Extortion is a kind of threat.  A threat that’s so bad, it’s criminal.  For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests.

Threatening to kill a child if the parents don’t give you money, for example, would be extortion.  So too would be a civil lawyer’s threat to file criminal charges — even if such charges are warranted — if the other side doesn’t pony up with a settlement.  Another example is when a government official threatens to use his position to do something he’s perfectly entitled to do in the first place, unless the victim does him a favor first.

There are lots of examples of extortionate behavior.  But these last two examples demonstrate that the threatened action doesn’t itself have to be against the law.  The civil lawyer could go ahead and press criminal charges, but threatening to do so is against the law.  Ditto for the government official whose threat to merely do his job is a crime.  The point isn’t whether the threatened action is itself criminal, but whether the threat causes such fear as to override someone’s free will.

This is basic stuff.  Not exactly cutting-edge law here.

So how come nobody seems to have litigated the Queens (New York) District Attorney’s practice of extorting speedy trial waivers from defendants?

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In New York, there are a few different kinds of speedy trial rules.  One is the classic constitutional speedy trial rule, also embodied by statute in CPL §30.20.  It’s almost never used, because before any delay is likely to have impaired the defense in a typical case, CPL §30.30 will have kicked in.  That one, in a nutshell, calls for dismissal of a felony after roughly 183 days have counted against the People since the initial arraignment.  Delays asked for or consented to by the defense don’t count.  A third analogous rule is the “speedy indictment” rule of CPL §180.80, which says a defendant who hasn’t made bail must be indicted within 144 hours of his arrest, to the minute, or else he must be released from custody on his own recognizance.

CPL §§30.30 and 180.80 are there to make sure the prosecution does its job.  If a case has had more than 6 months of delay, and it’s the People’s fault, then the prosecution didn’t do its job, and the case gets dismissed.  If the People haven’t gotten their act together to secure an indictment against someone who’s sitting in jail, and this goes on for 6 days, then the prosecution didn’t do its job, and the defendant gets released for the rest of the case.

The policy is simple: we don’t want people rotting in jail while waiting to be formally accused of a crime, and we don’t want people’s lives on hold forever while awaiting trial.

The Queens DA’s office has come up with a workaround, to avoid having to play by these rules.

Their office policy is to require defendants to waive the CPL §§30.30 and 180.80 requirements, to enable the office to “investigate” the case more thoroughly before presenting it to the grand jury.  A defendant who does not waive these rules, the policy goes, will not be offered any plea bargain.

They’re threatening not to do their job right, unless the defendant first agrees they don’t have to do their job right.  How is this not extortion?

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Now, no defendant is entitled to a plea bargain.  It’s not a right, it’s not a guarantee, and it’s not even a privilege.  But the chance for a plea bargain — especially in the busy dockets of New York City — is certainly a fair expectation.  There is mutual benefit to all concerned: the prosecution doesn’t have to waste time and resources trying a case it didn’t need to; the courts can handle more cases without breaking the bank; and defendants get a disposition that satisfies the interests of justice without subjecting them to the higher sentence contemplated by the legislature.  The legislature countenances this practice, explicitly specifying what kinds of plea bargains are allowed in a given case.  Justice is served, all around.  And it’s the norm, the routine.  It’s a fair expectation, in almost every case.

There certainly are times when a plea bargain is not appropriate.  The most common example is when the hearings and trial have already begun.  Once the People have done all the preparation for trial and have started putting on witnesses, they don’t gain a whole lot from any plea deal. 

Another good reason not to offer a plea is when the defendant has testified in the grand jury and said he didn’t commit the crime.  There’s no reason to penalize a defendant who testified that he did do it, but threw himself on the mercy of the grand jury — that’s perfectly fine.  But a defendant who says he didn’t do it is either telling the truth — in which case he’s innocent, and it would be unethical for a prosecutor to induce an innocent person to plead guilty by offering a lighter sentence — or he perjured himself and is undeserving of any beneficial treatment.

When a prosecutor tells a defendant that he will not get a plea offer if he testifies in the grand jury that he didn’t do it, that’s nothing more or less than a fair warning.  It’s not only appropriate, it’s practically required as a matter of professional ethics.

