It's been 31 years since Roman Polanski fled after pleading guilty to raping a 13-year-old girl. He jumped bond and fled to France after it appeared that a judge was not going to follow a plea bargain that limited incareration to 46 days time served.
That kind of thing wouldn't happen in Texas. If Texas judges decide not to follow a plea bargain, they have to let the defendant withdraw his plea. But not so in federal court and apparently California. There, once a defendant pleads, he is stuck with it even if the judge rejects the plea bargained sentence recommendation of the prosecution.
What amazes me isn't that Polanski ran. I'm amazed that he is getting so much sympathy.
At the end of the day, Polanski was a baby raper. He did the nasty with a 13-year-old. That's simply unacceptable conduct.
As a criminal defense lawyer, I'm used to making just about any argument to help my clients, but Polansky's supporters have one-upped me. One is arguing that the 76-year-old film director has "atoned for the sins of his younger years" by not being able to enter the United States and work in Hollywood.
Come on. His younger years? He was 45 years old at the time of the rape. That isn't a mistake by a hormone-crazed teen-aged boy. He was an adult and should have known better.
I know Polanski has had serious troubles in his life. He is a Holocaust survivor whose mother was murdered in Auschwitz. His wife, Sharon Tate, was murdered along with their unborn child by the Charles Manson family. He has and deserves my sympathy for that. But, he still has to face justice for the sexual assault of a child.
However, there may be some light at the end of the tunnel for Polanski. A California judge earlier found substantial misconduct in the case involving a prosecutor not assigned to Polanski's case. It's possible that he may get the benefit of the plea bargain he agreed to. Or, the charges may be dismissed due to prosecutorial misconduct.
If there was prosecutorial misconduct, Polanski deserves relief and the prosecutor -- now retired -- should be punished. But, it doesn't change the fact that Polanski stood in open court and admitted having sex with a child.
He should be returned to the United States so the legal system can do its job. The matter can't be resolved as long as he is a fugitive.
Now the tough question: Why was he allowed to live in France for three decades while he was a fugitive from justice. Sure, he's a French citizen. And, one would expect France to protect its citizens. But when the French foreign minister says it "just isn't nice" to expect Polanski to be held accountable for a crime he admitted is going just a bit far.
Maybe it's time to take a new, long look at the extradition treaty the United States has with France. It may be time for an update.
Monday, September 28, 2009
Sunday, September 27, 2009
A Public Defender for Houston?
I think it's a done deal.
I'm not sure whether I think it is a good idea or not but I think we're going to see a state public defender's office in Harris County in the next year or so.
Why am I unsure about whether it's a good idea? A lot of it is money. And a lot is independence for a public defender's office.
The Federal Public Defender's Office in Houston and the Southern District of Texas is top drawer. The lawyers there refer to themselves as the best defense money can't buy.
Congress overall does a pretty good job of funding the various federal public defender offices and organizations. Their pay rates and benefits are the same as prosecutors in the U.S. Attorney's Office. The public defender who runs the office is chosen by the circuit court of appeals for a fixed term, subject to reappointment.
Roland Dahlin, the first public defender here, was routinely re-appointed every five years until he decided he wanted to retire. This lent stability to the office. People knew and still know they can make a career in the office. This attacts good people who don't want to have the hassle of running a private law practice. And, it's still that way.
Just as important, the case load is reasonable. The assistant federal public defenders aren't deluged with cases they don't have the time to work up. They have enough time and enough help to do a good job on their cases.
A state public defender's office likely will lack a number of the strengths in the federal system.
First, the head of the office, like all appointed county department heads, will serve at the pleasure of the Commissioners Court. And, the staff will serve at the pleasure of the department head.
While the current commissioners and county judge may truly want an effective public defender's office, who can say who will have those jobs next year or 10 years from now.
Closely related to the lack of job security is money, cash, the funds to do the job and hire enough of the right people.
