No One Stood Up For Miller

So much went wrong in the case of Terrence Miller that it's hard to know where to begin. No one involved in the process acted to protect his constitutional rights. Here's how Justice Barry T. Albin, the lone dissenter, described the relationship between lawyer and client: "[T]he two never discussed the upcoming motion to suppress or trial. They did not converse about a defense, trial strategy, or whether witnesses should be called or subpoenaed. The attorney did not prepare his client for testimony he might give on the stand."

Meanwhile, the trial judge, who has since retired, also abdicated his responsibility to protect Miller's fair trial rights. He twice refused to reschedule the trial because he was, to use Justice Albin's characterization, "frustrated by trial delays and intent on making a point that the Public Defender's Office could not usurp his calendar." And the public defenders also later acknowledged blame. "We agree that our office should have appeased the trial judge" by making a more formal request for a continuance, Dale Jones, a public defender in Mercer County (who was not Miller's trial attorney) told me last week.

But the biggest failing of all was the failure of the appellate judges to recognize and rectify these serious mistakes. The majority opinion here is one of the most indefensible I have ever read. The trial judge "would have better served the competing interests at stake" by adjourning the trial, the justices declared, but did not "abuse his discretion" when he didn't. How can this be? Because the United States Supreme Court, in a series of cases that have undercut the premise of Gideon, have sent the unmistakable signal to lower court judges that the right to counsel is some malleable proposition. Tell that to a man who goes to trial with a public defender who doesn't know a thing about his case.

Here's how Justice Albin described it. Put yourself for just a moment in Miller's shoes, as an indigent defendant whose lawyer is changed just days before trial, before a judge who is irate with the public defenders' office about scheduling matters, preparing for a case that could send you to prison, with no control over any part of it:

No attorney can provide effective representation at a motion-to-suppress hearing if he has not spoken with his client beforehand, listened to his account, interviewed his witnesses, or prepared him for his testimony. Miller had witnesses waiting in the wings but his attorney could not call them because he had not spoken with his client. Sitting next to Miller was a total stranger who happened to be his state-appointed attorney. The failure of the attorney to consult with Miller in any meaningful fashion, to prepare him for his testimony, and to present corroborating witnesses at the motion-to-suppress hearing rendered the attorney per se ineffective.

Now, tell me—if we are to have a right to counsel in America, if we are to preen and preach about it as some grand noble measure of due process, should it, at the very least, encompass the basic level of representation that Justice Albin is talking about here? Can a lawyer ever be deemed constitutionally "competent" if he doesn't know anything about his client, his client's case, the witnesses for and against his client, or the evidence against his client? That the New Jersey Supreme Court answered this question "yes" tells us that there really is no right to counsel. Or at least that it's going to take sea change to restore it.