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The Colorado Supreme Court announced on Tuesday it will determine whether an alleged violation of a man’s constitutional right to counsel more than 30 years ago has any bearing on his 2021 drunk driving conviction.

At least three of the court’s seven members must agree to hear an appeal.

Under Colorado law, driving under the influence is typically a misdemeanor. However, if the prosecution proves a defendant has at least three prior convictions, the fourth offense becomes a felony.

Arapahoe County jurors convicted William Scott Burdette of DUI in 2021. He had one prior impaired driving conviction from 1995 and two from 1990, rendering his latest offense a felony.

Burdette told the trial judge he did not recall having counsel represent him in his prior cases. His lawyer alleged it was “common practice” that public defenders were not appointed for misdemeanors until the defendant had tried to negotiate a plea with the district attorney’s office for Arapahoe County. Only in 2013 did the legislature rescind that practice in state law.

On appeal, Burdette relied on a 1938 case from the U.S. Supreme Court, Johnson v. Zerbst, which recognized the right to counsel for indigent defendants in federal criminal prosecutions — decades before Gideon v. Wainwright would extend that guarantee to state cases. Burdette quoted the Zerbst decision in arguing that compliance with the Sixth Amendment’s right to counsel is a “jurisdictional prerequisite” for a court to convict someone.

A three-judge panel for the Court of Appeals noted no appellate ruling in Colorado had ever clarified whether the Supreme Court’s 86-year-old statement meant state courts lack jurisdiction to hear cases if a defendant is denied the right to counsel. The panel concluded the answer was no.

Turning to the state Supreme Court, Burdette noted the Court of Appeals neglected to address his separate, but related, claim involving his lack of counsel in the 1990s. Four years after the U.S. Supreme Court recognized the right to counsel in state cases in Gideon, it prohibited the use of prior convictions as evidence if they were obtained in violation of that right.

Because “the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right,” wrote Justice William O. Douglas.

Burdette asked the state Supreme Court to address whether the use of his convictions from the 1990s, in which he lacked appointed counsel, violated “anew” his constitutional rights in his felony DUI case.

“This is a matter of great public importance because prior to 2013, many pleas to drinking-and-driving offenses were unconstitutionally obtained. Relying on those pleas today in felony DUI prosecutions risks violating the constitutional rights of countless defendants,” wrote public defender Jessica A. Pitts.

The Supreme Court will decide the issue.

The case is Burdette v. People.

For all the lectures and shaming over “accepting election results,” Democrats are now refusing to accept the results of the Pennsylvania Senate race. 

Republican Dave McCormick has won the U.S. Senate race in Pennsylvania, defeating incumbent Democratic Sen. Bob Casey. With over 95% of the votes tallied, McCormick leads Casey by nearly 40,000 votes. As of now, the race is not even within the state’s automatic recount margin. The Associated Press called the race for McCormick last Thursday, noting Casey had no path as McCormick “was winning outright in every region in the state” and even “cut down the margins” in Philadelphia and its suburbs. 

The liberal Associated Press called the race four days ago. The liberal group Fair Vote recently published a report acknowledging that only three recounts since 2000 have flipped races, with the margin in all three being less than 0.06%. (McCormick leads by 0.58%, which, again, is not even within Pennsylvania’s 0.5% automatic recount margin). This race is over. 

Casey has refused to concede, though. Not only that, but Casey has Democratic election lawyer Marc Elias trying to overturn the result. Elias has a track record of trying to overturn elections that have been decided on behalf of Democrats, including the Democratic attempt to overrule Iowa’s certification of Rep. Mariannette Miller-Meeks’s victory in the 2020 elections to install Democrat Rita Hart in her seat. 

That move at the time had the backing of House Democrats before they finally backed down amid national pressure. Casey and Elias’s attempt to overturn the will of Pennsylvania voters now has similar support from Senate Majority Leader Chuck Schumer, who has refused to acknowledge McCormick as the winner by withholding his invitation to the freshmen orientation for new senators on Tuesday. Gov. Josh Shapiro (D-PA) has remained silent on this, while Casey’s colleague Sen. John Fetterman (D-PA) shamed the Associated Press for calling the race while some ballots were still being counted, even though the outlet did the same for his race in 2022. 

