Wednesday, February 17, 2010

Renss. Co. Legal Services for the Aged

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Poor to Pay for Public Defender Fees

I-Team: Accused Assessed Fees to Pay for Public Defense
Posted: Feb 16, 2010 8:37 PM EST Updated: Feb 17, 2010 10:34 AM EST

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I-Team: Accused Assessed Fees to Pay for Public Defense

Damen Bentley is about to learn the value of competent criminal defense.

Convicted for a third time on charges related to domestic violence, Bentley explains to District Court Judge Jennifer Togliatti his failure to actually stab his wife means he faces probation for nothing.

"Every once in a while I hear a defendant make a statement and it makes it harder to follow the deal, every once in a while," she said.

Bentley's perspective almost lands him in prison. Almost, thanks to his attorney.

"He should've stopped after, ‘I'm sorry for the victim and I apologize to the state,'" said Togliatti.

After a few precarious moments, and a few persuasive words, Togliatti approves probation and orders Bentley to pay $250 toward the cost of his defense.

"I think that there's zero downside for a defendant to know that they need to be accountable when they commit a crime and be required to pay some portion of their representation," said Togliatti.

At their discretion, judges may now impose a fee, anywhere from $100 to $750 to offset the cost of the public defender and other court-appointed attorneys. The service used to be free.

"This is truly a trial and error process," said Clark County public defender Phil Kohn. "The problem is we defend poor people, and that certainly is not going to be the answer to our problem, is having poor people pay for public defender offices."

A recent study found the Clark County Public Defender's Office is 90 attorneys short of national caseload standards. With an average of 17,000 clients a year, even a minimum contribution from some of them could add up to hundreds of thousands of dollars.

"This is my big concern; someone who's in custody and then they end up going to prison. So if we're going to charge them money, so when they get out of prison they have this debt they have to pay. They're just going to end up back in prison," said Kohn.

Unlike restitution for victims, indigent defense fees are a civil assessment, meaning a client can't go to jail for failing to pay. Instead, the court compliance office will act like a collection's agent.

Togliatti argues, like the gambler convicted of failing to pay his casino markers, many who come before her in court can afford to contribute something, even if they can't pay a private attorney.

"Clearly they're getting more than they're being assessed in a value of representation," she said.

Certainly Bentley did when his court-appointed attorney saved the third-time convict from himself.

The court is still working out the details of exactly how the collection process will work. Washoe County has a similar program. According to the public defender there, between 2008 and 2009 it collected $200,000 of the $800,000 in assessed fees.

Tuesday, February 16, 2010

Sen. Advocates for Appointment of Inexperienced Judges

AMERICAN BAR ASSOCIATION: Reid criticizes lawyers group

Democratic leader praises judicial nominee's 'real world' qualifications


Gloria Navarro
Las Vegas attorney nominated for federal judge

WASHINGTON -- Sen. Harry Reid, D-Nev., criticized the American Bar Association on Thursday, saying it should "get a new life" in how it rates prospective federal judges, after one of his choices got a mixed review.

In remarks to the Senate Judiciary Committee, Reid said the bar association's ratings board puts too much weight on whether judicial nominees have prior bench experience and overlooks "real world" qualifications.

Reid expanded his criticism to include the Supreme Court, whose makeup, he said, consists of "people who have never seen the outside world."

"I have asked President (Barack) Obama, 'Let's get somebody on the court that has not been a judge.' They need to do more than thinking of themselves as these people who walk around in these robes in these fancy chambers."

Reid was set off by the ABA's rating of Las Vegas attorney Gloria Navarro, who also appeared before the Senate committee as his choice and Obama's nominee to become a U.S. district judge in Nevada.

According to the association's 15-member Standing Committee on the Federal Judiciary, a "substantial majority," consisting of 10 to 13 members, rated Navarro "qualified," while a minority rated her "not qualified."

The bar shares its ratings in an advisory capacity with the White House and the Senate, which votes on the nominees.

The committee considers a nominee's "professional competence, integrity and judicial temperament." It rates each nominee as "well qualified," "qualified," or "not qualified."

Navarro, 42, has been in private practice, has been a public defender and currently is chief deputy district attorney in the civil division of the Clark County district attorney's office.

Several attorneys and academics who examined Navarro's resume speculated that her lack of experience as a judge may have been the reason some ABA reviewers rated her "not qualified" for the federal bench.

Reid told the Judiciary Committee it was "upsetting to me" that Navarro "is not rated as high as she should be rated."

"If they base their rating on people having judicial experience, that would mean that, according to them, every person that seeks a seat on the bench has to have judicial experience. Maybe a municipal court judge, maybe a justice of the peace.

