of dollars 
state prosecutorial functions through Byrne Grant programs, 
through Juvenile Justice Delinquency Prevention Act, through 
the Juvenile Accountability Block Grant, among others.
    We ask that Congress encourage parity between state 
prosecutorial and indigent defense services by requiring that 
states that spend Federal funding on prosecutorial services be 
required to spend comparable funding on indigent defense 
services.
    Thank you.
    [The prepared statement of Ms. Dahlberg follows:]

                Prepared Statement of Robin L. Dahlberg
























                               __________
    Mr. Scott. Thank you, we will now have questions for the 
panel from the Members under the 5-minute rule.
    And we will begin with Mr. Conyers.
    Mr. Conyers. I thank the Chairman for allowing me to 
proceed in front of him. This is invaluable testimony and what 
I am hoping, Chairman Scott, is that you and Judge Gohmert will 
be able to devise a method along with Subcommittee Chairman 
Nadler to go through all of the 50 states and get a picture 
of--like we have here in Michigan. And I would yield to either 
of you if you had any remarks to make about that.
    Mr. Scott. Well, I will just state this isn't the last 
hearing we are going to have on this. We are looking closely at 
Michigan. Most of the witnesses with us today are from Michigan 
and resulting from the report. But this isn't the last hearing 
we are going to have.
    Mr. Conyers. What I am suggesting is that we not have 49 
other hearings, but that we----
    Mr. Scott. And I think as we have hearings, we will be able 
to come to some consensus as to what needs to be done. We have 
had a lot of recommendations----
    Mr. Conyers. Yes.
    Mr. Scott [continuing.] Today, so we would expect to follow 
through on the recommendations.
    Mr. Conyers. Yes, that is also great. But what I am 
suggesting more particularly is that we try, without 
antagonizing Judge Gohmert's relations between Federal and 
state entities, that we get states to do the kind of study that 
Michigan has already done. We don't have the--but, you know, to 
hear--to have this across the country I think would be 
stimulating, not just for us, but I think it would help those 
who are in this part of the practice of law in all the other 
states as well.
    The other thing I wanted to hear is whether Mayor Archer 
and Nancy Diehl had any comments having listened to all of the 
testimony and all of the opening statements if they wanted to 
put anything on the record about anything that occurred to 
them.
    Judge Archer. Mr. Chairman, thank you very much. Let me 
just indicate that I believe that my colleague from the ACLU 
made the point that I was going to, to Professor Luna's 
observation regarding federalism and intervention. But I do 
believe, when you take a look at the Byrne Grant and you took a 
look at the Justice Assistance Grant--and I think there was 
another grant that she spoke about dealing with juvenile 
delinquency--if there was a tweaking, perhaps of the language, 
in those Federal grants, it could generate more fairness in 
terms of how the money is ultimately, when it gets to the 
states, is fairly distributed, such that a defender's portion 
could be either more fairly increased--that is one.
    Second, I would like to recommend that some consideration 
be given to asking states like Michigan or others what, if 
anything, are they going to do about mandatory sentencing that 
takes away discretion from judges and their ability to give 
probation where appropriate. What about their review of certain 
legislation that would reduce the necessity for assigned 
counsel, which would then create more funds available for the 
more serious crimes that you would expect to have defenders 
there and would be able to be trained, even the prosecutors, as 
Prosecutor Nancy Diehl mentioned, in terms of adequate training 
across the board?
    There are those that have certain opinions, for example, 
about the death penalty. I don't think that there is any person 
who would stand up and say today that, under the laws, if the 
death penalty is not fairly implemented with competent counsel, 
with all of the training necessary to be able to assure that if 
indeed there is a death penalty and it is followed religiously, 
that then when the--if there is a finding of guilt and a death 
penalty is imposed that it would be fair and it would work.
    If it is not fair, I don't think anybody objectively 
knowing that it is not fair and seeing where DNA evidence and 
other evidence has been looked at in other states where you see 
error, whether it is 2 percent, 3 percent or 5 percent 
translated to the death penalty, it has enormous consequences. 
