Monthly Archives: March 2011

No Surprise in Connick v. Thompson Ruling

This morning, the Supreme Court of the United States handed down its ruling in Connick v. Thompson, 09-571. In that case, a defendant sued the Orleans Parish District Attorney’s office after he was very nearly executed by the State of Louisiana because the District Attorney’s office violated its Brady obligation to turn over a lab report showing that the defendant’s blood type did not match that found at the incident scene. Put simply: the DA screwed up and nearly killed a man for the sake of a win.

Yet today, the Court overturned a ruling for Thompson and held that District Attorneys don’t have a duty to train their staff on the requirements of Brady obligations. Disappointing but not surprising. Less surprising is the composition of the majority (Justices Roberts, Scalia, Thomas, Kennedy, and Alito).

But hey, thank God that we don’t have to worry about keeping prosecutors accountable or making sure new attorneys fully understand the implications of Brady, right? I mean, what a relief that it’ll be easier to trample on defendants’ constitutional protections. I could go on but I don’t want to exhaust all of my sarcasm reserve.

Meanwhile, I’m sure Nancy Grace is off somewhere jumping up and down while shouting something about a triumph for “victims rights” as if there is such a thing.

-Zachary Cloud

Summary of Oral Arguments in Turner v. Rogers

In the next day or two, I hope to write up a reaction to the oral arguments. Right now, unfortunately, I’m very busy and can only give a summary.


Things got off to a very rough start for Seth Waxman, the counsel arguing on behalf of Mr. Turner. Within the first few seconds, he was interrupted by Justice Scalia suggesting that he had misrepresented just how limited the right to counsel was. Justice Alito was quick to jump in, asking Mr. Waxman how siding for Turner would not create an imbalance, as respondents suggested in their merit brief, between indigent plaintiffs and indigent defendants. Justice Scalia seemed to latch on to this line of argument, asking if it wouldn’t be a better idea to argue for counsel in instances where one had been provided to the other side. Mr. Waxman was willing to agree that this would be fair and quick to suggest that a very limited number of cases would require the court to provide counsel.

Justice Ginsburg then brought up another issue: scope. She asked if petitioner was arguing for counsel only in child support instances or with civil contempt in general. Mr. Waxman answered that a broader categorical right for counsel when incarceration was a possibility was the correct path. Justice Kennedy wondered if this would extend to witnesses refusing to testify. For example, if an indigent witnesses refuses to testify and the judge order the “bailiff, [to] take him out until he complies” would this instance require appointed counsel? In response, Mr. Waxman suggested that this should properly turn on the difference between direct and indirect contempt. He then returned to Justice Ginsburg’s question and suggested that if he had to advance a more limited rule it would certainly turn on the affirmative burden placed on a defendant to show indigence or face jail. In other words, it should be dispositive that the prima facia case has been made and the defendant is presumed guilty unless he shows otherwise.

Justice Sotomayor seemed to wonder if the appointment of counsel was really necessary, asking Mr. Waxman to explain why a defendant couldn’t answer the questions necessary to show inability-to-pay as a defense.

Justice Roberts asked if the petitioner’s case would be weaker had the burden been on the plaintiff to prove his ability to pay. Mr. Waxman noted that it probably would be more difficult but that such a shift in burden would not defeat a need for counsel.

Justice Kagan hinted at some sympathy, asking, “suppose the Court looks at this record and thinks this is a broken system and a violation of due process, but requiring a counsel in every case may go too far, and there may, in fact, be alternative procedures that a State could adopt that would comply with due process. And I know that this is not your submission, it’s instead the Solicitor General’s submission, but if pressed on that point, what procedures do you think would be capable of giving a person in this situation a fair shake of it?” To this, Mr. Waxman claimed that there would be none in the current adversarial set-up.

Ever the originalist, Justice Scalia wanted Mr. Waxman to identify the earliest case that would indicate a right to counsel for someone facing incarceration due to contempt.  While Mr. Waxman had no precedent, he did appeal to Justice Scalia’s interest in history by laying out some of the background behind contempt proceedings and when counsel was provided. Following this, Justice Ginsburg and Justice Scalia inquired about whether this appointment of counsel should require the “full dress” of criminal procedure. Justice Scalia quipped that the civil/criminal distinction was “an illogical [one].”

