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I begin my term as NACDL President by confessing that I sometimes feel overwhelmed by all the work that needs to be done and the magnitude of what we face. But it is during these times that I remember what it is to be a criminal defense lawyer. I remember that this fear is what every one of us has felt the night before any important trial. I remember that what unites us is our commitment — in the face of that feeling — to the tasks that are essential to obtaining fairness, freedom, and justice for our clients.
We all understand the challenges that lie ahead. With the resignation of Justice Sandra Day O’Connor, an even more conservative Supreme Court is likely — with more vacancies to be filled by the Bush Administration a distinct possibility. The incarceration and interrogations of “enemy combatants” in Guantanamo — many without counsel — continue. Congressional efforts to impose a “Booker-fix” by enacting more mandatory minimums and to reduce even further the availability of federal habeas corpus are still being proposed. More and more children are being treated as adults and prosecuted in the criminal justice system. Funding for indigent defense in this country is a national disgrace. Virginia continues to impose ridiculously low non-waivable caps of $1,186 for crimes that carry life (excluding capital cases), and $428 for all other felonies. Defendants in Calcasieu Parish in Louisiana often languish in jail for six to ten months before a lawyer takes any action on their case. And the machinery of death in the federal courts and the 38 states that still have the death penalty moves on largely unabated — except for New York, whose courts found its death penalty statute to be unconstitutional in 2004, and Kansas, whose Supreme Court found one aspect of the Kansas statute to be unconstitutional in a case in which the U.S. Supreme Court recently granted certiorari.
Finally, American prisons and jails have become today’s mental health institutions. According to a recent Frontline documentary entitled “The New Asylums”:
Fewer than 55,000 Americans currently receive treatment in psychiatric hospitals. Meanwhile, almost 10 times that number — nearly 500,000 mentally ill men and women are serving time in U.S. jails and prisons. As sheriffs and prison wardens become the unexpected and often ill-equipped caretakers of this burgeoning population, they raise a troubling new concern: have America’s jails and prisons become its new asylums?
The answer is obvious to anyone involved in our current criminal justice system.
When I consider these issues, I note with great pride that we criminal defense attorneys are often instrumental in forcing change. Barry Scheck and others have exposed the fallibilities of state forensic labs, the vagaries of fingerprint comparisons, and the outdated jurisprudence of eyewitness identifications. For once, the courts, politicians, and even some in law enforcement are beginning to acknowledge that these problems must be corrected. For example, on June 14, 2005, the Oklahoma Court of Criminal Appeals reversed the conviction and death sentence of Curtis Edward McCarty because the state’s case was largely based on the testimony of Joyce Gilchrist, a police chemist who has since been fired for shoddy and unreliable lab work. The court ordered a new trial for McCarty, who has been on death row for more than two decades for a 1982 murder.
Defense attorneys have played a significant role in exposing the wrongful convictions of innocent people and the exoneration of 119 individuals from death rows nationwide. Publicity generated by these cases has caused a re-examination of many aspects of our criminal justice system.
And NACDL is at the forefront of these issues. For example, Malia Brink, our Indigent Counsel, and the Indigent Defense Committee have worked — and continue to work — on indigent defense issues in Louisiana, Virginia, Pennsylvania, Michigan, and other states, providing support and coordinating litigation assistance as necessary. Scott Ehlers, our State Legislative Affairs Director, through the State Legislative Network (SLN) works with NACDL affiliates to provide legislative assistance, including model bills on videotaping of interrogations and eyewitness identification procedures. Kyle O’Dowd, our Legislative Director, tracks the pending bills in Congress that directly impact our clients and alerts us when action needs to be taken. Stephanie Martz, our White Collar Counsel, monitors governmental policies attacking the attorney-client privilege and works to prevent such practices. Stephanie and Kyle joined forces for a recent “post Booker” day lobbying Congress. Such efforts have made NACDL a critical member of the consortium of institutions that influence policy on criminal justice issues. There is a growing number of diverse organizations that partner with us on issues important to our clients and members.
On another front, NACDL continues to urge states to adopt the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. The Supreme Court in Wiggins and Rompilla recognized the importance of those Guidelines and has relied on them when finding that defense counsel in those cases provided ineffective assistance at the penalty phase of those trials. Even President Bush in his State of the Union Address commented on the need for adequate training for death penalty counsel. NACDL, working with NLADA, Professor Andrea Lyon, Professor Ellen Kreitzberg, and many others who are skilled in death penalty training, has submitted a proposal to the DOJ’s Bureau of Justice Assistance to develop and conduct a number of pilot projects for training death penalty attorneys around the country over the next eight months.
Much remains to be done. Because of you, we will meet this challenge. NACDL, through its affiliates and the combined courage of each individual member, is an unstoppable force for change in the criminal justice system. I ask for all your help in the months ahead