And I do believe that there is room for discussion coming from 
this Subcommittee and from the overall Judiciary Committee that 
could have an impact causing states to take a look at 
themselves in terms of how justice can be fairly implemented.
    Mr. Conyers. Mr. Chairman, could I get enough time to get a 
reaction from Attorney Diehl?
    Mr. Scott. Certainly.
    Ms. Diehl. Thank you, two things: The Federal Government 
certainly does send money to the states via the Byrne Grant, 
and prosecutors and law enforcement have access to that. We 
need more money. We don't have enough money from that grant, 
but I agree it certainly would be a way to assist the indigent 
defense fund.
    And another thing I think that Congress can do and the 
Federal Government can do in terms of helping the states is to 
take a look at what the Federal system does in Wayne County. 
The Federal defenders pay the lawyers $100 per hour. Now, that 
is something that the Federal Government does. If we could take 
a look at that and support that in the state system, then we 
could see that the lawyers would be able to be compensated much 
more appropriately.
    Mr. Conyers. Thank you, Mr. Chairman. I leave Attorney Luna 
to the tender questions of Jerry Nadler. But the only thing I 
wanted to get on the record--I wanted to compliment Attorney 
Luna for his opposition to mandatory minimum sentencing which 
is in his statement. He didn't mention it, but I just wanted 
the record to show that there was at least somebody that stood 
up for him and his right to bring these opinions or these 
thoughtful, conservative opinions to the attention of the 
Committee on the Judiciary.
    Thank you very much, sir.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Gohmert?
    Mr. Gohmert. Thank you, Chairman. And I do appreciate the 
testimony, and I am glad my friend Mr. Nadler is back.
    Been an indication earlier by my friend from New York that 
this is a Federal responsibility. We can delegate it to the 
states, as he said, but I am not sure that that is the case. I 
guess we have different views of the Constitution.
    It is my understanding these things are reserved for the 
states and the people to do. And when we talk about three legs, 
whether it is judges, prosecutors or defense attorneys, I can't 
help but observe, based on what I am hearing from up here and 
from there, if it is a Federal responsibility to make sure 
defense attorneys are paid, including with Federal funds.
    Well then you have got the Fifth Amendment mention of grand 
juries, which means we need to also fund those, which means we 
also got to provide them courthouses in which to meet, which 
means we also under the Sixth and Seventh Amendment need to pay 
for the juries, because that is another Federal right 
mentioned.
    So we need to make sure that they have adequate place and 
that we also hire and pay for the clerks who are in charge of 
securing those jury panels from which juries are picked.
    Then we have the sixth amendment right to have witnesses, 
and actually I guess having been someone who was not doing 
criminal work at the time but who was assigned to appeal a 
rather nasty capital murder case, I can tell you my client got 
proper representation. I gave it all I had and had the case 
reversed. The major issue was one of not providing adequate 
witnesses, and it never crossed my mind to demand that the 
Federal Government should have come in and made sure that the 
witness the defendant needed was there because that was a state 
obligation, and for that reason the state's case was reversed.
    But then you can't have due process as promised by the 
Fifth Amendment. You can't have or avoid excessive bail as 
promised under the Eighth Amendment, unless you have good 
judges. So we need to pay for good judges from the Federal 
level as well.
    So, you know, as we get to thinking about it, and I use my 
colleagues and some of the witnesses' line of thinking, sounds 
like we just need to dismiss the states and take over the 
entire state and local justice system since these things are 
mentioned in the Constitution. You know, obviously I am being a 
little facetious here, but that is where this goes if we decide 
we are going to step in and take over all these things.
    And I do think that there are many criminal defense 
attorneys who don't get the adequate credit. But nothing 
concerned me more as a judge then if I thought a defense 
attorney wasn't doing an adequate job. I didn't want the 
defense attorney ever appointed again if he was not doing a 
proper job to represent somebody and have raised those issues 
before myself where appropriate.
