Archive for June 30, 2008

As public defender offices across the country are cutting budgets and closing up shop, and at the same time that SCOTUS gave fresh guidance on when the right to counsel attaches, it is important to reflect on the place of the public defender in our criminal justice system today.

With almost 13% of all households in the US falling below the federal poverty line (and 20% earning less than $20K a year), the number of indigent defendants is astronomical. Connecticut public defenders alone were appointed to over 80,000 cases in ’06-’07 (and that’s not including appeals and habeas corpus cases). Our public defenders represented over 75% of the caseload of Part A courts and roughly half the caseload of Part B courts.

That’s a lot of work and a lot of individuals who’d go without counsel if the Supreme Court were to roll back Gideon, as some have suggested in the last week.

The anti-appointed counsel position is one that I’ve never understood. And I don’t say this as a public defender, but rather as a lawyer and a citizen.  There is no logical reason for not having appointed counsel in a criminal justice system where almost everything is a crime with harsh penalties (or any other adversarial system, for that matter).

What would these anti-Gideonites have happen? That only the rich can afford counsel and the rest get railroaded? That the State have to put on its case with minimal – and often counterproductive – defense? That individuals who have no knowledge of laws, and often little education, have the responsibility of wading through intricate legislation in order to defend themselves? Imagine telling poor people that they have to diagnose themselves and perform surgery on themselves.

The result of any such ruling would be devastating. As if there aren’t enough cries already that the system is heavily prejudiced against minorities and the poor. As if there isn’t a perception already that you can buy justice. Imagine the resultant impact on the moral and social fabric of the country if the Court were to all of a sudden decide that the poor man (read: in most cases the minority) would now have to match up to the awesome power of the State all by himself. Nothing short of revolt, I tell you.

And such anti-appointed counsel positions have no basis in reality or the text of the Constitution. SCOTUS had already construed the Sixth Amendment to mean that the Federal government must provide counsel to indigent defendants, in Johnson v. Zerbst. The essence of this right is well-summed up by Justice Sutherland in Powell v. Alabama (which preceeded Betts):

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

Justice Clark, concurring in Gideon:

That the Sixth Amendment requires appointment of counsel in “all criminal prosecutions” is clear, both from the language of the Amendment and from this Court’s interpretation. See Johnson v. Zerbst, 304 U.S. 458 (1938). It is equally clear from the above cases, all decided after Betts v. Brady, 316 U.S. 455 (1942), that the Fourteenth Amendment requires such appointment in all prosecutions for capital crimes. The Court’s decision today, then, does no more than erase a distinction which has no basis in logic and an increasingly eroded basis in authority.

To end this post, I’ve uploaded the audio of the oral argument in Gideon v. Wainwright, which you can listen to after the fold below. Be warned, though, that oral argument lasted for over 3 hours!