Who Will Lead the Fight for Access to Justice?

Jess Dickinson was on a roll, his Southern delivery infused with force and emotion. The Constitution is meaningless unless it is effective, said the presiding justice of the Mississippi Supreme Court. It is time, he said with rising voice, for judges to “stand up” and help insure that poor people have equal access to the courts.

The audience noted its approval with a standing ovation, but that result was never in doubt. After all, the occasion was the Annual Meeting of State Access to Justice Chairs last Saturday in Jacksonville, a gathering of 168 lawyers, judges and state supreme court justices from over 40 states, Puerto Rico and the District of Columbia, all of whom have signed on to the cause of equal access. There was an understandable enthusiasm for the justice’s remarks.

And the audience included the Honorable Shirley Abrahamson, Chief Justice of the Wisconsin Supreme Court, making a rare but significant appearance at the meeting; significant because in Wisconsin, access to justice has not enjoyed the out-front leadership of the highest court as it has in many other states, including Justice Dickinson’s Mississippi.

The Wisconsin court, principally the Chief Justice, has been active in the cause of self-representation, striving to make the courts more user friendly to those who cannot afford a lawyer. The Court also approved changes to the rules of professional responsibility that paved the way for the expansion of brief advice clinics, and adopted a State Bar petition to create an Access to Justice Commission. The Chief Justice has led the way in promoting the study of limited representation, considered an essential step in addressing the problem of access to the courts.

Most significantly, the court approved the $50 annual assessment that goes to the Wisconsin Trust Account Foundation’s Public Interest Legal Services Fund, providing much needed funds as IOLTA income fell. (One of the more bizarre events I’ve ever witnessed is the State Bar Board of Governors actually debating a proposal to sue the Court because of the assessment.)

But it would be a stretch to say that our Court has been out in front, leading the way on access to justice issues in Wisconsin.

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Speedy Trial Act Does Not Require Articulation of Ends-of-Justice Findings at Time Continuance Granted

In general, the Speedy Trial Act requires federal criminal trials to commence within 70 days of the time a defendant is charged or makes an initial appearance (whichever occurs laters). However, the Act also permits continuances that do not count against the 70 days when a judge finds “that the ends of justice served by [a continuance] outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). These ends-of-justice findings must be made on the record, either orally or in writing, but the statute does not specify when they must be made.

In United States v. Zedner, 547 U.S. 489 (2006), the Supreme Court indicated that the “best practice” is for the judge to articulate his or her findings at the same time that a continuance is granted. But are lower courts actually required to adhere to this “best practice”?

Earlier today, in United States v. Wasson (No. 10-2577), the Seventh Circuit affirmed that express ends-of-justice findings may await the defendant’s motion to dismiss on speedy trial grounds. 

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Anti-Urban Politics

During the first decades of the twentieth century, Americans looked proudly upon their great cities, but then, in the post-World War II decades, Americans started to see their cities as a problem. Small-town Americans and especially suburbanites increasingly took cities to have a different culture, one with troubling “urban” attitudes, styles, and ways of life.

In conjunction with seeing themselves as normal, decent, and law-abiding, self-styled “mainstream” Americans used the city as a negative reference point. The scholar Gerald Frug argues that mainstream Americans built and fortified their own collective identities by deploring the city. “In the resulting, socially polarized metropolitan setting representations of cities as ‘landscapes of fear’ and their residents as inherently threatening flourished.”

In Wisconsin’s current recall election, some of the political advertisements incorporate these anti-urban sentiments, especially with regard to Milwaukee, Wisconsin’s largest city and most “urban” place. Milwaukee’s factory closings, unemployment figures, and high school graduation rates are underscored. And, as if he was responsible for deindustrialization and creation of a semi-permanent underclass, the Mayor is held responsible. Heaven forbid that the kind of people who live in and manage the city could take the reins of the state.

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