    But, you know, if we are going to get in the business of 
building the courthouses and the jails, and you can't have 
these due process rights without making sure you have got good 
law enforcement, which means we are going to have to start 
taking care of all the salaries for the state, local law 
enforcement as well, their computer needs and of course the 
staffing, the computers, the online legal services, all those 
things. I mean, they are going to come into play.
    And I am glad prosecution was mentioned because it seemed 
to me that oftentime prosecutors were not adequately paid. And 
so I rarely ever see a criminal defense attorney move over and 
take the less money and become a prosecutor, but I more often 
saw prosecutors, when they just couldn't stand it anymore, 
moving over and making more money as a criminal defense 
attorney. There are some that didn't do as well but some that 
did very well.
    But I do see where Federal Government can help by perhaps, 
as Chairman Conyers has indicated, giving the best overall 
national analysis of what would be the best vehicle to make 
sure that these rights in our Constitution and Bill of Rights 
are secured.
    And so, you know, here I have used most of my time talking 
but getting to this point. I am not interested in seeing a lot 
of studies that have conclusions and then go find facts that 
they feel like will support it. But I am very interested in any 
models, any suggestions, that we can provide to the states to 
help them do a better job of seeing that justice is truly done.
    And I would welcome any suggestions you have in writing. 
You know, 5 minutes isn't much time for you to speak because I 
know every one of you--I mean, of course you get paid so well 
to come speak, and I know--they don't get paid anything, you 
all, if you are sitting back there. But I would welcome your 
written input, beyond your statements, as to what we might be 
able to do in the way of a national study because that is 
something only the Federal Government could do and have it 
universal enough.
    So appreciate your input, appreciate your being here, all 
of you, thank you.
    Mr. Scott. Thank you, and we are going to try to get our 
questions in the best we can before we go to vote. But let me 
ask just a couple of questions.
    Mr. Archer, the ABA had an ethical standard for lawyers 
that did not exclude court-appointed attorneys. How is that 
ethical standard enforced?
    Judge Archer. First of all, let me just say that lawyers 
are programmed to help. Typically, public defenders have a 
powerful sense of duty. Sometimes it is just not that easy to 
admit that you can't do it all. But equally important, once an 
attorney concludes he can't do it all under the necessary 
standard, there is a reality of fear and a sense of 
powerlessness.
    Many systems today undermine the independence of public 
defenders. And without independence, a lawyer who challenges 
the court or a state or county administration over high 
caseloads might well be fired. That is one reason why the first 
of the ABA's Ten Principles calls for the establishment of an 
independent board whose members are appointed by diverse 
authorities, so that no single official or political party has 
unchecked power over the public defense function.
    Policymakers should guarantee to the public that critical 
decisions regarding whether a case should go to trial, whether 
motions should be filed on a defendant's behalf or certain 
witnesses should be cross-examined are based solely upon the 
factual merits of the case and not on a public defender's 
desire to please a judge in order to maintain his or her job. 
In sum, it is by case-by-case method and most good, hardworking 
public defenders----
    Mr. Scott. Should this be enforced as ethical violations 
are enforced through the state bar complaints?
    Judge Archer. I don't think it is being raised, and I think 
it is not being----
    Mr. Scott. Should it be?
    Judge Archer. Yes, it should, but I think public defenders 
are reluctant to do it because they know that if they don't 
serve, then a real estate lawyer might be obligated, imposed 
upon the court, to fill a needed void because there is no one 
there with experience. So that lawyer stretches him or herself 
to do everything that they can to take it on.
    What you will see are, as you have seen in the testimony or 
perhaps have read in the testimony, where examples of where 
public defenders have sued to back up--to suggest why they 
shouldn't take a large caseload and why something else should 
be done by the state itself. So that has been more of a 
litigation rather than using the ethical barrier. I would defer 
to anyone else who has more information than that.
    Mr. Carroll. I would just add that the ethics opinion is 
out there saying that it is unethical for public defenders, as 
with any lawyer, to take the number of cases that they are 
doing. They don't refuse the cases because they are generally 
in most cases contracted directly to a judge or else do not 
have independence set up for them to feel comfortable to do 
that. They think if they act and follow the ABA opinions it is 
going to lead to a termination of their employment, and so it 
just perpetuates and perpetuates, and you get these caseloads 
in the 500, 600 level.