Telling a defendant that he will not get a plea offer unless he waives his statutory rights to speedy indictment and speedy trial, on the other hand… That’s extortion, pure and simple.

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So we’ve had some clients who had done this Queens waiver with prior counsel.  (Aside: The vast majority of our clients come to us mid-case, after losing faith in their original lawyers.  It’s nice, but it also makes us wonder why they didn’t just come to us first.  But that’s a topic for a whole ‘nother blog post.)  One is a strictly routine, run-of-the-mill case, yet it took the Queens DA’s office 15 months to get off their duff and take it to the grand jury. 

That struck us as excessive, so we analyzed whether there might be a speedy-trial violation here.  The waiver sure seemed extorted, so it seemed like an argument worth raising. 

But wait a second.  This has been the Queens DA’s policy for some time now.  One would think it had already been litigated.  We enjoy this stuff, but there’s no point wasting client dollars just to re-invent the wheel.

But no.  It doesn’t seem to have been litigated.  At least there aren’t any written decisions out there on this topic that we can find.  And nobody we’ve asked — including current Queens DA personnel — seems to be aware of any cases on point.

That’s just weird.  Sure, not every defendant is going to have a problem with this.  And defense lawyers who advise their clients to execute the waiver are not often going to claim their clients were extorted.  But even so, we can’t be the first to raise the issue.

Oh, we’ve raised it now.  And it wouldn’t be our first case of first impression, by a long shot.  But it’s just weird that nobody’s already called the DA’s office on this completely wrongheaded policy.

So we’ll ask our readers: What do you think about this?  Is the Queens DA doing anything wrong by conditioning plea negotiations on a waiver?  Or are we missing something here?

Gideon v. Wainwright, 372 U.S. 335 (1963) guarantees that criminal defendants who cannot afford a lawyer must be provided one by the state. In a groundbreaking decision today, New York’s highest court ruled that “serious questions have arisen in this and other jurisdictions as to whether Gideon’s mandate is being met in practice.” And these questions are significant enough to warrant a class action against the State of New York by criminal defendants left to suffer the consequences.

In a lengthy opinion (viewable here), Chief Judge Lippman goes out of his way to point out that this is not a Strickland issue about whether defendants are getting ineffective assistance of counsel. The issue is whether the state is denying them counsel, period.

In order to allow the class action to go forward, the court had to find that there’s a basis for that suit, that looked at in the light most favorable to the plaintiffs they actually have a case. So what did the court see here?

Judges are deciding who is or is not “indigent” for the purposes of assigning counsel, and there are no standards for that determination. There’s no rhyme or reason to it. There’s no consistency. People who perhaps should be getting a public defender wind up never getting a lawyer at all. There’s a huge Due Process and Equal Protection violation right here.

Defendants are arraigned without having a lawyer present. Bail gets set in amounts they could never afford. And they wind up languishing in jail without representation, even for minor offenses. They lose their jobs in the meantime, and lose their homes when they can’t pay the rent, and their families suffer enormously.

Defendants appear in significant court appearances without counsel. They enter into pleas without a lawyer. This despite the clear language of CPL 180.10(5) forbidding a court from proceeding without counsel, unless the defendant has knowingly agreed to it.

In instances where lawyers do get appointed, they’re incompetent. They don’t confer with their clients. They don’t learn the case. There’s a different lawyer at each proceeding, just as unfamiliar with the case as the previous one. They don’t respond to client inquiries however urgent. They either miss court appearances, or if they do appear they’re unprepared to proceed.

The appointed lawyers waive important rights, without first conferring with their clients and getting authorization. They make “virtually no efforts on their nominal clients’ behalf,” as the opinion puts it.

“Actual representation assumes a certain basic representational relationship.” The facts here show the opposite, that there are “serious questions as to whether any such relationship may be really said to have existed.” In other words, counsel may have been appointed, but there was never any real attorney-client relationship. This is not ineffective representation — it is the absence of representation.

Apparently, according to the opinion, the main reason for the woeful lack of representation by the public defenders is “inadequate funding and staffing.” This makes sense, to some degree. Most counties in New York look on the state’s application of Gideon as an unfunded mandate, which makes it both unpopular and unlikely to be high on the priority list when budgets are set. Besides, it’s only going to go towards the defense of bad guys, right? So who cares if they get the short end of the stick?

