The start of a sensational murder trial was almost lost in an avalanche of last week’s news from Memphis to Moscow. Alex Murdaugh, a prominent South Carolina lawyer, is standing trial for the murder of his wife and one of his sons.

Facing charges of stealing large sums from clients and under investigation in connection with another suspicious death, Murdaugh is alleged to have sought to make himself more sympathetic by eliciting pity after the two murders. He may have even tried to have himself killed or at least have it look that way.

There are no witnesses to the murders. The state has collected circumstantial evidence, and believes it has a strong case. Murdaugh has hired an experienced and respected lawyer to represent him. In a case lacking witness testimony, the outcome of the trial depends heavily on the ability of the state’s prosecutor and his defense lawyer to influence the jury.

The case highlights a key element of the criminal justice system. It helps to have money. Murdaugh has been able to hire a lawyer who could put on the best possible defense. He knows his way around the courts and is familiar with the ways of both the judge and the prosecutor. His experience and reputation should help Murdaugh.

If Murdaugh could not have afforded his high-priced counsel, South Carolina would have to provide him with a defense attorney. South Carolina has a public defender system and Murdaugh would have been represented by a professional defender, who is a state employee just like the prosecutor.

This system goes back to the Sixth Amendment of the Constitution, which says that all criminal defendants have the right to a lawyer. While that rule originally applied to the federal government, the Fourteenth Amendment imposed that same obligation on the states.

It was not until 1963 that the Supreme Court ruled this obligation applied to any criminal case from murder on down. Almost any police procedural television crime show includes an officer reciting the notice that resulted from that case: “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”

California lawyer Clara Shortridge Foltz, one of the first woman attorneys in the U.S., is both historic and unknown. In 1893, she delivered a landmark speech at the Chicago World’s Fair

calling for the creation of public defenders. She is considered the founder of the idea of professional defenders.

“Connected with the court is a public prosecutor, selected for his skill in securing convictions, strong of physique, alert of mind, learned in the law, experienced in practice …,” she said. “[B]efore him sits a plastic judge with large discretion….” Outspoken, she was.

She observed that defendants who plead poverty receive appointed counsel. However, “the rule is that court appointees are wholly unequal to the public officers with whom they are to cope,” she said. Her solution? “For every public prosecutor there should be a public defender chosen in the same way and paid out of the same fund.”

In the end, lawyer Foltz’s proposal has brought results. There are over 90 Public Defender offices for federal cases. By law, their lawyers are paid like those in the U.S. Attorneys’ offices. They have been rated as effective advocates.

States have public defender offices, sometimes administered through counties. Many supplement the state employees with contract attorneys who may handle certain types of cases. Panels of such contract counsel are established in advance, and they are often paid at comparable rates.

The state offices provide professional defense counsel that Foltz would have called “learned in the law, experienced in practice.” Contract counsel often must demonstrate their expertise. Together with the federal defenders, a national system for providing legal defense to the indigent has been developed since 1963.

Maine is the last state to provide professional public defenders to poor criminal defendants.

Though Maine’s finances could support public defenders, it has customarily relied on attorney case hires that fall below the state’s need. Governor Janet Mills has suggested using new law school graduates, not necessarily “experienced in practice” and lacking full staff support. Their part-time pay is likely to amount to less than the salaries of prosecutors.

Though Maine has recently approved five public defenders for rural areas, it continues to rely heavily on outside lawyers. In other states, outside lawyers supplement experienced, full-time professional staffs.

The Maine branch of the American Civil Liberties Union has brought a class action suit against the state, attempting to get a true public defender system off the ground. When this happens, as seems inevitable, the constitutional promise in the Bill of Rights will have been kept all across the country. Disclosure: I am a financial contributor to the ACLU case.

Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman. 

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