Opening Remarks at the 2017 Right to Counsel National Consortium

Opening Remarks at the 2017 Right to Counsel National Consortium


ALAN R. HANSON: Thank you. Thank you Priya, very much. Priya’s
with our bureau of justice assistance works on the right to counsel work. Also, Maha
thank you for your good work at Access to Justice; also for putting this program together
today and we’re certainly very proud to host it. I also want to thank the Deputy Attorney General
for being here with us I’ll introduce him in a moment. I also want to thank
American University’s Justice Programs Office, for their work with us.
And of course, each one of you for being here. Your commitment not only to this issue but
also to this consortium and your attendance here today is vital to our work in this area. DOJ, I hope you feel, is firmly committed
to the principle of effective assistance of counsel and I think this is indicated
by the Deputy Attorney General’s presence here today, and also, I know the Attorney General’s
personal commitment to this issue as well. We seek to uphold
the rule of law while also maintaining a justice system that is equitable and accessible. The Gideon decision was handed down
unanimously by the Supreme Court back in 1963 and they found that the sixth amendment of the right to counsel pertained to
all criminal defendants across the country whether in the federal or state
system. We have a, what at the time,
was a very unique constitutional system with bedrock principles to ensure fairness such as protection from improper search and seizure, as well as the right to confront
witnesses, and to have a trial by a jury of your peers. And these are all
incredible rights that, at least at the time, were, I think, unique to the American experience.
So now most countries around the world also provide. However, I think we all know
that those rights don’t mean anything if you don’t have effective
assistance of counsel to ensure that those are properly raised during the course of a criminal defendants time in the criminal justice system; and that’s where your work is so important.
We’re 54 years in to the constitutional right to counsel and we’ve made great progress. We’ve enjoyed
many successes, but there’s also much work left to do; and that’s where all of you come in and your good work. So we thank you for your commitment to the issue and we plan to continue to work
with you here at the Bureau of Justice Assistance, the Office of Justice
Programs, and Department of Justice. Now it is my great honor to introduce our
keynote speaker today our Deputy Attorney General. Deputy Attorney General Rod Rosenstein has enjoyed
a long and distinguished career here at the department and yet he’s quite young. But he has done a number of things among
his professional accomplishments including being a part of the AG’s honors program, he worked in the
Public Integrity section here at DOJ in the 1990s, he was the head of DOJ’s tax division, and served for 12 years as
the US Attorney in the district of Maryland, which is no small accomplishment. And he accomplished great things there such that he immediately came to the AG’s attention. [indiscernible] So Attorney General Sessions reached out to Deputy Attorney General Rosenstein
and asked him to serve as Deputy Attorney General. He, of course, agreed and
was confirmed by the Senate on April 25. So please join me in warmly welcoming our
honored guest Deputy Attorney General Rosenstein. ROD J. ROSENSTEIN: Thank you all for the
relatively brief introduction which I appreciated. And the compliment of my relative youth. Although, you cannot spend 28 years in law
enforcement still be young but you can still feel young. But I’m really honored to be here
with so many friends in this terrific facility. We’re just a few blocks from the
Department of Justice but this building, which houses OJP, is a terrific place to
work and a terrific place for meetings like this one. [microphone feedback] And the technology works too. It’s really an honor for me to be here. I’m grateful to OJP, to the Bureau of Justice
Assistance, and to our office for Access to Justice for helping us to focus on
the right to counsel in the United States I’m so pleased also that we’re hosting the meeting
here at OJP’s building in the Department of Justice. Our most fundamental mission is to seek justice and to protect the American
people by enforcing the rule of law, and that can only be done
if we honor the rights of the accused. The right to counsel, as Alan mentioned, is enshrined
in our Constitution it’s founded in the 6th amendment which provides that in all
criminal prosecutions the accused shall enjoy the right to have the
assistance of counsel for his defense. It’s written in the Constitution, but as Alan
said, it wasn’t always interpreted to be a right that has to be provided by the government. But our founders understood
the necessity of protecting individual rights from government overreach. And no clear overreach exists
than the power to take away someone’s Liberty without due process of law. Protecting the right to
counsel is a fundamental component of preserving the rule of law and
ensuring that everyone has the right to counsel. The point of the rule of law is to
maintain a fair and rational system of justice characterized by universality. What do we mean by that? What we mean by that is it applies
equally to every person. Under the rule of law, people who are tasked with
