Jonathan Boyer sat in jail in Calcasieu Parish, Louisiana facing capital indictment for seven years without the funds or counsel necessary to defend against the prosecution. Prosecutors had excess funds in their operating accounts, money to employ experts in other cases, but chose not to fund the defense function. So Boyer waited. Witnesses died, the case got old. Boyer at times became suicidal, desperate, began to lose his mind. And still for seven years Boyer refused to plead guilty and asserted his right to a trial.
Boyer clearly did not receive the “consultation, thoroughgoing investigation and preparation” from defense counsel from the outset of his case that the Supreme Court found to be “vitally important” and constitutionally required in 1932 in the case of the “Scottsboro Boys,” Powell v. Alabama. Nor did he receive the “the guiding hand of counsel at every step in the proceedings,” which the Supreme Court found constitutionally required in Gideon v. Wainwright. Nevertheless, after initially agreeing to review the delay in Boyer’s case because of lack of funding for his defense, a majority of the Supreme Court declined to do so on April 29, 2013, dismissing its acceptance of Boyer’s case as “improvidently granted.”
Like Clarence Earl Gideon, who was forced to trial without a lawyer and whose case established the right to counsel for poor people accused of crimes, Boyer did not have the tools to defend himself. All that distinguished Boyer from Gideon was that Boyer had a brave lawyer from the Louisiana Crisis Assistance Center (LCAC) who stood up in court and said that the case could not be tried without funding for a lawyer, experts, an investigator, and a mitigation specialist, all essential in a capital case; and Thomas Lorenzi, a local lawyer who understood what was at stake in a capital case, refused to try the case for free.
Louisiana had grudgingly complied with Gideon by allowing local judges to commandeer non-volunteer lawyers to represent defendants without compensation. Lorenzi had been one of the first local lawyers that objected to this expropriation to provide free representation in capital cases. Lorenzi and the LCAC attorney were never involved in the actual representation of Jonathan Boyer, but rather the LCAC attorney stood-in to prevent the court from forcing Lorenzi to try the case without – as required by law – a funding source to pay for counsel and the tools of a defense.
For seven years, Boyer refused to give in. For seven years, Boyer insisted on his innocence, his right to a fair trial and his right to competent legal representation. Ultimately, the State decided to do what they could have done at the outset – reduce the charges and try the case non-capitally. The jury returned a non-unanimous conviction (allowed only in Louisiana and one other state) for second degree murder.
The prosecution’s argument in the Louisiana courts was that the seven year delay was beyond the control of the State because there were no funds available for Boyer’s capital defense. The Louisiana courts agreed and said that the delay – though not the fault of Boyer or his stand-by counsel – was not attributable to the State because the funding crisis was beyond the control of the State.
Justice Sotomayor explained how the case came to the United States Supreme Court:
We granted certiorari to decide whether a delay caused by a State’s failure to fund counsel for an indigent’s defense should be weighed against the State in determining whether there was a deprivation of a defendant’s Sixth Amendment right to a speedy trial. 568 U. S. ___ (2012 ) . . . Our precedents provide a clear answer: Such a delay should weigh against the State. It is important for States to understand that they have an obligation to protect a defendant’s constitutional right to a speedy trial.
But at the United States Supreme Court, the State of Louisiana abandoned its previous arguments and took issue with the facts it had previously acknowledged and argued – that the delay was caused by lack of funding. Despite multiple rulings in the Louisiana courts that the case could not proceed because of lack of funding for the defense, the State argued that Boyer could have chosen to go to trial with the Louisiana Crisis Assistance Center attorney despite the lack of funds for a lead counsel, an investigator, experts – in short, everything it takes to represent a defendant in a capital case.” Because that person was an attorney, and received some state funding for his role in other cases, the State argued that it was good enough for a poor person facing capital punishment.
At oral argument, Justice Scalia and Justice Thomas joked about the lawyer from Harvard who had stood up in the Calcasieu Parish Courthouse, and defended the Sixth Amendment, and the lawyer who graduated from Yale Law School and eventually tried the case. How could Boyer complain that he did not have a fully funded lawyer, when the person standing up and asserting his rights was a Harvard grad, that the lawyer who ultimately tried the case was from Yale – both who had come to the deep-South to try and prevent the State of Louisiana from ignoring its constitutional obligations? The only time Justice Thomas spoke in almost seven years of oral arguments, was to crack a joke about a poor person facing capital punishment being denied the right to counsel.
