President's Column: Protecting the Rights of the Accused

Protecting the Rights of the Accused

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

As my term as president comes to an end, I am buoyed by the measure of who we are as criminal defense lawyers, the strength of our Association, and the work we have been able to accomplish through the help of the fine men and women who staff NACDL in Washington, D.C. As I have crisscrossed the country during the past several years and also met lawyers in Canada and abroad, I have been struck by the immense skill, passion and dedication of criminal defense lawyers in the defense of their clients. From Detroit to San Juan, from Pensacola to San Antonio, in Congress and the U.S. Supreme Court, NACDL members stand up each day to preserve the rights of accused persons to be treated fairly under the laws. We should all be proud of NACDL’s work in supporting its members and in improving the criminal justice system.

In many locations and for many defense lawyers it is not an easy task. In far too many places, public defenders and court-appointed lawyers struggle with too few resources and too little respect for their ethical obligations and for the constitutional rights of their clients. Still sometimes, praise for the skill of public defenders comes from unexpected sources, albeit sarcastically, as when Justice Scalia recently commented that “more often I am startled by the fact that this young woman who is a, you know, public defender from Podunk is so good, is so smart, and is so competent.” Yet in recent weeks, we have seen a few disturbing signs that communities faced with budgetary shortfalls are turning back the clock on indigent defense reform by reducing funding. These communities are resorting to fixed-price contracts that discourage attorneys from conducting necessary investigations and consulting experts. These and similar cost-saving measures for public defender services violate national standards concerning the provision of indigent defense services. In this, the 45th anniversary of Gideon v. Wainwright, NACDL will continue to enlist the legal community, including judges, prosecutors, civil attorneys, as well as legislators and the public to reject the under-funding of indigent defense that threatens the Sixth Amendment right to counsel.

Even where resources are not an issue, the criminal justice system still suffers from rulings that give short shrift to constitutional guarantees. Although Crawford v. Washington prohibits the government from introducing testimonial hearsay that is not subject to confrontation, when judges fail to perform their gatekeeping responsibilities prosecutors are too often able to circumvent this bright-line prescription by using “experts” who clothe hearsay as opinion testimony. Similarly, even as United States v. Booker explained that “the Framers would not have thought it too much to demand that, before depriving a man of [ten] more years of liberty,” the government be required to submit its accusations to a unanimous jury, too often sentencing hearings continue to function as “tails that wag the dog” where prosecutors are allowed to rely on unreliable information and hearsay not proven to a jury. It is only through the steadfast work, vision and resourcefulness of criminal defense lawyers that our constitutional guarantees can be properly preserved. I salute criminal defense lawyers for the job they do.

In the wake of the Supreme Court’s recent opinion in Boumediene v. Bush, upholding the centrality of the writ of habeas corpus as a “vital instrument for the protection of individual liberty” and extending the constitutional guarantee of habeas corpus to those designated as enemy combatants and held in Guantanamo, it makes sense to recognize the work of the many lawyers and judges who have played a part in this chapter of our legal history. Of the many who deserve praise, I wish to commend in particular the military lawyers appointed to represent the Guantanamo detainees. They deserve credit for their unwavering defense of their clients in the face of the adverse consequences to their military careers. NACDL’s Military Law Committee and Guantanamo Bay Detainees Subcommittee also deserve special recognition for their work. As with criminal defense lawyers in the United States who face opprobrium in their communities when they defend those who society finds notorious and loathsome, these men and women have earned our gratitude and admiration for zealously representing their clients exactly as the Sixth Amendment requires.

Boumediene reminds us of the fundamental importance of an independent judiciary, willing to make righteous decisions and the equally fundamental importance of the right to counsel. It bears noting that in August 2003, NACDL was the first national bar association to publically challenge the validity of the extraordinary restrictions placed on defense counsel and other procedures adopted for the Guantanamo military commissions. NACDL took that stance in the best tradition of the American criminal defense bar that since 1770, when John Adams represented British soldiers accused of the Boston massacre, has recognized its obligation to represent all persons accused of crime, even the most despised. Each day in the courts of this land, NACDL members continue that proud tradition and protect individual liberty. I have been so inspired by your work.


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