criminal law

After the efforts of Philadelphia Mayor Michael A. Nutter's administration to create an Office of Conflict of Counsel faltered, one of the main opponents of that plan has secured Department of Justice funding for a study on the quality of Philadelphia's indigent defense. I'm cross-posting the piece I wrote for Philly City Paper:

One of the main opponents of a plan to create a new Office of Conflict Counsel has secured Department of Justice funding to study the quality of defense that is available to Philadelphia's indigents.

Councilman Dennis O'Brien says the DOJ's Bureau of Justice Assistance has awarded $25,000 for the Sixth Amendment Center's David Carroll to conduct interviews with judges, defense lawyers, prosecutors and others involved in the criminal-justice system. Carroll will make recommendations this fall on how Philadelphia can better meet the American Bar Association's 10 Principles of a Public Defense Delivery System. Carroll has done similar work in Delaware, Utah, Tennessee, Mississippi and elsewhere.

Last winter, the Nutter administration had to scuttle its plan to award cases to a new, private law firm when the Defender Association of Philadelphia has a conflict. Currently, those cases go to a long list of lawyers who take such appointments.

Philadelphia attorney Daniel-Paul Alva's bid was the winner to start a new Office of Conflict Counsel in Philadelphia, but the contract process came to a halt over a legal technicality involving the name of the entity.

In an interview during a visit to Philadelphia on Thursday, Carroll said that he testified in City Council about that proposal because the focus was too much on whether a for-profit model was a bad idea and not enough on how to reach the ABA standards.

He said he has seen terrible public defenders and horrible private lawyers paid by the government to represent defendants. But he also has seen terrific public defenders and fantastic private appointed counsel.

A for-profit model is not inherently wrong if it is meeting the standards for ensuring defendants' Constitutional rights to adequate counsel, he says.

Pennsylvania "is the only state that has never contributed even a dime to the Sixth Amendment right of counsel," Carroll said. "It's an issue most urban jurisdictions don't need to deal with."

Most cities are not under the same pressure for cost containment in their criminal courts, he said.

Philadelphia also does not have any system of oversight to ensure defendants are getting good representation from their public defenders or private lawyers appointed by the court, Carroll said.

Matt Braden, O'Brien's chief of staff, said the fact that the funding for the study is independent is important — there can be no question of Carroll's independence and lack of bias.

In requesting the money for a study, O'Brien wrote that there are issues because Pennsylvania requires local governments to bear the entire cost of providing attorneys to poor defendants.

"Though it is not believed to be unconstitutional for a state to delegate such responsibilities to local government, in doing so, a state must guarantee that local governments are not only able to provide such services, but they are, in fact, doing so," O'Brien said.

Alva was proposing to create a for-profit law firm to represent criminal defendants and family-court defendants when the Defender Association of Philadelphia, Community Legal Services or the Support Center for Child Advocates was already representing another person in the case. The new firm was to handle the first appointments in criminal cases and juvenile-delinquent cases in which the Defender Association has a conflict, and to represent the primary caregiver in every dependency case. The firm, which bid $9.5 million, would have taken on all new appointments.

There is a growing movement to have dogs provide comfort to distraught victims or other witnesses testifying in court.  In an issue of first impression, a Connecticut appellate court has joined a handful of other courts that have said that dogs can come into the courtroom under certain circumstances. Here's the piece I wrote and that was published by the Connecticut Law Tribune: 

Dogs in court are a growing national trend. Sometimes they sit with witnesses, many of them young victims of sexual abuse, and help the child endure traumatic testimony.

The trend was brought to light by a recent Connecticut Appellate Court opinion examining a trial judge's decision to permit the use of a dog to accompany a young girl while she testified about how her father forced her to engage in a number of sexual acts with him.

Appellate Judge Stuart David Bear said the state's trial courts have "the inherent general discretionary authority to permit a suitably trained dog to sit near a witness when a need clearly is demonstrated."

This is the first case in Connecticut that Superior Court Judge Robert Devlin is aware of in which a dog accompanied a child witness. He expects it won't be the last. "My takeaway from this is that the court approved it, provided sufficient need was shown to have a dog in the court," Devlin, the state's chief administrative judge for criminal matters, said in an interview.

