My Cousin Vinny and the Constitution’s “Coddling of Criminals”
On the Need for More Public Defenders Like Ketanji Brown Jackson
This past week, Judge Ketanji Jackson Brown was confirmed to the United States Supreme Court. As I mentioned in my previous piece, “Is the Supreme Court Cursed? The Bambino, Bork, and Politically Polarizing Confirmations” Supreme Court confirmation votes have become more polarized and partisan over time. Often the confirmation hearing is less about the nominee and more about signaling to one’s political base. The confirmation of Judge Brown Jackson was no different — though she did receive three Republican votes in the end.
Various Senate Republicans attempted to cast doubt on Judge Brown Jackson by arguing she was “soft” on crime.(1) They particularly honed their attacks on her background as a public defender. As a federal public defender for several years, Ketanji Brown Jackson was assigned cases for those who couldn’t secure or afford counsel — including members of al-Qaida held at Guantanamo Bay. Put aside public defenders are assigned cases and do not get to cherry pick who they defend, Jackson Brown’s work defending bad hombres was nonetheless easily skewed and weaponized by Senators who wanted to paint Jackson Brown as extreme and the president as radical by selecting her. It was easy political fodder for their base — the proverbial shooting fish in a barrel.
Enter Arkansas Senator Tom Cotton. During his floor speech opposing Judge Brown Jackson’s confirmation to the nation’s highest court, he alleged that because of her record — and particularly her work as a federal public defender — she would “coddle criminals.” But to put an exclamation on his point, Senator Cotton went even further by referencing the Nuremberg Trails — the post-World War II tribunal established to prosecute Nazi war crimes — suggesting that Judge Brown Jackson may have gone to defend the Nazis.
This was a record-scratching stop that even normally sympathetic new outlets, like Fox News said was a “bridge too far.” But this theater of the political absurd did highlight an important issue that needs more awareness and — the right to counsel in our criminal justice system.
For many, the criminal justice system — particularly the courts — is a Kafkaesque labyrinth with mysterious processes, formality, and procedures — all sprinkled in with Latin to further obscure common language and understanding. It’s dizzying and disorienting to those who aren’t part of the rhythm, pace, and language of the criminal justice system. Individuals facing criminal charges by the state often are lost in a jurisprudential sea of complexity and need individuals well-versed in the process to decode it for them.
If Kafka is too much of a downer, let’s focus on a hit comedy instead. My Cousin Vinny perfectly describes the issue of access to effective counsel.
My Cousin Vinny may get laughs because it is funny as heck, but the movie has serious undercurrents about the challenges many individuals face in our criminal justice system. Think about being accused of murder — like Billy Gambini (played by Ralph Macchio) and Stan Rothenstein (played by Mitchell Whitfield) — two “yutes” with ethnic names from the northeast in the heart of the deep south — initially unaware of the seriousness of the charges. At first, there only hope of avoiding prison for a crime they didn’t commit is the representation by the hapless public defender, Austin Pendleton.
Even the main character who comes to save the day — Billy’s cousin Vinny (played by great Joe Pesci) doesn’t exactly give you confidence by appearing in court in a maroon, borscht belt night club tuxedo. The scene below illustrates how Pesci’s Vinny struggles through and is mocked by the judge during the arraignment. But the movie perfectly illustrates the importance of having a good counsel and how this constitutional right is still an unfilled promise in many cases.
The U.S. Constitution includes several provisions for the right to counsel. One is the Sixth Amendment — the handiwork of James Madison — which requires fairness and objectivity to individuals facing criminal prosecution, including right to a speedy public trial by an impartial jury and having the “assistance of counsel for his defense”. Although there wasn’t much discussion about this provision at the Constitutional Convention (it was more a debate about whether there should be a Bill of Rights at all), as a 1954 journal article by Brown University political science professor, Felix Rackow found in “The Right to Counsel: English and American Precedents”, ensuring a fair trial was very much part of the ethos of the Founders. For example, the Salem witch trials was anything but a fair trial and historic events like this helped shape the rights found in our Constitution.
As Supreme Court Justice Hugo Black said in 1938, “The Sixth Amendment stands as a constant admonition that, if the constitutional safeguards it provides be lost, justice will not ‘still be done.’ It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.”