The Court’s decision to decline to review Boyer v. Louisiana revealed the complete indifference to the circumstance of poor people denied their constitutional right to lawyers and a speedy resolution of the cases against them.
Justice Alito, explaining for himself and Justices Scalia and Thomas the rationale to decline the case, claimed “the delay caused by the defense likely worked in petitioner’s favor.” After being convicted at a trial where he was unable to call witnesses to his innocence because they had died or left before trial, Boyer was sentenced to a sentence of life imprisonment without the possibility of parole as well as 99 years without the possibility of parole. It is difficult to imagine exactly how Justice Alito sees this as having worked out for Mr. Boyer’s benefit. But let me explain.
Les Martin had it worse. Martin was the last person to be executed out of Calcasieu Parish where Boyer’s case languished for seven years. He went to trial in forty-two days, without funds for an investigator, because the person appointed to represent him did not have the courage to stand up to the trial judge and say that the process was not fair. The inexperienced lawyer was handling six capital cases (including a capital case of one of the state’s snitch witnesses), 400 other criminal cases (including a felony case of a second state witness). The lawyer had a mental breakdown before Martin’s trial, was taking psychiatric medication at the time of the trial and was institutionalized shortly after the trial. Martin was executed despite significant doubts concerning the allegation that he had committed a rape, and profound doubts about the quality of his representation.
Jason Reeves had it worse too. Reeves was the last person sentenced to death in Calcasieu Parish. At his initial trial, the Parish had agreed to fund a qualified capital defense attorney with a reasonable capital case-load to represent Reeves. The jury could not agree whether to convict Reeves of first degree murder or second degree murder, so the trial ended in a hung jury. One would think that the same lawyers, being thoroughly familiar with the case and specializing in defending death penalty cases, would represent Reeves at his retrial. But, as with Boyer, officials in Calcasieu Parish claimed that there was not sufficient funding to retain them. The trial judge promptly removed them and appointed the local public defender – responsible for over a thousand cases including multiple capital cases, and facing his own charge of driving under the influence – was appointed. Reeves was quickly tried and sentenced to death.
It is only in comparison to Martin and Reeves, that Justice Alito could consider Jonathan Boyer “lucky.”
Jonathan Boyer is not the only “lucky” defendant in Louisiana, waiting for his constitutional rights. The New York Times noted:
The Louisiana Public Defender Board has reported that, for the past three years, its financing was “80 percent of the minimum amount needed” and that, at that level, the mandate to provide qualified counsel for every eligible defendant “is simply unattainable.”
As Andrew Cohen writing for The Atlantic observed:
Justice Alito’s concurrence contained not a single sentence about the atrocious state of Louisiana’s indigent defense programs or the state’s continuing and systemic failure to provide its poor citizens with due process or fair trials. This judicial silence, year after year, in case after case, represents the justices’ sorry stewardship of the Sixth Amendment. Whatever happened to Gideon v. Wainwright, the famous right-to-counsel case? What happened to it, we see clearly in Boyer, is the Roberts Court.
When Justice Alito’s nomination to the United States Supreme Court, experienced a second day of questioning there was grumbling about the lengthy time of the hearing, and much praise from Republicans for his patience and the patience of his family. Then Judge Alito explained “when I look at those cases, I have to say to myself, and I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.’” Though Justice Alito might be able to imagine the circumstance of an immigrant, it became clear this week that not only was he unable to imagine the circumstance of being poor and having to wait for justice, but that he was quite comfortable choosing his own facts in order to keep the dispossessed in their place. It did not bother him one iota, the circumstance of being poor and forced to wait three, four, five, six, seven, eight years in places like the Calcasieu jail or Orleans Parish Prison, in order to get the counsel he deserved.
And the silence of a majority of justices at the United States Supreme Court will only empower the State of Louisiana to make more of a joke out of indigent defense. As Justice Sotomayor observed dissenting:
[T]he Court’s silence in this case is particularly unfortunate. Conditions of this kind cannot persist without endangering constitutional rights.