There already are cries that county payments for court appointed defense counsel is excessive. New assistant district attorneys fresh out of law school start near $60,000 per year. A defense lawyer who receives that much in court appointed fees is going to find his name on the front page of the Chronicle.
And, the assistant district attorneys jobs come with benefits ranging from retirement and health insurance to offices and staff. Guess who pays for those in a defense lawyer's office.
Case load is directly related to how much money is appropriated by the commissioners. About two-thirds of the defendants in Harris County's felony courts are indigent. The more money that is appropriated, the more attorneys and staff that can be hired and the lower the case load on the individual lawyers.
A defense attorney should not be expected to handle as many cases as a prosecutor. The prosecutor gets a file with an offense report from a police agency as a starter. While defense lawyers usually get to see those reports also, they have to investigate from the beginning. There often are huge weaknesses in police investigations, weaknesses that prosecutors often don't see or don't want to see. It is amazing how often a trip to the scene will show that police officers couldn't see what they say they saw. There might be a building or tree in the way blocking the view. Or the officer may have been so far from the action that he couldn't see what he says he clearly saw.
That means that defense attorneys, either public defenders or private practice lawyers appointed to represent individual clients, have to do a lot of things which prosecutor's either don't have to do or who have the Houston Police Department to do for them.
If (when) we get a public defender's office, it will be a jolly scene every year when the head of the office asks commissioners for more taxpayer money to hire more staff to do a better job defending dope dealers, killers and baby rapers. Forget that the clients are accused of being dope dealers, killers and baby rapers.
It's always a lot easier for the prosecutors to get more money out of the commissioners than it is to get more money for indigent defense.
Almost universally, state public defender's offices are underfunded and lawyers have too many cases. It may not be the situation in Harris County at the start. But you can bet it will sooner or later.
And, what lawyers are going to work for a state public defender? Not 10 years from now but at the start.
Criminal defense lawyers are some of the most independent people in the world. As a group, we don't want to work in a big bureaucracy. Most of us are sole practicioners or in small firms. We don't have a lot of administrative forms to fill out or rules related to working hours, sick leave and vacations. We just work until the work's done.
Some experienced defense lawyers will sign on for things like reasonable benefits and a regular salary. But a lot -- especially some of the best -- won't want to work for the government.
Once a PD gets off the ground, it will hire, train and mentor young lawyers who stay with the office. But in the beginning, it will have a lot of freshly-minted law school grads.
On the other hand, the current system has both its strengths and weaknesses.
In state court, the court appointed lawyers are chosen by the judges who will try the case. Unlike past years, they don't have free reign. They have a computer-generated random selection list they have to choose from. Or, they hire long-term lawyers who handle all of their indigent cases.
Many judges are transfixed with their dockets and how quickly it "moves," that is, how long it takes to dispose of cases. Many cases can be -- and should be -- disposed of quickly. If a defendant tells his lawyer he is guilty and he wants to take the deal offered by the prosecutor, at the end of the day it's the client's case and his wishes must be respected.
And, while each defendant is legally presumed innocent, we should all hope that the police don't make cases against innocents and that prosecutors don't take charges in cases where they can't prove guilt beyond a reasonable doubt.
So, judges are tempted to appoint lawyers who will "move" the cases, that is dispose of them quickly, usually with a guilty plea.
The quality of lawyers on long-term contracts with a court depends on the judge. Judge Mike McSpadden, who was the first to enter into contracts with defense lawyers, wants the lawyers he hires to handle cases expeditiously but he also wants the indigent defendants in his court to have a good defense. He expects those lawyers to do a good job for all of their clients.
But not all judges will have McSpadden's sense of fairness. Others might give contracts to cop out lawyers who do nothing but arrange pleas and force them down clients' throats.
In federal court, the private panel lawyers appointed to represent indigents are chosen by magistrate judges who will not try the case. They don't have to worry about docket control or moving cases. That's the district judge's job. The magistrate judges have fewer incentives to appoint lawyers who will plead the cases early.