“The Sixth Amendment stands as a constant admonition that, if the constitutional safeguards it provides be lost, justice will not ‘still be done.’ It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.”
— Supreme Court Justice, Hugo Black (1938)
Having the right to counsel is one thing, but what if a person cannot afford counsel? In 1938, the Supreme Court ruled in Johnson v. Zerbst that the federal government may provide counsel if the defendant couldn’t afford one. Prior to federal laws, like the 1964 Criminal Justice Act, representation often was pro bono by private attorneys. The Act established a process of appointing and compensating lawyers which includes federal public defender offices (where Justice Brown Jackson worked), other community organizations, and private attorneys creating the system we have today.
Not only do defendants deserve access to counsel, it must be effective counsel (See Strickland v. Washington, 466 U.S. 668 (1984)) — though many have argued the Court’s standard of effectiveness is too high a hurdle. Whether any of the defense counsels from My Cousin Vinny would qualify as “effective” is questionable, but there have been a number of situations where effective counsel is anything but, like when a defense counsel slept during a murder trial — yet sleeping through a trial was not deemed enough for a new trial.
From the Constitution sprung other statutes, Supreme Court jurisprudence, and practice expanding on the right to counsel throughout our nation’s history. In particular, access to the right to counsel has been expanded from felonies to certain misdemeanors or certain family court cases (like in New York State). The Sixth Amendment initially applied to federal courts, but it wasn’t until Gideon v. Wainwright that the Supreme Court applied it to all states as well — thanks to the adoption of the 14th Amendment (and a reversal of Supreme Court precedent by the Warren Court).
Clarence Earl Gideon’s hand-written petition from a Florida prison made its way to the Supreme Court with a basic submission that he should have been provided an attorney in his criminal trial in Florida. In the end, after the Supreme Court ruled in his favor, Gideon was provided an attorney and not just any attorney — an attorney who understood the local criminal court and could adequately navigate through the process. In essence, Gideon had access to an effective attorney — not someone who slept through the trial and not the hapless public defender from My Cousin Vinny. This time around Gideon was acquitted. Clarence Earl Gideon’s story has a cinematic quality to it — contrary to the Bobby Fuller Four song, he fought the law and, in this case, he won. In fact, his story was turned into a great book, Gideon’s Trumpet by Anthony Lewis as well as movie — check out Henry Fonda as Clarence Early Gideon).
A Continued Work in Constitutional Progress: Uneven and Unfilled Constitutional Rights
But, in many ways, Gideon still remains an aspirational story (Even so, Gideon spent two years in prison for a crime for which he was ultimately acquitted). As Herbert Packer, a distinguished Stanford law professor noted in his 1964 University of Pennsylvania Law Review article, “Two Models of the Criminal Process” there is often a considerable divide about what “Is” and what “Ought” to be. As Professor Packer said, “We learn that very few people get adequate legal representation in the criminal process; we are simultaneously told the Constitution requires to be afforded adequate legal representation in the criminal process.”
Progress has been made since those words were written, but much more work still needs to be done. In many parts of the country Clarence Gideon’s victory makes for a fine movie, yet the reality is something that is drastically different. Access to effective and competent legal representation is still very much a work in practice. Case in point: New York State.(2) Even politically “blue” — i.e. more progressive states have struggled to implement the constitutional right to counsel.
As often is the case with Constitutional pronouncements the details and implementation are left to states and the devil is in the details. And this has been a tricky devil. After the Supreme Court announced their decision in Gideon, New York State left it to counties to implement the right to counsel — creating an uneven patchwork of access, rules, funding, and services across the state. The result was decades of unfilled constitutional obligations and tension among various legal and political stakeholders.
After decades of work by advocacy organizations, public interest law firms and organizations, and policymakers and not enough action, the New York Civil Liberties Union filed a lawsuit against New York (and several counties), Hurrell-Harring v. State of New York. In 2010, 45 years after New York State implemented the Gideonruling, the Court of Appeals — New York’s highest court — found “there is considerable risk that indigent defendants are, with a fair degree of regularity, being denied constitutionally mandated counsel.” This plus the ensuing settlement was the catalyst for subsequent legislative and budget action by the state to provide more consistent application of the right to counsel regardless of where a defendant lived in New York. Still, the wheels of justice turn slowly. Even after the Court of Appeals victory, it took another several years to move the ball forward with reduced public defender caseloads, improved quality, and a more uniform system for the assignment of counsel.
