Unaccompanied minors forced to defend themselves in court

America is a special place where we make 6-year-olds who can’t speak English and don’t understand the concept of international borders represent themselves in court because the right to a court-appointed attorney does not include immigration court and they were abandoned by smugglers without adult accompaniment in the country.

Juan David Gonzalez was 6 years old. He was in the court, which would decide whether to expel him from the country, without a parent — and also without a lawyer.
The young people, mostly from Mexico and Central America, ride to the border on the roofs of freight trains or the backs of buses. They cross the Rio Grande on inner tubes, or hike for days through extremes of heat and chill in Arizona deserts. The smallest children, like Juan, are most often brought by smugglers.

The youths pose troubling difficulties for American immigration courts. Unlike in criminal or family courts, in immigration court there is no right to a lawyer paid by the government for people who cannot afford one. And immigration law contains few protections specifically for minors. So even a child as young as Juan has to go before an immigration judge — confronting a prosecutor and trying to fight deportation — without the help of a lawyer, if one is not privately provided.

So far this year, more than 11,000 unaccompanied minors have been placed in deportation proceedings, nearly double last year’s numbers.
Judge Achtsam postponed Juan’s proceedings, but he warned the boy and other minors in the courtroom.

“If you do not have a lawyer,” the judge said, “you need to be ready to speak for yourselves at your next hearing.”

Juan left holding the social worker’s hand, grinning proudly when she told him he had done well. But his case was just beginning. Most likely it would end with a final order for his deportation.

Supreme Court says cell searches require warrants

Finally a decent ruling on search & seizure from the Roberts Court: Police cannot search your phones during an arrest without a warrant anymore.

The justices ruled unanimously that police almost always need a warrant to go through the cellphone of someone they arrest. Because phones today hold such vast and personal stores of information, the court held, searching them without a warrant is different from going through, say, the glove compartment of an arrestee.


Civil libertarians hailed the Supreme Court decision on police searches of cellphones as a landmark for privacy in the digital age — but the cops themselves say it could tie their hands during investigations.

oh boohoo. no1curr

Unfortunately this is the tip of the iceberg from the crowd that believes everything is justified for “security,” no matter how proportional. That disturbing attitude was captured in a quote from Jim Pasco, executive director of the Fraternal Order of Police, the country’s largest police union:

“There’s more at stake here than due process.”

I mean, I’m not sure why we’re even bothering with law enforcement, national defense, and democracy if we’ve reached a point where due process is a minor, irrelevant point or nothing more than an inconvenience. It’s kind of part of the point of the U.S. system.

So, put a screen lock on your phone with a strong PIN or password, because those enforcers with a less than consistent relationship to the rule of law might take liberties even after this ruling. Other than that, best of luck.

At least the Supreme Court is on your side on this one. Until you need to find a lawyer to back up your position on that, at which point you had better be wealthy enough to afford a good one, because the Supremes made the public defender system optional if states don’t feel like funding it enough to function.

Supreme Court still chipping away at Right to Counsel

The U.S. Supreme Court issued two more bad rulings today. One of them involved procedures for obtaining legal counsel. Chief Justice Roberts seemed really bummed out (see this detailed analysis from The Atlantic’s Andrew Cohen) that the Court’s ruling — on freezing assets of defendants before trial — might make it harder for super-wealthy suspected criminals to hire the best representation. But as Cohen observes, Roberts doesn’t seem too bothered by the fact that the ruling has little bearing on people who can’t afford the best anyway — a problem he has helped exacerbate recently, as I discussed in depth in December.

Supreme Court: 6th Amendment optional again

First an overview — here’s the full text of the 6th Amendment to the U.S. Constitution (emphasis added to relevant sections for this post):

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 wherein 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.

The U.S. Senate website handily provides a plain-English summary of the modern rights derived from this amendment. One of them is that:

Defendants in criminal cases are entitled to public trials that follow relatively soon after initiation of the charges.

This is intended to make sure that people aren’t jailed indefinitely without charges or a trial, as well as to minimize the risk of keeping innocent people in jail for years before a jury can get them freed.

The other key right to note is the right to have legal counsel help a defendant with his or her defense, a right which was extended to apply to state cases through the 14th Amendment (which imposes the U.S. Bill of Rights onto every state).

