Initiative's Projects and Activities
The Initiative is working on a two-year grant from the U.S. Department of Justice to work for public defense improvement in Utah and Mississippi. The Initiative is working with The Sixth Amendment Center on this project, which includes an assessment of the defense services in eight counties in Utah
Misdemeanor Right to Counsel Project
The Initiative has received three grants from the Open Society Foundation to work on improving access to counsel in misdemeanors in Washington, Kentucky, New Hampshire, and South Carolina. The Initiative worked to implement the right to counsel in misdemeanor courts. The Initiative helped to persuade courts to provide counsel to eligible accused persons, advocated for alternatives to traditional prosecution that requires counsel, and educated lawyers, judges, the public, and local government officials about the problem and demonstraded possible solutions.
The Initiative has had a direct impact in persuading courts to change and in other places has acted as a catalyst for reform efforts. The Initiative has used a combination of approaches, including direct advocacy with judges, state and national training of defenders and other interested lawyers and judges, expert support of litigation, an amicus brief, public education, court rule development, responding to media requests, and filing a judicial conduct complaint.
Comparing the rate of appointment of counsel from before this project began to today, thousands of people are receiving the assistance of counsel who would not have under previous practice.
2011 and 2012
Professor Boruchowitz helped to organize a conference at the Charleston School of Law on June 15, 2012, on Argersinger Undone - The Challenges in Implementing the Right to Counsel in Misdemeanor Courts in South Carolina. His presentation on The Right to Counsel: Why It's Important and How It Serves the Interests of all the Stakeholders in the Criminal Justice System is available here. More than 60 lawyers, judges, and students attended.
Professor Boruchowitz worked with the ACLU of South Carolina and two lawyers in private practice to file an amicus brief in an appeal from a Hilton Head Island Municipal Court trial in which the defendant did not receive a public defender despite a formal written request. The appellate court reversed.
Professor Boruchowitz worked with the Jefferson County, Kentucky, Public Defender and the Kentucky Department of Public Advocacy to present a seminar in Louisville, Kentucky, on January 27, 2012, on "The Right to Counsel: Why It's Important and How It Serves the Interests of all the Stakeholders in the Criminal Justice System."
Professor Boruchowitz filed a declaration in support of a petition for habeas corpus in the New Hampshire Supreme Court. The declaration outlines the failure of the Manchester District Court to comply with requirements to provide counsel at arraignments in misdemeanor hearings. The writ was denied without prejudice and the petitioners brought a writ of mandamus in the state Supreme Court. The Court affirmed the trial court on March 16, 2012, finding that the plaintiffs did not have standing to assert the rights of individuals other than themselves and that they had an adequate appeal remedy and mandamus relief was not available to them. The Court concluded, however, with the following paragraph:
We note that the parties do not dispute the well-established right of indigent defendants to representation by appointed counsel at arraignment. Given the potential systemic procedural issues involved in assuring the availability of such representation, we are referring this matter to the Supreme Court's Advisory Committee on Rules.
New Hampshire is proceeding with a rule-making process and the Initiative has offered some suggestions on the drafts.
On June 11, 2010, the Korematsu Center and the Defender Initiative co-sponsored a CLE on "Ethics and Effectiveness of Practice in Treatment Courts" at the Seattle University School of Law.
As part of this ongoing work, The Initiative hosted a continuing education seminar on November 6, 2009 entitled, "Why there should be lawyers in misdemeanor first appearances: What they should do for their clients and how to get resources to hire them." The event was well attended and evaluations were strong. Powerpoint presentations by Prof. Boruchowitz and Sophia Byrd McSherry are available to reference.
The first project of the initiative was a joint effort with the National Association of Criminal Defense Lawyers to conduct a comprehensive investigation of misdemeanor public defense in the United States. As part of the project, The Initiative hosted a conference at the Open Society Institute of New York in May, 2008, and a second conference at Seattle University School of Law July 11, 2008. The project resulted in a report, "Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts," that found that misdemeanor courts across the country are wasting money and eroding the rights of the accused (See news release on the report).