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Trial after trial after trial not automatically unconstitutional

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Bill of Rights. (From the public domain.)

A colleague once suggested that the risks of being sufficiently paid for one’s time for drawn-out federal drug conspiracy defense work are often too high unless the work is done by court appointment under the Criminal Justice Act. A simple-enough-looking drug conspiracy indictment can grow multiple hydra heads. Down the pike can come superseding indictments adding multiple new criminal counts and multiple new criminal defendants, and, therefore, the prospect of a lengthier trial, more voluminous discovery (often dumped on the defense in the thousands of pages — with court agreement — too close to the trial date to sufficiently review all the discovery) and many more hours of motions, trial preparation, and keeping track of which co-defendants fold and snitch. Unless the lawyer bills and is paid in advance a royal sum, how can the lawyer justify doing the work, knowing that s/he will need to reserve huge calendar blocks of time for trial dates that might be rescheduled for new superseding indictments, time for the prosecution to capture newly-added defendants, time for prosecutors to try to scare the sh*t out of existing and potential co-defendants to make them become snitches (which prosecutors may try to categorize as time to obtain a first or subsequent superseding indictment), and unexpected calendaring issues (for instance, having one of the co-defense counsel suffer a medical emergency immediately before trial or mid-trial that requires weeks of hospitalization). What if a mistrial is declared after the parties are weeks or months into the trial, and the case is retried?

Consider the six-month federal terrorism conspiracy trial against Sami Al-Arian and other co-defendants. It appears that at least one or more of the defense lawyers were on retainer, and not paid through Criminal Justice Act funds. On the one hand, Mr. Al-Arian’s victory over the vast majority of counts probably added to the marketability of his lawyers, but that fortune could have been very different had he not won so many critical counts. On the other hand, not only did the lawyers need to be compensated during the pendency of the trial, but they also had no opportunity to serve other clients in court during those six months. After a trial as lengthy as that, unless the lawyer has loyal law partners and associates to back up the lawyer’s practice, the defense lawyer can find himself or herself rebuilding a sizable chunk of his or her retained law practice.

Federal prosecutors undoubtedly know the difficulty the foregoing factors pose to federal criminal defendants in obtaining qualified privately-paid counsel. Sure, some great federal public defender lawyers and — when multiple defendants create conflicts of interest for the public defender — CJA counsel are ready to defend them. However, I have witnessed firsthand at least one federal CJA lawyer who never belonged there. No matter the extent to which the latter lawyer is an aberration in the federal CJA system, even the best lawyers need to pay their expenses, their staff salaries, and their own salaries, and CJA pay not only is so low as to not attract plenty of excellent lawyers who would do the work if the pay were higher (TalkLeft’s Jeralyn Merritt views such court-appointed work as pro bono, with the pay as low as it is), but also does not guarantee advance payment nor real-time payment for case expenses nor sufficient periodic payments for long, drawn-out cases; the time lag for such payment can be long.

Last month came another case in point of how long and drawn out federal drug conspiracy defense can get. The case is U.S. v. Handy and Hall, 551 F.3d 257 (4th Cir. 2009). The defendants in Handy  first were indicted in the District of Columbia. After a nearly five-month trial, the trial judge entered judgment of acquittal on a firearms count against one of the defendants, and ultimately declared a mistrial on the remaining counts, finding the jury deadlocked.

The Handy  prosecution took advantage of the mistrial by filing a superseding indictment in the District of Columbia federal court that included additional criminal counts. The subsequent trial took five months. The judge granted acquittal on one count; the jury acquitted on some counts and could not reach a verdict on the remaining. The court declared a mistrial again.

Perhaps in part due to feeling that a Maryland federal jury would be more favorable to the prosecution than a District of Columbia jury, the prosecution then indicted in Maryland federal court and next obtained a superseding indictment with more counts than the original Maryland federal indictment, that then went to trial. The jury in Maryland was unable to reach a verdict, and the Maryland federal court declared a mistrial.

The prosecution again indicted the defendants in Maryland federal court, apparently with an indictment identical to the one used for the first Maryland federal trial. Defendants Handy and Hall were convicted, and received prison sentences of 360 months and 300 months respectively.

On Appeal, the Fourth Circuit affirmed the convictions and sentences. The Court found no violation of speedy trial rights, even though the case took six years to complete from the date of the initial indictment in the District of Columbia to the verdict in the last trial in Maryland. The Fourth Circuit also found no double jeopardy violation. The Fourth Circuit mentioned that the defendants never objected to the three mistrials that were declared. U.S. v. Handy, 551 F.3d 257.

How do we change the state of affairs, to assure quality defense to each criminal defendant caught up in such drawn-out drug conspiracy prosecutions? In the first place, marijuana needs to be legalized, all other drugs need to be heavily decriminalized, mandatory minimum sentencing must be abolished, and capital punishment must be abolished. This will heavily reduce the number and length of federal prosecutions (and state prosecutions), and will cause less financial and time strain in the first place on quality court-appointed counsel and on government funds budgeted for paying them. Also, the Supreme Court should close the gap between Supreme Court rulings and the Sixth Amendment’s guarantee of effective assistance of counsel. See Strickland v. Washington, 466 US 668 (1984)Furthermore, the government needs to put its money where its mouth is if all these prosecutions are going to be permitted, by increasing the hourly pay rate and resources for court-appointed counsel. (Federal public defenders apparently already are paid on par with Assistant United States Attorneys.) Jon Katz