A Professional Responsibility Perspective on Turner v. Rogers
posted by Bruce Green
As a professional responsibility professor, what I found surprising in the Court’s Turner decision was the view that assigning a lawyer to the defendant who faces imprisonment for nonpayment of child support “could make the proceedings less fair overall” by “increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive.”
For the organized bar, it is an article of faith that a lawyer’s participation makes judicial proceedings more fair, not less fair. And it’s not clear why that should not be true in this context. The Court’s sentiments conjure up the stereotype of the crafty lawyer engaging in sly tactics to distract jurors from the truth.
Here, the fact finder is a judge. Presumably, the defendant’s lawyer would marshal and present evidence that the defendant lacks financial means to make the required payments. How does this create an undue risk that the judge, as fact finder, will be erroneously persuaded in the defendant’s favor? Surely the concern is not that the judge, as a sophisticated fact finder, will be persuaded to rule incorrectly by the lawyer’s soaring rhetoric, or will make erroneous credibility determinations because of the lawyer’s artful cross-examination. And surely the court is not suggesting that the lawyer will manufacture evidence.
Anyway, isn’t the far greater risk that, without a lawyer, the defendant will be jailed for not making payments that the judge erroneously believes the defendant can afford? And as between an erroneous loss of liberty and an erroneous loss of financial support, which is the greater harm?
If the Court was looking for a consideration to put on the other side of the scale, to explain why due process does not require appointment of counsel in all civil contempt cases involving nonpayment of child support, it could have invoked the obvious one: money. It would cost the State a lot of money to make counsel universally available. Maybe it’s not worth spending the money to avoid erroneous deprivations of liberty, if one assumes that the risk of error is low because of the simplicity of the contempt proceeding. But the idea that the proceedings are so simple that the judge can get it right without the help of a lawyer for the defendant seems somewhat inconsistent with the idea that the truth-seeking process is so easily manipulable that a judge is likely to be snookered by the defendant’s lawyer.
June 22, 2011 at 8:45 pm
Posted in: Symposium (Turner v. Rogers)
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