One reform which should be adopted if some form of private counsel appointment system is retained is to take take the trial judges out of the business of selecting lawyers to represent the indigent. In both state and federal court, there are screening systems to chose a list of lawyers eligible for appointment. In state court it is more formalized and includes tests for new lawyers who want appointments and annual continuing education requirements.
Once a lawyer is on the appointment list, there is a presumption that he or she can handle cases on the level for which the lawyer is approved. So, let's go to a strict rotation system in which I don't get second appointment until every other lawyer at my level of certification has had one. There should be a safety valve judges to either reject or pick a specific lawyer based on individual circumstances of a case. But that should be used sparingly and the judge should have to explain why he circumvented the rotation system.
That will take judges out of the appointment system and prevent repeated appointments of lawyers known only for moving a docket.
The bottom line is that there isn't any perfect system to select lawyers for indigent defendants. Every system has its ups and its downs, its strong points and its weak points.
What is sure is that there will never be a perfect system and whatever system is used, it will be underfunded. While many in the public scream too much taxpayer money is going to defend "criminals," providing competent defense lawyers for indigents charged with crimes is as important and as basic a function of government as building roads or putting out fires.
I'm not sure whether I think it is a good idea or not but I think we're going to see a state public defender's office in Harris County in the next year or so.
Why am I unsure about whether it's a good idea? A lot of it is money. And a lot is independence for a public defender's office.
The Federal Public Defender's Office in Houston and the Southern District of Texas is top drawer. The lawyers there refer to themselves as the best defense money can't buy.
Congress overall does a pretty good job of funding the various federal public defender offices and organizations. Their pay rates and benefits are the same as prosecutors in the U.S. Attorney's Office. The public defender who runs the office is chosen by the circuit court of appeals for a fixed term, subject to reappointment.
Roland Dahlin, the first public defender here, was routinely re-appointed every five years until he decided he wanted to retire. This lent stability to the office. People knew and still know they can make a career in the office. This attacts good people who don't want to have the hassle of running a private law practice. And, it's still that way.
Just as important, the case load is reasonable. The assistant federal public defenders aren't deluged with cases they don't have the time to work up. They have enough time and enough help to do a good job on their cases.
A state public defender's office likely will lack a number of the strengths in the federal system.
First, the head of the office, like all appointed county department heads, will serve at the pleasure of the Commissioners Court. And, the staff will serve at the pleasure of the department head.
While the current commissioners and county judge may truly want an effective public defender's office, who can say who will have those jobs next year or 10 years from now.
Closely related to the lack of job security is money, cash, the funds to do the job and hire enough of the right people.
There already are cries that county payments for court appointed defense counsel is excessive. New assistant district attorneys fresh out of law school start near $60,000 per year. A defense lawyer who receives that much in court appointed fees is going to find his name on the front page of the Chronicle.
And, the assistant district attorneys jobs come with benefits ranging from retirement and health insurance to offices and staff. Guess who pays for those in a defense lawyer's office.
Case load is directly related to how much money is appropriated by the commissioners. About two-thirds of the defendants in Harris County's felony courts are indigent. The more money that is appropriated, the more attorneys and staff that can be hired and the lower the case load on the individual lawyers.
A defense attorney should not be expected to handle as many cases as a prosecutor. The prosecutor gets a file with an offense report from a police agency as a starter. While defense lawyers usually get to see those reports also, they have to investigate from the beginning. There often are huge weaknesses in police investigations, weaknesses that prosecutors often don't see or don't want to see. It is amazing how often a trip to the scene will show that police officers couldn't see what they say they saw. There might be a building or tree in the way blocking the view. Or the officer may have been so far from the action that he couldn't see what he says he clearly saw.
That means that defense attorneys, either public defenders or private practice lawyers appointed to represent individual clients, have to do a lot of things which prosecutor's either don't have to do or who have the Houston Police Department to do for them.