Justice Alito seemed on board with the Solicitor General’s suggestion that a right to counsel may not always be required and that other alternatives may exist. Yet it was Justice Ginsburg that asked perhaps the most interesting of questions. She suggested that Lassiter showed us we do not always supply counsel and that these decisions (in that case it wasn’t contempt but losing custody of the child) should be case-by-case. Accordingly, if such a method was alright for depriving a mother of her right to see a child, why would it not be alright for this context?

Before getting into a satisfying answer, Mr. Waxman reserved the balance of his time.


While Justice Kagan had inquired about if alternatives to counsel might satisfy due process during petitioner’s arguments, she pressed Ms. Kruger (arguing for the government) why anything short of counsel would suffice. Indeed, she suggested that the government’s list of alternatives were “anemic.”  Ms. Kruger responded by explaining different possibilities that staes have taken and suggested that what was fundamentally required is that the defendant actually be able to have the keys to his jail cell— a reference to the adage that civil contempt is not punitive because a defendant can release him or herself by complying with the court order. Such an adage proves problematic when the defendant is indigent and the key he is said to possess is money.

Justice Sotomayor wanted a clearer understanding, nevertheless, of what a State procedure would look like. Justice Scalia suggested that perhaps the right thing to do would be to make sure the judge him or herself was satisfied that there was a willful failure to comply with the orders (here, to pay child support). Ms. Kruger replied by suggesting the issue lie with retrospective versus prospective intent and arguing that the question here is a prospective one. Justice Scalia seemed satisified with this but before questioning continued, Justice Roberts asked Ms. Kruger to clarify her position on the question presented. Her response was that South Carolina did not act unconstitutionally here…a strange answer for a party supporting reversal of that State’s decision.

Justice Ginsburg asked Ms. Kruger if there was a particular state employing a model she would suggest to the court for alternatives to providing counsel. Ms. Kruger responded in the negative but suggested states like New Mexico, which have social workers inquire about finance then determine if the case should be forwarded on for possible contempt, illustrate an effective approach. In response to this Justice Ginsburg wondered if an aid that was not a lawyer but knew the system would be an appropriate person to help an indigent defendant. Ms. Kruger responded that she thought that would be a proper approach. Continuing on this, Justice Ginsburg and Ms. Kruger discussed what a form might require, if it were used to review a defendant’s ability to pay.

Justice Kagan was still interested in the nature of the system, however, and wanted some elucidation about the frequency with which the State as opposed to the mother is proceeding against defendants. Ms. Kruger noted that the State is often proceeding and represented by either a lawyer or other official such as a caseworker. With that, Ms. Kruger’s time elapsed.


Mr. Bibas, for the respondents, was quick to lay out both points. First, that the case is moot and second, that a categorical right to counsel is not necessary to satisfy due process. Up to this point, the jurisdiction had not been mentioned whatsoever.

But, as I predicted, the jurisdiction issue didn’t receive sympathy. As he began to explain why Mr. Turner’s case was not capable of evading review, Justice Ginsburg asked why it should matter that Mr. Turner did not get a stay since the South Carolina Supreme Court granted his case after he was released from jail. Justice Roberts added that states have different concepts of mootness than the Federal court system and their understanding of whether Mr. Turner’s case was moot should control here. To this, Justice Sotomayor asked why Mr. Bibas would expect South Carolina to grant a stay if they saw no sixth-amendment issue and, under that scenario, how Mr. Turner could ever evade mootness. She asked Mr. Bibas if he could point to any cases where South Carolina has granted a stay in child support cases.

Though Mr. Bibas made several attempts to explain, pointing to a somewhat close South Carolina case, he was stopped by Justice Kennedy wanted to move to the substantive issue. He asked if both respondent and petitioner’s claims could fit in a Matthews v. Eldridge framework. While Mr. Bibas was hesitant to say that, he leaped at this opportunity to address a question Justice Kennedy had asked of Mr. Waxman. Here, Mr. Bibas suggested that an outcome for Mr. Turner would create a broad right beyond child support that would apply to “tnes of thousands of immigration and extradition cases.” He also suggested that ruling for Mr. Turner would create “massive change” and that a trial judge would need to know ahead of time whether a criminal or civil set of procedural rules applied to the case at bar.

Justice Ginsburg was ready to tackle this point. She asked if it wasn’t true that most states hold this as a constitutional right. Mr. Bibas suggested that it wasn’t and described that 15 states consider it to be, and 11 states by a state instrument (statute, rule, etc…), but that 17 do not view it as a constitutional requirement and the other seven are ambiguous on the point. Yet Justice Ginsburg was not to give up, asking if it wouldn’t really just affect a very small portion of the cases coming through family courts…the ones where defendants were truly indigent. Justice Kennedy came to Mr. Bibas’ aid by saying “I suppose you could say that in – in advance that the judge and the appointing authority simply wouldn’t know.” Mr. Bibas agreed with this assessment adding that this was important to protect judges since they would need to know if civil or criminal procedural rules applied before entering the courtroom.