"I just cannot accept that," Reid said, touting Navarro as an attorney who has pursued political corruption cases, defended a person who had been convicted of murder, and has had to pursue clients to pay their bills.

"I think the ABA should get a new life and start looking at people for how they are qualified and not whether they have judicial experience," Reid said.

"This woman will be a terrific judge," he said of Navarro. "She has had experience in the real world of government, the real world of law."

It appeared to be the first time Reid has expressed unhappiness publicly with the ABA rating system. On at least two other occasions he referenced them in cases where they backed him up on specific nominees.

In a May 2006 speech opposing Brett Kavanaugh for the D.C. Circuit Court of Appeals, Reid noted the ABA had lowered its rating on the nominee. In a May 2000 interview with the Review-Journal, Reid cited the ABA as approving his choice of then U.S. Magistrate Roger Hunt for a federal judgeship.

Reid believes "the ABA rating can be helpful but it isn't the final word," his spokesman Jon Summers said Thursday. "You have to look at why the ABA gave the rating and consider additional factors such as the recommendations of the people they have worked with."

Navarro would be the first Hispanic woman to serve as a federal judge in Nevada. She would replace Brian Sandoval, who resigned the lifetime appointment last year and is running for governor.

A spokeswoman for the Judiciary Committee said senators have a week to ask follow-up questions in writing. After that, the committee will schedule a confirmation vote.

The Nevadan appeared Thursday before the committee alongside five other nominees for judgeships in Indiana, California and Missouri.

Navarro had waited out the snowstorm that crippled Capitol Hill this week, as the confirmation meeting was postponed a day because of the weather.

She appeared alone, explaining her husband, Clark County chief deputy district attorney Brian Rutledge, their three sons, her mother and several friends were unable to make it.

"We'll send them a DVD," joked Sen. Amy Klobuchar, D-Minn.

During her testimony, Navarro appeared ready for a question about her experience, which came from Klobuchar.

Navarro said she has practiced both in federal and state courts, handled both civil and criminal cases, has represented plaintiffs and defendants and has been both in private practice and as a public servant.

"The experiences have given me the opportunity to appear before many different judges with many different styles," she said. "I have also had the opportunity to become familiar with many different rules and procedures in different courts. Having that broad range of experience definitely will build a solid foundation for a successful judicial career."

Contact Stephens Washington Bureau Chief Steve Tetreault at or 202-783-1760.

Wednesday, February 10, 2010

DA Boycotts Judge for Adverse Ruling

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Tuesday, February 9, 2010

Friday, February 5, 2010

Goodbye Democracy / Hello Corporatisim

Posted on Public Citizen

The U.S. Supreme Court ruled that corporations are entitled to spend unlimited funds in our elections, rolling back a century of modest limits. The First Amendment was never intended to protect corporations.

This cannot stand. Join our campaign to protest this decision. Protect our democracy! Two things that can be done now:

1) Fair Elections Now Act: Give congressional candidates a public financing alternative to elections bankrolled by corporations. Also fix the presidential public financing system.
2) Shareholder Accountability: Give shareholders a say over corporate spending in elections.

But ultimately, we must pass a constitutional amendment to ensure corporate money does not overwhelm our democracy and clarify that the First Amendment is for people -- not corporations. Add your name to the petition to Congress today!


WHEREAS, the First Amendment to the United States Constitution was designed to protect the free speech rights of people, not corporations;

WHEREAS, for the past three decades, a divided United States Supreme Court has transformed the First Amendment into a powerful tool for corporations seeking to evade and invalidate democratically-enacted reforms;

WHEREAS, the United States Supreme Court’s ruling in Citizens United v. FEC overturned longstanding precedent prohibiting corporations from spending their general treasury funds in our elections;

WHEREAS, this corporate takeover of the First Amendment has reached its extreme conclusion in the United States Supreme Court’s recent ruling in Citizens United v. FEC;

WHEREAS, the United States Supreme Court’s ruling in Citizens United v. FEC will now unleash a torrent of corporate money in our political process unmatched by any campaign expenditure totals in United States history;

WHEREAS, the United States Supreme Court’s ruling in Citizens United v. FEC presents a serious and direct threat to our democracy;

WHEREAS, the people of the United States have previously used the constitutional amendment process to correct those egregiously wrong decisions of the United States Supreme Court that go to the heart of our democracy and self-government;

Now hereby be it resolved that we the undersigned voters of the United States call upon the United States Congress to pass and send to the states for ratification a constitutional amendment to restore the First Amendment and fair elections to the people.