Connecticut has long utilized various techniques to help children testify in sex abuse cases, Devlin said, and many of those practices are now codified in statute. For instance, lawyers can be required to remain seated while asking questions to children. And judges can stop people from entering and leaving the courtroom while a child testifies.

The use of trained dogs — referred to by experts as professional courthouse facility dogs — in future cases should be decided by judges on a case-by-case basis, Devlin said.

On one hand, he said, the judge must preserve the defendant's right to fair trial, which could be jeopardized if courtroom "atmospherics" make a witness "seem more appealing and vulnerable." On the other hand, the judge must try to accommodate a child witness so he or she can give the "testimony that the jury needs to hear," Devlin said.

In this case, the Appellate Court said Superior Court Judge John Carbonneau Jr. should have required prosecutors to prove that the special procedure was necessary for the witness. Prior to trial, prosecutors had said the girl was not concerned about testifying in front of the defendant, but about having to testify in front of other people.

During a hearing on allowing the dog to be present during the girl's testimony, the state presented testimony from David Meyers, a child therapist, who owned a ''service dog'' named Summer. Meyers testified that he had purchased the animal for therapeutic use in his practice. He also stated that this dog had never participated in a court hearing before.

Meyers said he had never met the girl prior to that day and that he did not know if the presence of the dog would increase the child's reliability or truthfulness.

Out Of Sight

Ellen O'Neill-Stephens, a former Washington state prosecutor who co-founded the Courthouse Dogs Foundation, said the best and most fair practice is to have professional facility dogs that are trained to sit quietly with witnesses on the stand. There is a concern that a handler sitting with the dog might subtly indicate agreement with the witness and prejudice the defendant, O'Neill-Stephens said.

Dogs also should not be sitting in the laps of children, but be lying on the floor at their feet, mostly out of the sight of the jury, she said.

O'Neill-Stephens helped to start the national movement to use dogs to relieve courtroom stress in a moment of serendipity. Her son has cerebral palsy and has a service dog. There was one day a week in which the dog was not spending time with the boy, and O'Neill-Stephens asked if she could bring the dog to a drug court that aims to get defendants sober and back on their feet. It was "just immediately apparent that it made a huge difference" in drug court, the former prosecutor said. "Quickly, the prosecutors in my office said, 'What about child victims that have to testify?'"

Research shows that people, when reliving a traumatic moment in their lives, experience physiological reactions that interfere with their ability to speak. Dogs can help mitigate those stress reactions, O'Neill-Stephens said.

"The position of our nonprofit organization is that these dogs should be available to any vulnerable witness who can demonstrate that the presence of dog would assist them in testifying in court," O'Neill-Stephens said, which could include defense witnesses and defendants.

James Streeto, the assistant public defender who argued the case before the Supreme Court, said allowing dogs to be present with child witnesses is a departure from "the established rules of evidence developed over centuries."

One of Streeto's concerns is that the dog's presence sends the implicit message that the child is traumatized and therefore his or her testimony is true. A judge telling the jury that's not necessarily the case may not be enough to ensure a defendant's constitutional rights to confront a witness testifying against him or her.

But O'Neill-Stephens said there are plenty of instances when defendents are acquitted even after children testify with a dog at their side. "Just like dalmations belong in fire stations, these dogs belong in courthouses. They help us work," O'Neill-Stephens said.

The Washington Supreme Court, the New York Supreme Court, Appellate Division, and the California Court of Appeal all have ruled that dogs can be used to assist witnesses in giving testimony, according to the Connecticut Appellate Court opinion.

As for the Connecticut case, the Appellate Court overturned the verdict, but not on the dog issue. The defendant had been convicted of sexually assaulting his 6-year-old daughter several times and inappropriately touching his 8-year-old and 10-year-old sons' private parts while bathing them.

The Connecticut Appellate Court also ruled that the three cases were improperly joined. The evidence in the case involving the daughter and the evidence in the cases involving the sons was not cross-admissible, Bear said. Instructions given to the trial court jury did not alleviate the prejudice of having the more "sexually egregious" criminal allegations involving the daughter admitted into evidence in the same trial as the cases involving the defendants' sons, the court concluded.

Denise Smoker, the senior assistant state's attorney who argued the case on appeal, said her office will seek an appeal to the state Supreme Court. She declined further comment.