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Tag: Sixth Amendment

Washington and Lee Law Review - Sixth Amendment

Development

The Right to a Public Trial in the Time of COVID-19

by Stephen E. Smith

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific circumstances. This Article proposes that in this period of pandemic, with indisputably strong government interests in public health and with few means available beyond closure to satisfy those interests, courtroom closures may be ordered by trial courts, and approved by appellate courts, almost categorically. It further suggests that there are alternative protections available that may be employed by courts to further the Sixth Amendment’s good government purposes in this time of emergency.

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Development

Representation by Counsel or Access to Defense Resources: Utah’s Single Source Approach to Indigent Defense

by John P. Gross

The State of Utah has a unique way of providing representation in criminal cases to defendants who are too poor to hire an attorney. In Utah, there is no statewide funding or supervision of indigent defense. Each county, city, or town is responsible for creating and funding their own indigent defense delivery system. Utah is one of only two states in the United States—Pennsylvania is the other—that fails to provide state funding or oversight of indigent defense. But what makes Utah truly unique is the way in which counties and municipalities are required to structure their indigent defense delivery systems. Utah’s Indigent Defense Act (IDA) mandates a single-source approach to the provision of indigent defense: indigent defendants who require additional “defense resources” to adequately prepare for trial, such as investigators or expert witnesses, must agree to be represented by the county or municipality’s “defense service provider.” A defendant who elects to retain private counsel is not entitled to additional funds from the county or municipality for any additional “defense resources.”

This “single-source approach” does not affect those defendants who are too poor to hire an attorney or those defendants wealthy enough to both retain counsel and pay the cost of whatever additional defense resources are necessary to adequately prepare for trial. But for defendants who are marginally indigent, who have the financial resources to retain counsel but are unable to afford additional “defense resources,” the single-source approach forces them to waive either their Sixth Amendment right to counsel of choice or their Fourteenth Amendment right to “the basic tools of an adequate defense.”

Defendants have the right to select an attorney who will be the architect of their defense, but they also have the right to “the raw materials integral to the building of an effective defense.” Utah’s single-source approach to indigent defense ignores the fact that these rights are two separate and distinct constitutional rights and conditions a defendant’s access to additional resources on a waiver of their right to counsel of their own choice. Now that the Supreme Court of Utah has decided that the IDA’s single-source approach is constitutional, marginally indigent defendants in Utah who wish to retain counsel, but also need additional defense resources to adequately prepare for trial, have no other option than to appeal to the Federal Courts. Whatever decision is ultimately reached by the United States Court of Appeals for the Tenth Circuit, it is abundantly clear that the IDA’s single-source approach to indigent defense is yet another legislative effort to avoid adequately funding an indigent defense system that would seem to have “no other purpose or effect than to chill the assertion of constitutional rights.”

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Article

The Irrelevance of Prisoner Fault for Excessively Delayed Executions

by Russell L. Christopher

Are decades-long delays between sentencing and execution immune from Eighth Amendment violation because they are self-inflicted by prisoners, or is such prisoner fault for delays simply irrelevant to whether a state-imposed punishment is cruel and unusual? Typically finding delay to be the state’s responsibility, Justices Breyer and Stevens argue that execution following upwards of forty years of death row incarceration is unconstitutional. Nearly every lower court disagrees, reasoning that prisoners have the choice of pursuing appellate and collateral review (with the delay that entails) or crafting the perfect remedy to any delay by submitting, as Justice Thomas has invited complaining prisoners to do, to execution. By choosing the former, any resulting delay is self-inflicted; delayed executions are prisoners’ own fault. Despite this argument’s commonsense appeal, left unexplained is how prisoner fault inoculates state-imposed punishment from Eighth Amendment violation. Lacking a rationale for the prisoner fault argument, this Article proposes the two most obvious candidates: (i) analogizing to fault attribution for delays in the Sixth Amendment speedy trial right context; and (ii) choosing post-conviction review rather than submitting to execution, prisoners waive Eighth Amendment challenge of the resulting delay. But neither is persuasive; moreover, each proposed rationale presupposes the existence of the very right that Justice Thomas and nearly every court vigorously deny: an Eighth Amendment right against excessively delayed execution. The absence of a persuasive rationale exposes prisoner fault as irrelevant and removes the primary obstacle to courts recognizing that execution following decades of death row incarceration constitutes cruel and unusual punishment.

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