enforcing the laws need to do it impartially. And a fair and strong criminal justice system requires a robust adversarial system one that ensures that
individuals who are charged with a crime have their rights safeguarded; and
chief among these is the right to counsel. The case that Alan made reference to, which
most of you are familiar with, Gideon v. Wainwright. In that case the Supreme Court said in our adversary
system of Criminal Justice any person hailed into court who is too
poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for them. So ensuring that individuals who cannot afford an
attorney have access to effective representation when their Liberty is
threatened, is the hallmark of a just society. It is how I mentioned we serve as a
model for the world in providing those rights. Our commitment to defending the rights of
the accused is a commitment to individual liberty and part of our
commitment to the rule of law. That commitment is as
important for juveniles as it is for adults. And that’s why it’s particularly
meaningful that we meet today, during the 50th anniversary
of another Supreme Court case, the decision in In re Gault. The Gault case began with a lewd phone call allegedly placed by a
fifteen year old boy named Jerry Gault. After receiving a complaint from Jerry’s neighbor the police detained Jerry
and they housed him at a detention center. Later during a hearing, at which Jerry had no attorney, the judge declared that he was a juvenile delinquent and committed him to the state Industrial School where Jerry could possibly remain
until age 21; he was only 15 at the time. Now the Supreme Court recognized that
children should also receive due process protections, chief among them, the right to counsel. Justice Fortas, in his opinion, stated that children in detention
proceedings were subjected to a loss of the Liberty, but at the time children did not
have the right to assistance of counsel to help them cope with the legal system. The Gault opinion and knowledge
is just how central the right to counsel is. Without a lawyers representation how can we
be sure that the defendant’s rights will be protected. The Supreme Court ruled the children
must benefit from the guiding hand of counsel at every step of the proceeding. And all of us assembled here today:
judges, prosecutors, law enforcement officials, community stakeholders, and defense lawyers, we know how true that really is. How critical it is to have effective representation in
order for the system to work properly. As a former prosecutor I saw that regularly in my work. I’ve seen firsthand the importance of a
strong advocate on the defense side of the table. Defense attorneys work closely with
their clients at every stage of the proceedings and through their advocacy they play a critical role. A role that is essential to
our concept of Liberty and due process. A defense attorneys job is not just about
defending the individual client in the courtroom, rather that work is an integral part of the
overall effectiveness of our constitutional system. The right to counsel is both substantive and procedural. A lawyer represents the clients substantive interests while simultaneously ensuring
that his procedural rights are respected. A defense attorney is the
ultimate check on a prosecutor’s discretion and a bulwark against the
wrongful incarceration of innocent persons. So as a member the
Department of Justice now for 27 years and a former prosecutor I have always been
proud of the work that our federal public defenders do and I’m also familiar with the great work of our state public defenders. Thanks to
Paul DeWolfe, who is our state public defender in Maryland, who is scheduled to be
here– I don’t think he’s made it yet this morning– but when he gets here, tell him I asked about him. Paul’s a tremendous
advocate for the right to counsel and has devoted his career to ensuring
that defendants in Maryland courts receive appropriate representation. One of our nation’s great
attorneys general was Robert Jackson. Robert Jackson’s known for many things, as a prosecutor at Nuremberg, a Supreme Court Justice, prior to that he was
the Attorney General the United States and in 1940 he delivered a renowned
speech at the Great Hall of the Justice Department to United States attorneys. And Jackson in his speech he said that a
prosecutor should play fair and follow the rules. Those provisos are obvious but Jackson also remarked that prosecutors should temper zeal with kindness, serve the law rather than factional purposes, and approach their tasks with humility A prosecutor exercises tremendous discretion. To quote Judge Richard Posner, who recently
retired as a circuit judge in the Seventh Circuit, “The Department of
Justice wields enormous power over people’s lives much of it beyond
effective judicial or political review. With power comes responsibility; moral if
not legal for its prudent and restrained exercise, and responsibility implies
knowledge experience and sound judgment, not just good faith.” Or in a remark
attributed variously to Voltaire or for members of my generation, Spider-Man’s Uncle Ben, “With great power comes great responsibility.” Power should be wielded in
good faith and with good judgment. Judge Learned Hand said that, “If we are to keep our democracy there must be one commandment: thou shalt not ration justice.” So prosecutors must pursue justice and it cannot simply be measured
in terms of convictions or sentences. A prosecutor zealousness