If (when) we get a public defender's office, it will be a jolly scene every year when the head of the office asks commissioners for more taxpayer money to hire more staff to do a better job defending dope dealers, killers and baby rapers. Forget that the clients are accused of being dope dealers, killers and baby rapers.
It's always a lot easier for the prosecutors to get more money out of the commissioners than it is to get more money for indigent defense.
Almost universally, state public defender's offices are underfunded and lawyers have too many cases. It may not be the situation in Harris County at the start. But you can bet it will sooner or later.
And, what lawyers are going to work for a state public defender? Not 10 years from now but at the start.
Criminal defense lawyers are some of the most independent people in the world. As a group, we don't want to work in a big bureaucracy. Most of us are sole practicioners or in small firms. We don't have a lot of administrative forms to fill out or rules related to working hours, sick leave and vacations. We just work until the work's done.
Some experienced defense lawyers will sign on for things like reasonable benefits and a regular salary. But a lot -- especially some of the best -- won't want to work for the government.
Once a PD gets off the ground, it will hire, train and mentor young lawyers who stay with the office. But in the beginning, it will have a lot of freshly-minted law school grads.
On the other hand, the current system has both its strengths and weaknesses.
In state court, the court appointed lawyers are chosen by the judges who will try the case. Unlike past years, they don't have free reign. They have a computer-generated random selection list they have to choose from. Or, they hire long-term lawyers who handle all of their indigent cases.
Many judges are transfixed with their dockets and how quickly it "moves," that is, how long it takes to dispose of cases. Many cases can be -- and should be -- disposed of quickly. If a defendant tells his lawyer he is guilty and he wants to take the deal offered by the prosecutor, at the end of the day it's the client's case and his wishes must be respected.
And, while each defendant is legally presumed innocent, we should all hope that the police don't make cases against innocents and that prosecutors don't take charges in cases where they can't prove guilt beyond a reasonable doubt.
So, judges are tempted to appoint lawyers who will "move" the cases, that is dispose of them quickly, usually with a guilty plea.
The quality of lawyers on long-term contracts with a court depends on the judge. Judge Mike McSpadden, who was the first to enter into contracts with defense lawyers, wants the lawyers he hires to handle cases expeditiously but he also wants the indigent defendants in his court to have a good defense. He expects those lawyers to do a good job for all of their clients.
But not all judges will have McSpadden's sense of fairness. Others might give contracts to cop out lawyers who do nothing but arrange pleas and force them down clients' throats.
In federal court, the private panel lawyers appointed to represent indigents are chosen by magistrate judges who will not try the case. They don't have to worry about docket control or moving cases. That's the district judge's job. The magistrate judges have fewer incentives to appoint lawyers who will plead the cases early.
One reform which should be adopted if some form of private counsel appointment system is retained is to take take the trial judges out of the business of selecting lawyers to represent the indigent. In both state and federal court, there are screening systems to chose a list of lawyers eligible for appointment. In state court it is more formalized and includes tests for new lawyers who want appointments and annual continuing education requirements.
Once a lawyer is on the appointment list, there is a presumption that he or she can handle cases on the level for which the lawyer is approved. So, let's go to a strict rotation system in which I don't get second appointment until every other lawyer at my level of certification has had one. There should be a safety valve judges to either reject or pick a specific lawyer based on individual circumstances of a case. But that should be used sparingly and the judge should have to explain why he circumvented the rotation system.
That will take judges out of the appointment system and prevent repeated appointments of lawyers known only for moving a docket.
The bottom line is that there isn't any perfect system to select lawyers for indigent defendants. Every system has its ups and its downs, its strong points and its weak points.
What is sure is that there will never be a perfect system and whatever system is used, it will be underfunded. While many in the public scream too much taxpayer money is going to defend "criminals," providing competent defense lawyers for indigents charged with crimes is as important and as basic a function of government as building roads or putting out fires.
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