The allegations pertain to five upstate counties, but this is stuff we’ve seen elsewhere and in other states as well, so bizarre as these claims may sound to the unititiated, we can tell you that they ring true to us. Heck, just last month we took over a public defender’s case in New Jersey, where the client had been sitting in jail for a month on $100,000 bail without once even having met his public defender. We got retained, met with the kid, did the work the PD should have done, and got that bail knocked down to $5,000. That kid should have been walking around a month earlier, and would have been if the system there worked, which it didn’t. And just this morning we were in a NY State courthouse, where we saw a public defender round up all the legal aid defendants out in the hallway and harangue them, shut down anyone who tried to ask a question, and otherwise so distress all the indigent clients that one came over and begged me to take her case with the promise that she’d find some way for her family to pay ourfees. (We declined, because we’re really quite expensive, but another less-expensive attorney took her up on it.) Anyway, the point is we see this kind of stuff every day in places outside the five counties named in the lawsuit. The system really is broken, and it’s time to fix it.

One thing that’s really interesting to us is that this case is being brought collaterally, as a civil class action, rather than as a series of individual post-conviction appeals. The defendants in the criminal actions are the plaintiffs in the class action. As the court points out, there is no reason why the defendants should wait until their cases are over, and pursue their claims on appeal. They’re perfectly within their rights to go right to civil court whether or not their criminal cases are still pending. But to be honest, the thought never occurred to us before. And yet, there’s nothing astonishing about the idea apart from the fact that it hasn’t really been done before. “This action properly understood,” explains the court, “as it has been by distinguished members of the prosecution and defense bars alike, does not threaten but endeavors to preserve our means of criminal adjudication from the inevitably corrosive effects and unjust consequences of an unfair adversary process.” There is no reason why the class members here cannot seek to enforce their right to counsel, and compel the state to provide that counsel as is their right.

And a civil court certainly has the power to compel the state to do its job. That’s one of the most beautiful things about our judicial system. It’s one of the main reasons we went into law in the first place. So we’re happy to see the Court of Appeals making the right call here. It remains to be seen whether the class members can prove their case, but at least now they’re getting the chance to make it.

Yesterday, the Supreme Court ruled that defense lawyers must advise their immigrant clients that, if they plead guilty, they could get deported. (Read the opinion here, and you can read more about the case here and here.) In a nutshell, Jose Padilla took a plea to selling drugs, and his lawyer told him not to worry about deportation since he’d been a lawful permanent resident for 40 years. That was erroneous advice. Kentucky wouldn’t let Padilla get his plea back, saying this error was about a collateral consequence outside the criminal justice system, so it wasn’t ineffective assistance for Sixth Amendment purposes. The Supreme Court disagreed, saying it absolutely was ineffective assistance. Defense lawyers are duty-bound, as a constitutional matter, to let clients know that pleading guilty could get them deported.

Note that this burden is on the defense counsel, and not on the court. The court does have to advise defendants that they’re giving up their right to a jury trial and all the other things they’re foregoing, but the court doesn’t have to warn about “collateral” consequences of the plea. And deportation is one of a myriad of potential collateral consequences, including losing a driver’s license, or the right to vote, or the ability to hold a particular job, or government benefits. (There are entire books dedicated to listing and describing all the collateral consequences out there.)

But deportation is different. It’s a dramatic life-changer, often more so than incarceration. It affects the now-banished immigrant, but also his family. So somebody ought to mention it to a defendant before he takes a plea and effectively deports himself.

For that reason, since the days of disco the ABA has had standards of conduct for defense lawyers, requiring us to inform our clients fully and accurately about what consequences they might face. See ACA Standards for Criminal Justice, 14-3.2 Comment 75. Some, but not all, states also require it by law. And some states even require judges to do it from the bench as part of the plea colloquy.

But now the Supreme Court has ruled that, as a matter of constitutional law, failure to inform an alien of the risk of deportation is ineffective assistance of counsel. It violates the Sixth Amendment. So the client can take back his plea and go to trial instead.