Click on title above to see petition

When you submit your name and email, Public Citizen will add you to our contact list so that we can communicate with you about corporate influence in elections and other important issues. You can remove yourself from our list at any time.

Monday, February 1, 2010

A Qualified Civil Gideon

Loffredo and Friedman on Qualified Civil Gideon
Stephen Loffredo (CUNY) and Don Friedman (Empire Justice Center at the William Randolph Hearst Public Advocacy Center at Touro) recently published Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings as part of the Touro Law Review issue on the right to counsel in civil cases, "Civil Gideon," in New York. This is a fresh perspective on a critically important issue; I highly recommend it.

Loffredo and Friedman's piece joins an increasing academic and practice-oriented literature and a coordinate body of litigation that sometimes goes under the name "Civil Gideon" and sometimes under "civil right to counsel." In truth, "Civil Gideon" doesn't quite capture the movement--this is really about more than simply applying the right to counsel established in Gideon v. Wainwright to civil litigants. "Civil right to counsel" is a broader, better name to capture a movement that seeks counsel for poor litigants in an orchestrated effort in state legislatures, administrative agencies, bar associations, law firms, legal services offices, and even law schools, as well the courts.

Insofar as the movement seeks to establish a constitutional right to counsel through the courts, however, it continually runs up against Lassiter v. Dep't of Social Services. That case held that a poor parent didn't have a categorical right to counsel in a state-initiated proceeding to terminate parental rights under the Due Process Clause. The Court weighed the balancing factors in Mathews v. Eldridge against a newly created presumption against counsel in civil cases. Given the importance of parental rights (Mathewsfactor 1.) and the high probability of an erroneous termination of parental rights without counsel (Mathews factor 2.), a parental rights case seemed the best type of case through which to press a civil right to counsel under a procedural due process theory. The Court's rejection in Lassiter therefore poses a significant barrier for poor litigants seeking counsel in other kinds of claims (like welfare) and, more generally, a significant barrier for the civil right to counsel movement.

Loffredo and Friedman argue that Lassiter and Goldberg v. Kelly representan underenforced constitutional norm for the right to counsel. That is: The Court's refusal to declare a due process right to counsel "stems principally from institutional and separation of powers concerns pertaining to the limited role and capacity of the judiciary," and that it therefore "ought not be regarded as [a] definitive statement[] of the full meaning and scope of constitutional due process."

Loffredo and Friedman argue that legislatures are not so constrained. Their move, then, is to turn their argument to the legislature. They argue that the state legislature, as a matter of procedural due process, should provide counsel to the poor in particular welfare cases where the Mathews factors align most obviously in favor of counsel. These include cases where "[a]n impoverished family threatened with termination or reduction of subsistence benefits faces the severest sorts of injury and privation," where counsel is particularly necessary for a poor litigant to protect his or her rights, and where the government's interest in saving money aligns with the poor litigant's interest in resolving the matter quickly and correctly.

By presenting this constitutional argument to the legislature (and not the courts) under an underenforced constitutional norm theory, Loffredo and Friedman bypass the Lassiter presumption and Goldberg's modesty, the most significant barriers to claims for a constitutional right to counsel in the courts. Loffredo and Friedman:

Lassiter recognized that certain alignments of the Mathews factors in the parental rights setting would tip the scales decisively enough to overcome the Court's presumption against a right to counsel. As demonstrative above, at least some welfare cases present a comparably decisive alignment of Mathews factors that would warrant a judicially ordered assignment of counsel. But regardless of whether the courts would enforce a due process right to representation in the welfare context, the legislature bears a broader, independent obligation to ensure that individuals receive the full protection of that constitutional right, undiminished by limiting constructions that the judiciary, for separation of powers or related institutional reasons, may adopt as a matter of prudential self-restraint. Even if one regards the full measure of the due process norm as extending no further than the Mathewsanalysis, shorn of Lassiter's presumption, that analysis makes plain that the absence of counsel from particular welfare hearings denies due process to many thousands of the state's poorest and most vulnerable families. The legislature is therefore duty-bound to act.

Loffredo and Friedman conclude with specific recommendations for identifying cases that meet their standard and qualify for a right to counsel. (They also include as an Appendix two transcripts of pro se hearings that are quite convincing on the problems litigants face without counsel.)

Moral, economic, and policy arguments to state legislatures haven't always been successful, and that's why the civil right to counsel movement has so often turned to the courts. But Loffredo and Friedman offer a new constitutional argument. It's appealing on moral, economic, and policy grounds; but, they argue, it's compelled on constitutional grounds.

This is an important contribution to this area. I highly recommend it.


Lawyers Against Civil Gideon

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