Justice Sotomayor was the first to ask for the respondents’ position on the government’s approach. Mr. Bibas called the governments suggestions “interesting” but undeveloped and did not take a position. Justice Scalia then asked him to define what due process protections South Carolina was not affording to defendants like Mr. Turner. As it turns out, this was a lead-in to a comment by Justice Scalia that the government had essentially tried to inject a new question into the case…one not up for decision by the Court.

Justice Sotomayor asked Mr. Bibas if perhaps the question presented was already answered, noting that the phrasing was important. While Mr. Bibas disagreed about how the question should be read, Justice Sotomayor said they would handle it later. Justice Scalia came to the aid of Mr. Bibas in suggesting that the right to counsel may be too specific…that if minimum due process was not afforded, procedures must be changed to afford due process…procedures perhaps more broad than a right to appointed counsel.

Justice Breyer stepped in to ask a question of what happened, factually, and wondered why the state would put him in jail if “he ha[d] no job.” When Mr. Bibas explained that the judge did not believe Mr. Turner, Justice Kagan interjected that there wasn’t really any indication the judge took Mr. Turner’s financial considerations seriously; instead, ignoring the issue. As she put it, “Well, we couldn’t really tell could we, Mr. Bibas. Because he completely ignored that question. … Mr. Turner talked about how he had no money and was disabled. The court completely ignored him. The court also ignored the questions on the form for the order of contempt about whether he had any money. The court ignored that as well.”

As Mr. Bibas tried to craft a resonse, Justice Scalia stepped to his aid, wondering what the significance of such a discussion was and saying it wasn’t relevant to the question presented. Yet Justice Breyer wanted to remain on the general topic and said it could have an impact on how he, even if nobody else, decides the case. While Justice Scalia resisted, Justice Breyer pressed on: “What I’m trying to figure out…is this: What, in general, is the fairness of such situations in where the woman is normally the one with the child, the man is normally the one who doesn’t pay? Is it true, for example, that in most such situations across the country, the woman has a lawyer but the man doesn’t?” Mr. Bibas was unaware of specific studies or information on that point.

Then, an interesting question posed by Justice Roberts: “Do you know why we’re not hearing from the State of South Carolina?”  Specifically, he wanted to know why they weren’t present to defend their procedures. Mr. Bibas noted that while it might be because their interest in the matter was no longer a direct one, he was not sure specifically.

Justice Scalia wanted to return to the mootness question, asking if there was precedent arguing in the manner that respondents do for why the capable of repetition standard was not satisfied. Though Mr. Bibas started to answer, Justice Roberts suggested that he was just wrong, noting that acquiring a stay cannot possibly be the requirement since “[the Court has] cases applying the rule that this is capable of repetition yet evading review. If the rule were you have to get a stay, we wouldn’t have any of those cases.” Mr. Bibas attempted to distinguish this case from the typical ones using the standard (election and abortion cases for example).

There was a bit of return to questions Justice Breyer and Ginsburg asked before Justice Alito seemed to raise his own concerns about the total lack of inquiry by the family court judge regarding Mr. Turner’s claims of being indigent. Then Justice Kennedy interjected his desire to know what factors, if any, should be laid out in the opinion. Justice Scalia added onto this but when Mr. Bibas began to suggest possible relaxed procedures Justice Kennedy wondered if “all those things are properly before us.”

Mr. Bibas returned to the point of the child support context as being relaxed and informal and noting that all previous situations where the Court had deemed counsel necessary were ones much more formal and demanding in nature. With that point, he ended his arguments.


On his rebuttal, Mr. Waxman laid down three points: (a) how complex proving inability-to-pay really is, (b) how much of a burden will providing counsel be on the States, and (c) if the Utah and New Jersey models would be a way to “square this circle.”

Mr. Waxman then pointed to issues such as the drug use, attempt to get a job, disability, etc… Mr. Turner explained as legal questions rather than factual questions. In other words, how do the answers to those affect a finding of indigent status? That such questions arise is evidence that the matter cannot be easily resolved with naught but a form the defendant fills out.

