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Really? You are?

Well it's nice to have you on the team. Because when I watched Rand Paul's little party, and when I saw the support for "due process rights" coming from all corners of the Internet, I had to shake my head just a little bit. While these people are busy drumming up emotional responses by invoking fear about highly unlikely scenarios involving drones and unsuspecting Americans, thousands of Americans are denied their due process every single day.

They're poor. And they can't afford an attorney. And no, they're not being struck by a fatal shot from an evil drone. But they are put in prison - and in some cases put to death - with a sort of due process that only someone as artificial as Rand Paul could call adequate.

If you think Americans should be given their constitutional rights before the government puts them to death, then we're on the same side. Except, of course, that we're not. You see, Rand - your filibuster was a sideshow and a display of political opportunism. What I and many other people work for every single day is the protection of those rights you're using for political gain.

The situation that led to Rand Paul's filibuster is purely hypothetical as far as we know. But where was he, and where were all of his supporters, when a Texas man named George McFarland was sentenced to death for a robbery-murder in the 1990s? You see, McFarland had quite the dream team of lawyers for his capital trial. When I say dream team, I'm speaking in the most literal sense. His lawyer was dreaming, and not daydreaming. McFarland's appellate lawyers asked for a new trial, arguing that his sleeping lawyer deprived him of the fair trial guaranteed by the sixth amendment. The appeals court callously noted that the constitution guarantees the right to counsel, but it doesn't say that said counsel has to be awake.

Demagogue all you want about black helicopters and unmanned drones. Until you're concerned about the rights of people like McFarland, I'm not impressed.

What about Carl Johnson, who was represented by the now notorious Joe Frank Cannon. The same Joe Frank Cannon who once said:

"I'm not the sort of lawyer who takes a lot of notes."
And why would he be? I've never seen a man - attorney or otherwise - take a cogent note while in the throws of R.E.M. sleep. Cannon did more for the death penalty machine in Texas than almost any other lawyer, as his stats include more than ten clients sitting on death row. The government gave Carl Johnson this lawyer to satisfy that pesky sixth amendment. Cannon proceeded to sleep - just as he had done in other capital cases - during many parts of Johnson's trial.

One of my professors, and a man deeply respected in national and international legal circles, wrote the following about Johnson's case:

"In Carl Johnson's case, the ineptitude of the lawyer who represented him jumps off of the printed page. During long periods of jury voir dire, while the state was asking questions of individual jurors, the transcripts give one the impression that Johnson's lawyer was not even present in the courtroom. Upon investigation, it turned out that he was in fact present; it's just that he was asleep. That is not to say that an awake lawyer would necessarily have done a better job or obtained a better result. It's just to say that Johnson's lawyer was asleep."
Professor Dow describes a phenomenon that's all too common: disinterested appointed lawyers taking money from the state to woefully represent men whose lives are hanging in the balance.

Professor Dow ended up being Johnson's last lawyer, the man representing a convicted murderer with just a bit of time left on the clock. Johnson's original lawyers had failed to fight many of the state's misdeeds through appeal, and Johnson's conviction was never seriously challenged. Johnson's case is not unusual, and that fact alone is frightening. More frightening is the fact that federal courts have designed a system where people like Carl Johnson have little recourse when their state-assigned lawyers send them to the gurney.

The Supreme Court, in the Strickland decision described by one of my readers as "mealy-mouthed O'Connor s***," established a standard for attorney competence that's low enough for nearly every bad lawyer to clear. Among the types of lawyers deemed competent under this standard: a lawyer who slept with his client's wife, a lawyer who showed up to court drunk, and a lawyer who failed to raise one objection. A recent case out of Alabama shows that this problem is still very real. There, a capital murder attorney allowed his second chair - a young man just out of law school who had never participated in such a proceeding - to make the closing argument, asking the jury to spare the client's life. Not surprisingly, the young lawyer failed, his voice shaking in an unimpressive display. Effective assistance of counsel, indeed.

One sleeping lawyer inquiry was handled by the Fifth Circuit Court of Appeals, that destructive force led by conservative legal star Edith Jones. There, the court asked that obvious question - sure the lawyer slept, but did he sleep during the important parts of the trial? Luckily for that man - Calvin Burdine, a gay man whose attorney had not objected when the district attorney suggested that prison might be like a vacation for him - the court ordered relief over the objections of Jones and others.

And what happens to those brave lawyers like Professor Dow who try their hardest to fight for the rights of the condemned once those rights have already been violated? They're accused by people like Edith Jones of being just as bad as the murderers they represent. When the lawyers for mentally-retarded inmate death row inmate Walter Bell intervened on his behalf with a last-minute habeus writ, Edith Jones quipped:

“The veil of civility that must protect us in society has twice been torn here,”
There's a federal judge, once lauded by the right as a potential Supreme Court nominee, equating a brutal murder with the act of filing a legal appeal in protection of an inmate's eight amendment rights.

I will ask again - where were these constitutional protectors of due process when these very real transgressions were taking place? And perhaps most importantly, what have they done to make sure that people aren't subjected to the egregious lawyering of individuals like the now-deceased Joe Frank Cannon?

Few have had the guts to speak out against the unworkable standard established in Strickland. Even fewer have been willing to advocate for equitable indigent defense funding. While it might be politically advantageous to protect the rights of due process in the face of hypothetical and unlikely drone strikes, it's decidedly inconvenient to ask for better funding for those people actually being tried by the state.

Where was the filibuster when the federal government de-funded Gideon's Army last year, taking away the group's ability to train new classes of public defenders each year? How about in Senator Paul's home state of Kentucky? Would anyone be surprised to learn that among states of similar size (between 4 and 6 million), only South Carolina spends less money per capita on indigent defense than Kentucky? When Louisiana spends more money defending its accused poor than you do, it's time for a reality check.

Colorado, a state with around 4.9 million people, spends more than $81 million on indigent defense. Kentucky has around 4.3 million folks, and it spends roughly $38 million. The money matters, too. Financial dedication to indigent defense allows the poor defendant a better quality of lawyer. At the very least, it provides the attorney with enough incentive so that he's not sleeping during trial. Just as important is the ability of the indigent defender to hire investigators and expert witnesses. The money must be there to test evidence when necessary.

While Rand Paul is grandstanding in the Senate, depriving his bladder of much needed-relief, I'm watching his state do very little to honor the sixth amendment commitment that our Bill of Rights makes to its accused defendants. In our country - specifically in places like Rand Paul's home state - it's much better to be rich and guilty than poor and innocent.

So excuse me if I yawn when I see the hoards of people coming to the defense of due process, that right protected by both the fifth and sixth amendments. Forgive me if I'm not impressed by the legions of followers - both Democratic and Republican - whose manufactured outrage over a hypothetical drone strike rings so helplessly hollow in light of the real situation on the ground.

You care about due process? Join the club. But instead of focusing your energy on yet-to-be-realized American-soil drone strikes, why not open your eyes to the deprivation of constitutional rights that happens every single day in each of this country's 50 states? You don't need to create fantasy scenarios where unseen planes strike unsuspecting suburban accountants to talk about the government killing and imprisoning its own citizens without due process protections. You could just ask Carl Johnson. That is, if his lawyer had been awake.

Originally posted to Coby DuBose on Criminal Injustice, Race, and Poverty on Sat Mar 09, 2013 at 12:25 PM PST.

Also republished by Income Inequality Kos and Barriers and Bridges.

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