“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country, and not simply applicable to NY.
By Jeff Deskovic
In a criminal prosecution, the defense attorney plays an important role. As I have previously written, the role of the prosecutor, by way of both job description and morality, is not supposed to be simply to win a conviction, but, rather, to seek the truth and help bring about justice. Sometimes that will mean dismissing charges because it becomes clear that the person who has been accused and arrested is actually innocent. Such a realization may require a prosecutor to not oppose a post-conviction DNA test, nor fight an appeal because his office has come to realize that there is a legitimate issue of law and/or fact impacting upon the fairness of the trial. Although many district attorney’s offices, and many individual prosecutors fail to live up to this aspect of their work, instead pursuing a win-at-all-costs approach, it is worth reminding everybody, including prosecutors, that seeking truth and justice is an essential part of their mandate. After all, innocent defendants are a part of “The People” that the prosecutor is sworn to protect.
When a prosecutor, based upon a careful review of the evidence and circumstances associated with the gathering thereof, believes that the defendant is guilty, then it is their job to do everything within their power, that is both ethical and legal, and without seeking to violate a defendant’s rights, to convict. That belief, which is supposed to be arrived at through an objective conclusion, might be correct or mistaken.
That is why the role of a defense attorney is very important. It is their job to defend their client and to represent his or her interests, seeking the best possible outcome for them. It is only through quality representation that cases have the best chance of turning out justly. It is well known that wealthy people can generally afford the best legal talent. As for those who can’t afford an attorney, one must be provided for them by the court. Sadly, the representation that the poor receive is often inadequate. The thrust of this article is to look at the current sad state of public defense. I believe that the general public would be shocked if they knew how things really are. I am 
hopeful that upon reading this column, some of you will see fit to contact both your State and Federal Representatives to insist that they do something about the pervasive problems with public defense.
Although it is true that there are any number of quality public defenders, it is not true, generally. As the United States Supreme Court stated in the landmark decision Gideon v Wainwright, paraphrased, “…without a quality attorney, though an indictment is not valid, a lay person could be prosecuted based upon it; though the evidence is not legally sufficient, he could be convicted based upon it.” Similarly, without a competent attorney, even though a defendant is innocent, he could be convicted.
Having a defense attorney thoroughly investigate the facts of a case, locate witnesses, make an opening statement, cross-examine witnesses to test their credibility, object to rulings which could prejudice a defendant’s case, review evidence, possibly put on a case for the defense, and make a closing argument that sharpens and clarifies the issues, is crucial to a proper outcome.
The idea that inadequate legal representation could lead to a wrongful conviction is no mere theory; it has happened before. One of the worst cases of wrongful conviction caused, at least in part, by ineffective assistance of counsel, was that of Jimmy Bromgard. According to The Innocence Project’s website, these are the facts of his case:
“On October 1, 2002, Jimmy Ray Bromgard became the 111th person in the United States to be exonerated by postconviction DNA testing. Bromgard spent fourteen and a half years in a Montana prison for a crime he did not commit – the rape of an eight-year-old girl.
On March 20, 1987, a young girl was attacked in her Billings home by an intruder who had broken in through a window. She was raped vaginally, anally, and orally. The perpetrator fled after stealing a purse and jacket.
The victim was examined the same day. Police collected her underwear and the bedsheets upon which the crime was committed. Semen was identified on the underwear and several hairs were collected from the bedsheets.
Based on the victim’s recollection, police produced a composite sketch of the intruder. An officer familiar with him thought Jimmy Ray Bromgard resembled the composite sketch. Bromgard eventually agreed to participate in a lineup, which was also videotaped. In the live proceedings, the victim picked out Bromgard but was not sure if he was the right man. After the victim was shown the videotaped footage of Bromgard, she said she was “60%, 65% sure.”
When asked at trial to rate her confidence in the identification without percentages, she replied, “I am not too sure.” Still, she was allowed to identify Bromgard in court as her assailant. Bromgard’s assigned counsel never objected to the in court identification. At trial, the prosecution’s case revolved around the identification and the misleading testimony of the state’s forensic expert.
The semen found on the victim’s underwear could not be typed, so the forensic case against Bromgard came down to the hairs found on the bedsheets. The forensic expert testified that the head and pubic hairs found on the sheets were indistinguishable from Bromgard’s hair samples. He further testified that there was less than a one in ten thousand (1/10,000) chance that the hairs did not belong to Bromgard.