Then Mr. Waxman moved on to the burden on the state, noting that 15% of South Carolina’s imprisoned population are non-custodial parents that have not paid child support. Mr. Waxman noted that this was costing between $13,000 and $17,000 a year per defendant. Following this, Mr. Waxman noted that South Carolina is already paying $72 million to the U.S. Government for failure to comply with requirements of the Federal program.

The last question of arguments (and only question on rebuttal) was by Justice Alito, who asked if Mr. Turner would automatically be vindicated had the judge had credited a form showing Mr. Turner was unable to work and was indigent. Mr. Waxman said yes, qualifying that a mere assertion is “not the marshalling of evidentiary support that’s required to carry the burden.”

With that, Mr. Waxman’s time elapsed and the case was submitted at 11:12 a.m.


-Zachary Cloud


Oral arguments from Turner v. Rogers.

Analysis to follow later.

-Zachary Cloud

SCOTUSblog Previews Turner v. Rogers

Passing this along. On the eve of oral arguments, the always-wonderful SCOTUSblog provides an overview of Turner v. Rogers here. The author, Amy Howe, is a distinguished US Supreme Court litigator who also has contributed to the Supreme Court clinics at Stanford and Harvard.

-Zachary Cloud

GUEST POST: Turner v. Rogers and What It Means To Me

[Chris Castanias is a father of two who was held in civil contempt for failure to pay child support. Although he requested appointed counsel due to his indigent status, the domestic relations court refused to entertain his request and he was subsequently sentenced to over 90 days in jail. In this piece, he shares his experience. — Zachary Cloud]

Divorce can be financially devastating, and equally so for both mother and father.

Imagine for a moment that you experience a 50% reduction in pay and at the same time are ordered by a court to pay not only your rent or mortgage, but that of your neighbor. Could you do it?

The economics of that scenario are similar to that of an obligor (the person ordered to pay child-support), previously living in a typical two-earner, two-child household. What happens at divorce is that the earners split up and no longer jointly contribute to the family’s financial obligations, while the designated obligor picks up an additional involuntary debt (child-support obligation) that is likely close to that of his or her existing rent or mortgage payment.

In the fictional situation described above, would you consider it fair if you were at risk of being jailed for not making both your and your neighbors housing payment in any given month. If you faced the potential of jail, would you want legal representation? If you couldn’t afford to make the housing payments, how likely would you be to afford an attorney. Is it possible that financial scenario might create a situation where you would need to ask for court appointed counsel?

There are similar parallels to my hypothetical scenario, the case of Turner v Rogers and many countless others who have been sentenced to jail without being allowed representation of legal counsel, after allegedly falling behind with child-support obligations.

The world is currently experiencing the worst economic period in modern history. In this country, foreclosures are at record high levels, yet no one is imprisoned for failing to pay their mortgage or defaulting on their rent. In 2008, statistics show that nearly 16 million child-support obligors nationwide were in default on the child-support obligation. One state, Illinois reported 88% of their obligors to be past due. For more information, see here.

I’m writing as an strong advocate of Michael Turner, because I personally experienced the exact same fate, and since the completion of what I feel was an unjust imprisonment over a year ago, I’ve no longer had any access to my children.

Unlike Turner, who had little formal education, I possess a degree in accounting.

I’m 50 years old, and prior to 2008 was financially secure and had never been in any legal trouble. I was divorced in 1999 and have 2 children who were 5 and 1 at the time.  From the time of my divorce until 2007, I enjoyed nearly twice the amount of parenting time with my children that a standard parenting order would typically allow a non-residential parent. This due to the fact I had worked from home for nearly 10 years.

In 2007, my ex remarried and moved approximately 5 miles away to the neighboring suburban community. Against my objections, she successfully petitioned the court to allow a transfer of the children to her new school district. The court in its decision stated that “Father’s only objection is that he had been actively involved in the children’s daily lives and since he worked at home they didn’t anticipate the move to have an impact”.

Not long after the ink was dry on the first decision, Mother returned to court and asked that they restrict my parenting time, which it agreed to, based upon the premise that there would now be unnecessary daily travel for the children (5 miles), “which would not be in their best interests”.

Finally mom requested and was granted a + 400% increase to support, based upon my having less time with the children, even though all time that I lost would occur while she was working outside of her home.

Prior to the ordered increase I had a credit balance in my support order, due to my having made voluntary double payments for an extended period of time.

Soon after the increase, the economy took a nosedive and my income dropped from +100,000 to below $30,000. In March of 2009 I requested a modification (which was finally granted in August of 2010, some 16 months later).