Great for clients, some defense lawyers may be huffing, but not for us. Now what, are we supposed to master a whole nother specialty of law, and a notoriously byzantine one at that, just so we can do a constitutionally effective job? That would suck!

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Well no, the rule doesn’t suck. We do not have to all of a sudden become experts in immigration law. We do not have to parse the insanities and inanities of that highly complex field. All we have to do is advise our clients that there is a risk of deportation. And we’d better not tell them there is no risk, when there really could be one.

This really is nothing new. It’s what we’re supposed to have been doing all along. For example, look at U.S. v. Couto, a Second Circuit case from 2002. That one held that incorrectly advising one’s client about deportation (as opposed to failing to advise at all) was obviously ineffective assistance of counsel. But it reminded everyone that, when a client is an alien, “counsel and not the court” must advise him of possible deportation. They cited the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 323 n. 50 (2001), which pointed out that:

Even if the defendant were not initially aware of [deportation issues], competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision’s importance.

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Criminal deportation has a long history in this country. Although it serves a punitive purpose — notably deterrence and incapacitation — it’s not treated as a penal matter. It’s an administrative function of the federal government, which has the authority to regulate aliens and immigration. It’s firmly part of customary international law, a right of nations.

For a long time, though, deportation was reserved for only a few crimes. For a while, it was only used for felonies of “moral turpitude” (a phrase never statutorily defined), and then in 1917 they added anarchy and attempting to overthrow the government (a real problem back then). In 1931 they added drug crimes, but not if the defendant was an addict.

By this time, at the start of the Great Depression, immigration had become a hot-button issue. Importing criminals was no-go, and allowing aliens to remain once they had committed crimes would reduce the public’s confidence in the rightness of immigration. So from this point forward, the number of things one could get deported for grew by leaps and bounds. By 1988, you could get deported for a wide range of violent and non-violent crimes. The number of offenses went through the room with the passage of the AEDPA in 1996.

Between that and the IIRIRA, practically anything can get you deported now. And at the same time there is little to no leeway, mitigation or discretion allowed. Low-level state crimes are enough. Suspended sentences are enough, even if they’re never served. It’s pretty much automatic. There is no release valve, other than finding some plea bargain that doesn’t have deportation consequences.

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Well, that’s hardly a challenge to defense counsel, if you think about it. It’s no different from searching for that elusive federal misdemeanor, when negotiating a federal plea. It’s like searching for a needle in a stack of needles, but it’s not always a fruitless task.

If our job is to get the best outcome for our clients as we can, doesn’t that mean we’re duty-bound to try and find some outcome that won’t result in deportation? And doesn’t that mean we have to at least know what offenses do and do not have immigration consequences?

So it’s hardly a stretch to then inform a client that a particular plea bears a risk of deportation. It’s not a big deal. Nobody should be upset about this. We all ought to have been doing this already.

“Why is this case here, except as an opportunity to upset Melendez-Diaz?”

So wondered Justice Scalia during oral argument a couple weeks back in the case of Briscoe v. Virginia. For some background, see our previous post on this case here. Briefly, the Supreme Court held last year in Melendez-Diaz v. Massachusetts that, in a drug case, the prosecution cannot prove the existence of a controlled substance by merely introducing the lab report — the chemist has to testify, or else the Confrontation Clause is violated. There was a huge outcry from prosecutors’ offices across the country. It would be too much of a burden to get chemists to testify at every drug trial. There was a concerted effort to get around this new ruling, or better yet to get the Supremes to reverse themselves.

So in Briscoe, Virginia tried to get around the rule by saying the prosecution only needs to introduce a lab report, and if the defense wants to confront the chemist then the defense can subpoena the chemist as a witness.

More than half the state attorneys-general filed an amicus brief, arguing that the expense and administrative burden of getting chemists to testify at trial would just be unworkable. At oral argument on January 11, it sounded like Justice Alito, at least, was buying into that argument (Tr. at 16, lines 16 to 18). And there was hope that Justice Sotomayor would be that one extra vote to undo Melendez-Diaz.

In our previous post, we pointed out various reasons why such hopes weren’t based in reality, and why the claims of expense and burden don’t hold water. We seriously doubt that anyone at the Supreme Court bothers to read this blog. But these observations are fairly self-evident, we think.

