Mimesis Law
21 September 2019

Kopf Eats Crow

June 1, 2016 (Mimesis Law) — I recently savaged Obama’s Justice Department regarding a letter it sent to public schools about bathrooms for transsexual kids.  I wrote:

In a perfect world, I don’t object to the federal government aggressively protecting a miniscule minority of strange kids if resources are unlimited. But we don’t live in a perfect world. Therefore, I do object to virtually ignoring the fact that thousands of poor blacks, poor whites, and poor Hispanics are constantly getting screwed by state court systems that are well-intentioned but grievously underfunded.

If the DOJ wants to go on a well-founded jihad, it is time to look the states square in the eye and tell them to adequately fund the criminal courts (and criminal defense in particular) or stinky manure will rain down on them like water.  It makes a difference what battles one chooses to fight. It also tells you a lot about the man or woman at the top.

Candor now requires me to eat crow.


Eating Crow, a painting by Will White.

You may wonder, as I did, where “eating crow” comes from and what it means.  Wikipedia knows all, and, in part, explains “eating crow” this way:

Eating crow is an American colloquial idiom, meaning humiliation by admitting wrongness or having been proven wrong after taking a strong position. Crow is presumably foul-tasting in the same way that being proven wrong might be emotionally hard to swallow. The exact origin of the idiom is unknown, but it probably began with an American story published around 1850 about a slow-witted New York farmer. (Footnotes omitted.)

By the way, “slow-witted” fits me perfectly.  But, I bet you knew that already.

Anyway, thanks to the estimable Lyle Denniston at the Constitution Daily (May 26, 2016), we know that Obama’s Justice Department and the Civil Rights Division therein is not standing idly by when defendants are given counsel in name only by a parsimonious state that apparently regards criminal defense as an irksome responsibility to be ignored in all but name:

This case asks how indigent criminal defendants may vindicate their Sixth Amendment right [to counsel] when systemic, structural deficiencies in a state’s public defender system result in counsel being assigned in name only.  In ruling those claims nonjusticiable, the [state] district court effectively held that the sole recourse to redress systemic deficiencies in Idaho’s public defense system is through piecemeal, post-conviction litigation of individual ineffective assistance-of-counsel claims.  That was error.

– Excerpt from a friend-of-court brief filed by the U.S. Justice Department’s Civil Rights Division on May 11 in the Idaho Supreme Court, arguing that individuals too poor to hire their own lawyer have a right to sue before they go to trial to assure themselves of an effective defense lawyer.*   The department filed a similar friend-of-court brief on the same issue last September in the Pennsylvania Supreme Court, which has not yet ruled.

Brother Denniston writes on:

The courts have had considerable experience in ordering governing agencies to spend money to correct a violation of someone’s rights – such as orders to spend money to improve the quality of education for minorities attending public schools.   The Justice Department sees a similar obligation to provide an adequate system of legal defense for the poor.

Under the principles of the Gideon decision, the department has contended in its brief in the Idaho Supreme Court, lawyers for the poor “must be appointed under circumstances that permit them to do their jobs.”  The right under Gideon, it added, “would be an empty formality if appointed counsel is precluded from providing his or her client any meaningful representation.”

I am heartened by all of this, although we are yet to see whether DOJ can move the needle on insuring adequate criminal defense in the states.  Regardless, the next President—of whatever party or political persuasion—should instruct his or her Attorney General to stick it good and hard to those intransigent states (or political subdivisions—New Orleans) that deny our fellow citizens the right to something more than a lawyer in name only when the locals decide to charge them with a crime.

Damn that crow was tasty.

Richard G. Kopf
Senior United States District Judge (Nebraska)

*The brief is here.

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  • Anon
    1 June 2016 at 9:56 am - Reply