Indigent Defense: The Government’s Fulfillment of a Fundamental Promise

The original Constitution, as proposed in 1787, contained almost no individual rights guarantees.  Rather, the Constitution was focused primarily on setting up a governmental system which would prove more effective than the one provided for by the flawed Articles of Confederation. 

During the ratification process, however, many of the states were opposed to the new Constitution specifically because it failed to guarantee certain fundamental individual rights.  The Federalists (who were in favor of the Constitution) argued that the Constitution protected individual rights by establishing a limited government.  The Anti-Federalists (who were opposed to the Constitution) argued that if the delegates to the Constitutional Convention had truly cared about protecting individual rights, then they would have spelled out such protections in the Constitution itself.  The Anti-Federalist feared among other things that the new Constitution would create a government which might eventually have too much power and influence over citizens’ lives.

In an effort to gain acceptance and ratification of the new constitution, the First Congress had to promise to make changes which would protect the rights of the citizens.  In 1789, James Madison made good on that promise when he proposed twelve amendments to the Constitution, ten of which were ratified by the end of 1791.  Those ten amendments are known collectively as the United States Bill of Rights.

Among those first ten amendments was a promise by the government to the people that anytime that the power of the government was used to prosecute someone for an alleged crime, the government would treat the accused person fairly. 

Specifically, the Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

While this served to protect the citizens against an overly aggressive or out-of-control federal government, there was a question as to whether state governments were also limited by the Sixth Amendment.  Since the majority of criminal prosecutions are brought by state governments, this was a big question.

Finally, in 1963, the United States Supreme Court explained that when the Sixth Amendment to the United States Constitution says that a person accused of a crime shall enjoy the right to have the assistance of counsel for his defense, that means that all persons accused of a crime must be provided the assistance of an attorney—whether that person can afford to hire an attorney themselves or not—and regardless of whether the case was brought by the federal government or by a state government.  Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963).

In other words, any time the government spends money to prosecute someone for an alleged crime, the government must also be prepared to spend money to guarantee that the accused individual is treated fairly.  That is the fulfillment of a fundamental promise made to us by our Founding Fathers.

Before anyone complains about the cost of indigent defense, perhaps that person should contemplate what type of government we would have without the Sixth Amendment.

Appeal results in published opinion

One of my recent appeals has resulted in the Third Court of Appeals siding with my arguments, and agreeing to publish the case. The case is Christopher Daniel Burke v. The State of Texas, Cause Number 03-08-0035-CR. The opinion is dated August 14, 2008.

The issue was whether a trial court could order a defendant to pay court appointed attorney fees in an amount to be determined at a later date (presumably when the attorney got around to submitting a bill). The Third Court agreed with my argument that the trial court cannot fail to set an amount. The Court held that the amount does not have to be stated in front of the defendant while he is standing there in court at his or her sentencing hearing, but it does have to set the amount at some point before the judgment becomes final.

The result of this earth-shattering opinion is that the court can file a judgment nunc pro tunc to correct the amount of court appointed attorneys fees owed by a defendant, so long as it does so before the judgment becomes final.

HTML version here. PDF version here.

Prosecutor’s comments on defendant’s courtroom conduct

Commenting on the in-courtroom demeanor of a non-testifying defendant is an impermissible comment on material not in evidence. Sledge v. State, 2004 WL 438958 (Tex. App.–-Austin 2004).