Friday January 18, 2019 Legislative Updates!

MO [R] HB 42 This bill is sponsored by Representative Ingrid Burnett (D) and states that if a child waives his or her right to counsel, such waiver shall be made in open court and be recorded and in writing. In determining whether a child has knowingly, intelligently, and voluntarily waived his or her right to counsel, the court shall look to the totality of the circumstances, as specified in the bill. If a child waives his or her right to counsel, the waiver shall only apply to that particular proceeding. The bill also specifies certain proceedings in which a child's right to counsel shall not be waived. The bill is currently pre-filed as of 12/03/18, and the text of the bill can be found here.

NV [R] AB 81 This bill is currently sponsored by the Assembly Committee on Judiciary. The bill does several things, including (1) creates the Office of Indigent Defense Services within the Office of the Governor to oversee criminal defense services provided to indigent persons in the state, (2) creates the Board on Indigent Defense Services, consisting of various appointed persons to oversee the Executive Director and establish certain policies, (3) requires the Board to establish the maximum amount a county may be required to pay for the provision of indigent defense services, (4) authorizes the Board to adopt regulations governing indigent defense services, (5) provides for the transfer of responsibility for the provision of indigent defense services from a county to the State Public Defender in certain circumstances, and (6) allows such services to be transferred back to the county in certain circumstances. The bill is currently pre-filed as of 11-26-18, and the text can be found here.

OH [R] HB 781, OH [R] SB 345 Both of these bills share the same text and goals. The House Bill is currently sponsored by Representative Shane Wilkin (R). The Senate Bill is currently sponsored by Senator Bob Peterson (R). The bills create two separate pools of money within the Treasury, which are to be used for the deferment of costs associated with capital cases. One is to be used by the county prosecutor, while the other is to be used by the state public defender. The funds will be controlled by the attorney general and distributed to pay bills after approval by the court. Additional funds for each capital case will be considered under a joint request by the prosecutor and public defender. When the fund is out of money, the county and the state public defender will be responsible for their own costs. The House Bill was introduced on 12-06-18, and the text can be found here. The Senate Bill was introduced on 12-10-18 and the text can be found here.

TX [R] HB 221 This bill is currently sponsored by Representative Barbara Gervin-Hawkins (D). The bill strengthens the requirements for public defenders who will be providing representation in certain capital cases. The bill would require that public defenders in certain capital cases have experience in death penalty cases, including experience in the penalty phase of the trial or appeal, the use of mental or forensic expert witnesses, and the use of mitigating evidence at the penalty portion of the trial or appeal. The bill was filed as of 11-12-18, and the text can be found here.

UT [R] SB 32 This bill is currently sponsored by Senator Todd Weiler (R). The bill modifies provisions related to indigent defense, including a minor’s right to counsel, new legal definitions of who qualifies as indigent, methods by which defense counsel will be selected, how counsel will be paid, and reforms for how Indigent Defense Fund Board members are chosen and for how long a term should be. The bill has been sent to relevant state agencies for fiscal input as of 12-21-18, and the text can be found here.

Friday October 19, 2018: Consortium Member Updates!

Albert Cobarrubias Justice Project: ( Mother’s in Charge, a partner organization of Albert Cobarrubias Justice Project, will be opening its first participatory defense hub in Philadelphia. The program supports families of those in the criminal justice system and give them resources for interacting with the courts and corrections. YouTube link to description of the program included:

National Association of Public Defenders: ( The National Association of Public Defenders will host a webinar entitled Theories & Themes: How to Win Your Case on October 30th. This webinar will discuss how to develop a strong theory of defense and how to effectively use that theory from investigation through trial so that you can win your case. The Seminar will be led by Caroletta Lepingwell of the Texas Public Defender’s Office. Register at the following link:

National Legal Aid and Defender Association: ( The National Legal Aid and Defender Association is holding their annual conference in Houston, Texas. The annual conference will have a variety of workshops pertaining to legal aid and public defense, including one on Friday November 2 from 4:15-5:45 with JPO Director Kim Ball and R2C Project Director Genevieve Citrin Ray on R2C. Dates are October 31st to November 3rd, Link:

Texas Fair Defense Project: ( The Texas Fair Defense Project, alongside other civil rights organizations, was successful in Dallas County stopping the use of automatically using money bail to detain people arrested for misdemeanors and felonies. A federal judge ruled the practice unconstitutional on the grounds that it unfairly targeted those defendants with little means. Link:

The Public Defender Service for the District of Columbia: ( The Public Defender Service for the District of Columbia (PDS) will be running the PDS-CJA Appellate Consultation and Assistance Program from now until March 2019. This program will have James Klein, PDS Appellate Training Director, available full time to consult with members of the CJA Appellate Panel to offer assistance in writing of their briefs. If you would like a consult, please contact James Klein at or (202) 824-2389. Announcement is at the following link:

Overview of the R2C Conference Presentation: The Importance and Benefits of Counsel at First Appearance

On August 22, Kim Ball, research professor and director of the Justice Programs Office at American University, representing the Right to Counsel (R2C) National Campaign, moderated a panel at the National Association of Pretrial Services Agencies annual conference titled The Importance and Benefits of Counsel at First Appearance. R2C consortium member, The National Association of Counties, was instrumental in helping plan, organize, and put on this presentation. Fellow panelists included D. Ashley Pennington of the Public Defender for Charleston and Berkeley Counties and Geoff Burkhart, executive director of Texas Indigent Defense Commission, and attendees included judges, federal and state pretrial associates, defense attorneys, and local policymakers interested in learning about how they can help ensure the Sixth Amendment right to counsel.

