I'm a Public Defender. It's Impossible for Me to Do a Good Job Representing My Clients.

By Tina Peng, The Washington Post

10 September 15

he Orleans Public Defenders are facing a million-dollar deficit as a result of statewide budget cuts. For a small office like ours, that’s devastating. To avoid layoffs, the entire staff will see the equivalent of four unpaid weeks per year in furloughs, increased caseloads and a hiring freeze — and the submission to the Louisiana Public Defender Board of a plan to cut services to the people of New Orleans. We are already stretched thin: Our office represents 85 percent of the people charged with crimes in Orleans Parish but has an annual budget about a third the size of the district attorney’s. The American Bar Association recommends that public defenders not work on more than 150 felony cases a year. In 2014, I handled double that.

The United States accounts for less than 5 percent of the world’s population but almost 25 percent of the global prison population. The vast majority of people in prison are indigent: The Justice Department has estimated that 60 to 90 percent of criminal defendants nationwide cannot afford their own attorneys and that in 2007, U.S. public defender offices received more than 5.5 million cases.

Public defenders are the only ones who stand up for the vast majority of people charged with crimes in America, and we try to help our clients achieve justice in an often unfeeling legal system that disproportionately ensnares poor people and minorities. But the constitutional guarantee of effective representation for all has fallen short. The funding crisis is nationwide, and it is dire. When people ask how to push back against police misconduct, how to decrease the costs of mass incarceration and how to ensure fairer treatment of our nation’s most disenfranchised citizens, part of the answer lies in fully funding public defender’s offices and enabling us to represent our clients in a meaningful manner.

I went to law school to be a public defender. My frustration with our office’s persistent underfunding is not that it forces me to work long hours, represent numerous clients or make far less money than I would at a private law firm. It is that when we are constantly required to do more with less, our clients suffer.

Because we don’t have enough lawyers on staff, the week I passed the bar in 2013, I began representing people facing mandatory life sentences on felony charges. In Louisiana, people with as few as two prior nonviolent felony convictions can face mandatory life imprisonment on charges as minor as possession of a syringe containing heroin residue or, until recently, possession of a single joint. Defendants who cannot afford to make bond can sit in jail for 60 days while the district attorney decides whether to arraign them. An unconstitutionally high caseload means that I often see my new clients only once in those two months. It means that I miss filing important motions, that I am unable to properly prepare for every trial, that I have serious conversations about plea bargains with my clients in open court because I did not spend enough time conducting confidential visits with them in jail. I plead some of my clients to felony convictions on the day I meet them. If I don’t follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months.

Local constraints exacerbate these problems. Saying it lacks resources to provide adequate mental health treatment in its jails, the Orleans Parish Sheriff’s Office has moved our clients with high mental health needs to a prison more than an hour away. Limited visitation hours make it almost impossible to see clients there on days we need to be in court. And recent attrition, coupled with the hiring freeze, has rendered many lawyers overwhelmed by cases transferred to them on top of their existing ones. One attorney whose transferred client was jailed on a bail-jumping charge did not have a chance to look at the file for close to a month, when the client’s next court date approached. At that point, he realized that the client had never been served to appear for the court date on which he allegedly jumped bail. The attorney immediately and successfully moved for the judge to release the client. By then, though, “he had a newborn baby he didn’t see, because I didn’t look at the case for a month,” the attorney said.

For other clients, my office considers how serious their cases are before deciding how many resources to devote to them. We have only nine investigators to handle more than 18,000 felony and misdemeanor cases each year. One investigator describes being so overwhelmed that he is often unable to canvass for relevant surveillance footage until it has already been deleted. Another investigator said that recently, in a span of a week and a half, she was assigned three cases carrying sentences of mandatory life without parole. A year ago, she would have received one such assignment a month. Those cases all had preliminary examinations — the only pre-indictment hearing at which the client’s attorney can cross-examine police officers — in the same week. Working around the clock, the investigator completed full investigations for two of those cases. For the third, she was able only to knock on one witness’s door twice.

We similarly have to ration our social work and client welfare services. Cutbacks mean we are limited in our ability to gather detailed information about our clients’ personal circumstances and histories to present to prosecutors, which could lead to more individualized plea agreements. We are also hobbled in our capacity to make sure critical services are delivered to our clients in jail.

Unfortunately, budget cuts and a spiraling workload are not unique to Orleans Parish. Funding problems threaten poor people’s right to counsel across America.

In June, the American Civil Liberties Union sued Idaho, claiming that the state has failed to fund or improve its broken public defense system and has deprived indigent residents of their Sixth Amendment right to adequate legal representation. Indigent defendants in most counties there have no lawyers at their first court appearances, where bail is set and pleas of guilty or not guilty are entered, according to the lawsuit. Many counties also pay attorneys who accept public defense contracts a flat fee, regardless of the number or seriousness of the cases each lawyer handles. Some public defenders in Idaho carry caseloads that are double national standards. And because public defenders are often allowed to continue their own private practices, there is little incentive for them to spend much time on their appointed clients, or to pay for investigations or expert witnesses in those cases, a common problem everywhere.

