Right to Counsel National Consortium Second Annual Meeting – Judge Bernice Donald

Right to Counsel National Consortium Second Annual Meeting – Judge Bernice Donald


SPEAKER 1: We have limited time. If I had more time, I
would thank you properly for the opportunity to
be here and participate in the right-to-counsel forum. But time is very limited. The Sixth Amendment, Norm
Reimer said yesterday, is an orphan amendment. It doesn’t, apparently,
enjoy in the public province the same status as its sister
and brother amendments. And I believe that the
conversation today enlightens us on some of the things that we
need to do to make certain that people who are poor and who
cannot afford counsel have their rights safeguarded. So what are some of
the things we can do? And what are some
of the problems? I think the problems
have been amply laid out earlier in the day. But let me mention one that
we haven’t talked much about, and that is public perception. The reality is that
the public perception of people who need counsel
and can’t afford it is that they are not deserving. They are simply not deserving. They did it. They need to face
the consequences. And there’s really not
a lot of commitment to providing those resources
to those individuals. Where do they get those ideas? I think that we no longer talk
about the concept of innocent until proven guilty. That’s been turned
on its head, largely. And if we look at
popular TV, for example– it’s been a long time
since Atticus Finch. But we have had many, many
programs, day in and day out, where people form their opinions
about the justice system. They know the role
of the police. They’ve known that
for a long time. They watched The Streets
of San Francisco. They watched NYPD Blue. They now watch Blue Bloods. They know about that. And when it comes to the
role of the prosecution, they know that also. They know about law and order. And they know what
happens in those venues. And they know how
it’s supposed to go. They know about the
judge shows, so they know about the role of the judges. But where is it in
popular media that they see the role, the
responsibility, the merits of the public defender? It’s not there. Now, I’m not up here
advocating for a TV show about public defenders. But you know, we do
need to recognize that that’s a necessary
component of the justice system. So what are some of the things
that we need to do today? And I want to stop and
digress just a moment and tell you that
when I was a trial judge in the federal system
for 15 and a 1/2 years, in criminal trials, I
would start out by asking the prospective jurors– does anybody believe that just
because that person is sitting here required
answer these charges that they must be guilty? I can’t tell you how many
times the majority of the hands went up. There’s a lack of
understanding, really, about the roles and
responsibilities of those individuals
in the justice system. And we need to do a better
job of educating everyone about those roles
and responsibilities. We’re all stakeholders. And we’ve heard a
lot about money. And I think it’s a real issue. But money is really a sign
according to priorities. And apparently, as we’ve
heard this morning, the public defender
assistance programs have a very low priority. Bryan Stevenson of the
Equal Justice Institute says repeatedly, and
I concur in this, that in these United
States, it is better to be rich and guilty
than poor and innocent. And that’s an indictment, again,
against us and our system. What are some of
the things we can do in my five minutes remaining? Well, some of the suggestions,
or some of the measures that could be taken– at the federal government
level, the United States should provide ongoing support and
oversight to ensure that states fully appreciate the federal
constitutional right to counsel for criminally accused persons
who cannot afford to hire counsel. Congress ought grant
the DOJ the authority to enforce the Sixth
Amendment right to counsel. We have wonderful, strong laws. But we need to remember that
laws are not self-executing. They are not. We need to list public
defense as a permanent line item in the annual budget. We need to prioritize improving
state and local defense delivery systems. The Department of Justice
can file amicus briefs supporting the safeguarding
of the right to counsel. And they can continue to file
those statements of interest. The department can fund
to create a public defense demonstration projects. They can further fund training
for state public defense and criminal justice systems
and other criminal justice stakeholders. They can conduct investigations
into the no council court convictions, to investigate
the extent to which defendants are convicted without
access to counsel, and the mechanisms that allow
this deprivation to take place in the first instance. At the state level–
and I was a county court judge for a period
of time in my life– state policymakers should ensure
adequate funding and oversight for public defense services. State supreme courts can take
the lead on right-to-counsel reform by adopting court rules– they can adopt
mechanisms for evaluating attorney performance. They can get involved
in the provision, in the mandating of more
training, supervision, and look at making certain that
eligible populations receive the services that
they rightly deserve. And we cannot let state
legislators off the hook. They have a critical role
to play in this process, and must play that role. And state and local
bar associations must be involved in
the advocacy to ensure that state legislatures
embrace their responsibility to the total system. And for all of us,
we have a stake in protecting and maintaining
the right to counsel. We must ensure that public
defense is represented in all criminal
justice meetings, that we get involved in helping
to shape a national strategy that advocates can
embrace in modifying some of the effective assistance
standards that are enunciated in Strickland v. Washington. And we must support
opportunities for law students and clinics to get involved
in helping in this role. I hope that out of
this meeting that we will have not only
meaningful resolutions and meaningful ideas of
reform, but we will come out with a commitment to
also educate the public, educate the public in
this whole process. Because they simply
don’t understand. And if it’s not before them, and
if we don’t put it before them, they simply don’t know. And we cannot leave the
responsibility to just the people who are out
performing public defender services. All of us have a stake in this. And we must embrace
our obligation to safeguard and fully
implement and execute Sixth Amendment rights. Thank you.

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