This damning testimony was also fraudulent: there has never been a standard by which to statistically match hairs through microscopic inspection. The criminalist took the impressive numbers out of thin air. Bromgard’s defense counsel was woefully inadequate. Other than the forensic evidence, the only other physical “evidence” was a checkbook from the victim’s purse that was found on the same street where Bromgard lived.
His attorney did no investigation, hired no expert to debunk the state’s forensic expert, filed no motions to suppress the identification of a young girl who was, according to her testimony, at best only 65% certain, gave no opening statement, did not prepare a closing statement, and failed to file an appeal after Bromgard’s conviction.
Bromgard testified that he was at home and asleep when the crime occurred. None of his fingerprints were found in the house, nor were any found on the checkbook that was discovered on his street.
Nevertheless, Bromgard was convicted in December 1987 of three counts of sexual intercourse without consent and sentenced to three 40 year terms in prison, to be served concurrently.
The Innocence Project began working on Bromgard’s case in 2000, the same year Bromgard was turned down by the parole board, in part because he refused to participate in the sex offenders program in prison. Students located the evidence and worked with Bromgard’s post-conviction attorney to have it released for testing.
Prosecutors consented to testing and had the victim’s underwear sent to a private laboratory for testing. The results indicated that Bromgard could not have been the contributor of spermatozoa found on the victim’s underwear.
Jimmy Ray Bromgard was eighteen years old when he was convicted of this brutal crime.
He spent fourteen and a half years in prison before DNA testing proved his innocence. The ACLU has already filed a class-action lawsuit against the indigent defender system in seven Montana counties for not providing adequate counsel for indigent clients.”
The problem of inadequate legal representation occurs throughout the country, including New York. I was wrongfully convicted and spent many years in prison for a rape and murder which I did not commit. My conviction was the result of widespread misconduct by police, prosecutors, and so-called forensic experts. In addition, however, I was the victim of a criminal defense attorney who did not do his job, so that I know, first-hand, the problems of inadequate defense counsel.
The following quote from well-known attorney Stephen Bright, who is the president of the Southern Center for Human Rights, is very telling “The death sentence – not for the worst crime, but for the worst lawyer.”
According to The Innocence Project’s website, “A review of convictions overturned by DNA testing reveals a trail of sleeping, drunk, incompetent and overburdened defense attorneys, at the trial level and on appeal. And this is only the tip of the iceberg. Innocent defendants are convicted or plead guilty in this country with less than adequate defense representation. In some of the worst cases, lawyers have: slept in the courtroom during the trial; been disbarred shortly after finishing a death penalty case; failed to investigate alibis; failed to call or consult experts on forensic issues; and failed to show up for hearings.
It’s not shocking to learn that many of the 218 DNA exonerees were represented by public defenders at trial. They were all innocent, but they all lost. In some cases, overburdened, inexperienced and underfunded public defenders were simply not equipped to stand up against the state. And the system hasn’t improved much in the last three decades.
It wasn’t always the lawyer’s fault, of course. In many cases a talented defense attorney did all he or she could to represent their innocent client, but lost to a broken system that convicts the innocent based on flawed evidence.
Indigent defense in the United States is a state-by-state system with no national standards. Criminal defendants are often forgotten when it comes time to trim a state budget, and indigent defense services most often feel the pinch. A recent report on Michigan’s indigent defense services found a system that is wholly incapable of upholding a defendant’s Constitutional right to adequate defense counsel. The report, prepared by the National Legal Aid and Defender Association, found: “… judges handpicking defense attorneys; lawyers appointed to cases for which they are unqualified; defenders meeting clients on the eve of trial and holding non-confidential discussions in public courtroom corridors; attorneys failing to identify obvious conflicts of interest; failure of defenders to properly prepare for trials or sentencings; attorneys violating their ethical canons by not zealously advocating for clients; inadequate compensation for those appointed to defend the accused …”
In addition to the above, I believe that many people would be shocked to learn that in some legal scenarios, despite their importance, poor people do not have the right to assigned lawyers, and often courts decline to use their discretion to assign them: post-conviction proceedings, in which a defendant is arguing to reverse his or her conviction based upon newly discovered evidence, a retroactive change in the law, or any other issue which could not be raised on appeal; a Petition for a Writ Of Habeas Corpus, which is when a state prisoner is arguing that his or her conviction is running contrary to the United States Constitution and which involves particular rules and procedures peculiar to the federal court system and thus are unfamiliar to many prisoners and non-lawyers.
