Thread by @MikeAvitzurBBA

Quick—what're you doing at 9am tomorrow?

Wrong! Grab a beverage of your choice & join me in watching the SJC's combined oral argument in 3 cases relating to shortages of defense counsel for indigent criminal defendants: suffolk.edu/sjc

(h/t, as always, @Suffolk_Law) 1/2

https://twitter.com/segalmr/status/1192108251900502016

@Suffolk_Law BBA's amicus brief, urging the state's highest court to take decisive action and tracing the long history of under-funding of such work: bit.ly/2JSVWzA

More background: bit.ly/2q0fevK 2/2

@Suffolk_Law Underway...
Dymon: Case is symptomatic of a systemic failure, stemming from under-funding of the constitutional right to counsel in criminal cases in the state budget. We're regularly tipping into chaos, constitutional crisis, and the accused pay the price for that dysfunction.

@Suffolk_Law Kafker: Aren’t @CPCSnews’s creative work-arounds making the system function now?

Dymon: It’s still precarious—a delicate balance that’s susceptible to shifts in hearing numbers and available counsel.

@Suffolk_Law @CPCSnews Lowy: Amici [including @BostonBar!] raise serious public-safety concerns in these cases, related, in particular, to Section 58A dangerousness hearings, since defendants may pose a threat.

Dymon: Increasing numbers of such hearings have put a great strain on the system.

@Suffolk_Law @CPCSnews @BostonBar Dymon: Available remedies could include Lavallee protocols, but SJC should go further to address broader funding concerns.

Gants: Lavallee protocol imposes a “considerable administrative burden,” beyond the time limits. Is it justified by the current situation?

...

@Suffolk_Law @CPCSnews @BostonBar Dymon: No, “but we could very easily reach that point.” Protocol could be modified, streamlined to make it more workable. That’ll prompt legislative action to ensure that it doesn’t need to be implemented.

@Suffolk_Law @CPCSnews @BostonBar Gants: How to define a crisis?

Dymon: Any time people are held for more than 7 days on a 58A hearing, because of the impacts on their ability to defend themselves, and on their lives generally.

@Suffolk_Law @CPCSnews @BostonBar Gants: So every time it takes more than 7 days, Lavallee protocol should be implemented?

Dymon: Yes, it should be looked at in such cases, because that’s a warning sign.

@Suffolk_Law @CPCSnews @BostonBar [now onto Commonwealth v. Walsh...]

Walsh: Two years after Brangan, we still aren’t seeing bail amounts being set with adequate sensitivity to ability to pay. SJC should offer some clarity. ...

@Suffolk_Law @CPCSnews @BostonBar ... Judges should be required to explain in further detail why recognizance isn’t appropriate, why conditions are needed, and why no other means can ensure defendant’s return to court.

@Suffolk_Law @CPCSnews @BostonBar Lowy: But isn’t the Brangan decision really more about setting the right number for bail?

Walsh: There are two different standards within Brangan, depending on whether it’s a bail (defendant will be released) or detention decision (defendant will be deprived of liberty). ...

@Suffolk_Law @CPCSnews @BostonBar ... One way to facilitate this process is for Probation to do further investigation of financial resources. Judge can also bring a defendant back, if bail isn’t met after two weeks, to reconsider the amount. Bail is supposed to be an incentive, not a reason to detain.

@Suffolk_Law @CPCSnews @BostonBar Kafker: But judges aren’t really intending to detain, are they? They’re just trying to ensure appearance.

Walsh: There are many other ways to do that, and if they conclude that none will suffice, they should be clearer about their reasoning.

@Suffolk_Law @CPCSnews @BostonBar ... At some point, the judge needs to move from a discretionary decision as to setting bail into a consideration of defendant's due-process rights when liberty is at stake.

@Suffolk_Law @CPCSnews @BostonBar [Feed keeps dropping. Sorry for any lacunae!]

@Suffolk_Law @CPCSnews @BostonBar Commonwealth: No remedy's warranted, because the problem's been resolved. Lavallee doesn't apply, because that was about an on-going, systemic deprivation of rights, which is not the situation here. It was intended to provide counsel, rather than to release defendants.

