At a hearing this week, more than two dozen lawyers submitted sworn affidavits to the court stating that the Richland County Jail is denying detainees their right to effective legal representation.
What do they mean?
Attorneys are waiting hours – or entire workdays – to see their clients, as jail staff ignore their requests to meet with their clients, sometimes never bringing the client out at all.
When jail staff does bring detainees out to meet with their attorneys, they are forced to meet with their attorneys in visitation booths where 1) communication is difficult to impossible through poor quality phones or viewing screens, and 2) third parties – including law enforcement officers involved with the detainee’s prosecution – can eavesdrop on conversations that should be protected by attorney-client privilege.
Right to Counsel Means the Right to Meet Privately with Counsel
The Sixth Amendment to the US Constitution guarantees that every person who is accused of a crime has the right to the assistance of counsel in their defense:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Every person – rich or poor, regardless of the severity of the crime (although the US Supreme Court has made an exception for defendants who are not facing jail time), and regardless of whether the person can afford to post bail or not – is entitled to the assistance of counsel.
That doesn’t just mean a criminal defendant is entitled to an attorney who will appear at trial with them – the right to counsel necessarily means the right to effective assistance of counsel, which includes:
- Having counsel present not only at trial or plea hearings, but at every court proceeding once the right to counsel attaches,
- Having counsel present at all critical stages of the proceedings, whether or not the event is in a courtroom,
- Reviewing the evidence against them with their attorney,
- Consulting and preparing for trial or other proceedings with their attorney, and
- Meeting privately with their attorney to preserve the attorney-client privilege.
When a defendant is incarcerated pretrial, the State is in a unique position to systematically deny detainees’ right to counsel – the jail staff is responsible for 1) facilitating attorney-client meetings, 2) providing the space where attorneys can meet and interact with their clients, and 3) ensuring that the attorney-client privilege is not violated by jail staff or law enforcement officials.
If I can’t meet with my client, my client’s right to counsel has been violated because I cannot provide effective assistance of counsel unless I can review the evidence and trial strategy with my client – in private.
If I’m allowed to speak with my client, but only over a poor-quality phone or videoconference, my client’s right to counsel has still been violated and I still cannot provide effective assistance of counsel because I am still unable to review the evidence and trial strategy with my client.
If I’m allowed to speak with my client, review the evidence with them, and discuss trial strategy, but only in an area where law enforcement officials, jail staff, or other inmates can overhear, my client’s right to counsel has still been violated and I still cannot provide effective assistance of counsel because I am still unable to review the evidence and trial strategy with my client.
The Problems at Richland County Jail
What’s the problem at the Richland County Jail?
In the affidavits provided to the court this week, over two dozen attorneys informed the court that:
- Jail staff routinely violate attorney-client privilege,
- Attorneys are forced to wait hours – sometimes entire days – to see their clients,
- Sometimes, after waiting, the attorney’s clients are never brought up for the meeting,
- Attorneys are required to meet with clients in poor-quality visitation booths,
- Attorneys are unable to show clients the evidence that will be used against them,
- It has become difficult or even impossible to give clients legal advice or information concerning their cases,
- Due to staffing shortages, sometimes there are no detention officers in the cell blocks where the detainees are housed – and calls to the cell block to request an attorney-client meeting are ignored,
- At least some attorneys have been “outright barred from visiting clients in private areas of the jail,”
- One attorney says she was denied the right to see a client four times in March alone,
- Another attorney says that he was denied the right to see clients more than a dozen times and that he was told an entire cell block of detainees could not be visited,
- Another attorney wrote that he spent more than 100 hours waiting for clients at the Richland County Jail in the past year alone,
- At least three attorneys wrote that jail staff put the wrong detainee on video calls with them, but the attorneys did not recognize the mistake at first because they could not 1) see the image on the screen clearly or 2) hear the detainee’s voice clearly through the phone provided,
- For video calls, the cameras are of such low quality that they “show dark images of our clients, sometimes little more than a silhouette,”
- When attorneys are permitted to meet “in-person” with their client through a plexiglass barrier, the phones provided do not work and the attorneys are forced to shout in an attempt to communicate with their client through the glass,
- Attorneys are not permitted to pass more than a few sheets of paper through the barrier at a time when there are often hundreds of pages of discovery to review,
- It is impossible to review audio or video evidence with clients under the conditions provided,
- The “private” attorney booths are located next to the jail administrator’s office, which allows jail staff to overhear privileged communications,
- An attorney wrote that, on one occasion, she found the investigating officer in her client’s case standing outside the “private” attorney booth – and the officer wanted to discuss the “privileged” conversation the officer had just eavesdropped on, and
- Because there are only four attorney booths, attorneys must sometimes meet with clients in public video booths located in the front lobby.
The State blames the problem on staffing shortages – a problem that is uniquely within the State’s control and that is in no way a defense to the systematic denial of the right to counsel for thousands of detainees or the other issues the Richland County Jail is facing.
Two people have died at the jail already this year – one died of dehydration and the other of heart failure.
A lawsuit was filed last week alleging the Jail is mistreating mentally ill detainees – “[l]ocked up in ‘moldy, filthy, infested’ cells, bitten by rats, and strapped to chairs so long they are ‘forced to urinate on themselves’” – leaving them restrained, secluded, and under-supervised or unsupervised even when they are on suicide watch.
What’s the Solution?
Denial of a defendant’s right to counsel is potentially grounds for the case against them to be dismissed – a remedy that is in the court’s discretion. It is also potential grounds for any conviction to be reversed on appeal.
County officials may not care about the constitutional rights of detainees. They may not care about a practicing attorney’s time wasted sitting and waiting to meet with a client at the jail.
Will they care if detainees’ cases are dismissed and, guilty or innocent, they are released without charges? Because, if the State cannot provide effective representation for defendants or especially if the State actively blocks effective representation for defendants, they cannot prosecute defendants.
Will they care when a class action lawsuit is filed against the county for systematically violating the rights of detainees?
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.