So it was no surprise to see a one-sentence smackdown from the Supreme Court this morning:

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009).

It is so ordered.

In other words, if the states do not put the chemist on the stand in the People’s case, then they violate the Confrontation Clause. End of story. Bureaucratic convenience does not trump individual rights.

As for all those prosecutors’ offices who whine that it can’t be done? We’d ask them to look at New York City, whose courts are far busier than theirs ever will be, and who nevertheless manage the job as a matter of routine. Defense counsel often stipulates to the substance being what it is, and when there is no stipulation then getting the chemist to court is no more challenging than any other police employee who’d rather not be there. It’s just part of the job, and amazingly enough it works out just fine.

On June 25 last year, the Supreme Court held in Melendez-Diaz v. Massachusetts that in a drug case the prosecution can’t simply use a sworn lab report to prove the existence of a controlled substance. If the chemist doesn’t testify, it violates the Confrontation Clause. (See our previous post about it here.)

Four days later, on June 29, the Court granted cert. in Briscoe v. Virginia, to decide whether the states can get around this requirement if they permit the defendant to call the lab analyst as a defense witness. Oral arguments are scheduled for next Monday, and we can’t wait to hear how the Commonwealth of Virginia tries to make its case.

It seems to us that there is an obvious burden-shifting problem here. The state, and only the state, has the burden of proving every element of the crime. Since the Winship case in 1970, this has been a due process requirement of the Constitution. Unless he asserts an affirmative defense, the defendant has no burden to prove a thing.

So the prosecution has to prove an element. It needs a forensic test to prove it. It needs the testimony of the analyst to introduce the results of that test. The defense does not have a burden to prove anything, one way or the other, about the test.

But Virginia wants to be able to prove its case using only the lab report, and get around the Confrontation Clause by saying the defense is allowed to call the analyst if they want to confront him.

First, who cares whether the state allows the defense to call the analyst or not? Last time we checked, the defense could call any witness they chose, by subpoena if need be. The defense always has the opportunity to put the analyst on the stand as a defense witness. This “permission” doesn’t actually give the defense permission to do anything it couldn’t already do. All it does is imply wrongly that the defense couldn’t have done so otherwise.

Second, the state cannot impose a burden of proof on the defense like this. Virginia’s scheme essentially precludes the defense from challenging the state’s evidence during the state’s case. It forces the defense to act affirmatively and put on a defense case in order to challenge the state’s evidence. That’s a big due process violation.

Third, the state does not get around the Confrontation Clause by shifting the burden to the defendant to call those witnesses it wishes to confront. In a murder case, it would absurd to let the prosecution introduce an eyewitness’s written account of what happened, and no more, so long as the defendant himself could have called the eyewitness if he wanted to. That’s indistinguishable from what Virginia wants to do.

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Lots of prosecutors’ offices are hoping that the Supremes will side with Virginia on this one. Particularly in the more amateurish offices, there is a feeling that the Melendez-Diaz decision imposes too great a cost on the criminal justice system, and imposes unworkable inefficiencies, by requiring chemists to take time off from their busy jobs to testify at trial. An amicus brief filed by half the nation’s attorneys general makes these arguments.

But just look here at New York City, the busiest criminal courts and crime lab in the world. Lab reports are used in the grand jury, where there is no confrontation right, but the chemists themselves must testify at trial. Somehow, this requirement has not bankrupted the city. Getting the chemist to show up is just one more minor hassle that prosecutors have to deal with, no more challenging than getting cops to show up. The requirement is so minor that nobody really thinks about it.

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Still, Melendez-Diaz was a 5-4 decision. And one of the five, Justice Souter, has been replaced by former prosecutor Justice Sotomayor. So people are thinking that she’s going to be more pro-prosecution here, and help the Court either reverse or severely limit that decision.

We don’t think so. We’d remind Court observers that Sotomayor came out of the Manhattan DA’s office, not one of the “amateur hour” offices. Her own personal experience is that requiring the chemist to testify at trial is really no big deal.

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So we’re looking forward to the oral arguments next week. If Scalia gives as good as he did in last June’s decision, and if we’re right about Sotomayor, then Virginia’s in for a spirited beatdown.