The Supreme Court first applied this latter part to state cases in a (possibly inadvertently) narrow ruling in Powell v. Alabama (1932), in which they found that in capital cases — ones where the death penalty was on the table — defendants must have access to their lawyers to plan a defense.

But defendants in non-capital cases were not really covered in that opinion, and low-income defendants in general were left to fend for themselves in obtaining counsel until a much later decision in Gideon v. Wainwright (1963), the subject of the film “Gideon’s Trumpet.” In that case, the court ruled that states had to provide (i.e. pay for) legal counsel for those who did not have their own lawyers, in order to fulfill the spirit of the 6th Amendment requirement, even if they weren’t actively denying access to counsel.

With everything that was going on earlier this year, I completely missed a horrid new Supreme Court ruling which functionally wipes out the public defender right found in Gideon v. Wainwright — as well as the right to a speedy trial. Granted, the public defender system wasn’t close to being a smoothly operating system to begin with, but the Supreme Court effectively announced there won’t be consequences for blatant violations, so it’s just up to the good will of the local governments to follow through.

In this case, a man in Louisiana was not given a trial for seven years, which is by no means a “speedy trial.” When he sued, the state admitted in the lower courts that the reason for the delay was on them and their failure to adequately fund and provide him legal representation. Later, during appeals, they tried to retract this admission and lay the fault on the defendant, saying he had repeatedly delayed the trial. Seven years is an awfully long time, and it’s hard to imagine a defendant trying to delay his own trial for that long — unless perhaps he understood that it was the only way to ensure he actually received some kind of representation.

Nevertheless, the Supreme Court said the State of Louisiana didn’t need to provide any compensation for the defendant for failure to provide a speedy trial and didn’t really punish it for failure to shore up its clearly inadequate public defender system.

And so it was that five justices decided this year that there don’t really need to be consequences for states who don’t execute the requirements laid forth in Gideon v. Wainwright. And that’s a problem — because the whole point of that decision was that failure to provide legal counsel to a defendant who doesn’t have his own, due to circumstance, translates in practical terms to failure to uphold his 6th Amendment right “to have the Assistance of Counsel for his defence.”

So now, after this ruling, what incentive do states have to maintain their public defender systems? Not much. Because there are also no consequences now for failing to provide a speedy trial, states can maintain the illusion of not denying access to counsel by just indefinitely postponing a trial.

The only likely consequence of that is the cost of imprisoning the defendants. But most states probably figure these people would go to prison anyway after their almost inevitable plea bargains, arranged by their hurried public defenders, and so that’s a wash. Plus, given the number of states heavily reliant on for-profit prisons and detention centers — who provide a lot of campaign cash to judges and legislators — there’s even less incentive to speed up the process.

I miss the old Supreme Court rulings when they still understood the difference between a literal interpretation of text and an interpretation that factors in functionality and real-world practice. Without a public defender, if you’re poor and can’t afford a lawyer, you don’t get “Assistance of Counsel.” That’s the real-world reason we have public defenders now in state cases.

Think of the moment on all those crime procedural shows when the low-income suspect (whether guilty or innocent) clams up during interrogation and asks for a lawyer. Earlier in the episode, of course, we probably saw the person get a warning (during their arrest) that they have the right to an attorney — and that if they cannot afford one, one will be appointed for them. So, on paper, we know and the character knows that they can ask for an attorney to be present during questioning. At that point, the detective character will usually say something about how the defendant should just answer the questions now to save the time and trouble of waiting for hours before the public defender shows up.

Because, off paper, this is how it really works. Nobody wants to sit around silently in an interrogation room for hours, so they start talking without their constitutionally-guaranteed counsel assisting them. Even if they’re actually innocent, they will probably say something that can (and will) be used against them in a court of law.

Now imagine that instead of it taking a few hours to see a lawyer, the public defender doesn’t show up to provide assistance until seven YEARS later. That’s not a 44 minute TV episode. This is the problem the country faces today. If you can’t afford your own lawyer, that’s just too bad for you, because it’s totally luck of the draw on whether and how fast you’ll ever see one.

The system needs to work better than this, and there ought to be consequences for states for being so lax about upholding their end of the deal that it doesn’t do the job it was created to do. But the Supreme Court doesn’t see it that way. As long as you eventually get a lawyer, even years later, a majority of the Supreme Court feels that your right to counsel has been met. And don’t even ask about a speedy trial. If you had wanted that, you should have waived your right to counsel and pled guilty.