Lack of public defenders overwhelming courts
THE CONSTITUTION that I swore to uphold 15 years ago is at risk in my courtroom. Since 1963, the Constitution has provided the right to counsel for any criminal defendant in danger of losing his liberty.
On two recent days in Dorchester District Court, I began my session by explaining to a group of men and women, arrested the night before and standing before me handcuffed and shackled, that no lawyers were willing to accept new cases. The other day, there was one lawyer for 32 people in custody; more than half a dozen were charged with firearms offenses, one with a machine gun.
The Committee for Public Counsel Services is responsible for providing lawyers to people who cannot afford them. It is having a dispute with the state over how much those lawyers are paid, and less than half of the eligible lawyers have agreed to take new cases in Boston. There are only 15 names on the Dorchester list.
I have no quarrel with lawyers who do not wish to -- or who cannot afford to -- work for the hourly rate the state will pay. Massachusetts lawyers are paid the second lowest rate in the country. However, the results of this dispute are troubling.
When there are no defense lawyers, we call the cases one at a time. If the prosecutor and probation make a case for bail or for detaining the prisoner until a probation violation hearing, I give the defendant a chance to speak, trying to explain something about his rights first.
''You don't have to say anything at all without a lawyer. But if you want to tell me something about yourself, about why you should not be held, such as who you live with or if you have a job or if you always come back to court or if there is a bail that you can make, I will hear whatever you want to say.
''Please don't say anything about the case itself, without a lawyer, because what you are saying here could be used against you later.
''I am sorry that you have to make this difficult choice today, that is, to decide whether to wait for a lawyer or try to have a hearing without one.
''For 40 years in this country, we have provided lawyers for criminal defendants who could not afford them, and I apologize to you, but this is the situation that we are facing today and we will have to do the best we can."
As we called dozens of cases one at a time last week, I repeated this explanation over and over, sometimes through an interpreter, and once shouting to be heard by a nearly deaf defendant. Another time, I spoke slowly, words as simple as I could possibly make them, to a man who looked at me helplessly and then asked me what I thought he should do.
Why don't I just release everyone, as some have suggested? The answer is that I have a responsibility to the public as well as to the defendants. Dorchester produces almost a third of Boston's arrests for violent crime -- and, so far this summer, shootings and stabbings are frequent and guns are epidemic.
In only two days in a court without defense lawyers, I saw a young man with a record for guns and violence charged with carrying a loaded gun. I saw another man with a history of convictions for domestic violence accused of an attack on a new partner. And I saw another, with several pending drug distribution cases, appearing before me on yet another drug charge.
I am faced with an intolerable choice: detaining people who have not been proven guilty and who have not had a fair chance to argue their side -- or releasing people whom the prosecutor convincingly argues are both guilty and dangerous.
For 15 years as a prosecutor and another 15 years as a judge, I have put my faith in the (admittedly not perfect) adversarial system, that is, hearing both sides, before deciding where the truth lies. Without that exchange, I have little faith in my own decisions.
I do not pretend to know the solution about the payments to lawyers. I am not a policymaker, and that decision is for others.
But I do believe that the situation requires immediate attention. Recently, my courtroom seems more like a scene from a Dickens novel than the justice system that I have tried to serve for the past 30 years.
Sydney Hanlon is a judge at Dorchester District Court.
