WASHINGTON – It is not the happiest of birthdays for the landmark Supreme Court decision that, a half-century ago, guaranteed a lawyer for criminal defendants who are too poor to afford one.
A unanimous high court issued its decision in Gideon v. Wainwright on March 18, 1963, declaring that states have an obligation to provide defendants with “the guiding hand of counsel” to ensure a fair trial for the accused.
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But in many states today, taxpayer-funded public defenders face crushing caseloads, the quality of legal representation varies from county to county, and people stand before judges having seen a lawyer only briefly, if at all.
“There is no denying that much, much needs to be done,” Attorney General Eric Holder said Friday at a Justice Department event to commemorate the anniversary.
‘WAS THIS LAWYER CRAZY?’
A half century after Gideon, there are parts of the country where “it is better to be rich and guilty than poor and innocent,” said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee and a former prosecutor. Leahy said court-appointed lawyers often are underpaid and can be “inexperienced, inept, uninterested or worse.”
People who work in the criminal justice system have become numb to the problems, creating a culture of low expectations, said Jonathan Rapping, a veteran public defender who has worked in Washington, D.C., Atlanta and New Orleans.
Rapping remembers walking into a courtroom in New Orleans for the first time for a client’s initial appearance before a judge. Several defendants in jumpsuits were shackled together in one part of the courtroom. The judge moved briskly through charges against each of the men, with a lawyer speaking up for each one.
Then he called a name, and there was no lawyer present. The defendant piped up. “The guy said he hadn’t seen a lawyer since he was locked up 70 days ago. And no one in the courtroom was shocked. No one was surprised,” Rapping said.
Complaints about the quality of representation also are difficult to sustain, under a high bar that the Supreme Court set in a 1984 case. The relatively few cases in which a lawyer’s work is deemed so bad that it violates his client’s rights typically have an outlandish set of facts that would be funny if the consequences weren’t tragic.
“You see too many instances of ineffective assistance of counsel, too many instances where you think, ‘Was this lawyer crazy?’ ” Supreme Court Justice Elena Kagan said at the Justice Department event.
She recounted a case from last term in which a lawyer advised his client to reject a plea deal with a seven-year prison term and go to trial. The lawyer said prosecutors could not prove a charge of intent to murder because the victim had been shot below the waist. The defendant was convicted and sentenced to 30 years in prison.
Kagan was part of the 5-4 decision in the defendant’s favor.
In some places, lawyers are overwhelmed by their case-loads.
CASELOADS ‘ARE WORSE THAN EVER’
• A public defender in Indianapolis lasted less than a year in his job after being asked to represent more than 300 defendants at a time, said Norman Lefstein, former dean of the Indiana University Robert H. McKinney School of Law.
“A lawyer with an S on his chest for Superman couldn’t represent these people. He simply couldn’t do it. There are only so many hours in a day. But it’s not just caseload. It’s the other support services that go along with it,” including investigators, said Lefstein, who has studied problems in indigent defense for decades.
• In Luzerne County, in northeastern Pennsylvania, the chief public defender told the local court he would stop accepting certain cases because his office had too many clients, too few lawyers and not enough money. A judge’s ruling in June acknowledged the lack of money and manpower, but forbade the defender’s office to turn away cases. The judge’s ruling was encouraging, Lefstein said, but on his last visit to Wilkes-Barre in January, he found “the case-loads are worse than ever.”
Eighteen states, including California, Illinois, New York and Pennsylvania, leave the funding of indigent defense entirely to their counties, said Rhoda Billings, a former chief justice of the North Carolina Supreme Court who’s looked at the issue for the American Bar Association. Those states “have a significant disparity in the appointment of counsel” from one county to the next, she said.
AN UNFUNDED MANDATE
Public defenders in those counties often report to elected officials or their appointees, not independent boards that are insulated from politics. But even programs run at the statewide level are not free of political influence, Billings said, citing the case of a New Mexico public defender fired by the governor.
The lack of independence raises questions about whether decisions are being made in the best interests of clients, Rapping said.
The avalanche of cases and politics come together to present a formidable obstacle to alleviating some of the problems that afflict the system in some states. Politicians do not like asking voters for money for indigent defense.
“Arguing for more money to defend criminals is not the easiest way to win a close election,” said former Vice President Walter Mondale.
Heralded for its powerful statement about the right to a lawyer, the Gideon decision also left states on their own to pay for the provision of counsel, Lefstein said.
“It came as an unfunded mandate to 50 state governments and that problem endures,” he said, noting that in England, Parliament provides money to local governments to pay for legal representation of the poor.
Since becoming attorney general more than four years ago, Holder has shown a commitment to the issue.
He established an “Access to Justice” program and made Harvard Law School professor Laurence Tribe its initial director. The department also has sent a few million dollars to defense programs across the country. He announced nearly $2 million in new grants Friday.
The right announced by the Supreme Court 50 years ago only covers criminal cases. It has never been extended to civil matters, although as Mondale pointed out, they can lead to people losing their homes, their families, being confined in a mental institution or being thrown out of the country.
To people in those situations, he said, the distinction between criminal and civil law “doesn’t make much of a difference.”
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