There has been for decades now an ideological split at the United States Supreme Court over the Sixth Amendment's right to a speedy trial -- one of the most basic of due process rights. Court conservatives have successfully limited the scope of the right by justifying and forgiving unconscionable delays in bringing criminal defendants to trial. And the Court's progressives, outnumbered now for a generation, have complained not just about the unjust results of those cases but about the indigent defense systems which have fostered trial delays in the first place.
And so it is again. On Monday, in a case styled Boyer v. Louisiana, none of the Court's five conservative justices were willing to come to the aid of a man who had to wait seven years between his arrest and his trial because of a "funding crisis" within Louisiana's indigent defense program. In fact, those five justices refused even to render a ruling on the merits of the matter, instead deciding after oral argument and all the briefing in the case that their earlier decision to accept the matter for review was "improvident."
It was left to Justice Samuel Alito to defend the Court's inaction. The long delay in bringing Jonathan Edward Boyer to trial on murder charges was not just the fault of Louisiana and its infamously underfunded and understaffed indigent defense program, Justice Alito concluded. "['T]he record shows that the single largest share of the delay in this case was the direct result of defense requests for continuances, that other defense motions caused substantial additional delay, and that much of the rest of the delay was caused by events beyond anyone's control," he wrote. That was enough to deny Boyer's claims.
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All four of the Court's progressives disagreed. The majority's quick assessment of the facts and the record was flawed, they wrote, and by ducking the issue on its merits the Supreme Court abdicated its responsibility not just to the defendant in the case but to thousands of other criminal defendants in Louisiana who are similarly too poor to pay for their own attorneys. "The Court's silence in this case is particularly unfortunate," wrote Justice Sonia Sotomayor in a sharp dissent. "Conditions of this kind cannot persist without endangering constitutional rights."
What kind of conditions exist today in Louisiana? If there is a state which does a worse job of providing the right to counsel for indigent defendants I am not aware of it. For starters, local funding for public defenders varies from one local jurisdiction to another, and the state itself is not required to make up the difference. In many instances, revenue for public defenders comes largely from income from fines and tickets imposed by the police -- a perverse system which makes the fair trial rights of indigent defendants dependent upon their direct adversaries in our criminal justice system.
"They are willing to pay for the gas pedal but not the brake," capital defense attorney Ben Cohen told me from Louisiana Monday. The government finds a way to pay for the prosecution but not the defense. The funding crisis for indigent defendants existed at the time Boyer was arrested, Cohen told me, and it exists today. The Court's non-opinion opinion in Boyer, he added, was less a matter of an improvident granting of certiorari and more a matter of the Court's institutional indifference "to poor people sitting in prisons waiting for lawyers."
Take Calcasieu Parish, for example, the very venue in which the Boyer case arose. Frank X. Neuner, Jr., chaiman of the Louisiana Public Defender Board, told me Monday afternoon that he's heard that the police there have largely stopped writing tickets -- the "blue flu," he called it -- because of a dispute between the mayor and city officials. The conflict has cost the Parish $100,000 in revenue -- enough to pay for two public defenders. As a result, hundreds of criminal cases are being handled now by private lawyers, who often have neither the training nor the time to do the job right.