BOSTON (CN) — The idea that the U.S. Constitution requires free lawyers for tens of thousands of people who are slapped with domestic violence restraining orders each year got a sympathetic reception from Massachusetts’ Supreme Judicial Court Wednesday — although the justices also worried about the expense.
There would be “almost astronomical cost and operational problems with getting counsel in all these cases,” noted Justice Scott Kafker.
But other judges seemed to think it wasn’t fair that defendants can have significant rights taken away without anyone to represent them.
“Given that a person could violate something they don’t understand, in a way they don’t understand, accidentally even, and could end up in jail, what is the harm in giving them an attorney?” asked Justice Elspeth Cypher.
And Justice Dalila Wendlandt was even more direct. “You have a child and temporarily — for a year — you don’t get to see, touch, hear, or interact with that child. You’re saying that’s not a due process violation without counsel?”
Assistant District Attorney Konstantin Tretyakov responded that defendants would have a year to figure out how to ask the court to change the order.
“But why don’t I get counsel for that?” Wendlandt pressed. “I want my kid back.”
Restraining orders in domestic cases are surprisingly common. There were 27,288 requests for such orders in Massachusetts in fiscal 2021, or one for about every 260 people in the state.
Currently there’s no requirement that lawyers be appointed for indigent defendants in these cases, even though the consequences can be severe: Defendants can lose custody of their children or be ordered not to see them at all, be forced out of their homes, have their guns and pets taken away and be prosecuted criminally for violating the order’s terms.
And this is true even though the vast majority of defendants are unlikely to be able to mount an effective defense without an attorney. According to a 2004 study by the Massachusetts court system, 58% of defendants have less than a high-school education, 62% earn less than $10,000 a year and a whopping 86% have a substance abuse disorder.
The case before the court involved Leon Dufresne, who was forced to move out of his rooming house in the historic mill town of Lowell after his former girlfriend, who also lived there, got an order requiring him to stay 100 yards away from the house. One day Dufresne walked past the house and stopped for less than two minutes to talk to an old friend. When the girlfriend complained, Dufresne was charged criminally and sentenced to 18 months of probation.
On appeal, Dufresne claimed that the state shouldn’t be able to charge him criminally unless it provided him with a lawyer at the time the restraining order was issued.
Although restraining order proceedings are civil, not criminal, free lawyers are required in a number of civil matters, Dufresne noted, including juvenile proceedings, involuntary mental health commitments, terminations of parental rights, probation violation proceedings and sexually dangerous person determinations.
The case drew amicus briefs from a number of organizations, including a civil rights group and a women’s bar association that argued that, to be fair, both parties in a restraining order case should have a lawyer appointed if they can’t afford one.
Dufresne’s lawyer, Jennifer O’Brien, told the court that a person could be served with an order but be drunk at the time or mentally incompetent and not understand it, then unintentionally violate it and go to jail.
She also noted that many people served with an order also face a criminal prosecution for making threats, and anything they say without a lawyer in the restraining order proceeding could be used against them later in the criminal case.
O’Brien tried to counter the cost argument by noting that such defendants already get a lawyer in the criminal proceeding so it wouldn’t be a big deal to have the lawyer also represent them as to the restraining order. And she noted that many plaintiffs who ask for an order never go to court to extend it beyond the first few days, in which case a lawyer wouldn’t be necessary.
But Kafker was still concerned. “In a better world, we’d have a lawyer in housing cases, in divorce cases, in a huge number of proceedings. But is this case different from one where you could lose your house or your marriage could end without representation?”
Kafker suggested that some of the problems could be solved just by ruling that statements made without a lawyer in a restraining order proceeding can’t be used in a criminal case.
Perhaps surprisingly, Tretyakov told the judges that if they insisted on a lawyer for defendants, they should give one to plaintiffs too, to avoid “an immense asymmetry of representation.”
But Cypher worried that adding a phalanx of lawyers might not always be a benefit. She said her experience in private practice was that “the introduction of attorneys often drags things out and makes things worse.” She asked O’Brien whether, “if everybody’s getting a lawyer, could it make it worse?”
“That depends on the lawyer,” O’Brien quipped.
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