As soon as I fell behind, I began to feel the impact of the legal system. Within months, I was sentenced to 10 days in the county jail. Upon release I was ordered to wear a GPS device for 4 months (the entire summer of 2009). Finally, I was sentenced to an additional 90 days in jail from November 2009 to February 2010, even though prior to that sentence, and upon the urging of the prosecutor, I requested and was denied court appointed counsel. (I was financially unable to secure my own counsel at the time. In fact I still owe my divorce lawyer close to $5,000 for representation during the hearings regarding the school transfer and subsequent reduction to my parenting time).

Recall that unlike Turner, I’m college educated with a degree in accounting, so after being denied legal representation, I quickly came up with a trial strategy in which I was clearly able to mathematically confuse the prosecutor and child support agency’s bookkeeper.When it became clear they were stumped, the magistrate took it upon himself to begin his own line of questioning and he ultimately found me guilty based upon what he termed “Prima Facie” evidence. Not being a legal expert, I looked up the term and found that it effectively means the appearance of. (As a side note, the magistrate is a former prosecutor as are many domestic relations arbiters throughout this country, so I was effectively a non-legal expert fighting two prosecutors).

Another twist to my story is that I happen to have a cousin who is a partner with the law firm representing respondent Rogers in this case. In sharing my own personal experiences with him, he offered a very interesting comment in which he said “no one knows my case better than me, so I should win on substance every single time, but because I’m not a lawyer, I will also lose on points of law every single time”. What more compelling statement to support the need for legal representation when faced with imprisonment.

As a final note, my children were alienated against me during my incarceration and I have not seen them since my release over a year ago.

From my personal experience, Turner v Rogers is a case I’m following with tremendous personal interest.

In an adversarial situation such as divorce where children are often a pawn, imprisonment for any period of time puts the parent sentenced to jail in a precarious position of having the other parent manipulate the children while the incarcerated parent is out of their lives. It happened to me and it makes imprisonment all the more severe in child-support cases.

As such, I have complete conviction that the South Carolina ruling must be reversed, thereby allowing all indigent defendants facing imprisonment in civil child-support cases the absolute right to legal representation.


Predictions for Turner v. Rogers

Let me say right up front that I’m not a scholar, per se, of constitutional law. I certainly have an interest in it but I cannot claim to have studied Chief Justice Roberts jurisprudence in great detail. Nor can I say I have carefully examined Justice Kagan’s work as a Solicitor General. All of this is to say that I may lack some important insights into aspects of the justices’ jurisprudence, which will have an effect on how they vote in this case.

With that said…

Turner will likely win, but do not expect a landslide. Justices that like clear, bright lines such as Scalia and Thomas are probably going to side with Turner because he has a strong constitutional argument that Gideon’s progeny protect indigent defendants facing incarceration (regardless of a criminal/civil distinction). The Chief Justice and Justice Alito are harder to call. They often gravitate away from rational basis analysis but neither of them has traditionally been very friendly for criminal defendants. Jusice Alito, in particular, is likely to go for the respondents. He’s been very vocal about protecting the public and has made remarks in both his opinions and oral arguments, which suggest he has little sympathy for criminal defendants…not surprising given that his previous line of work was for the U.S. Attorney’s office for the District of New Jersey. My guess is that he’ll find sympathy for poor mothers and disgust for deadbeat dads.

What of Justices Kagan, Breyer, Ginsburg, Sotomayor, and Kennedy?

First of all, Justice Kagan is particularly difficult to predict since she lacks the judicial history of others such as Justice Sotomayor and since she comes heavily steeped in academia. She’s brand new to the Court and has recused herself on quite a number of cases this term due to her involvement with them as the Solicitor General. A fun fact: Justice Kagan taught at my alma mater’s law school but left to work for Clinton during his Presidency. After serving in the Clinton administration, Justice Kagan attempted to return to University of Chicago but was denied a position…she decided to take a job at Harvard Law instead. My inclination is to say she’ll likely hold for Turner because he has the stronger legal argument and such well-founded legal logic will perhaps take priority over factual and policy considerations that the respondents argue. Scholars aren’t usually fond of emotional appeals like the ones respondents advance; scholars from the Chicago tradition are especially distrusting of such appeals.