If you want to know why there is so much distrust in election results, it is because Democrats have done this for 24 years, going back to the 2000 presidential race. Just as Casey, Elias, and Schumer are doing now, Democrats routinely cling to any excuse they can to deny that they have lost an election, even when it has become clear that the result is no longer in question.

The Washington State Supreme Court is considering changes to court rules that provide standards for public defense. Under the Washington State and United States Constitutions, those accused in criminal prosecutions have a right to an attorney at public expense for their defense. The new standards propose:

 

Lowering the maximum caseloads for public defense attorneys. Currently, public defense attorneys can be assigned 150 felony cases or 300 misdemeanor cases annually. The new standards move away from a “per case” standard and instead set a ceiling on the number of “case credits” that can be assigned. Case credits are based on the type of criminal charge and the case’s complexity. Pierce County is using a model to estimate the staffing needs from these changes, and by 2028, the Pierce County Department of Assigned Council would need an additional 91.5 attorneys.

 

Setting minimum support staffing requirements for public defense attorneys and offices. Using the same model, Pierce County estimates the Pierce County Department of Assigned Council will need an additional 92.5 support staff to meet the minimum requirements. 

The Washington State Bar Association (WSBA) and its Council on Public Defense (CPD) requested to amend current standards. The Pierce County Council sent a letter to the Washington State Supreme Court on Wednesday, Oct. 30, formally requesting the high court not adopt these proposed public defense caseload standards, citing significant challenges in implementing the changes within the given timeframe. 

 

According to the Council letter, the new caseload standards can lead to detrimental impacts on the criminal justice system and essential services across Pierce County, noting an immediate need to increase resources. County officials estimate a need for 28 additional full-time positions by 2025, costing between $9.8 and $11.6 million. By 2028, the staff requirement swells to 184 positions, pushing projected costs to between $34.6 and $42.6 million annually.

The Council acknowledged that current standards need revision, but without further research and preparation, adoption of the proposal is infeasible and detrimental. The Council recommends:

 

·       A Washington-Specific Study to create an informed framework for reform based on state-specific needs.

·       Increased state funding for indigent defense to ease the financial burden on counties.

·       Workforce expansion initiatives to address the shortage of public defense attorneys in the state.

·       A realistic phased implementation plan to introduce changes gradually, with benchmarks to measure progress and the flexibility to adjust timelines as needed.

In Pierce County, public defense attorneys are county employees, with external attorneys stepping in when conflicts arise. Pierce County maintains competitive wages for these attorneys, aligns their pay scale with that of prosecuting attorneys, and ensures benefits comparable to all county employees. Pierce County currently manages caseloads and has been effective at attracting and retaining its public defense attorneys. The new caseload standards would triple the County’s number of public defense attorneys. 

 

Such an increase will strain the County’s General Fund – which supports a wide range of County services – and may lead to impacts on critical services such as homelessness support, food assistance, mental health services, and senior programs. 

 

“The Council’s position underscores a commitment to enhancing indigent defense but insists that the proposed standards require additional planning, collaboration, and resources to avoid severe repercussions on essential services and overall public safety,” said Council Chair Ryan Mello (District 4). 

In a special lawmaking session focused on tax policy, Louisiana lawmakers are also quietly moving legislation that could lead to more underage youth being sent to adult prisons.

The Louisiana Senate’s Judiciary C committee voted 4-1 Thursday in favor of a state constitutional amendment to remove limitations on the number of crimes for which youth under the age of 17 could be sentenced as if they are adults. 

Senate Bill 2 would allow legislators to craft new laws that expand the court’s ability to send minors – 14-, 15- and 16-year-olds – to adult prisons. The proposal alarms advocates for children, who believe it further erodes protections for youth in the criminal justice system.

It also comes on the heels of a new law passed earlier this year that treats all 17-year-olds as adults when it comes to the criminal justice system. The measure took away discretion from district attorneys to put 17-year-olds through the juvenile justice system instead of adult courts. 