As crazy as it may sound, during the appeals process in death penalty cases, some states do not provide attorneys to the condemned as a matter of right. Thomas Arthur, who I wrote about recently, missed several deadlines during his appeals as the result of not having a lawyer.
In almost all of the DNA-proven wrongful convictions, and in many of the non-DNA ones, innocence was proven long after the appeals process had been exhausted. However, once the appeals process has run its course, the state no longer provides attorneys. That means that wrongfully convicted prisoners whose appeals have been exhausted must somehow try to find an attorney who is willing to work pro bono, for free, and someone to investigate, as well, in the hope that, together, they will find some evidence of innocence that was previously unknown. It is very difficult to do so.
It is impossible to know how many cases have been affected by ineffective assistance of counsel. Firstly, many cannot find attorneys to work on their cases without compensation. Secondly, the legal standard by which courts review ‘ineffective assistance of counsel claims’ places such a high bar to be overcome that, in many instances, appellate attorneys avoid such issues. Even when the issue is raised, however, courts are reluctant to rule in a defendant’s favor, even when it is plain for anyone to see that a person did not receive competent representation.
Sleeping during court proceedings, failing to object to critical errors of law, conflicts of interest, and other circumstances mentioned above, were not enough for appellate courts to rule that a defendant did not receive effective representation. The causes for such rulings, in part, are due to court’s refusal to function as neutral arbiters; instead seeing themselves as a part of law enforcement whose job is to ‘protect the public’ and therefore to sustain convictions by any means possible. Additionally, judges are lawyers, after all, who are familiar with the attorneys in question from their previous practice and may be unwilling to step on their toes.
There are a number of reforms that should be enacted throughout the country to ensure that the poor receive good legal representation. Firstly, each state should have only one public defender system throughout the entire state, rather than the way things are now, with each county having its own system. Under a statewide system, there would be greater oversight and quality control. This measure is advocated by The Spagedenberg’s report entitled The State Of Indigent Defense In New York, which was a study commissioned by current New York Chief Judge Judith Kaye.
Attorneys who have been found to have previously rendered “ineffective assistance of counsel’ should no longer be employed by any state to do so, for to do so is to set the stage for future injustices. Prosecutors and public defenders should both receive equal pay so that all the best legal talent doesn’t go over to one side.
Built-in handicaps which hinder even the most well-intentioned of public defenders must be removed. For example, there should be a limit on the number of cases that a defense attorney can be given at one time. In the Bronx, for example, it is not unusual for a public defender to represent as many as 120 clients at any given time.
There must be an economically-even playing field between public defenders and prosecutors. Currently, the prosecutor has an almost unlimited budge and a huge staff, and can afford to hire experts to help him review evidence and prepare cases, whereas public defenders have limited staff, and often must resort to asking a judge for the assignment of experts. Judges frequently deny such requests because they feel pressured to keep down the costs of trials.
In conclusion, I believe that everybody deserves competent legal representation, whether the defendant is innocent or guilty, because it is only through such a system that justice will be served. It is not just when a guilty defendant is overcharged or receives a penalty greater than the facts justify. Equally important, it is only through good attorneys that the innocent can be found not guilty or have their wrongful convictions exposed as such.
The federal and state public defender system is in a shambles. There are some quality public defenders, to be sure. However, there are built-in handicaps, as above reviewed, that hinder even the most well-intentioned quality public defenders. The reforms I am advocating for can be implemented. Whether the political will to do so exists, however, is another question. Unfortunately, it is not a popular cause, the seeking of funding for public defenders, because the public perception is that it is wasting money to help criminals. Yet, not everybody that is arrested is guilty, and without an even playing field, it throws the accuracy of every verdict and the outcome of every case, potentially into question.
As a society, we collectively lose even when someone does not receive competent representation, whether innocent as referenced above, or guilty but in receipt of a much greater penalty than they deserve, if for no other reason because the injustice lowers us to the level of the offender.
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