    Mr. Scott. Is an hourly rate the only way to pay lawyers in 
criminal cases? It is my understanding that most private 
attorneys take criminal cases on a flat fee. Is that not right?
    Mr. Carroll. In this country, the majority of defense work 
is provided by private attorneys either through hourly systems 
or directly under contract. But----
    Mr. Scott. Well, no, I mean private, not court-appointed, 
just privately retained counsel.
    Mr. Carroll. Oh, oh, about 85 percent of all criminal 
defense work is handled by the indigent defense system.
    Mr. Scott. Okay, the 15 percent that are handled by private 
lawyers, how are they compensated?
    Mr. Archer, how are they compensated?
    Judge Archer. They would be compensated by retainer. They 
would assess on the basis of the factual----
    Mr. Scott. Basically a flat fee.
    Judge Archer. A retainer, where they would say, ``This is 
what you are charged with. If you want me to represent you, it 
is going to cost you $10,000; it is going to cost you 
$35,000.'' If they resolve it in 6 hours or if they resolve it 
in 6 months, they are retained on--they are paid----
    Mr. Scott. So basically it is a----
    Judge Archer [continuing.] Retainer.
    Mr. Scott [continuing.] Flat fee. It is not an hourly rate.
    Judge Archer. That is correct.
    Mr. Scott. Okay.
    Mr. Nadler?
    Mr. Nadler. Thank you very much, Mr. Chairman.
    Mr. Luna, or Professor Luna, I suppose, I am sorry. 
Professor Luna, you base much of your argument on the 
assumption that the practice of civil rights litigation will 
provide a sufficient incentive for states to meet their sixth 
amendment obligations. It obviously hasn't worked. So what 
would you comment on how we should get states to meet their 
sixth amendment obligations if the Federal Government won't--
shouldn't do it?
    Mr. Luna. I actually would say that it is working, slowly 
but surely. There is litigation currently pending in Michigan 
right now before the State Supreme Court. And in fact, you will 
see----
    Mr. Nadler. Wait a minute, slowly but surely.
    Mr. Luna. Sure.
    Mr. Nadler. Slowly doesn't work. I mean, slowly but surely 
means that tens of thousands of people do not get their 
constitutional rights protected, do not get adequate legal 
representation and hundreds maybe thousands go to jail who are 
innocent people.
    Mr. Luna. I could--a couple of responses to that. First 
thing, I don't see, if the Federal Government were to go down 
this line--I think Ranking Member Gohmert would agree with 
this--for you to come up with a system that is going to 
adequately meet all of the variables involved, whether it is 
going to be--you are going to have a system of retained 
counsel, whether you are going to have a system of appointed 
counsel, whether you are going to have a system of a public 
defender system nationally--how are you going to do it? That is 
going to be just as timely and time consuming as anything that 
might be done by civil rights litigation.
    And I don't deny the fact that there is a problem. I have 
said that----
    Mr. Nadler. No, obviously you don't. But obviously, I mean, 
we are now, what, 40 years after Gideon--46 years after Gideon 
v. Wainwright and we have got an intolerable situation. There 
has been, as long as I can remember, there has been civil 
rights litigation of one sort or another in one state or 
another or many states, and yet the situation hasn't improved. 
So what makes you so certain that this solves the problem?
    Mr. Luna. Yes, I would--I mean, I could throw it back to 
you. What makes you so certain that the Federal Government is 
going to be able to resolve this?
    Mr. Nadler. Well, I can't be certain but I know we can try.
    Mr. Luna. My response is I don't believe that the Federal 
Government can resolve this.
    Mr. Nadler. Well, let me ask----
    Mr. Luna. I don't believe that the Constitution allows the 
Federal Government to resolve this. And----
    Mr. Nadler. Excuse me, the Federal Government doesn't have 
the right to insist on states meeting constitutional rights? We 
can't enforce constitutional rights?