In Louisiana, 15- and 16-year-olds, and in more limited circumstances 14-year-olds, can already face adult prison sentences, though only for limited crimes. These include murder, attempted murder, manslaughter, rape, armed robbery, kidnapping, aggravated battery, a second or subsequent burglary of an inhabited dwelling and a second or subsequent violation of some drug crimes.

The constitutional amendment, proposed by Sen. Heather Cloud, R-Turkey Creek, would strike that specific list from a juvenile justice provision in the constitution. Instead, she wants to insert language allowing a minor to be charged like an adult for “any crime” as long as lawmakers pass new laws to do so. 

Any of those new laws would face a higher threshold for approval than most statutes — a two-thirds majority of both legislative chambers, not just a simple majority — before they could take effect. 

The amendment on its own also faces some hurdles before it can be enacted. Two-thirds of the Senate and House of Representatives have to vote in favor of it. Voters then have to approve it through a statewide election, which would either be scheduled for late March or November of 2025.

At Wednesday’s hearing, Cloud characterized her amendment as a minor adjustment that is “not going to change the law.” Advocates for children and incarcerated people strongly disagreed with that sentiment. 

“It’s a real profound social failure when we have to give up on kids,” said Michael Cahoon, speaking on behalf of the Promise of Justice Initiative advocacy organization, which opposes the legislation. 

Gov. Jeff Landry supports the amendment, but his staff and Cloud were vague Thursday about the new types of crime they might want to use to transfer minors to adult court. 

At the hearing, Cloud initially mentioned concerns that minors couldn’t currently be charged as adults with carjacking but later told her colleagues to avoid focusing on carjacking as the reason to support the legislation. 

Chris Walters, who handles criminal justice policy for the governor, told legislators that the current constitutional restrictions make it difficult to punish teenagers appropriately for drive-by shootings, arson and assaults that take place at state juvenile justice facilities. 

Yet Kristen Rome, executive director for the Louisiana Center for Children’s Rights, said district attorneys who want to transfer teenagers to adult courts for the crimes Walters and Cloud listed at the hearing can already do so.

For example, younger teens who carry out carjackings can be charged with armed robbery as if they are adults under the current constitutional restrictions, Rome said. Youth who participate in drive-by shootings can already be charged with the adult version of murder or attempted murder, she explained. 

Terry Landry Jr., a lobbyist with the Southern Poverty Law Center, urged legislators to hold off on moving the constitutional change until more was known about the effects of automatically transferring 17-year-olds to the adult criminal system.

That recently-passed law had also been pitched as a way to grapple with violent acts committed by out-of-control youth. But Landry Jr., who is not related to the governor, cited a recent article by ProPublica and Verite News that showed nearly 70% of 17-year-olds arrested as if they were adults under the new law in East Baton Rouge, Jefferson and Orleans parishes were accused of nonviolent crimes. 

Louisiana sheriffs are already struggling to accommodate 17-year-olds moved from juvenile courts into the adult system earlier this year.

While Louisiana state law may consider a 17-year-old an adult for criminal justice purposes, the federal government does not. In order to comply with federal law, sheriffs have to keep anyone under age 18 separate from adult detainees and provide them with educational services.

Sheriffs have complained they don’t have the space in their jails or resources to meet these federal requirements. A few are spending money to house the 17-year-olds at a special facility in Jackson Parish in order to not run afoul of federal or state mandates. 

It’s not clear how local law enforcement feels about Cloud’s proposal.

The Louisiana District Attorneys Association and Louisiana Sheriffs Association did not testify or attend Wednesday’s hearing on Cloud’s bill. As two of the more powerful lobbying groups at the Capitol, they typically weigh in on criminal justice proposals that directly affect their respective memberships.

Despite its uncertainty, Cloud’s bill gained approval from the Senate committee that Republicans dominate. Democrats make up about a third of the Louisiana Senate but account for only one of the seven senators on the Judiciary C committee. 