@Suffolk_Law @CPCSnews @BostonBar Comm.: There've been no delays since December.

Kafker: But wasn't it improper for the judge to assign individual counsel, rather than going through @CPCSnews?

Comm.: Yes. Inability to assign counsel may have stemmed from other causes besides lack of available attorneys. ...

@Suffolk_Law @CPCSnews @BostonBar ... There's a process to be followed in Lavallee, and that didn't happen here. The protocol doesn't mean that any time there are delays, the time standards kick in and defendants should be released.

@Suffolk_Law @CPCSnews @BostonBar Gants: So what to do when, given an increase in hearing numbers, the well runs dry, without enough attorneys?

Comm.: Judge found there are available attorneys for 58A hearings, and then they go on to represent the defendant on the underlying case. ...

@Suffolk_Law @CPCSnews @BostonBar ... So each additional hearing doesn't require one more attorney.

Gants: But we really do have a problem with a shortage of attorneys, don't we?

Comm.: Yes, and @CPCSnews is working with the Legislature to address that. ...

@Suffolk_Law @CPCSnews @BostonBar ... If there really were a case with no attorney available, then a judge could properly consider release, per Lavallee. But we're not there.

Lowy: Doesn't the annual cap on bar advocates' billable hours have an impact on ability to take cases?

Comm.: Yes.

@Suffolk_Law @CPCSnews @BostonBar Lowy: It's an executive-branch decision whether to pursue a 58A hearing, but also whether to seek jail time. Couldn't Comm. let a judge know, pro-actively, that they won't be seeking jail time, to ease the shortage?

Comm.: DA has no formal policy on that. Judges may ask, though.

@Suffolk_Law @CPCSnews @BostonBar Comm.: It's not just about the instant charges but also about a defendant's history, so it has to be a case-by-case solution.

Kafker: Given that you don't like Lavallee, don't we need some kind of protocol to handle these situations, which will keep arising? ...

@Suffolk_Law @CPCSnews @BostonBar ... Because if the DA exercises their prerogative to seek 58A hearings, and the Legislature exercises their prerogative not to increase bar-advocate rates, we need to have some back-stop for shortages.

@Suffolk_Law @CPCSnews @BostonBar Budd: You say the situation here has been resolved, but what should happen the next time, because we can't wait until it arises every time?

Comm.: Lavallee worked here, achieving its goal of ensuring assignment of counsel.

@Suffolk_Law @CPCSnews @BostonBar Kafker: Could a trial judge just impose Lavallee sua sponte, rather than calling in an SJC single justice?

Comm.: I'd hesitate to have 1 trial judge do that. It should be someone like a RAJ doing fact-finding and bringing people together to review the numbers and set priorities.

@Suffolk_Law @CPCSnews @BostonBar Comm.: Release could ultimately be appropriate in some cases, as part of the protocol.

As to bail, SJC needn't set new requirements beyond what's provided by Brangan and by statute.

Gants: Shouldn't there be a clear-and-convincing standard for bail orders (not preponderance)?

@Suffolk_Law @CPCSnews @BostonBar Comm.: No, because it's not a detention decision, but also because the financial information is mostly in the hands of the defendant.

Gants: But Walsh argues that it should shift from preponderance to clear-and-convincing once the judge realizes that defendant cannot make bail.

@Suffolk_Law @CPCSnews @BostonBar Comm.: That kind of analysis threatens to bring judicial proceedings to a halt, with full-blown evidentiary hearings, including right to confront witnesses. Judges can't know in advance whether defendant will be able to make bail, so such hearings would always be required.

@Suffolk_Law @CPCSnews @BostonBar Gants: Bail decisions come down to defendant's history, so why isn't it appropriate to demand a higher standard?

Comm.: Because it's a financial decision, and defendant has the key financial info. In the end, setting bail is discretionary, albeit guided by Brangan and statute.

@Suffolk_Law @CPCSnews @BostonBar Kafker: Isn't it troubling if, as argued, 40% are being detained pre-trial?