    Mr. Luna. No, that is--the way I understand it is that you 
would--I am trying to find the clause on which you would hang 
this. I guess you could make a disingenuous argument that the 
Commerce Clause would be the basis. You could do it by Tax and 
Spend, and I have no doubt that the jurisprudence would support 
that.
    You might conceivably, although it would be very difficult 
under the Supreme Court jurisprudence, try to make a 14th 
Amendment Section 5 argument as to why you could do that. Or it 
seems plausible and you certainly have a Department of 
Justice----
    Mr. Nadler. That would be a good, I think, a good peg to 
hang your hat on.
    Mr. Luna. It might well be, it might well be. Or you could 
have the Department of Justice do what it does in many 
circumstances when you have deficient situations in jails, in 
prisons, is to file a civil rights lawsuit.
    Mr. Nadler. Okay, thank you. Civil rights, well, yes, I 
mean, a 1983 lawsuit it would seem to--would be indicated.
    Ms. Dahlberg, let me ask you, the NLADA is recommending 
that we give the states a choice between continue to raise the 
money yourselves or conditioning Federal funds on the condition 
to make a number of changes that would solve the problem. You 
support that I assume.
    Ms. Dahlberg. Yes.
    Mr. Nadler. This document I have before me, which was 
suggested questions for the witnesses, says although no one is 
proposing any Federal mandates on states, why shouldn't we 
mandate states? Why shouldn't the Federal Government, for 
example, mandate based on Section 5, which is the general 
Enforcement Clause of the 14th Amendment, which guarantees due 
process of law and equal protection--why shouldn't we mandate 
that states spend at least an equal amount on criminal defense 
as on prosecution in every county or even per case?
    Ms. Dahlberg. Well, a per-case measurement would probably 
be better because prosecutors' offices oftentimes handle cases 
that defense programs do not. So----
    Mr. Nadler. Okay.
    Ms. Dahlberg [continuing.] Strict dollar-to-dollar parity 
would in some----
    Mr. Nadler. I don't want to write the legislation, but why 
not mandate that there be some sort of parity of resources 
along the lines I just said?
    Ms. Dahlberg. That would be a great idea. I just wanted to 
address the idea of litigation, though, as well.
    Mr. Nadler. Please.
    Ms. Dahlberg. The ACLU is one of the very few civil rights 
programs that does that kind of litigation. In the last 10 
years, we have brought four cases. They are huge; they are 
expensive; they are difficult to litigate. The law is not well-
resolved in this area. The cases cannot go into Federal court 
because of the Younger abstention doctrine. They have to be 
litigated in state court.
    Litigation is really in this area a tool of last resort. 
And using litigation, I think, what we have discovered, it 
threatens to tear apart the entire criminal justice system by 
exposing the underbelly, the dirty laundry, so to speak. It 
really is--can be very destructive to the criminal justice 
system within the particular jurisdiction.
    And that is why most of our cases, in fact, have settled, 
is because states don't want to take that risk. So to, you 
know, on the one hand, spend, I mean, literally millions of 
dollars defending and prosecuting those kinds of states----
    Mr. Scott. Ms. Dahlberg, we are going to----
    Ms. Dahlberg [continuing.] Allocate that money to----
    Mr. Scott. We are going to have to move on to the next 
witness because----
    Mr. Nadler. Thank you.
    Mr. Scott [continuing.] We just have 3 minutes left before 
the vote.
    Ms. Jackson Lee?
    Ms. Jackson Lee. Chair, would you be kind enough to put the 
vote on the--vote there so I could just watch it on the----
    Mr. Scott. I don't know if I can. There are 3 minutes left.
    Ms. Jackson Lee. Okay, let me thank the witnesses for their 
time. And let me acknowledge all of you since I will have only 
a moment to ask questions, and this is a serious issue for the 
state of Texas.
    Mr. Archer, let me thank you and acknowledge an additional 
resume success story of being former president of the National 
Bar Association, the largest organization of African-American 
lawyers, many of whom are in that 15 percent that practice 
criminal defense law.
