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The appointment of counsel fully satisfies constitutional guarantees on providing prisoners, including pretrial detainees, access to the courts, the 2nd U.S. Circuit Court of Appeals has ruled. The court ruled against a prisoner who claimed he was effectively denied access to the courts because he was denied adequate materials by the prison law library. It said “constitutionally acceptable access to the courts through appointed counsel is not measured by reference to the Sixth Amendment’s guarantee of effective assistance of counsel.” Bourdon v. Loughren, 03-0196. Ronald Bourdon was being held in the Chenango County, N.Y., jail in 1996 on charges of possession of a stolen motor vehicle, driving while intoxicated and first degree aggravated unlicensed operation of a motor vehicle. He filed suit in the Northern District in 1997, claiming he was denied reference materials, that the prison law library failed to have adequate and up-to-date materials, and that the library failed to provide a public notary on a timely basis. Bourdon alleged that the law library problems handicapped his preparation of a timely pro se motion to dismiss the state indictment against him. At the time he filed his claim, Bourdon was represented by court-appointed counsel, but he said he was disappointed with the attorney’s services. In July 2003, Northern District Chief Judge Frederick J. Scullin Jr. granted summary judgment for the defendants, and Bourdon appealed to the 2nd Circuit. A panel consisting of Judges Jose A. Cabranes, James L. Oakes and Amalya Kearse rejected his claim. “Several of our sister circuits have already interpreted the appointment of counsel as a valid means of providing pretrial detainees and other prisoners with constitutionally mandated access to the courts,” Cabranes wrote for the panel. “They have done so with good reason,” he said, because the U.S. Supreme Court decided in Bounds v. Smith, 430 U.S. 817 (1977), that prison authorities can satisfy the right to access if they give prisoners “adequate assistance from persons trained in the law.” For the first time, Cabranes said, the 2nd Circuit was “explicitly” holding that the appointment of counsel satisfies the obligation to give pretrial detainees and prisoners access to the courts “in conformity with the requirements of the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment.” Cabranes said Bourdon had devoted a good portion of his arguments to allegations that his attorney was ineffective. He claimed the Chenango County Public Defender’s Office failed to respond to or acknowledge his calls or a “chain of letters” he sent seeking to identify the attorney assigned to represent him. Once he learned the attorney’s identity, he said, the lawyer never visited him in jail. ASSISTANCE AND ACCESS Cabranes said the right to effective assistance of counsel lies in the Sixth Amendment, while the right to access of the courts is grounded in other constitutional provisions. “To provide the access constitutionally mandated, a state may be required to offer affirmative assistance to prisoners, but that assistance is not prescribed in narrow or specific terms or limited in form,” he said. “For example, the assistance of an attorney … is a permissible and sufficient means of satisfying the right of access to the courts, but it is not a necessary or exhaustive means to do so — in contrast to the Sixth Amendment right to the effective assistance of counsel, where the assistance of an attorney is necessary (although not sufficient) for satisfaction of that right.” And while both rights set a minimum standard for “assistance,” he said, they “are not synonymous.” “Because attorneys, by definition, are trained and qualified in legal matters, when a prisoner with appointed counsel claims that he was hindered by prison officials in his efforts to defend himself or pursue other relevant legal claims, he must show that … the provision of counsel did not furnish him with the capability of bringing his challenges before the courts, not that he was denied effective representation in court,” Cabranes said. The phrase “adequate assistance from person trained in the law,” as used by the U.S. Supreme Court in Bounds, he said, “does not incorporate the effectiveness inquiry pertinent to the Sixth Amendment right to counsel,” but instead, “the phrase refers to the capability of persons qualified and trained in legal matters, such as attorneys, to bring a prisoner’s legal claims before the courts.” In Bourdon’s case, he said, his appointed counsel “afforded him meaningful and constitutionally acceptable access to the courts.” BROAD RULING Oakes issued an opinion in which he concurred in the grant of summary judgment, but voiced his “disagreement with the breadth of the rule announced” by the majority. While Bourdon had not demonstrated “sufficient injury” to establish a claim here, Judge Oakes said, “in other circumstances, the rule announced in today’s decision could permit a state to foreclose a defendant from raising claims of constitutional magnitude by interposing the fact of representation, regardless of its effectiveness.” John J. Walsh of Boeggeman, George, Hodges & Corde in White Plains represented the county.

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