Comm.: Don't assume that the judges in those cases didn't make required findings. And if they didn't, it can be brought back for further analysis or for review.

@Suffolk_Law @CPCSnews @BostonBar [now onto Carrasquillo case...]

CPCS (for Carrasquillo as well): SJC should exercise its authority to resolve the crisis & find that judge's assignment of counsel on his own was improper. No one wants to find counsel more than CPCS; "we're not here for the money and the glory."

@Suffolk_Law @CPCSnews @BostonBar Gaziano: Can't a judge make the determination whether there's a lack of available attorneys, as a fact-finding determination?

CPCS: Sure, with deference to our own finding, but the defendant shouldn't be made to bear the burden.

@Suffolk_Law @CPCSnews @BostonBar Lowy: Where's the rest of the bar? If there's a crisis, why aren't they standing up? A judge can't just let a hearing proceed with an unrepresented defendant.

CPCS: We'd train anyone who comes to us, but you can't force someone to take a case they don't want; that'd be a taking.

@Suffolk_Law @CPCSnews @BostonBar Kafker (?): So what should happen the next time this problem arises? Are you saying the remedy (release, dismissal of charges) should come before the protocol?

CPCS: We should be able to go to the court and say that we're approaching a lack of attorneys.

@Suffolk_Law @CPCSnews @BostonBar Kafker: So then the courts and the DA's should start triageing cases? Doesn't that raise concerns about separation of powers.

CPCS: Judge can make a final determination on the facts, but if we don't have the attorneys, those cases can't proceed.

@Suffolk_Law @CPCSnews @BostonBar CPCS: By continuing hearings past Lavallee's 7-day limit, judge deprived defendants of their constitutional right, especially because it couldn't be known, at the time, how long it would take to locate counsel.

@Suffolk_Law @CPCSnews @BostonBar @segalmr (for amici @MassCrimDefense and Hampden County Lawyers for Justice): Defendants have the right to a system that provides attorneys to criminal defendants who can't afford them, but the state hasn't done so, leading to collapse of the system. ...

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense ... Legislature can't be expected to resolve this problem until they're told they must.

Bar-advocate program's in a death spiral, with attorney numbers falling statewide. Fewer people have the skills to do these cases.

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense Cypher: Why is that?

@segalmr: It's economic, based on rate of pay.
...
Lavallee isn't the best we can do. That wasn't even the best remedy at the time; Legislature needed to act back then to resolve it.

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense @segalmr: We're here because "there's no more give left in the joints." The bar has already stepped up, and that's what's been keeping the system afloat to date.

Lowy: Yes, and the training program is terrific. But the percentage of lawyers taking cases has gone down. ...

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense @segalmr: Sure, but that's an economic decision. It all comes down to compensation rates.

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense [now on to AAG, for Hampden County District Court...]

AAG: Court can take meaningful action, but a solution must include input of the Legislature, so SJC should defer so they can act to raise rates. They've already authorized @CPCSnews to lift hourly caps in some circumstances.

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense AGO (I should've used that instead of AAG): Lavallee is an important, elegant solution that recognizes the limits of the SJC's authority to solve a problem that requires all stakeholders' input.

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense AGO: Under Lavallee, all parties to the system have a responsibility to prioritize the use of their respective resources.

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense Gants: Isn't it implicit in Lavallee that, as a product of the protocol's required communication/collaboration, DA's would triage cases so as not to trigger release/dismissal?

AGO: Yes.

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense AGO: The solutions put into place to resolve the most-recent crisis may not be sustainable. If the Legislature doesn't act, and it recurs, then it may be necessary to keep the interim order in place. But we hope that it's temporary and can be vacated.

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense Gants: This appears to be one of the few cases that money can solve.

Kafker: As long as it's someone else's money.

@Suffolk_Law @CPCSnews @BostonBar @segalmr @MassCrimDefense AGO: It would be inappropriate for SJC to use its authority to impose changes on District Court practices.

[...Aaaaaand done! Nice work, everyone. Please look elsewhere for your live-tweeting needs on today's next case, Commonwealth v. Norman.]