The panel’s main purpose was to inform the audience about how important the early entry of counsel is and that it is essential to ensuring pretrial liberty. Professor Ball opened the presentation talking about two research projects, one from the Baltimore City Lawyers at Bail (LAB) project and one from the Arnold Foundation. Results from a study produced by the LAB project show that counsel at first appearance supports pretrial liberty, saves money, and promotes public safety. This study found that as compared to someone without counsel, a person with counsel at bail is more likely to be released on the same day as arrest; more likely to be released on one’s own recognizance; and more likely to have the bail amount reduced. All of this resulted in fewer individuals using jail beds, which saved money and came at no additional risk to the community. Further evidence of the importance of counsel at first appearance can be found in the Arnold Foundation’s report about low- and moderate-risk defendants detained before trial in Kentucky. This study shows that when defendants are held the entire time pretrial versus defendants released at some point prior to trial, they are three times more likely to be sentenced to prison and they receive two times longer prison sentences. Together, these two studies show that early representation can reduce prison costs and increase release rates for deserving defendants.

The final study that Professor Ball discussed was from the Alameda County’s Innovative Solutions in Public Defense Initiative, which supports new projects between practitioners and researchers. Through this partnership with the National Legal Aid and Defender Association, a R2C consortium member, Alameda County implemented counsel at first appearance. Preliminary results from evaluating this program show positive improvement in release on own recognizance (ROR) rates, increasing from a 2 percent release rate to 10 percent release rate. The full report about Almeda County will be released soon. Most of the panel attendees were not familiar with these research studies, underscoring the importance of having this presentation to share these important findings.

Following Professor Ball’s overview, Mr. Pennington discussed Charleston’s efforts to improve pretrial liberty, providing the defender’s perspective. Charleston is part of the MacArthur’s Safety and Justice Challenge. As part of the initiative and with the input of all criminal justice system actors, including defense, Charleston added risk assessment at their bond court hearings. Because of this change, there was an increase in general session personal recognizance (PR) bonds of 29 percent and an increase of 22 percent in summary courts. Following, Mr. Burkhart discussed the variance in public defense delivery systems in Texas, pointing out that over 2/3 of Texas counties are rural, which presents a challenge when providing counsel at first appearance. He spoke specifically about three countries in Texas (Bexar County, Cameron County, and Harris County) that have added counsel at first appearance and highlighted that as a result of representation at first appearance, all counties have seen more individuals on pretrial release with better compliance with release conditions. First appearance is critical to securing pretrial release, promoting attorney-client relationships, and achieving just case outcomes.

The audience soaked in the research and specific county examples and were engaged, asking questions about how to implement counsel at first appearance in their countries.

For more information on the session or help with counsel at first appearance, please contact


Douglas L. Colbert et al, “Do Attorneys Really Matter? The Empirical and Legal Case for Representation at Bail”, 23 Cardozo L. Rev. 1719 (2002)

Pretrial Criminal Justice Research Summary, Arnold Foundation (2013) and Lowenkamp, C.T., VanNostrand, M., & Holsinger, A., Laura and John Arnold Foundation, “The Hidden Costs of Pretrial Detention” (2013)

Let’s Talk about the Constitution

By Kim Ball*

Do you remember where you learned about the guarantees of our Constitution? Was it in sixth grade civics class like it was for me? My daughter Claire, who is 11, is going into sixth grade this fall, and I’m curious about whether or not she’s going to be taught about the Constitution and, specifically, about the Sixth Amendment’s right to counsel.

When I was doing trial work in Arkansas in the ‘90s, people said that the average education level of a jury was about eighth grade. Couple that with the findings in Americans’ Views on Public Defenders and the Right to Counsel, the public opinion polling effort my office conducted, that showed more than half of focus group participants did not know that the right to counsel is in the Constitution. It also showed that among lawmakers and the public alike, there appears to be a general lack of awareness about what the right to counsel means and the reality that it is not being upheld as directed by the Constitution and the landmark 1963 Supreme Court case Gideon v. Wainwright.

