Saturday, March 16, 2013

An Obvious Truth

[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.
So wrote Supreme Court Justice Hugo Black, speaking for a unanimous court, and holding that the states are required to provide a free lawyer to anyone charged with a serious crime who cannot afford to hire one. The case was Gideon v. Wainwright, brought to the Court on a petition for writ of certiorari, hand written, on lined paper, in pencil, by drifter and sometime thief Clarence Gideon from his prison cell in Florida.  

Gideon was charged with breaking and entering with intent to commit petty larceny at the Bay Harbor Pool Room, a pool and beer joint in Panama City, Florida.  He asked the judge to appoint him a lawyer for his defense at trial.  The judge said no.
I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
And so he defended himself.  And got the maximum sentence: five years in the pen. And still without counsel, he kept at it.

When the case got to Washington, and when the Supremes agreed to hear it, that changed.  They weren't going to force this guy to represent himself in their court.  So they appointed this lawyer, Abe Fortas (later Associate Justice of the Supreme Court Abe Fortas, later still disgraced-former-Associate . . . ), to represent Gideon.  Fifty years ago, on March 18, 1963, the Court recognized that "obvious truth."

The rule now is, in every state, that people charged with serious crimes who can't afford counsel are entitled to have lawyers appointed for them.  Which is quite something.

Until you peek under the covers.

Gideon had no lawyer to help him ask the Supreme Court to hear his case.  The court's decision didn't change that.  Nothing in the last 50 years has.  The accused has a right to an appointed lawyer at trial and on a first appeal.  If the state offers two levels of appeal (most do in most cases) he doesn't have a right to a lawyer at the second.  He doesn't have a right to a lawyer to pursue a collateral attack on his conviction through state or federal habeas corpus procedings.

And the right to counsel at trial and on first appeal?

Every state has its own system of providing counsel for the poor.  In some states, it's not one system but many.* In every state it's a struggle. The problem, of course, is funding.  Poor folks don't have much of a lobby.  For obvious reasons, they don't make large campaign donations to governors and legislators.  The criminally accused and convicted don't have a particularly good lobby, either.  Nor do they generate a whole lot of sympathy.

I've talked about public defenders and public defense before.  Despite what some of their clients think, they're real lawyers.  They are, for the most part, among the most dedicated, competent, hard-working, committed lawyers you'll find anywhere.  They are also underpaid, underresourced, and overworked.

In too many places, they can do little more than process cases.
Here, I'm a lawyer, I can tell you that the prosecutor is offering this and even though I just met you ten minutes ago and know nothing about your case, you should take the deal.
In too many instances, no matter what they'd like, they haven't the time or the support to investigate, explore, work a case, try a case.  Because the budget.  And the staffing and the investigators and the overhead and 
I'm sorry.  There's just not enough money to put enough lawyers on the ground.  And really, that one part-time investigator for 30 lawyers and 1500 cases is all we can afford.
The situation for independent appointed counsel is often worse. Paid on an hourly basis, often at a rate lower than office overhead, she may well have reached the fee cap before the case even goes to trial.  Is there a disincentive to try the case? An incentive to urge the client to plead guilty to something regardless?  Does the work get shoved aside, to be done hurriedly because the stuff that actually pays the bills has to be done first - and more carefully, more diligently, more thoroughly? 

And if there's need for an investigator? An expert? Ask the judge, who's deeply concerned about the budget and really, what's the point?  The client's guilty anyway.  OK, maybe.  Get someone cheap and local.  No stars, nobody from out of town.
I'm not paying travel time.
Like the money comes out of the judge's own pocket.

There are, of course, plenty of lawyers who understand that once they agree to do the case, they don't get to take shortcuts.  They'll pay for the expert, for the investigator, out of their own pocket.  Because it's what they agreed to do when they agreed to take the case for too little money.

There are, of course, also the others.  The bottom feeders.  The incompetent.  The ones two weeks out of law school.  The ones who get appointments because they make campaign contributions to the judges or because they won't actually file motions or make the judge go to trial.

And don't even get me started talking about all the folks who need lawyers for their civil cases (some of which can get them locked up) but aren't entitled to them.

The truth may be "obvious."  But what to do?

It's "obvious" that the indigent accused is entitled to a guy with a law degree.  For a while.  But someone with the resources to do the job? With the incentives to do it right? With the means to do it right? With the competence? With sufficient sleep?

Clarence Gideon gave us one of the great landmark rulings in the 226 years of the United States Supreme Court.  Its promise is great.  The reality, far too often, falls woefully short. 
A judge once told me that law students would often ask him what area of law they should go into in order to defend the Constitution.  "Don't go to law school," he said he'd tell them.  "Go to DC and become a cop and roust Rhenquist [this was back when he was alive and Chief Justice] and Scalia for no reason."  He didn't add, but could have, "Make them use an overworked, underpaid, underresourced, public defender."

One more time, public defenders are, for the most part, among the most dedicated, competent, hard-working, committed lawyers you'll find anywhere.  They are also underpaid, underresourced, and overworked.  And court-appointed counsel are frequently men and women of competence and integrity who'll do whatever  they can for the client, regardless of the fact that they may have to fund the case themselves.

Nine men in Washington saw an "obvious truth."  It was a wonderful ruling.  But without the teeth needed to make it work as it should.

It did for Gideon though.  He got a new trial.  He had a lawyer this time.  The jury said Not Guilty.

* Ohio has a state-wide public defender office that does mostly (but not entirely) post-trial work.  Each of the 88 counties in the state has its own separate system for providing trial counsel.  Some rely entirely on appointments.  Some have public defender offices that do some percentage of some of the cases.  Some use contract attorneys. Some have various combinations and permutations.  Some even have branch offices of the state office.  Private counsel are paid on fee schedules set separately by each of the 88 counties.  The balkanization of indigent defense in Ohio is part of the reason I've said, on more than one occasion, that it's barely a state, it's more like a collection of fiefdoms.


  1. A very high praise goes out to the Ohio Public Defenders Office and all Public Defenders Offices statewide ... Thank you.

  2. I am always infinitely thankful that we have access to the sort of resources we have in San Francisco. Especially as a newly-minted lawyer, the ability to approach any random DUI with an attitude of hell-yes-we-can-take-it-to-trial and the assurance that we'd have the support of investigators and experts is incredibly empowering, both for the client and for the attorney.