None of that is constitutionally adequate, says Jason Williamson, one of the ACLU’s lead attorneys in the Idaho lawsuit. “You need to do more than have a pulse,” he says. “You need to actually litigate these cases.”

Some public defender’s offices have contemplated the drastic option of turning down appointments. In Louisiana, for example, offices may start putting lower-priority clients — people who are out of jail or have less-complicated cases — on a waiting list for representation, says James Dixon, the state public defender. That would mean defendants would have to come to court without lawyers to argue, file motions, or conduct hearings or trials for them, effectively bringing their cases to a halt.

Courts have mostly supported this option. In 2013, the Florida Supreme Court ruled that public defender’s offices can apply to turn down future appointments when their caseloads rise so high that they cannot constitutionally represent all their clients. At the time, public defenders in Miami were handling 400 felony cases each, and some often had up to 50 cases set for trial in a week. Missouri’s Supreme Court in 2012 also upheld the ability of public defenders in that state to decline appointments if they were too far over capacity. A few months later, most Missouri public defender’s offices stopped accepting cases for one to two months, according to State Public Defender Michael Barrett. If the courts did not appoint private lawyers to take on cases for free, overflow defendants had no representation at all until the public defenders were able to start accepting appointments again.

In Louisiana, one of our biggest problems is unstable funding: This is the only state in America that tries to fund most public defense services with fees associated with traffic tickets, parish by parish. But other states with steadier funding are seeing even the status quo come under attack. Since 1992, Tennessee counties have been required to raise public defenders’ budgets by 75 percent of any increase in prosecutors’ budgets. This year, a bill requested by the state’s district attorneys would repeal that law. “It’s an issue of fairness,” says Mark Stephens, the Knox County district public defender. “It frustrates me that they can’t understand that they need money and we need money.”

Ultimately, it’s easy to forget what we’re talking about when we talk about the criminal justice system. I’ve been asked by my family members, my friends and my hairdresser why I represent criminals. The answer is that I, and other public defenders, don’t represent criminals. We represent poor people who are facing criminal charges — charges on which they are presumed innocent until proven guilty in court. We represent members of our communities who have a right to real and meaningful legal representation, even if they are poor. My clients, like the millions of other people in the United States who are currently represented by public defenders, deserve better.

Israel Lobby Stops Iran's Help on Syria

By Gareth Porter, Consortium News

10 September 15

Despite the worsening Mideast crisis, President Obama can’t escape the tight policy constraints imposed by neocon thinking. The obvious move to work with Iran to save Syria from an Islamic State or Al Qaeda victory is blocked by the influence of the Israel lobby, writes Gareth Porter for Middle East Eye.

y the logic of geopolitics, the United States and Iran ought to be cooperating to contain and weaken the Islamic State (also known as ISIS, ISIL or Daesh). Both countries have declared that the group is a very serious threat to their own security and to the security of the entire Middle East.

Indeed, it has become evident to all – besides those who are determined for their own reasons not to see it – that the Islamic State’s intent on setting up an Islamic caliphate has the potential to dissolve the basic international order that has governed the Middle East for a century. So the logic of Iran-U.S. strategic cooperation against Daesh (as the group is referred to in Arabic) is no less compelling than was the logic of the Nixon administration in reaching an understanding with Maoist China to counter-balance their common Soviet adversary.

But that logical development isn’t happening, contrary to the fears of some and hopes of others, and it isn’t likely to happen any time soon, despite the nuclear agreement and the Obama administration’s success in beating back the unprecedented campaign by the Israel lobby to defeat it. The reason is that it is not the logic of geopolitics, in the end, that is governing the problem.

It isn’t the Iranian side of the equation that is failing to follow the geopolitical logic. Contrary to the constantly reiterated propaganda theme of the anti-Iran forces in the region and in the United States that Iran’s ruling elite simply wants “death to America,” Iran has publicly signaled to the Obama administration repeatedly that it was open to such cooperation. But the Obama administration has refused to reciprocate, for the simple reason that it is not capable of formulating a regional policy on the basis of an objective analysis of strategic interests.

To understand the why the international politics of the Middle East are now so profoundly dysfunctional, one must begin with the contrasting modes of Iranian and American foreign policymaking. The dramatic differences between the two approaches to defining interests and policy toward the region has produced a fundamental mismatch between the U.S. and Iranian ways of responding to the rapidly deteriorating situation in the Middle East.

For Iran, geopolitics does indeed shape policy toward the region and the U.S. Iran, as a middle power that is vulnerable to threats from enemies in the region, cannot afford to base its policies on anything but a realistic appraisal of the threats and opportunities. Specifically, Iran has been facing explicit threats of attack from both Israel and the United States since the mid- to late-1990s. Now Daesh and Al Qaeda are on the offensive in Iraq and Syria, threatening the twin pillars of Iran’s security strategy.

