by G. Ben Cohen. Mr. Cohen is OF COUNSEL at The Capital Appeals Project. Cohen was VISITING LITIGATION COUNSEL at the Charles Hamilton Houston Institute in 2011.
On April 29, 2013, after briefing and oral argument on whether the State’s failure to fund counsel for a defendant should be weighed against the state for speedy trial purposes, five Justices of the U.S. Supre
me Court turned a blind eye in Boyer v. Louisiana to the funding crisis in Louisiana’s public defender system and declined to address the seven year wait between Jonathan Boyer’s arrest and trial. On Boyer’s heels comes another case underscoring the unconscionable harms of the Bayou State’s decimated criminal justice system – which has depended on traffic tickets to fund the defense function.
On June 20, 2013 the Supreme Court will decide whether to grant certiorari in Michael Garcia v. Louisiana. The public defender office could not afford to adequately provide separate capital representation to Mr. Garcia and his two co-defendants. By law, however, the Public Defender could not represent all three defendants himself. Even the prosecutor informed the trial court at Mr. Garcia’s very first hearing that the multiple representation might pose a conflict of interest, but the judge left the Public Defender to work it out.
The Public Defender assigned all the capitally-certified attorneys from his office, including himself, to represent Mr. Garcia, and assigned lawyers who were not certified to represent defendants facing the death penalty to represent the two co-defendants. This refusal to hire outside counsel saved the public defender office from going bankrupt. It also prevented the state from seeking death against the two other defendants. But it meant that Mr. Garcia’s lawyer chose him as the only defendant against whom the State could seek the death penalty.
ct case, the five most conservative justices on the Court -- Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito -- signaled their willingness to strike down or effectively nullify one of the most important and effective civil rights laws ever enacted. While other parts of the Voting Rights Act will remain intact, voiding Section 5, which requires pre-clearance of changes to voting rules by jurisdictions with a documented history of racial discrimination in voting, will be a severe blow to civil rights. Section 5 is a valuable prophylactic rule that does far more to prevent discrimination than the VRA's other central provision, Section 2, which directly outlaws discriminatory voting practices. Section 2 is an ex-post remedy and requires the challenger to satisfy a difficult burden of proof to win. Section 5 stopped the discrimination before it could occur. While the conservative wing of the Court may stop short of invalidating Section 5 entirely, they might just declare unconstitutional the formula used to determine which jurisdictions are covered. That would seem to be a narrow, incremental ruling but it would have the same practical result as invalidating Section 5. Given the growingly fierce GOP opposition to Section 5 and the general inability of Congress to pass anything of significance, there's almost no chance Congress will adopt a new formula. Section 5 might remain "on the books" but it would be essentially a dead-letter.
eships out of the D.C. Circuit because, he argues, they just aren’t busy enough. President Obama, in his Rose Garden