V.I. indigent defense system behind times
Published: March 25, 2013
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ST. THOMAS - In a month that commemorates two landmark cases crystallizing the right of all defendants in the U.S. justice system to have effective legal counsel, the territory's method of defending its poorest citizens still include vestiges of the outdated practices those cases exposed and, in theory, abolished.
Today marks the 82nd anniversary of the racially charged events that sparked what became known as the Scottsboro Boys case. The case began when a fight broke out among several teenagers aboard a Southern Railroad freight train running between Chattanooga, Tenn., and Memphis. A posse stopped the train, and nine black teenagers were arrested and taken to Scottsboro, Ala., where they were indicted six days later and accused of raping two white girls.
Eight of the teenagers eventually were convicted and sentenced to death.
However, the U.S. Supreme court ultimately reversed the convictions, ruling that the teenagers' due process rights had been violated because the court failed to clearly appoint defense counsel.
This month also marks the 50th anniversary of the U.S. Supreme Court's 1963 decision in the case of Gideon vs. Wainwright, which reversed a 1942 opinion and asserted the right of indigent defendants to effective counsel.
The case involved a vagrant, Clarence Earl Gideon, who was accused of breaking into a bar in Panama City, Fla. Gideon could not afford to hire his own lawyer, and the judge in the case refused to appoint one. Gideon, forced to represent himself, was convicted and sentenced to five years in prison.
The Supreme Court eventually held that Gideon's Sixth Amendment right to legal counsel had been violated.
"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," Justice Hugo Black wrote in the unanimous opinion. "From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
But decades after these watershed decisions, the territory's system for indigent defense, governed by statute and V.I. Superior Court rule, remains flawed.
For instance, it is one of the few states or territories under the American flag still to allow attorneys to be involuntarily appointed to serious criminal cases, according to John Gross, indigent defense counsel for the National Association of Criminal Defense Lawyers.
"It's a very antiquated idea that predates Gideon, because before Gideon you didn't necessarily have a right to counsel," Gross said. "Just picking someone off a list of the bar membership does not guarantee you'll get a competent defense attorney. This type of system is, to say the least, Constitutionally questionable. It just doesn't wind up providing effective representation in many cases and results in a lot of inefficiencies for the court."
Gross authored a report, released this month to mark the 50th anniversary of the Gideon ruling, examining indigent defense in all 50 states. Gross said that after he released the report, a number of attorneys from the Virgin Islands contacted him and asked him to examine the territory's system, which has faced criticism in recent years for low rates of pay to appointed counsel, delayed payments to attorneys and involuntary appointments to criminal cases.
"My response was that this really is a throwback to another time," Gross said. "It's really not a good use of resources."
In the Virgin Islands, most indigent defendants are represented by the Territorial Public Defender's Office. However, in cases with multiple defendants or in which the Public Defender's Office has a conflict of interest, that may not be possible.
In such cases, appointments to represent indigent defendants are made on the basis of an alphabetical rotation of the names of all members of the bar, according to Superior Court rules. While the rule allows judges to exercise alternative methods of appointment based on the seriousness of the offense, the expertise of the attorney and other factors, attorneys must accept appointments to criminal cases or face contempt charges.
Gross said many states had systems like this before the Gideon case but described it as "a really bad idea."
For example, it allows the possibility of someone accused of a serious felony, such as murder or rape, to be represented by an attorney who has little or no experience in criminal defense.
Furthermore, shifting the obligation of indigent defense onto the private bar violates the equal protection clause of the 14th Amendment, Gross said.
"You're singling out a group of attorneys and making them sort of perform this work, and it's not really their job to do this," he said. "It's the job of the state to do this. You couldn't order the average citizen to become a firefighter or a police officer. In the same way, you shouldn't be able to take any attorney and say, 'Now you're a criminal defense attorney.' "
Gross pointed to public-defense systems in San Mateo County, Calif., and in Washington, D.C., as potential model systems for the Virgin Islands to follow.
One good way to handle the appointed-counsel issue is to allow members of the bar with experience in criminal matters to sign up for an indigent-defense panel, he said. The panel would fall under the purview of a court administrator, rather than a judge, who would match the experience level of the attorneys to the seriousness and complexity of each case.
A system like that would free judges from having to spend valuable time dealing with the issue and remove any potential or perceived conflict of interest in having a judge oversee court payments to assigned counsel.
Ernest Morris Jr., president of the V.I. Bar Association, declined to respond in detail to the issues Gross raised.
However, Morris said the bar has been in touch with Gross about the issues raised in his report, and the bar will be incorporating his input into an ongoing review of the territory's indigent defense system.
"We're looking at making these changes so that we can best serve the community," Morris said. "That's really our goal."
Morris said the bar expects to recommend some concrete changes to the court "within the next few months."
Sen. Sammuel Sanes, chairman of the V.I. Legislature's Rules and Judiciary Committee, said he was surprised by some of the issues Gross raised and said he plans to examine some of them, particularly the issue of involuntary appointments, in more detail.
"It does sound like a piece of legislation that would benefit individuals in the community, to at least find out if an attorney has some type of experience in that particular type of criminal matter," Sanes said. "That sounds fair."
- Contact Lou Mattei at 714-9124 or email email@example.com.