Last fall the Annenberg Public Policy Center at the University of Pennsylvania, released the findings from its annual national survey about the Constitution that showed that Americans are poorly informed about basic constitutional provisions. Thirty-seven percent of respondents could not name any rights associated with the First Amendment without prompting, and far fewer could name First Amendment rights other than freedom of speech—and that’s the First Amendment! It is perhaps not surprising then that we found so few people know about the Sixth Amendment and its right to counsel in our research.

As a former assistant prosecutor, I know the power structures in the criminal justice system are not balanced between the state and the defendant. Coming out of law school, I thought the system was supposed to be fair and just. So, imagine my surprise when I witnessed many bail hearings where defendants didn’t have legal representation. 

I’ve traveled to a lot of courts in this country throughout my career, seeing well-meaning judges and prosecutors tipping the balance of power because they were short on time and resources and didn’t have a clear understanding of constitutional law. Knowing that all of us in the criminal justice system want a fair and just outcome, I started the Right to Counsel (R2C) National Campaign with friends and colleagues to raise awareness about the need for courthouses all over the country to look at how their policies and procedures are playing out in real time when it comes to ensuring the right to counsel. My experience told me we needed a public awareness campaign, because we’ve gotten off track when it comes to ensuring the Sixth Amendment right to counsel, and part of the reason for this is a basic lack of information.

Advancing the R2C National Campaign has been harder than I expected. My good friend Norm Reimer, the executive director of the National Association of Criminal Defense Lawyers, told me it would be hard; he didn’t say it would be this hard! One of the biggest challenges that R2C needs to overcome is the lack of understanding that the right to counsel is a constitutional right. As confirmed in Americans’ Views, not all Americans know that guaranteeing every person accused of a crime has access to a competent lawyer is a fundamental American right written into our Constitution and that this right is being denied all across the country.

There are many reasons this issue has been swept under the rug and not garnered the attention it should, and I’m asking you to stand with me and take a good hard look at what’s going on. And not just at trial stages but also at bail hearings and first appearances where many defendants don’t have legal representation. Research shows that without counsel at these stages, defendants face more jail and prison time and have higher recidivism rates. Yes, our dockets are long and crowded, and many citizens that need mental health services are ending up in jails and courtrooms. But that’s not a reason for us to forget about the Constitution. Instead, it’s another reason to stand up and work to ensure that all courts provide and protect our right to counsel—a liberty that’s enshrined in the Constitution. 

As my daughter heads into sixth grade, I can’t help but feel strongly that we need to do a better job educating our youth about the Constitution. We need to make sure that they learn how important our constitutional rights are and what they are. We must not forget the Sixth Amendment and its right to counsel. The right to counsel is the cornerstone to protecting our liberty—and all other Six Amendment rights—in the criminal justice system.

I’m now inspired to give a presentation at Claire’s school next year about the Sixth Amendment. Join me! Let’s pledge to educate our youth on this important issue. I’ll put together a presentation on the Sixth Amendment that we can all use at middle school and will post it on our website at the beginning of the school year. Stay tuned, and once it is ready, take it and present it at your local school.

Together, let’s become more informed and make sure our youth are informed citizens that know their rights and can identify when those rights are being denied. Let’s increase the baseline of knowledge and ensure that by the time my daughter is my age, polling will find the majority of Americans know their constitutional rights, and there will no longer be a Right to Counsel National Campaign, because it’s no longer needed.

Kim Ball is the executive director of the Justice Programs Office


Gideon: Looking Back, Leaping Forward

By Zoë Root* This March, the Right to Counsel National Campaign (R2C) has embraced the 55th anniversary of Gideon v. Wainwright as an opportunity to reflect on what quality public defense looks like, the impact it has on individual clients’ lives, and the work that needs to be done to fully realize the intent of the Gideon decision.

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Gideon Is Not a Promise but a Constitutional Mandate

By Judge Brian MacKenzie* In Gideon vs. Wainwright the Supreme Court announced that the right to an attorney was both “fundamental and essential” to rule of law under the Sixth Amendment to our Constitution, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense."

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This Is Gideon

By Genevieve Citrin Ray*; If you were arrested and charged with a crime, would you know what to do? If you were brought into a courtroom in handcuffs, told to stand straight, look up at a judge, and listen to a prosecutor dressed in a suit make statements about your character and accusing you of a crime, would you know how to react? What if you had someone next to you, who was familiar with the process and the court actors, telling you it was okay and that s/he was there to support and advocate for you, would that change how you felt? That is the power of Gideon.

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Quid Pro Quo: New Initiative Pairs Young Private Attorney’s Seeking Experience with Public Defenders

Quid Pro Quo: New Initiative Pairs Young Private Attorney’s Seeking Experience with Public Defenders

By Genevieve Citrin*; Last year, Missouri gained the national spotlight when the director of the Missouri State Public Defender’s Office, Michael Barrett, assigned Governor Jay Nixon a criminal case. While Nixon did not take up the case, with media attention, Barrett underscored major challenges Missouri’s indigent defense system faces.

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