must extend not only to advocacy but to the pursuit of truth, which is coextensive for us with the pursuit of justice. That’s our goal– that justice be rooted in truth. I could not be more proud of the work that
our law enforcement officers and prosecutors do at the Department of Justice to
pursue truth. And we all know the truth is not about sincerity of opinion and many people
sincerely believe things that aren’t true. Truth emerges through the clash of
people who are devoted to examining the evidence, it emerges through
decisions by neutral judges and juries that weigh the evidence on both sides to
reach their decision, and you only get to the truth if you have fair and open-minded people
and if you have a presentation of both sides. Well that’s why there’s a
constitutional right to counsel. We need advocates who are just as
zealous and dogged on the other side of the table as we do on the prosecutors side. The defense attorneys
scrupulously examine each piece of evidence, they evaluate the logic applied by the government, and they carefully examine
that the prosecutors decision. So defense attorneys are our best insurance that our prosecutors’ mistakes, and trust me they will
let us know when we make a mistake, then the best insurance
that our mistakes will be corrected. The prosecutors and defense
attorneys may be opponents in the courtroom but we are not enemies The adversarial system serves justice and the defense bar
protects defendants from potential abuses of power and wrongful convictions.
I never regarded defense attorneys as my enemy. Obviously, when you’re in a tough trial you have differences of
opinion you have clashes in the courtroom but I always respected the work
that our defense attorneys were doing. Being a criminal defender I know can be a
thankless job, there are a few of you in the room, it means at times representing
unpopular clients. It doesn’t mean you agree or support what your client did. It means struggling to mount
the best possible defense often with the odds significantly stacked against you. You know people often look at our conviction rates, prosecutors, and they think
well the job must be easy because almost everybody gets convicted in federal court. Well, actually the opposite is
true and the conviction rates are high because our prosecutors
exercise great care before they charge a case. And that means that if you’re
trying to defend one of those cases you’ve got the evidence
already stacked against you and so I very much respect the
work that our defense attorneys do. As our founders recognized the role of defense
attorney is essential to safeguarding our system. Consider the events
surrounding the Boston Massacre in 1770. After British soldiers had fired
on a group of Bostonians, killing three of them, John Adams,famously
chose to represent those soldiers. According to the future
president, of the morning after the shootings, he was approached by a
man who was seeking to find lawyers to represent the British captain who was alleged
to have ordered the soldiers to fire on the crowd. No lawyers in town were
willing to represent the captain, except for Josiah Quincy, a young
man who agreed to take the case but only if Adams would join him. So Adams agreed and as he later recalled he had no
hesitation in answering that, “Council ought to be the very last thing an
accused person should want for in a free country.” Should “want for” in other words, an
accused person should get counsel in a free country. Adams proceeded to win
the acquittal of the British captain and he later represented eight other British
soldiers who were involved in the shootings. Six of those soldiers were
acquitted and two were convicted of manslaughter, and I understand the
punishment at the time for manslaughter was that your thumb be branded not something we would consider
today, that was the punishment at the time. During his famous argument
for the defense Adams observed, this is a quote that is often repeated but
not always attributed to John Adams, he said, “Facts are stubborn things
and whatever may be our wishes our inclinations or the dictates of our passions they cannot alter the state of
facts and evidence.” Facts are stubborn indeed, as I learned in the Maryland US
Attorney’s Office, so are good defense lawyers. We all need to work to ensure
that the right of counsel is safeguarded which is why I’m excited about this event today. Shoring up this right is not just a task for defenders, it’s a job for prosecutors, judges, court personnel, law enforcement officers,
including my colleagues from the Prince George’s County Police
Department here with us this morning, and everyone who values the rule of law. When we see a breakdown in the rule of law it should not be something that we
consider tough luck for a criminal defendant it’s much worse than that. It’s a breakdown
for all of us if people are not properly represented. So I’m proud that the Department of
Justice launched the right to counsel campaign only through working together
across our criminal justice system can we ensure that individuals even
those who commit crimes are protected. Through collaboration we’re better able to
ensure that defendants rights are protected and we all have an important role to play
in upholding this critical and necessary right. So, again, I want to thank our hosts at OJP for planning
this event. Thank you all for being here, and I hope you have a productive meeting. Thank you very much.

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