State failed to fund capitally-certified counsel
By Kimberly Atkins
The Daily Record Newswire
BOSTON — During oral arguments last week that included a rare comment from Justice Clarence Thomas, the U.S. Supreme Court considered whether a state’s failure to fund court-appointed counsel for a murder defendant should be weighed against the state in determining whether speedy trial rights were violated.
The case, Boyer v. Louisiana, stems from the murder trial of Jonathan Edward Boyer, which took place seven years after his indictment. The delay was caused in part by the state’s failure to fund capitally-certified counsel for Boyer due to a government funding crisis.
Boyer was convicted and sentenced to life in prison.
He appealed, and among his arguments was that the five-year holdup in securing indigent counsel and the resulting trial delay violated his constitutional right to a speedy trial.
The Louisiana Court of Appeals affirmed his conviction. Although it acknowledged that the delay was caused in part by the delay in funding counsel, the court found that the defendant did not make a timely speedy trial right argument, nor did he show that the delay was prejudicial.
The Supreme Court agreed to hear Boyer’s appeal.
At oral arguments on Monday, Richard Bourke, director of the Louisiana Capital Assistance Center in New Orleans, argued that the state court erred in finding that the delay was “beyond the control of the state.”
Justice Antonin G. Scalia pointed out that while the defendant’s lead attorney was not paid by the state for five years, a second court-appointed associate counsel represented the defendant throughout the five-year period. It was a court rule requiring two defense lawyers in capital cases that delayed the start of trial, Scalia said.
Bourke said there was no such rule. Still, he said, the state court, “knowing that associate counsel had been appointed … twice found that the case could not proceed due to a lack of adequate funding.”
“Not because of a federal constitutional reason – the court found you are not complying with the [state] Supreme Court rule,” Scalia said. “It seems to me your client was faced with a choice. You could either demand [the state] right to two counsel [or] you could demand your right to a speedy trial. That was your choice.”
Bourke said it wasn’t so simple.
“There was no money for investigation,” he said. “There was no money for experts. And the associate counsel [was] appointed for the limited purpose as an assistant [to lead counsel], not to conduct the case in his own right.”
“It is certainly true that none of the delay due to the lack of funds was in any way attributable to the defense,” said Justice Stephen G. Breyer. “That’s essentially what you would like us to say?”
“That is what [the lower court] said,” Bourke said.
“I don’t think it’s enough that none of the delay was attributable to the defense,” Scalia said. “The defense has to complain and demand its right to a prompt trial.”
As soon as Carla S. Sigler, assistant district attorney of Lake Charles, La., began her argument, Justice Sonia M. Sotomayor asked her if the lower court’s erroneous finding that the lack of funding was not attributable to the state was enough to warrant a remand.
Sigler said that was not necessary because the court considered a host of factors in denying the defendant’s appeal — including the fact that the lead defense counsel repeatedly asked for continuances because he hadn’t been paid, and that the defendant did not assert his speedy trial right in a timely fashion.
“The rationale may be flawed with regard to that one point in the court’s opinion, but the result is not,” Sigler said.
Justice Ruth Bader Ginsburg said a lawyer shouldn’t be penalized for asking to be paid for his work.
“I don’t understand how in the world it could be the fault of an attorney who has not gotten one cent from the state, and has a right to be paid before he engages in any representation,” Ginsburg said.
Justice Elena Kagan wondered if the choice identified earlier by Scalia was ever plainly put to the defendant.
“Did you ever say to Mr. Boyer: ‘You can go ahead right now with this single counsel that you have?’” asked Kagan. “Was that ever a choice put to him? The record [suggests] everybody simply assumed the case would not go forward.”
“He had a choice that was implicit,” Boyer said, and chose to wait until both lawyers were paid.
When Scalia noted that the assistant attorney was Harvard Law School-trained, Thomas made a comment to the effect that it did not ensure the lawyers’ competency. Thomas’ remark drew laughter from his fellow justices, but was not quite heard by the audience or the Court’s transcriptionist. Until yesterday, Thomas had not made a comment on the record during oral arguments since February of 2006.
A decision in the case is expected later this term.