Sen. Regina Barrow, of Baton Rouge, is the committee’s only Democrat and was the lone no vote against Cloud’s legislation. She expressed concern over the “law and order” approach to disciplining youth.

“I do not believe kids are born bad. I just don’t,” she said. 

A federal judge in East St. Louis found Illinois’ gun and magazine ban is unconstitutional and enjoined the state from enforcement, but stayed the ruling for 30 days for the state to appeal. 

“[The Protect Illinois Communities Act] is an unconstitutional affront to the Second Amendment and must be enjoined,” federal Judge Stephen McGlynn wrote Friday in a 168 page ruling. “The Government may not deprive law-abiding citizens of their guaranteed right to self defense as a means of offense. The Court will stay enforcement of the permanent injunction for a period of thirty (30) days from the date of this Order.”

Illinois banned the sale and possession of more than 170 semi-automatic firearms and magazines over certain capacities in January 2023. Federal lawsuits were filed in the following weeks. 

The state argues the banned firearms are too similar to military firearms, are dangerous and unusual, and banning them is for public safety. Plaintiffs argue banning commonly owned firearms violates the Second Amendment right to keep and bear arms. 

Four consolidated cases in the Southern District of Illinois federal court were consolidated by McGlynn in the spring of 2023. After granting a preliminary injunction against the law in April 2023, the state appealed. McGlynn’s preliminary injunction then lasted six days before the Seventh Circuit U.S. Court of Appeals put a hold on McGlynn’s order and later ruled in favor of the state on preliminary grounds. 

The case was then back in district court where McGlynn held a four-day bench trial in September. After final briefs were filed by the litigants last month, McGlynn issued his ruling on final judgment Friday. 

“The Court is also not convinced that weapons like the AR-15 and its relatives are ‘dangerous and unusual,’” McGlynn wrote. 

McGlynn also criticized the state’s prohibition on limiting magazine capacities. 

“[T]his Court holds that these devices are also in common use and have legitimate self defense purposes,” the judge wrote. “For magazines, every round matters in a self-defense scenario – reloading takes away significant time during which the defender can be injured or wounded.” 

When the preliminary issues were debated in the appeals court, the majority of the three-judge panel argued semi-automatic rifles like the AR-15 were too similar to military firearms that can switch to full auto. McGlynn pushed back on that with his final judgment order Friday. 

“Therefore, the Court holds that ‘military use’ refers to weapons that are selected, procured, tested, and issued to military members for use in combat,” he wrote. “With this in mind, none of the weapons, magazines, or attachments prohibited by PICA can be called ‘military-grade’ since they were not issued to the military for use in combat.” 

Supporters of the gun ban say the law was needed to keep people safe from bad actors who may use such firearms in a mass shooting, as was done in Highland Park on July 4, 2022. 

“While the Court is sympathetic to those who have lost loved ones to gun violence, such tragedies are not an excuse to restrict the rights guaranteed to the Illinois public by the Second Amendment to the United States Constitution,” McGlynn wrote. “Regardless of state governments’ desire to restrict law-abiding citizens’ Second Amendment rights under the guise of crime control, the Second Amendment conclusively protects law-abiding citizens’ right to defend themselves utilizing weapons that are in common use.” 

Ultimately, McGlynn said the government did not meet the burden to prove that the history and tradition of firearm regulations supports PICA’s “expansive sweep, covering hundreds of models of weapons, magazines, and attachments used by tens of millions of law-abiding United States citizens.” 

The Second Amendment Foundation praised McGlynn’s ruling. 

“This is a great victory for the Second Amendment Foundation and the right to keep and bear arms,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The gun prohibition lobby and their bought-and-paid-for politicians just suffered a big defeat.” 

An appeal from the state to the Seventh Circuit U.S. Court of Appeals is expected.

One-on-one consultations are available for covering participatory defense strategies for juvenile and criminal court, post-conviction options including re-sentencing and parole board hearings, commutations, expungements and immigration issues.

If you have questions and/or need more information, you can text (323)327-1259 or (424)744-1156. You can also send an email to [email protected].