Under those circumstances, Iranian officials know that they must take advantage of any possible opening to improve relations with the United States. Iranian officials have made it clear that they are prepared to take advantage of any possibility – even if slight – of reaching an historic agreement with the United States that could lead to strategic understanding on the threat from Daesh.

One of the conceits of the U.S. political and national security elite is that the real power in the Islamic Republic is held by Supreme Leader Ali Khamenei and the Revolutionary Guard leadership, and that their interests lie in continuing hostility toward the United States. But that convenient belief is belied by Khamenei’s own public position.

On April 9, Khamenei clearly articulated the view that Iran is ready to cooperate with the United States on regional issues if the U.S. would indicate some willingness to change its policy. In the context of the negotiations on the nuclear issue, Khamenei declared: “If the counterpart stops its bad behavior, one could expand this experience to other issues, but if the counterpart continues its bad behavior, it would only reinforce our experiences of the past and distrust in the United States.”

Iran has made it clear that it is prepared to think creatively and flexibly about a modus vivendi with the United States. Last December, the Secretary of the Supreme National Security Council, Ali Shamkhani, recognized that the United States was unlikely to cooperate explicitly with Iran, because of its continued support for Israel. But he suggested that a change in U.S. policy toward Israel was “not impossible” and then raised the possibility of something less than explicit cooperation.

“The two can behave in a way that they do not use their energy against each other,” he said, and he called the nuclear agreement “crucial in this regard.”

In the final round of negotiations on the nuclear agreement from late June to mid-July, Iranian officials in Vienna confirmed to me that Iran and the United States had not discussed regional issues during the nearly 18 months of negotiations. But senior Iranian officials were still holding out some hope, however slight, that the Obama administration might soften its hostility toward Iran sufficiently to make at least tacit cooperation possible once the agreement was reached and approved by Congress.

The Iranians were basing their hope on an analysis of the objective situation in the region. One official told me on July2: “The United States doesn’t have any reason to trust its allies in regard to Daesh.” He was alluding to the well-established fact that major funding for the terrorist organization had come from Gulf Sunni regimes and that they were clearly more interested in taking down the Assad regime than in stopping Daesh. But the same official also said: “Some in the United States may see Daesh as a source of pressure on the Syrian regime.”

But while Iran acknowledges the need for a change in U.S.-Iran relations to ease regional security threats, the United States has not made a move toward any such acknowledgment. U.S. policy toward the Middle East has long been defined primarily not by threats originating in the region but by much more potent domestic political interests, both electoral and bureaucratic.

The power of the Israel lobby in Washington, primarily but not exclusively over Congress, is well known, and that has imposed a rigid political and legal framework of hostility toward Iran on the U.S. government for two decades, beginning with a complete trade embargo that remains in place and creates major obstacles to any shift in policy.

What is seldom acknowledged, however, is that the interests of the Pentagon, the CIA and the National Security Agency have become tightly intertwined with those of the anti-Iran coalition in the Middle East. A set of mutually reinforcing bureaucratic interests now binds U.S. policy to an alliance structure and military and intelligence programs in the Middle East that have come to replace objective analysis of regional realities in determining U.S. policy.

The first is the imperative for the U.S. military of holding on to U.S. air, naval and land bases in the region, all but one of which are located in states that are part of the anti-Iran coalition. Continuing long-term control of those bases is the coin of the realm for U.S. military institutions that trumps possible competing policy concerns.

Similarly, arms sales to Saudi Arabia, the other Gulf sheikhdoms and Israel are a primary interest of the Pentagon, its arms contractor partners and its congressional allies. And the determination of that same set of domestic interests to continue the bonanza or research-and-development spending on a missile defense system requires a continued identification of Iran as primary regional adversary and threat.

Finally, the U.S. national security state has never given up its ambition to regain primary influence in Iraq, despite the political legacy of the Iraq War and a Shia-dominated regime in the country. That quite unrealistic interest reduces still further the space for any cooperation with Iran in the region.

The interaction of all those dynamics leaves the Obama administration in a position where it cannot adopt a real Middle East strategy that reflects the gravity of the current situation. The paradoxical result is that, instead of responding to the regional crisis by applying creative diplomacy involving an opening to Iran, the Obama administration is reduced to maneuvering within the tight constraints imposed by the dominant political interests in cleaving to the status quo.

Gareth Porter is an independent investigative journalist and winner of the 2012 Gellhorn Prize for journalism. He is the author of the newly published Manufactured Crisis: The Untold Story of the Iran Nuclear Scare. [This article first appeared at Middle East Eye, http://www.middleeasteye.net/columns/why-us-and-iran-aren-t-cooperating-against-daesh-2143749800#sthash.mItYSOza.dpuf