Let’s look at one data point — caseload — to illustrate how daunting the challenge really is and how the recent changes in New York are having a positive impact. Using reports by the New York State Office of Indigent Legal Services there is a huge need for public defenders. Looking at the 52 Upstate New York State counties not subject to the original Hurrell-Harring case and settlement illustrate hundreds of thousands of cases where public defenders are required.(3) See the chart below.
Increased state funding plus new caseload rules have allowed for hiring more lawyers as public defenders, resulting in lower caseloads. Of course, lower caseloads do not automatically equate to effective counsel, but a reduced workload is a good indicator of success. To demonstrate the scope of what public defenders in New York State face, below are data collected by the New York State Office of Indigent Legal Services from 2012–2019 (I used the year before the Covid-19 pandemic because many things were shut down and delayed — including trials/cases in 2020 resulting in far lower caseloads). In other words, there is a heavy caseload. But the settlement and state action in 2017 appears to have a positive effect with a reduction in caseload for public defenders. The wheels of justice turn slowly, but are turning. See chart below.
Finally, perhaps one of the biggest lessons from New York is that fulfilling constitutional responsibilities — even one where it appears that we are “coddling criminals” doesn’t have to be hyper-partisan. We can unite in the furtherance of justice and realizing constitutional rights. The bill that was introduced in the New York State Legislature to memorialize the Hurrell-Harringsettlement in order to preserve our constitutional right to counsel across the state was championed and pushed by a Democratic Assemblymember, Patricia Fahy and a Republican State Senator, John DeFrancisco. We need more, not less, of this type of partnership.
Not Just Talking the Talk; Walking the Constitutional Walk
In order to preserve fairness and objectivity in our criminal justice system, the Founders included a constitutional right to counsel in criminal proceedings — no matter how bad of a person it may be. Legitimacy of our criminal justice system is grounded in fairness and if a person is guilty let it be because the facts lead us there, not because of the system itself all but guarantees the outcome. Yet, this very constitutionally prescribed process was used as a political cudgel against Judge Ketanji Brown Jackson during her confirmation proceedings. Senator Tom Cotton was one of several Senators seemingly aghast that Judge Brown Jackson represented some pretty reprehensible individuals as a court appointed public defender. But, that’s the genius of our system and something that separates us from totalitarian regimes and Kangaroo Courts, like evidenced under Vladimir Putin’s Russia.
Judge Brown Jackson was carrying out a key constitutional function. Public defenders play a critical role in upholding the values and rights in the Constitution and instead of paying faux lip service to that constitutional responsibility, they actually walk the walk. As many studies and reports have pointed out, there is still a great divide and unfilled promise of the constitutional guarantee to counsel. Defendants who received free representation from Ketanji Brown Jackson were some of the lucky ones because, in many ways, the right to counsel is still an unfilled promise. They could have used her in My Cousin Vinny. Improving the system — like who and in what circumstances are people eligible for indigent legal services, and the movement to extend to civil cases — dubbed “Civil Gideon” — or in specific areas like eviction cases, remain a work in progress. But it’s something worth fighting for. If anything, we need more public defenders like Ketanji Brown Jackson. Public defenders, in fact, are the ones that help keep America great.
If anything, we need more public defenders like Ketanji Brown Jackson. Public defenders, in fact, are the ones that help keep America great.
NOTES
(1) This wasn’t the first time Judge Brown Jackson faced questions from Senators about his career as a public defender — it came up at other points as well including during her elevation to the U.S. District Court in 2012. But it was nowhere near as intense and some Senators who questioned her background ultimately voted for Jackson Brown. They flipped to no votes this time around.
(2)There isn’t enough space to go through all the history in New York State, but I suggest reading the New York State Indigent Legal Services “Criteria and Procedures for Determining Assigned Counsel Eligibility” which provides a good history as does, “The Right to Counsel in the State of New York: How Reform Was Achieved After Decades of Failure” by William Leahy, New York’s first leader of the statewide office of Indigent Legal Services.
(3) I use 2019 data because the data from the recent Covid pandemic years are skewed. The New York State Office of Indigent Legal Services raises similar concerns in their report. See pages 3 and 4 at https://www.ils.ny.gov/files/Statewide%20Caseload%20Report%202021.pdf.