    I just want to focus on the language in the ABA that says 
that this defender program should be at the state level. And I 
think Professor Luna has made our case in the 14th Amendment. I 
think the case is being made under the Fifth Amendment of due 
process.
    What is the ask here, in terms of the indigent standards? 
Would it be that the Federal Government set standards that 
require all states to establish a state indigent defense 
program? Would that move us more toward consistency in 
defending the indigent?
    Judge Archer. Yes.
    Ms. Jackson Lee. And isn't it true in your readings that 
you have seen my state be notorious for, one, poor defense--so 
let me just say it; I will put it on the record--of indigent as 
it relates to death penalty cases? We have seen individuals be 
executed in the state of Texas--it has the highest number of 
executions--because of poor defense work. And over the last 
couple of years, we have seen an excellent local Dallas County 
prosecutor return a number of individuals to freedom because of 
poor DNA evidence or lawyers not asking it or not being able to 
get it.
    My question, then, is isn't the on or the equity on the 
side of ensuring that indigents get good defense and that that 
would be a Federal nexus and desire under the Constitution?
    Judge Archer. Yes, and I think it can be done without 
necessarily the expenditure, the money or the expanding, as the 
Ranking Member indicated in his observation--he can do that, 
and I believe it would also satisfy Professor Luna--in terms of 
asking for what is being done and setting forth guidelines. The 
American Bar Association can't impose on each state what should 
be done.
    We come up with guidelines and ask that the states, 
typically through the chief justice or the respective supreme 
court or the highest court of the perspective states, implement 
the recommendations that are there--and I think if this 
Subcommittee and the general Committee of the House Judiciary 
Committee--and then if it was implemented across the board 
federally would be a great help to cause the states to take a 
look at themselves how best to do it.
    Ms. Jackson Lee. Well, I am going to conclude by thanking 
you and saying that I would like to add to the record a 
statement, Mr. Chairman, from Senator Rodney Ellis in Houston, 
Texas, that has legislation on indigent counsel, but more 
importantly chairs the Innocence Committee in New York that 
notes all of the poor defense victims, if you will, and we know 
crime has many victims that are innocent and couldn't get out.
    Let me also acknowledge the ACLU because I do not think we 
can handle this through civil rights legislation, and I support 
the idea of Federal standards for indigent practice--I was 
getting ready to say indigent care, but indigent practice and 
defense in criminal justice cases.
    Thank you, I yield back.
    Mr. Scott. Thank you, thank you very much.
    Mr. Gohmert. Mr. Chairman----
    Mr. Scott. Mr. Gohmert?
    Mr. Gohmert. I actually had more than one article, if I 
could submit these three articles with unanimous consent.*
---------------------------------------------------------------------------
    *Note: See previous submissions by Mr. Gohmert.
---------------------------------------------------------------------------
    Mr. Scott. Without objection.
    Mr. Gohmert. And the comment was made that in 46 years the 
situation has not improved. It obviously hasn't worked. There 
are some places where it is not working, I think we will agree. 
But to say it hasn't improved--there were no real estate 
lawyers doing criminal work in my felony court.
    I think it has improved dramatically. We just need to work 
on the places that haven't, but I didn't want to see the 
hearing closed without some fantastic criminal defense that is 
being done in some locations being acknowledged. Thank you.
    Mr. Scott. And obviously there are some; it does happen in 
some cases, doesn't happen in others. And there are a lot of 
other issues that we have to explore--the independence issue, 
how much of a caseload is too much, how you guarantee--how you 
describe competence or how you help competence with the 
training centers and things like that and a lot of issues that 
we need to address.
    But I would like to thank our witnesses for their testimony 
today. Members may have additional written questions for the 
witnesses, which we will forward and ask that you answer as 
soon as you can so the answer can be made part of the record.
    Without objection, the hearing record will remain open for 
1 week for the submission of additional material.
    And without objection, Subcommittee stands adjourned.
    [Whereupon, at 11:39 a.m., the Subcommittee was adjourned.]


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