Gideon stirs

On Thursday, the New York Court of Appeals issued a 4-3 decision permitting, but narrowing, the NYCLU’s lawsuit [prior post] against 5 counties to proceed. The crux of the claim is not a violation of Strickland , but rather a violation of Gideon itself.

This complaint contains numerous plain allegations that in specific cases counsel simply was not provided at critical stages of the proceedings. The  complaint additionally contains allegations sufficient to justify the inference that these deprivations may be illustrative of significantly more  widespread practices; of particular note in this connection are the allegations that in numerous cases representational denials are premised on  subjective and highly variable notions of indigency, raising possible due process and equal protection concerns. These allegations state a claim, not  for ineffective assistance under Strickland, but for basic denial of the right to counsel under Gideon.

The argument was in two parts: 1) That the public defender system is so under funded that lawyers are provided in name only and that results in a de facto denial of counsel (the Cronic claim); and 2) That the public defender system is so underfunded that there is no way these lawyers provide effective representation of counsel (the Strickland argument).

The court permits the first to proceed while rejecting the second. The Court seems bent on ensuring that these particular plaintiffs don’t backdoor in their ineffective assistance claims, because that is necessarily a post-conviction, fact specific inquiry, whereas the institutional denial of counsel touches on the basic obligation of a State to provide counsel at all.

Collateral preconviction claims seeking prospective relief for absolute, core denials of the right to the assistance of counsel cannot be understood  to be incompatible with Strickland. These are not the sort of contextually sensitive  claims that are typically involved when ineffectiveness is alleged. The basic, unadorned question presented by such claims where as here the defendant-claimants are poor, is whether the State has met its  obligation to provide counsel, not whether under all the circumstances counsel’s performance was inadequate or prejudicial.

It is that last part that is truly noteworthy about this decision: that a court has finally acknowledged that Gideon‘s promise may be going unfulfilled and that states cannot prop up a warm body next to the defendant and be allowed to pass the blush test. Gideon did not make a hollow promise. Time to hold states to their obligations.