Justice Breyer is likely to go for the respondents since he takes a very hands-off approach to the judiciary. In other words, these matters are usually best left to the legislature not the courts. I think Justice Ginsburg will probably follow suit. She usually takes a similarly restrained approach to judicial decision-making. Moreover, given the particulars of the child support scenario, she may have display some sympathy for women; in her early career, she was refused job opportunities because of her gender. I’m tempted to say Justice Sotomayor may also find sympathy for mothers here, but on the other hand she has shown herself being open to defendants rights so far (with a few exceptions such as Michigan v. Bryant).

This leaves Justice Kennedy. I don’t know a whole lot about him except that he generally tends to vote with the Roberts/Scalia/Thomas/Alito block. My guess is that, barring information I’m not aware of about his jurisprudence, he’ll probably swing for Turner.

So my prediction, subject to re-examination and modification after oral arguments is: Chief Justice Roberts, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Kagan, and maybe Justice Sotomayor for Turner, creating a small majority. I predict Justice Alito, Justice Breyer, and Justice Ginsburg will definitely hold for Mrs. Rogers.

-Zachary Cloud

Turner v. Rogers Briefs Part 3: The Petitioner’s Reply Brief

As I mentioned in my last post, I learned that counsel for Michael Turner had filed a reply brief. Today, I finally had a chance to look the brief over. While I’m not going to address the document in great length (see my posts on the petitioner and respondent merit briefs for more depth), here are the basics:

The problem with jurisdiction in this case is that the petitioner is no longer in jail and that he did not file a stay pending appeal. The respondents argued in their merit brief that since Mr. Turner is not in jail his case is no longer active and the matter is moot.

Now, that’s not necessarily a bad argument– after all, the Supreme Court does not issue advisory opinions on matters. However, there are instances where a case is “capable of repetition yet evading review” because the time it would take for the case to reach the Supreme Court is longer than the duration of the event in question. It is this exception that is under dispute in Turner v. Rogers.

Respondents argued in their merit brief that petitioner will not face incarceration again unless he does not make future child support payments and they argue that the Court should presume any lack of payment will be voluntary on his part. Petitioners here respond by pointing out that if we’ve assumed him indigent for the purpose of this case, it follows that he will continue to be found in contempt unless afforded a right to counsel. That makes his case capable of repetition.

The issue of a stay pending appeal is also addressed. Petitioner notes that the South Carolina Supreme Court considered and ruled on his case after his jail time sentence had expired without any questioning of possible mootness. While procedure is important, it runs the risk of becoming incredibly boring, so I’ll move on to the substantive arguments.

In the last half of the reply brief, we see the rebuttal to what respondents said concerning right to appointed counsel. For the most part, the arguments made are the ones I advanced when I discussed the respondent’s brief. For example, I suggested that respondents inappropriately attempted to extend Middendorf v. Henry, 425 U.S. 25 (1976), a military tribunal case, to the civilian context. Petitioner also notes this in his reply brief. Another example is the criminal/civil distinction. Petitioner argues, as I have, that such a distinction is but a “formalism” that is untenable in face of reality. You can call a rose a carnation all you want; it’s still a rose.

Interestingly, petitioner also argues with the factual contention of respondents that proving indigent status in a family court context would be “simple” and would not require legal counsel to do. Citing to amici briefs, petitioner says that this is quite simply wrong. Also a good point, petitioner notes that having the defendant himself or herself prove indigent status would be inappropriate because a judge could simply chose to discredit this testimony. Instead, argues the petitioner, counsel is necessary to support this assertion with evidence.

Lastly, we see an attack respondent’s assertions that requiring right to appointed counsel would place an unfair burden on pro se plaintiffs and on the state. Petitioner points out that since the South Carolina DSS handles prosecution of non-paying parents, there is no disadvantage to a mother like Mrs. Rogers. In fact, petitioner makes a very good point that since (a) DSS automatically begins proceedings when payments fall behind and (b) the defendant is presumed guilty until he proves inability to pay, the only significant burden to bear falls upon a defendant.

The final arguments lie with the United States’ suggestion that a case-by-case approach, rather than a categorical holding, would be sufficient to ensure due process to indigent defendants. This argument is one that I did not cover previously since it is mostly contained in the United States’ amicus brief– which I’ve only had a chance to skim. For those more interested in this aspect of the argument, I recommend giving the Solicitor General’s brief a read here.

Nothing in the brief was a surprise. Most of the rebuttals are what I would expect and it seems that this case is pretty well developed. Oral arguments are this Wednesday morning, March 23, 2011. Transcripts from oral arguments should be up by close-of-business on Wednesday so expect a post from me on Wed. night with play-by-play analysis of the proceedings.

-Zachary Cloud